United States District Court, District of Columbia
Bryan C. Behrens, Plaintiff,
United States Attorney, District of Nebraska, Defendant.
P. MEHTA, UNITED STATES DISTRICT JUDGE
matter is before the court on Defendant United States
Attorney's Office for the District of Nebraska's
Second Supplemental Motion for Summary Judgment. Def.'s
Second Supp. Mot. for Summ. J., ECF No. 36. For the reasons
discussed below, the Motion is granted.
Bryan C. Behrens, proceeding pro se, alleges that,
“[o]n July 28, 2008[, ] in the [United States District
Court for the] District of Nebraska, Omaha, Chief Judge
Laurie Smith Camp issued a judgment as to . . . Bryan S.
Behrens in case 8:08CV13, ” which, among other things,
“ordered that no judicial proceedings of any kind[, ]
civil or criminal, may be commenced against Bryan S. Behrens
without leave first being granted by the Court.”
Compl., ECF No. 1 [hereinafter Compl.], at 3. Plaintiff asserts
that Judge Smith Camp's order required the United States
Attorney's Office for the District of Nebraska
(“USAO-Nebraska”) to obtain leave of court before
it commenced criminal proceedings against him, see
Id. at 3-4, and that without leave of court,
“there [sh]ould [have been] no indictment or judgment
entered against [him], ” see id. at 4.
Nevertheless, Plaintiff states, the USAO-Nebraska convened a
grand jury, which returned an indictment on April 22, 2009.
Id. at 3. Plaintiff ultimately pleaded guilty to one
count of securities fraud. See Compl., Appendix, ECF
No. 1-1 [hereinafter Compl. App'x], at 44.
brought this action under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. His claim arises
fro m a request for information submitted to the Executive
Office for United States Attorneys (“EOUSA”) in
August 2013. In relevant part, the request read:
I need a copy of the Court order that allowed the Nebraska
U.S. Attorney[']s Office to conduct criminal proceedings
and issue the indictment. If the Nebraska U.S.
Attorney[']s office did not receive a Court order from
Judge Smith Camp, granting leave to proceed as required,
Behrens is asking for an admission that the U.S.
Attorney[']s office in Nebraska violated the orders
issued by Judge Smith Camp when they issued the indictment
and commenced legal proceedings against me.
Compl. App'x at 3. Attached to the request were copies of
orders issued by Judge Smith Camp on July 28, 2008, and March
24, 2009, in civil matter 8:08CV13. See Id. at 5-14.
Plaintiff repeated his request in early November 2013,
see Id. at 15-18, and, in September 2014, the EOUSA
responded that the USAO-Nebraska had located no responsive
records, Errata, ECF No. 20, Ex. C, ECF No. 20-3.
first motion for summary judgment, Defendant asserted that
its search had not yielded any responsive records.
See Def.'s Mot. for Summ. J., ECF No. 14, Mem.
in Supp., ECF No. 14-1, at 6-7. The court denied that motion
because Defendant had failed to submit a supporting affidavit
or declaration. Mem. Op. & Order, ECF No. 21 [hereinafter
Mem. Op. II], at 3-4. Defendant's second motion for
summary judgment was no more successful. Again, Defendant
argued that it had conducted a search for responsive records
and located none. See Def.'s Supp. Mot. for
Summ. J., ECF No. 22 [hereinafter Def.'s Supp. Mot.]. The
court deemed Defendant's search inadequate because
Defendant had limited its search to records pertaining only
to Plaintiff's civil case and had not searched his
criminal case file. Mem. Op. & Order, ECF No. 35, at 6-8.
court now turns to Defendant's third motion for summary
judgment. See Def.'s Second Supp. Mot. for Summ.
J, ECF No. 36 [hereinafter Def.'s Second Supp. Mot.].
cases typically and appropriately are decided on motions for
summary judgment.” Defenders of Wildlife v. U.S.
Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). The
court grants summary judgment to an agency as the movant if
the agency shows that there is no genuine dispute as to any
material fact and the agency is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(a).
“When, as here, an agency's search is questioned,
the agency is entitled to summary judgment upon a showing,
through declarations that explain in reasonable detail and in
a nonconclusory fashion the scope and method of the search,
that it conducted a search likely to locate all responsive
records.” Brestle v. Lappin, 950 F.Supp.2d
174, 179 (D.D.C. 2013) (citing Perry v. Block, 684
F.2d 121, 126 (D.C. Cir. 1982) (per curiam)).
EOUSA's Searches for Responsive Records
agency “fulfills its obligations under FOIA if it can
demonstrate beyond material doubt that its search was
reasonably calculated to uncover all relevant
documents.” Ancient Coin Collectors Guild v. U.S.
Dep't of State, 641 F.3d 504, 514 (D.C. Cir. 2011)
(internal quotation marks omitted). To this end, it may
submit affidavits to explain the method and scope of its
search. See Perry, 684 F.2d at 126. “[A]
search need not be perfect, only adequate, and adequacy is