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Bell v. Department of Defense

United States District Court, District of Columbia

September 27, 2018

YOLANDA BELL, Plaintiff,
v.
DEPARTMENT OF DEFENSE, Defendant.

          MEMORANDUM OPINION

          RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff, Yolanda Bell (“Plaintiff”), proceeding pro se, has filed suit against the Department of Defense (“Defendant, ” “DOD, ” and “DLA”). See Petition[1] (“Compl.”) [ECF No. 6]. Plaintiff alleges violations of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and Privacy Act (“Privacy Act” & “PA”), 5 U.S.C. § 552a.

         Currently before the Court is Defendant's Motion Summary Judgment (“Def.'s Mot.”), Memorandum (“Def.'s Mem.”), and Exhibits (“Def's Exs.”) in support [collectively, ECF No. 16]. Defendant argues that it conducted an adequate search for responsive documents, properly withheld responsive information under applicable exemptions, and satisfied its segregation obligations under FOIA. Def.'s Mem. at 20-33. Plaintiff opposes Defendant's Motion for Summary Judgment. See Plaintiff's Memorandum in Opposition (“Pl.'s Opp.”) [ECF No. 23]; see also Plaintiff's Exhibits in Opposition (“Pl.'s Exs.”) [ECF No. 25]. In response, Defendant filed a Reply to Plaintiff's Memorandum in Opposition (“Def.'s Reply”) [ECF No. 32].

         Plaintiff has also filed a self-described “Ex Parte” Letter (“Ex P. Let.”) [ECF No. 28] requesting certain accommodations. Lastly, Plaintiff has filed a Motion for Leave to Amend the Complaint and supporting Exhibits (“Mot. to Amend” & “Pl.'s MTA Exs.”) [collectively, ECF No. 30], which Defendant has opposed, see Defendant's Opposition to Motion for Leave to Amend (“Def.'s Opp. to MTA”) [ECF No. 34]. For the reasons stated herein, Defendant's Motion for Summary Judgment is granted and Plaintiff's Motion and Letter, and requests for relief therein, are denied.

         II. FACTUAL BACKGROUND

         Plaintiff was employed with the DOD's Defense Logistics Agency (“DLA”) as a program analyst from July 2011 through her termination on February 6, 2015. Compl. at 2 ¶ 1. Plaintiff has filed various complaints before the Equal Employment Opportunity Commission (“EEOC”), United States Merit Systems Protection Board (“MSPB”), and in various federal district courts. Id.; Pl.'s Opp. at 3. Among that litigation, Plaintiff filed Bell v. Dept. of Defense, No. 14-cv-470 (TSE) (IDD), [ECF No. 1], in the Eastern District of Virginia, on April 29, 2014, which is relevant to the facts herein. In the past five years Plaintiff has filed eleven cases in this Court.[2]Four of those matters are currently active. See n.1. From August 2014 through March 2015, Plaintiff submitted approximately nine FOIA/PA requests to Defendant, as explained in further detail below.

         FOIA/Privacy Act Request No. 14-HFP-00021

         On August 1, 2014, Plaintiff submitted FOIA/PA Request (“Request No. 14-HFP-00021”) to DLA seeking any and all documentation containing her name. Pl.'s Compl. Ex. 1b; Declaration of Lewis Oleinick, [3] attached as Defendant's Mem. Exhibit A (“Oleinick Decl.”) at 2 ¶ I 1; Oleinick Declaration Attachment (“Oleinick Ex.”) 1. Defendant then corresponded with Plaintiff, requesting that she narrow the scope of her request. Compl. at 2-3; Pl.'s Compl. Exs. 2-5; Oleinick Decl. at 3 ¶ I 1-2(d); Oleinick Exs. 2-6. On August 18, 2014, Plaintiff replied and narrowed her chosen search location(s) to twelve systems of records and provided additional required documentation. Id. Thereafter, DOD subject matter experts conducted electronic searches using Plaintiff's name, log-in identification, and specific search terms. Oleinick Decl. at 4 ¶¶ I 5(e)- 2(f); Oleinick Ex. 6(b). Defendant also conducted physical file searches. Id.

         On September 15, 2014, Defendant released four compact-discs, containing 416 pages of records, located from eight of twelve designated systems of records. These documents were dated between August 2013 and August 2014, consisting mostly of Plaintiff's personnel records. Compl. at 3 ¶ 7; Oleinick Decl. at 4 ¶ I 2(g); Oleinick Exs. 7-9. Plaintiff was also advised of her appeal rights. Oleinick Decl. at 4; Oleinick Ex. 7. Defendant indicates that Plaintiff did not pursue an appeal and Plaintiff states that she did, in fact, pursue an appeal. Id.; Pl.'s Opp. at 5. Plaintiff also indicates that she waged a complaint regarding the released date-range; Plaintiff states that she wanted documents from her entire time period of employment, rather than the select years provided. Pl.'s Opp. at 5.

