United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS United States District Judge
Richard Alan King, proceeding pro se, brings this
action under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, against the U.S.
Department of Justice, seeking disclosure of records from
four Department of Justice components-the Drug Enforcement
Agency (“DEA”); the Federal Bureau of
Investigation (“FBI”); the Executive Office for
United States Attorneys (“EOUSA”); and the Office
of the Solicitor General (“OSG”). Dkt. 1 at 2.
The Department released some records, withheld others, and
moved to dismiss and/or for summary judgment in March 2016.
Dkt. 26. The Court advised King of the need to respond to the
Department's motion, Dkt. 27, and granted King multiple
extensions of time, eventually providing King with over 300
days to respond to the Department's motion. King,
however, has failed to respond, and his (extended) time to do
so expired over two months ago. In light of the D.C.
Circuit's decision in Winston & Strawn, LLP v.
McLean, 843 F.3d 503, 508 (D.C. Cir. 2016), the Court
may, accordingly, treat the Department's factual proffers
as conceded, but it must address the Department's legal
arguments on their merits. Fed.R.Civ.P. 56(e)(2). Having
carefully considered those legal arguments, the Court will
grant in part and deny in part the Department's motion.
brought this FOIA action in September 2015, Dkt. 1, and on
March 3, 2016, the Department of Justice moved to dismiss
and/or for summary judgment, Dkt. 26. The next day, the Court
entered an order advising King of the need to respond to the
Department's motion and explaining, among other things,
that the Court would “accept as true any factual
assertions supported by” declarations or other evidence
offered by the Department that King did not affirmatively
controvert. Dkt. 27 at 2. In that same order, moreover, the
Court sua sponte extended King's time to respond
to the Department's motion until April 15, 2016.
Id. at 3. Since that time, the Court has granted
King four additional extensions of time, giving him a total
of 326 days-from March 3, 2016, until January 23, 2017-to
respond to the Department's motion. See
generally Dkt. 46. Finally, on January 24, 2017, King
filed his fifth motion for an extension, this time seeking to
“toll” the time to respond “until further
notice.” Dkt. 41. In support of that request, King
explained that the facility in which he is incarcerated is
frequently and without warning placed on lockdown for
indefinite periods of time, thus preventing him and other
inmates form making use of the prison library. Id.
at 2, 3.
light of King's repeated requests for additional time and
his request to “toll” the time for his response
indefinitely, the Court ordered the Department to indicate
how many days King had been on lockdown in the prior year.
See Minute Order, Jan. 26, 2017. The Department
responded with a declaration revealing that King had over 280
days when he was not on lockdown between the time the
Department filed its motion on March 3, 2016, and the end of
King's last extension on January 23, 2017. See
Dkt. 42-1 at 1-2. As the Court explained, “[e]ven
accepting that the [Department's] tally did not include
occasional lockdowns ‘for short periods of time,
typically an hour up to a few hours, ' . . . King [has]
had more than ample time to respond, ” and the Court,
accordingly, denied King's request to “toll”
his time to respond. Dkt. 46 at 3-4. In the same order, the
Court also advised King that it intended “promptly to
resolve” the Department's pending motion and that,
when it did so, it would rely on “whatever papers are
then before the Court.” Id. at 4. An
additional three weeks have now passed, and King still has
not responded to the Department's motion.
Court, accordingly, is now prepared to decide the
Department's long-pending motion.
cases are typically resolved on motions for summary judgment
under Federal Rule of Civil Procedure 56. See, e.g.,
Shapiro v. U.S. Dep't of Justice, 153 F.Supp.3d
253, 268 (D.D.C. 2016). To prevail on a summary judgment
motion, the moving party must “show that there is no
genuine dispute as to any material fact and [that it] is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). In a FOIA action, the agency may meet its burden by
submitting “relatively detailed and
non-conclusory” affidavits or declarations,
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991) (quotation marks and citation omitted), and
an index of the information withheld, Vaughn v.
Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973). An agency
“is entitled to summary judgment if no material facts
are in dispute and if it demonstrates ‘that each
document that falls within the class requested either has
been produced . . . or is wholly exempt from [FOIAss]
inspection requirements.'” Students Against
Genocide v. U.S. Dep't of State, 257 F.3d 828, 833
(D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d
339, 352 (D.C. Cir. 1978)).
