United States District Court, District of Columbia
S. CHUTKAN United States District Judge.
Juan Carlos Ocasio brings this pro se Freedom of
Information Act (“FOIA”) lawsuit against the
Merit Systems Protection Board (“MSPB”) seeking
records in the agency's administrative case file for
Lugo v. Department of the Navy, MSPB Docket No.
SF-0752-00-0499-I-1. (Compl. ¶ 5). Before the court are
the following motions: (1) MSPB's Motion for Summary
Judgment (ECF No. 10); (2) Ocasio's Motion to Take
Judicial Notice (ECF No. 17); and (3) Ocasio's
Cross-Motions for Summary Judgment (ECF Nos. 19, 24). For the
reasons set forth below, the court will GRANT the MSPB's
motion for summary judgment, DENY Ocasio's motions for
summary judgment and DENY his Motion to Take Judicial Notice.
submitted a FOIA request in March or April of 2015 seeking
records regarding a MSPB administrative matter. (Defs. Br. p.
2 n.1; ECF 10-3, Larbi Decl. ¶ 2, Ex. 1). The MSPB is an
independent, quasi-judicial agency in the executive branch
that was established by the Civil Service Reform Act of 1978
(“CSRA”), Public Law No. 95-454, codified at 5
U.S.C. § 1101, et seq. (1996). A federal
employee who is removed from service or suffers certain other
adverse or disciplinary action may appeal to the MSPB. An
Administrative Law Judge (“ALJ”) from the MSPB
adjudicates the appeal and issues the initial decision. The
ALJ's decision becomes final if the employee does not
file a petition for review within thirty-five days after the
decision was issued. If the employee is dissatisfied with the
decision, she may file a petition for review with the
three-member MSPB. Once the board issues a decision, the
employee may appeal to a federal appellate or district court,
depending on the nature of his claims. See 5 U.S.C.
2015 FOIA request sought documents contained in the
“board file, ” but he failed to identify the name
or number of a MSPB case. (ECF No. 10-3, Larbi Decl. at Ex.
1). Instead, he informed the MSPB of his then pending FOIA
litigation in this District Court, 13-cv-921-TSC, a case that
had no apparent connection to the MSPB. (ECF No. 10-3, Larbi
Decl. at Ex. 1). Rather, the pending litigation,
13-cv-921-TSC, involved a request for documents relating to a
third-party who had allegedly impersonated a federal officer
and violated the Stolen Valor Act by falsely claiming to have
received military honors. See Ocasio v. U.S. Dep't of
Justice, No. 13-cv-0921 (TSC), 2016 WL 7017233, at *1
(D.D.C. Dec. 1, 2016). Attached to his FOIA request, however,
appeared to be a list of the documents he sought from the
MSPB, but the list contained generic descriptions such as
“Appellants [sic] request for board subpoenas, ”
“Agency's motion for subpoena, ” and
“MSPB Hearing tapes.” (ECF No. 10-3, Larbi Decl.
at Ex. 1). In addition to the list, it appears that Ocasio
attached some documents to the request and, from those
documents, the MSPB was able to determine that he sought
records from Lugo v. Department of the Navy, MSPB
Docket No. SF-0752-00-0499-I-1, a case in which Ocasio had
registered as a non-attorney appellant representative.
(See id., Larbi Decl. ¶ 6).
the MSPB was in the process of obtaining a release from Lugo,
Ocasio filed this lawsuit. (Id. ¶¶ 7-8).
The MSPB subsequently released the requested records,
including hearing tapes. (Id. ¶ 9).
responded to the release of records by contacting defense
counsel via email and explaining that he had not received
copies of the notes the ALJ had taken during the
administrative hearing. (ECF No. 10-5. Ellison Decl., Ex. A).
The Agency subsequently filed the instant summary judgment
motion, in which it argues that it: (1) conducted a
reasonable and adequate search for the requested records; and
(2) subsequently produced all responsive records. The MSPB
also notes that the ALJ had not been required to take or keep
notes. More importantly, the MSPB was unable to produce the
ALJ's notes because they had been destroyed: the ALJ
issued his opinion in Lugo on February 6, 2001, more
than fourteen years before Ocasio submitted his FOIA request.