         FOIA/Privacy Act Request Nos. 15-HFP-00001 & 00006 and Appeal Nos. 15-APP-00008 & 00014

         On September 23, 2014, Plaintiff submitted another FOIA/PA Request (“Request No. 15- HFP-00001”) from the same twelve systems of records, seeking “any and all documentation that contains [her] name…all emails that contain [her] name…[and] [her] supervisors in [her] supervisory chain.” Compl. at 4 ¶ 8; Oleinick Decl. at 5 ¶ II 1; Oleinick Ex. 10. Plaintiff requested documents originating between July 2011 and the date of the request. Id. Defendant searched its systems of records using variations of Plaintiff's name, appraisals, performance, timesheets, evaluations, etc., to search for hardcopies and through electronic databases. Oleinick Decl. at 6 ¶¶ II 2(b), 2(c); Oleinick Exs. 11(a), 11(b). The search rendered more than 3, 500 records. Oleinick Decl. at 7-8 ¶ II 2(c)-(g). Therefore, the parties agreed to interim disclosure. Id. Defendant issued an interim disclosure on or about December 4, 2014. Oleinick Decl. at 7-8 ¶ II 2(c)-(g); Oleinick Exs. 16, 17. Additionally, 46 pages of documents were released in full and 86 pages of emails were disclosed with redactions. Id. Information was withheld pursuant to Exemption 5 of FOIA, pursuant to the deliberative process and attorney-client privilege. Id.

         Plaintiff withdrew her acceptance of interim productions on December 10, 2014. Compl. at 6 ¶ 16. Shortly thereafter, for administrative convenience, Request No. 15-HFP-00001 was reassigned Request No. 15-HFP-00006 (“Request No. 15-HFP-00006”). Oleinick Decl. at 8 ¶ 2 (h). Defendant then indicated that it would provide its full production by April 17, 2015. Oleinick Decl. at 9 ¶ II 2 (m). On April 20, 2015, Defendant released compact-discs containing 7, 006 pages of records in full or in part. Oleinick Decl. at 11 ¶¶ II 2 (y)-2 (z); Oleinick Ex. 32. Plaintiff indicates that 5, 762 pages were withheld, 3, 591 were partially redacted, and 3, 559 were released in full. Compl. at 12 ¶ 34. Defendant withheld and redacted records under Exemption 5 of FOIA, pursuant to the deliberative process and attorney-client privilege, and personal privacy Exemption, (b)(6). Oleinick Decl. at 11 ¶¶ II 2(y)-2(z); Oleinick Ex. 32.

         In total, Defendant reports that it reviewed over 12, 000 pages of records as a result of this Request alone. Defendant's Statement of Material Fact (“Def.'s Stmt.”) at 4 ¶ 14; Oleinick Ex. 32 at 4. Defendant informed Plaintiff that she would receive 2.5 hours of search time, and the first 100 pages, free of charge. Id. Defendant further states that the “search was under 2 hours [and] the documents had been gathered in anticipation of litigation prior to her request.” Id.

         According to Defendant, Plaintiff filed an untimely appeal of Request No. 14-HFP-00021 (her first request) however, it was instead construed as an appeal (“Appeal Nos. 15-APP-00008 & 00014”) of the April 20, 2014 production letter pertaining to Request Nos. 15-HFP-00001 and 00006. Oleinick Decl. at 11 ¶ II 2 (dd); Oleinick Ex. 33 at 14-15 ¶¶ II 2 (ff)-2 (gg); Compl. at 141-42; Pl.'s Exhibit 40. Plaintiff disagrees that the appeal was untimely.[4] Pl.'s Opp. at 6. DLA's administrative appellate body affirmed the withholdings. Oleinick Decl. at 11 ¶ II 2 (dd), (ff)- (gg); Oleinick Ex. 33 at 14-15; Compl. at 141-42; Pl.'s Exhibit 40. However, Defendant made a subsequent release of an additional 996 pages of records. Oleinick Decl. at 11 ¶ II 2 (dd), (ff)- (gg); Oleinick Exs. at 36-7. These records consisted of: Plaintiff's emails with supervisors, supervisors' EEO declarations, and leave and reasonable accommodation records. Id. This supplemental disclosure then narrowed the withheld records to 4, 203 in full. Def.'s Mem. at 5 ¶ 2.

