United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
BERMAN JACKSON, United States District Judge
a federal prisoner, brought this action against the United
States Department of Justice under the Freedom of Information
Act (“FOIA”), see 5 U.S.C. § 552,
in an effort to obtain records allegedly maintained by the
Executive Office for United States Attorneys
(“EOUSA”). The defendant has moved for summary
submitted his first request to the United States
Attorney's Office for the District of Colorado on
December 28, 2015. See Compl. ¶¶ 1, 7;
Mem. in Support of Def.'s Mot. for Summ. J.
(“Def.'s Mem.”), Luczynski Decl. ¶ 4.
Among other information, plaintiff sought “[a] copy of
all bonds used in bonding [his criminal case], ”
“[a] copy of all bond applications and preliminary
documents used for preparing and acquiring bonds….,
” and “[a] copy of the prosecutor's bond
which allows him to act in the public and without which he is
an imposter.” Compl., Ex. at 6-7. Plaintiff also
asked the agency to “verify … if this United
States District Court is a Register Corporation as an Article
III Constitutional Court: Ordained by Congress.”
Id., Ex. at 7.
to the declaration submitted in support of the
government's motion for summary judgment, the EOUSA
received this request on February 4, 2016 and assigned it a
tracking number, FOIA-2016-01208. Luczynski Decl.
¶¶ 4-5; see Errata, Exs. A-B. The agency
further has averred that “a search for records located
in the United States Attorney's Office for the District
of Colorado has revealed no responsive records[.]”
Luczynski Decl. ¶ 6; see Errata, Ex. C.
second request to the United States Attorney's Office for
the District of Colorado, sent on February 26, 2016, included
“several pages containing a list of the information
[he] was seeking.” Luczynski Decl. ¶ 7;
see Compl., Ex.at 9-15. (“I am requesting a
copy of the dates and hourly times of any and all court
hearing in this case…;” “… a copy
of any and all documents or paper work that was produced and
or made by the state court in this case …;”
“… a copy of any and all paper work of documents
that the state prosecutor or D.A. produced or made up in this
state case …;” “… a copy of any and
all forensic evidence …;” etc.). The EOUSA
construed this second request as one “for all
information regarding [plaintiff] and his case numbers
04-cr-00282 and 04F22213, ” Luczynski Decl. ¶ 7,
and assigned it a tracking number, FOIA-2016-02050,
see Errata, Ex. E.
letter dated June 13, 2016, the EOUSA notified plaintiff that
the FOIA Contact at the United States Attorney's Office
for the District of Colorado had located two boxes of
potentially responsive records, and estimated that each box
contained between 2, 000 and 4, 000 pages of records.
Luczynski Decl. ¶ 9; see Errata, Ex. F. The
EOUSA advised plaintiff that the estimated cost of processing
and duplicating responsive records (not including 100 pages
of records provided at no charge) was $195. Luczynski Decl.
¶ 9. Plaintiff was instructed:
In accordance with Federal Regulation 28 CFR 16.11(e), when a
requester has been notified that estimated fees amount to
more than $25.00, the request shall not be considered
received and further work shall not be completed until the
requester agrees to pay the anticipated fees. If you wish to
reduce the amount of fees, you may reformulate your request.
Records identified for release after processing will not be
released until payment has been received.
In order for your request to be processed, we must hear from
you within 30 days of the date of this letter or we will
close your request.
Errata, Ex. F at 1. EOUSA received no further communication
from plaintiff and closed the request. Luczynski Decl. ¶
filed this action on July 28, 2016. Leaving aside allegations of
conspiracy and assertions of constitutional violations during
the course of the criminal proceedings, the complaint
pertained to plaintiff's two FOIA requests to the United
States Attorney's Office for the District of Colorado,
copies of which were attached to the pleading. See
Compl. ¶¶ 7-9; see generally id., Ex. at
August 22, 2017, defendant moved for summary judgment,
arguing that the EOUSA conducted reasonable searches for
records responsive to plaintiff's FOIA requests. See
generally Def.'s Mem. at 3-5. It made no legal
argument with respect to the closure of FOIA-2016-02050 after
the EOUSA received no response from plaintiff regarding
estimated search and copy fees.
August 24, 2017, the Court issued an Order advising plaintiff
of his obligations under the Federal Rules of Civil Procedure
and the local civil rules of this Court. See Neal v.
Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992); Fox v.
Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988).
Specifically, the Court notified plaintiff that, if he failed
to file an opposition or other response to defendant's
motion by October 2, 2017, the Court would treat as
undisputed Defendant's Statement of Material Facts As To
Which There Is No Dispute, ECF No. 18-2. Plaintiff has
communicated with the Court twice by letter, see ECF
Nos. 20 and 21, yet neither letter responds to
defendant's legal arguments.
juncture, Local Civil Rule 7(b) would permit the Court to
“treat . . . as conceded” a motion not met with a
timely opposing memorandum of points and authorities. The
United States Court of Appeals for the District of Columbia
Circuit has raised concerns, however, about the use of Local
Civil Rule 7(b) to grant an unopposed motion for summary
judgment. See generally Winston & Strawn, LLP v.
McLean, 843 F.3d 503 (D.C. Cir. 2016). Notwithstanding
the rule's value as an important “docket-management
tool that facilitates efficient and effective resolution of
motions, ” Cohen v. Bd. of Trustees of the Univ. of
the District of Columbia, 819 F.3d 476, 48 (D.C. Cir.
2016) (citations omitted), Local Civil Rule 7(b)
“cannot be squared with Federal Rule of Civil Procedure
56, ” Winston & Strawn, 843 F.3d at 506.
“The burden is always on [the defendant] to demonstrate
why summary judgment is warranted.” Id. at
Court “must always determine for itself whether the
record and any undisputed material facts justify granting
summary judgment.” Grimes v. District of
Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015) (citation
omitted) (Griffith, ...