(Defs. Br. pp. 2-3; see Compl. ¶ 5).
MSPB submitted with its brief a declaration from Anthony
Ellison, the ALJ who had presided over the administrative
hearing. (ECF No. 10-4, Ellison Decl.). Judge Ellison
declared that his custom was to retain his notes for two
years and then destroy them. (ECF No. 10-4, Ellison Decl.
¶¶ 5- 6). The administrative hearing at issue here
was held November 2-3, 2000. (Id. ¶ 6). Because
the petitioner did not file a petition for review, Judge
Ellison's decision became final on February 6, 2001.
(Id. ¶¶ 3, 6). He destroyed the case notes
two years later. (Id. ¶ 6).
responded by filing a cross-motion for summary judgment,
arguing that the MSPB had failed to release some of the audio
recordings and part of the case record. (ECF No. 19, Pls. Br.
pp. 2-4). Ocasio also “vigorously object[ed] to the
assertion that the hand written notes were (a) destroyed and
(b) it was the ordinary customary habit of this Judge to
maintain said record for an arbitrary period of time and then
discard them. Plaintiff asserts the suspicion of the
untruthfulness of this assertion . . . .” (Id.
p. 5). Citing to a document he obtained from the MSPB during
discovery in a California federal case, Ocasio appears to
contend that the ALJ's notes still existed because they
were mentioned in the present tense in the discovery
documents. (Id. p. 6). He also argues that the MSPB
has not presented any legal justification supporting the
destruction of the documents and hypothesizes that the ALJ
engaged in some improper conduct. (Id.) Finally,
Ocasio argues that the absence of the notes meant he was
entitled to an “adverse inference, ” but he
provides no evidentiary or legal authority to support any of
his allegations or arguments. (Id. p. 7).
MSPB admits it inadvertently failed to release all of the
requested documents, and subsequently sent Ocasio the
additional parts of the MSPB case record and the additional
hearing tapes he sought. (ECF No. 22-1, Everling Decl.
¶¶ 3-5). The MSPB argues that, given its release of
the remaining parts of the file, it has fully complied with
its FOIA obligations. It points out that it had not released
the ALJ's notes because: (1) Plaintiff did not ask for
the notes in his FOIA request; (2) the notes had been
destroyed; and (3) even if they had not been destroyed, the
notes were not a part of the official MSPB case file. (ECF
No. 22, Defs. Reply p. 2).
then filed another opposition and cross-motion for summary
judgment in which he repeats some of his prior arguments, but
also raises new arguments. (ECF No. 23). Specifically, he
contends that the ALJ should have known that his notes might
become relevant and should have retained them. Ocasio also
asserts that the ALJ engaged in misconduct, alleging that
Judge Ellison “manifested a form of prejudice and
exhibited an overt bias” against the claimant while
handling the initial hearing and somehow
“sabotaged” the appeal. (Id. pp. 11,
13). Ocasio provides only vague accusations to support his
• “Judge Elison's [sic] conduct towards
Appellant Lugo was inexplicable, as we totally and completely
dismantled the agencies' witnesses. Judge Elison began to
write furiously. When we cross examined Mr. Sham . . . Judge
Ellison's face was turning very red . . . [Mr. Sham]
could not keep his lies straight.” (Id. p. 8).
• “The entire hearing was a debacle on the part of
the agency as witness after witness. [sic] Contradicted
themselves on cross and re-cross, contradicted their
narrative and contradicted their ‘testimony before the
board.' At all relevant times during the course of the
hearing Judge Elison was taking notes. Each time one of the
agency witnesses were [sic] caught in contradiction, Judge
Elison shook his head and made even more notes.”
(Id. p. 9).
support of his allegations of bias, Ocasio merely cites to
several provisions of what appears to be a handbook regarding
MSPB judicial ethics, but he does not set forth the ethical
violations he contends occurred. It appears from the record
that Ocasio unsuccessfully sought to have Judge Ellison