         FOIA/Privacy Act Request No. 15-HFP-00005 & Appeal No. 15-APP-00007

         On November 28, 2014, Plaintiff submitted a letter to DLA Human Resources (“HR”) in response to receiving correspondence from defendant regarding her proposed removal from service with DLA due to her “AWOL” status. Compl. at 4 ¶ 13. In her letter, Plaintiff requested records relating to 13 subject areas, with some overlap from her prior requests. Id. at 52-56; Pl.'s Compl. Ex. 12; Oleinick Decl. at 15-16 ¶ III 1; Oleinick Ex. 38. Plaintiff's letter indicated that the requests should be considered under PA/FOIA “only upon [the] refusal” of DLA HR to provide her with the requested records. Id. On December 1, 2014, DLA HR responded and provided Plaintiff with records from four of the 13 requested subject areas (4, 5, 9, and 10). Oleinick Decl. at 16 ¶¶ 3-4; Oleinick Ex. 39. Defendant also informed Plaintiff that she may be able to retrieve some of the remaining documents from her own electronic personnel file and indicated that some of them had already been sent to her. Id.

         On December 4, 2014, DLA acknowledged the outstanding requested subject areas (1, 2, 3, and 7), and assigned “Request No. 15-HFP-00005.” Oleinick Decl. at 16 ¶¶ 5(a), 5(b); Oleinick Ex. 40. Plaintiff appeared to be requesting information on other employee disciplinary actions based on AWOL status. Oleinick Decl. at 17 ¶ III 5(d); Oleinick Ex. 41(b). Thus, DLA searched its Labor Management Employee Relations and Case Management Tracking databases using the key term “AWOL, ” and further narrowing the search to instances where Plaintiff's enumerated custodians were the deciding officials for the disciplinary action. Id.

         By letter dated December 30, 2014, DLA responded again. Oleinick Decl. at 21 ¶ III 7(e); Compl. at 70. Plaintiff was provided with “a copy of the anonymized records [spreadsheets] responsive to her request . . . showing proposed disciplinary and adverse actions issued to agency employees for the offense of [AWOL] and/or like offenses/charges.” Oleinick Decl. at 21-2 ¶ III 7(e)(i). These spreadsheets were released in full, excepting the redactions of third-party personal identifiers. Id.

         Nonetheless, on January 13, 2015, Plaintiff appealed Defendant's response. Oleinick Decl. at 21 ¶ III 8(a)-(b). Plaintiff challenged responses to her Requests relating to subject areas 5 and 12. Compl. at 75-6. On appeal, DLA determined that those particular subject areas had not been processed under FOIA/PA, pursuant to Plaintiff's own initial instructions that any documents released pursuant to her initial letter not be considered under FOIA/PA. Pl.'s Compl. Ex. 12; Oleinick Decl. at 15-16 ¶ III 1; Oleinick Ex. 38; Def.'s Stmt. at 6-7. DLA's appellate body also notified Plaintiff that the Privacy Act prevented DLA from releasing records related to other employees' disciplinary actions without their consent. Def.'s Stmt. at 22 ¶ 8 (b).

         FOIA/Privacy Act Request No. 15-HFP-00011

         On January 13, 2015, Plaintiff submitted another FOIA/PA request (“Request No. 15- HFP-00011”) for records of proposed terminations for employees determined to be AWOL, and further seeking the race, sex, age, disability, and other demographic information, of certain supervisors. Compl. at 74; Oleinick Decl. at 23 ¶ IV 1. A search was conducted which resulted in a large amount of records, resulting in a fee request of $4, 312.00. Oleinick Decl. at 24 ¶ IV 2(b); Oleinick Ex. 47(b). Plaintiff was notified by letter that DLA would require half of the amount to begin the full process. Compl. at 88; Oleinick Decl. at 24-25 ¶ IV 2 (c). Despite these inquiries, Plaintiff did not respond with the required payment, and DLA administratively closed the request. Oleinick Decl. at 24-5 ¶ IV 2(f); Oleinick Ex. 50.

         FOIA/Privacy Act Request Nos. 15-HFP-00028, 15-HFP-00029, 15-HFP-00030

         On March 10, 2015, Plaintiff submitted three additional contemporaneous FOIA/PA Requests (“Request Nos. 15-HFP-00028, 15-HFP-00029, 15-HFP-00030”). Oleinick Decl. at 24-25 ¶ V 2. Defendant acknowledged the Requests on March 30, 2015. Id. at 26 ¶ V 3. Request No. 15-HFP-00028 sought DLA's “official case file relating to [Plaintiff's] removal from federal service.” Id. By letter to Plaintiff, dated May 6, 2015, Defendant indicated that records responsive to Request No. 15-HFP-00028, had already been provided to her in response to Request No. 15- HFP-00006. Id. at 27 ¶ V 5(c)-(d).

