United States District Court, District of Columbia
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
Yolanda Bell (“Plaintiff”), proceeding pro
se, has filed suit against the Department of Defense
(“Defendant, ” “DOD, ” and
“DLA”). See Petition
(“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.
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].
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.
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.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.
Act Request No. 14-HFP-00021
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,  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.
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.
Act Request Nos. 15-HFP-00001 & 00006 and Appeal Nos.
15-APP-00008 & 00014
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
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.
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.
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. 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.
Act Request No. 15-HFP-00005 & Appeal No.
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.
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
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.
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).
Act Request No. 15-HFP-00011
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.
Act Request Nos. 15-HFP-00028, 15-HFP-00029,
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).
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).
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.
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.
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.
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.
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.
STANDARD OF REVIEW
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).
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 ...