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King v. U.S. Department of Justice

United States District Court, District of Columbia

March 28, 2017



          RANDOLPH D. MOSS United States District Judge

         Plaintiff 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.

         I. BACKGROUND

         King 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.

         In 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.

         The Court, accordingly, is now prepared to decide the Department's long-pending motion.

         II. ANALYSIS

         FOIA 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)).

         As the 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).

         Here, 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.

         A.OSG and FBI

         King's claims with respect to the OSG and the FBI are easily resolved.

         The OSG 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.

         King's 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. ΒΆΒΆ 6, 8, 11). King was thus obliged to appeal the FBI's determination to the Office ...

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