         Plaintiff's Request No. 15-HFP-00029, specifically sought, “all documentation that contains my name including but not limited to my full EOPF.” Oleinick Decl. at 28 ¶ V 6. Defendant conducted a search, and “provided [Plaintiff] with a CD of her full OPF and full release records from 4 of 9 of the requested systems of record . . . [r]ecords were not found in 5 of the 9 requested systems of records.” Id. at 28-9 ¶ 7(b), 7(d); Oleinick Ex. 57(a).

         Finally, Plaintiff's Request No. 15-HFP-00030 requested all AWOL adverse action records with an expanded date scope. Id. at 29 ¶ 8. Defendant again found that this Request was partially duplicative of a prior request, namely, Request No. 15-HFP-00011. Oleinick Decl. at 29-30 ¶ 9 (a)-(d). Of course, Plaintiff had not paid for the records compiled pursuant to Request No. 15-HFP-00011. Oleinick Decl. at 24-5 ¶ IV 2(f); Oleinick Ex. 50.

         On April 20, 2015, Defendant provided a fee estimate letter for search and review of all records potentially responsive to Request No. 15-HFP-00030. Id. at 29 ¶ 9 (b); Oleinick Exs. 59 (a)-(b). In the same correspondence, Defendant requested the amount of $2, 156 by May 21, 2015 in order to avoid administrative closure of the request. Id.

         On April 21, Plaintiff requested a fee waiver, stating that the information she was seeking had “already been compiled” and should take “a marginal amount of additional search time.” Oleinick Decl. at 29 ¶ 9 (c); Oleinick Ex. 60. Ms. Bell also stated that her request “only included those [AWOL disciplinary actions] from DLA Headquarters, ” and that the information would contribute significantly to public understanding of government operations and activities, and finally, that she was indigent. Id. On April 24, 2015, DGA informed Plaintiff that her fee waiver request did not meet the criteria established by 32 CFR § 286.28, and the fee waiver was summarily denied. Oleinick Decl. at 29 ¶ 9 (c); Oleinick Ex. 61. On May 26, 2015, as no payment had been received, Request No. 15-HFP-00030 was administratively closed. Oleinick Decl. at 30 ¶ 9 (d)- (e); Oleinick Ex. 62.[5]

         Additional Disclosures

         Defendant states that, in preparing to litigate this action, it reviewed and/or re-reviewed the majority of records relevant to Request Nos. 15-HFP-00001, 15-HFP-00006, and 15-APP- 00014. Oleinick Decl. at 30-31 ¶¶ VI 1-4. Defendant reviewed 5, 199 pages of e-mail records previously withheld in full and 1, 693 pages of records previously withheld in part. Id. After this supplemental review, an additional 4, 054 pages were released in full on or about January 9, and February 6, 2017. Id. Defendants state that the disputed withheld documents have now been narrowed to 1, 145 records withheld in full, and 350 records withheld in part. Def.'s Reply at 1-2.

         Additionally, as part of Defendant's Reply to Plaintiff's Opposition, it indicates that its original Vaughn Indices, and documents in support, inadvertently failed to reflect communications by Michael Simon, one of Plaintiff's former supervisors. Def.'s Reply at 6 ¶ 1. DLA “reviewed the attachments to [its] [initial] declaration dated February 8, 2017 . . . and realized it has not attached the Vaughn index it has created for records from Mr. Michael Simon.” See Exhibit A to Def.'s Reply, Second Declaration of Lewis Oleinick (“Supp. Oleinick Decl.”) at 3 ¶ 14; Supplemental Vaughn Index (“Supp. Vaughn Index”) (attached to Supp. Oleinick Decl.). Mr. Oleinick indicates that, in creating the supplemental Vaughn index, he found that Plaintiff previously received all reasonably segregable portions of records relating to Mr. Simon, with the exception of two pages. Supp. Oleinick Decl. at 4 ¶ 15. Therefore, two additional attached pages that had been marked as releasable in the Vaughn Indices, but had mistakenly been withheld from Plaintiff, were identified and released. Id.

         III. STANDARD OF REVIEW

         In a FOIA case, a district court reviews the agency's decisions de novo and “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011); Defenders of Wildlife v. 77 U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009).

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat ...


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