United States District Court, District of Columbia
ANTHONY L. VIOLA, Plaintiff,
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.
MEMORANDUM OPINION ON MOTION TO RECONSIDER
S. CHUTKAN UNITED STATES DISTRICT JUDGE.
se Plaintiff Anthony L. Viola seeks reconsideration of
the court's ruling granting in part and denying in part
Defendant's Motion for Summary Judgment. See Viola v.
U.S. Dep 't of Justice, 306 F.Supp.3d 321 (D.D.C.
2018). For the reasons set forth below, the court will
DENY Viola's motion in part and
GRANT the motion in part.
may grant a motion to reconsider a non-final order "at
any time before the entry of a judgment adjudicating all the
claims and all the parties' rights and liabilities."
Fed.R.Civ.P. 54(b). "The standard for determining
whether or not to grant a motion to reconsider brought under
Rule 54(b) is the 'as justice requires' standard. .
., which requires 'determining, within the Court's
discretion, whether reconsideration is necessary under the
relevant circumstances.'" In Def of
Animals v. Nat'l Insts. of Health, 543 F.Supp.2d
70, 75 (D.D.C. 2008) (citations omitted). Applying this
standard, courts may consider
whether the court "patently" misunderstood the
parties, made a decision beyond the adversarial issues
presented, made an error in failing to consider controlling
decisions or data, or whether a controlling or significant
change in the law has occurred. Furthermore, the party moving
to reconsider carries the burden of proving that some harm
would accompany a denial of the motion to reconsider:
"In order for justice to require reconsideration,
logically, it must be the case that, some sort of
'injustice' will result if reconsideration is
refused. That is, the movant must demonstrate that some harm,
legal or at least tangible, would flow from a denial of
Id. at 75-76 (citations omitted).
ADEQUACY OF THE EOUSA'S SEARCH
filed this lawsuit against the Executive Office of the United
States Attorney (EOUSA) and the FBI,  pursuant to the Freedom of
Information Act (FOIA), seeking records relating to third
parties who were prosecuted for public corruption in Cuyahoga
County, Ohio. Viola, 306 F.Supp.3d at 324-26 Because
the third parties had not consented to disclosure, the EOUSA
refused to release the records to Viola, but instead searched
for and released records relating to Viola. Id. at
326. Viola challenged the adequacy of the EOUSA's search,
arguing that it had failed to search certain records
maintained by a joint state and federal mortgage fraud task
force ("MFTF"), which he claimed had documents
relating to his 2011 prosecution for mortgage fraud.
Id. at 327-28.
EOUSA asserted that the MFTF was an entity "completely
separate and apart from the Defendants" and EOUSA had no
duty to search files maintained by other entities. ECF No.
31, Defs. Summ. J. Reply p. 2. In granting summary judgment
for the EOUSA on the adequacy of its search, this court found
that Viola had not overcome the presumption of good faith
accorded the declaration of EOUSA Attorney Advisor David
Luczynski that Viola's request was sent to the U.S.
Attorney's Office for the Northern District of Ohio,
which prosecuted Viola. Viola, 306 F.Supp.3d at
326-27. Luczynski stated that
"there are no other records or systems or locations
within the EOUSA in which files pertaining to plaintiffs
request were maintained." The Northern District of Ohio
office conducted "a systematic search" of the LIONS
computer tracking system, which can retrieve
"information based on an individual's name,"
the agency's internal administrative number, and the case
number for any district court cases.
Id. at 327 (citations to the record omitted). He
further maintained that '"all documents responsive
to plaintiffs FOIA request were located' in the Ohio
office Criminal Case File System (Justice/US A- 007) and
'all of the public records he requested were being
released to him.'" Id. (alterations
omitted). In light of this evidence, this court held that the
EOUSA had met its obligation under FOIA, and that EOUSA was
not obligated to search files that it did not maintain.
See Viola, 306 F.Supp.3d at 328-29.
asks the court to reconsider this decision, arguing that he
has asserted throughout this litigation that the MFTF is a
"federal agency for purposes of the FOIA statute."
ECF No. 35, Mot. to Reconsider p. 1. He further argues that
the federal government never refuted that argument, thereby
conceding the point.
court is unable to identify this argument in Viola's
briefs on the motion for summary judgment. Instead, Viola
argued that the government
cannot limit its search to only one record system if there
are others that are likely to turn up the information
requested .... The government was required to search the
joint federal-state task force for responsive records because
it is well settled that if an agency has reason to know that
certain places may contain responsive documents, it is
obligated under FOIA to search.
ECF No. 25, Pls. Summ. J. Opp'n at pp. 1-2 (citation and
quotations omitted). Viola's argument in opposition to
the summary judgment motion did not proffer the theory that
the task force constituted a federal agency for purposes of
FOIA. Because Viola did not raise the argument, the
government could not have disputed it or conceded it. On the
other hand, courts must interpret pro se pleadings
liberally. Doing so here, one could argue that Viola may have
intended to convey such an argument but failed to properly
articulate it, and thus, "justice requires" that
the court consider Viola's argument. See In Def. of
Animals, 543 F.Supp.2d at 75.
FOIA, an "agency . . . includes any executive
department, military department, Government corporation,
Government controlled corporation, or other establishment in
the executive branch of the Government (including the
Executive Office of the President), or any independent
regulatory agency." 5 U.S.C. § 552(f)(1). Viola
argues that the MFTF falls within FOIA's definition of an
agency because an FBI Agent exercised "extensive and
virtually day-to-day supervision" of the MFTF, which
included "dozens" of federal employees from the
FBI, Postal Inspector's Office and the United States
Attorney's office. Mot. to Reconsider p. 2. He also
argues that the task force was an agency because it was
federally funded and issued federal search warrants, under
which evidence was obtained and brought to the task force
location. Id. pp. 1-2.
evidence, however, contradicts his argument. Viola submitted
an affidavit from Arvin Clar, of the Ohio Bureau of Criminal
Investigations, who was at various times Director and
Assistant Director of the MFTF, and who also participated in
the investigation of Viola's fraud charges. ECF No. 40,
Pls. Mot. for Reconsideration Reply, Ex. B, Clar Aff ¶
2. Clar explained that certain "cooperating"
federal entities shared information with the MFTF, but they
were not "signatory participating members" to the
Memorandum of Understanding ("MOU") establishing
the task force. Id. ¶¶ 3-5. While the county
prosecutor secured federal grant money to hire employee
investigators for the county prosecutor's office, the
state of Ohio "exclusively" provided funding for
the MFTF; no federal agencies provided funding. Id.
¶¶ 7, 9-11, 13. Furthermore, the MFTF "possessed
its own secured evidence room or location under the
supervision of the Task Force director for the purpose of
securing and maintaining" evidence, and no federal
agency "had any right of authority or control over the
activities of the task force. Id. ¶¶ 6,
10. Given this evidence, the court finds that Viola has not
established that the MFTF was an agency for purposes of
motion to reconsider, Viola cites cases that-although
factually distinguishable- describe circumstances under which
disclosure may be required even where records are held by a
non-agency. In For sham v. Harris,445 U.S. 169, 181
(1980), the Supreme Court explained that "records of a
nonagency certainly could become records of an agency."
In Gilmo ...