Court of Appeals explained in Winston & Strawn,
843 F.3d at 505, however, “a motion for summary
judgment cannot be ‘conceded' for want of an
opposition.” Rather, the burden remains on “the
movant to demonstrate why summary judgment is warranted,
” and the district court “must . . . determine
for itself whether the record and any undisputed material
facts justify granting summary judgment.” Id.
(citation omitted). If the nonmovant “fails to properly
address [the other] party's assertion of fact as required
by” Federal Rule of Civil Procedure 56(c), the district
court may provide that party with “an opportunity to
properly support or address th[at] fact, ” Fed.R.Civ.P.
56(e), and, indeed, providing such an opportunity is the
“preferred first step.” Winston &
Strawn, 843 F.3d at 507 (citation omitted). But, if the
nonmovant fails to respond to a movant's factual
submission-and fails to take advantage of opportunities to
rectify that failure-the district court may “consider
the fact undisputed for purposes of the motion.”
Id.; see also Fed. R. Civ. P. 56(e).
the Court advised King of the perils of not responding to the
Department's motion and has afforded him every reasonable
opportunity to file a response. In August 2016, moreover, the
Court cautioned King that “[n]o further extensions of
time [would] be granted absent a showing of extraordinary
circumstances, ” Minute Order, Aug. 24, 2016, and, when
the Court granted yet another extension on November 9, 2016,
it warned, more categorically, that “[n]o further
extensions will be granted, ” Minute Order, Nov. 9,
2016. And, now, another two months have passed since January
23, 2017, when King's final extension expired. See
Id. Notwithstanding this more than ample time to
respond, King failed to do so, and the Court cannot discern
any basis to believe that further extensions of time are
likely to cure this omission. The Court will, accordingly,
accept the Department's factual assertions to the extent
they are supported by declarations or other competent
evidence. It must still, however, address the sufficiency of
the Department's legal arguments. The Court will address
those arguments as they apply to each of the four Department
of Justice components from which King seeks records.
claims with respect to the OSG and the FBI are easily
Executive Officer has submitted a declaration explaining that
the “OSG maintains all case documents/files physically
within the office and uses the OSG Automated Docket System to
identify which case documents/files may have responsive
records.” Dkt. 26-6 at 3 (Yancey Decl. ¶ 9).
Apparently, the OSG's involvement in King's case was
limited. King filed a petition for a writ of certiorari,
id. at 2 (Yancey Decl. ¶ 6), and the Solicitor
General filed a notice waiving his right to respond to the
petition, id. at 3 (Yancey Decl. ¶ 8).
According to the OSG Executive Officer, a “search of
the OSG Automated Docket System and Supreme Court case file .
. . confirmed that OSG has no documents beyond the certiorari
petition and waiver notice on file.” Id.
(Yancey Decl. ¶ 10). Because the OSG has conducted a
reasonable search, and because neither King's certiorari
petition nor the Solicitor General's notice waiving his
right to respond are responsive to King's FOIA request,
the Court concludes that the OSG has satisfied its FOIA
obligations. The Court will, accordingly, grant the
Department's motion for summary judgment as to the OSG.
claim with respect to the FBI fails as well, but for
different reasons. As the D.C. Circuit has explained, the
FOIA administrative scheme “requires each [FOIA]
requester to exhaust administrative remedies, ”
including the administrative appeals process, before bringing
suit. Hidalgo v. FBI, 344 F.3d 1256, 1259 (D.C. Cir.
2003) (citation omitted). “To trigger the exhaustion
requirement, ” however, the “agency must make and
communicate its ‘determination' whether to comply
with a FOIA request-and communicate ‘the reasons
therefor'-within 20 working days of receiving the
request, or within 30 working days in ‘unusual
circumstances.'” Citizens for Responsibility
and Ethics in Washington v. FEC, 711 F.3d 180, 182 (D.C.
Cir. 2013) (citation omitted). Here, it is undisputed that
the FBI responded to King's request within twenty working
days, and that it ultimately produced only six pages of
documents in whole or in part to King. Dkt. 26-4 at 3-5
(Hardy Decl. ¶¶ 6, 8, 11). King was thus obliged to
appeal the FBI's determination to the Office ...