Barkley v. United States Department of Labor, Office of Labor Management Standards et al

Filing 39

ORDER granting 34 Defendant's Motion for Summary Judgment. The Clerk shall enter judgment and terminate this action with prejudice. Signed by Magistrate Judge David K Duncan on 6/9/17.(DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Joshua S. Barkley,

No. CV-16-2777-PHX-DMF
Plaintiff,

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v.

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United States Department of Labor, et al.,

ORDER

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Defendants.

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This case arises from Plaintiff’s action alleging that Defendant U.S. Department of

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Labor (“DOL” or “Defendant”) violated the Freedom of Information Act (“FOIA”) in its

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responses to Plaintiff’s multiple FOIA requests. (Doc. 1 at 2) Pending is Defendant’s

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Motion for Summary Judgment (Doc. 34), to which Plaintiff filed a Response (Doc. 37).

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Defendant then filed a Reply (Doc. 38). The Court has federal question jurisdiction and,

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upon the parties’ consent to Magistrate Judge jurisdiction, pursuant to 28 U.S.C. § 636(c).

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(Doc. 27) For the reasons set forth below, Defendant’s Motion will be granted and this

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action terminated.

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I.

BACKGROUND

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Plaintiff states that he was a Professional Medical Transport (“PMT”) employee, a

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previous officer of the Independent Certified Emergency Professionals (“ICEP”) union

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organization, and a candidate in an election of officers in the ICEP that was supervised by

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Defendant. (Doc. 1 at 2) In 2014, Defendant commenced an investigation of a complaint

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that the ICEP had failed to conduct an election of officers required by federal law (Doc.

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35 at 1), which resulted in the court-ordered election of ICEP officers in which Plaintiff

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was a candidate. (Id. at 2) The Secretary of Labor filed a complaint in this Court,

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alleging that ICEP violated 29 U.S.C. § 481(b) and 29 C.F.R. § 452.23 by failing to hold

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an election of officers at a minimum of once every three years. (Perez v. Independent

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Certified Emergency Professionals, CV-14-01723-PHX-NVW, Doc. 1 at 1-2) The Court

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entered default judgment in that matter on December 3, 2014 and ordered ICEP to

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conduct an election of officers, to be supervised by DOL. (Id., Doc. 40)

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As alleged in the current action, between July 2014 and April 2016, Plaintiff made

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seven FOIA requests to DOL for documents pertaining to the DOL investigation and the

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ICEP election. (Doc. 35-1 at 14-77) In response to Plaintiff’s first FOIA request dated

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July 4, 2014 (Id. at 15-16), DOL advised him that he could file an administrative appeal

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within 90 days of the date of denial. (Id. at 45-46) The date of DOL’s denial notice was

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September 5, 2014. (Id. at 45) Plaintiff’s second FOIA request was made on December

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16, 2014, and DOL’s notice of denial was dated December 30, 2014 (Id. at 50-51).

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Plaintiff’s third FOIA request was dated December 17, 2014 (Id. at 36-37), and the denial

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notice was dated December 30, 2014 (Id. at 53-54). Plaintiff submitted his fourth FOIA

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request on May 6, 2015 (Id. at 29-30), which DOL denied on May 19, 2014 (Id. at 56-

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57). Plaintiff’s fifth FOIA request was submitted to DOL on August 25, 2015 (Id. at 32-

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36), and DOL denied it on August 28, 2015 (Id. at 59-60). Plaintiff submitted his sixth

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FOIA request on October 30, 2015 (Id. at 38-40), after which DOL denied it on

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November 6, 2015 (Id. at 62-63). Plaintiff made his seventh FOIA request on April 1,

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2016. (Id. at 65-77) This request was partially denied, as is discussed in greater detail

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below.

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The Office of Labor-Management Standards (“OLMS”) within DOL advised

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Plaintiff that while researching his requests, it determined that the records he sought “are

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records compiled for OLMS enforcement and investigative proceedings that are currently

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pending.” (Id. at 45, 50, 53, 56, 59, 62) Respecting each of Plaintiff’s first six requests,

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the DOL denials were based on Exemption 7(A) of the FOIA (5 U.S.C. § 552(b)(7)(A)),

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that DOL advised Plaintiff “authorizes the withholding of records or information

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compiled for law enforcement purposes, to the extent that production could reasonably be

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expected to interfere with enforcement proceedings[,]” and which DOL noted had been

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construed by courts to include “criminal and civil actions, as well as regulatory

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proceedings.” (Id. at 45, 50, 53, 56, 59, 62)

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After the DOL denied Plaintiff’s sixth request on November 6, 2015, the DOL

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investigation concluded, thus removing the supplication of the Exemption 7(A) bar. (Doc.

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35 at 7) On April 5, 2016, DOL notified Plaintiff it had received his seventh request, and

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that the request was “complex,” which would require about 60 days to process. (Doc. 35-

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1 at 75) DOL made an initial release of documents responsive to the seventh request on

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August 30, 2016 and notified Plaintiff he could appeal within 90 days of this initial

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release. (Id. at 90-92) On September 28, 2016, the DOL made a second release of

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documents and again notified Plaintiff of his right to an administrative appeal within 90

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days of the date on the FOIA response document. (Id. at 99-100) DOL asserts that it

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received no additional FOIA requests from Plaintiff after April 1, 2016. (Doc. 35 at 12)

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Plaintiff sent DOL an email dated February 29, 2016, stating that he was appealing

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DOL handling of a number of FOIA requests. (Doc. 35-1 at 103) Defendant DOL’s

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Statement of Facts avers that:

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63. On February 29, 2016, Plaintiff submitted an email indicating he was
appealing the handling of several FOIA requests, and attached copies of
requests that were purportedly dated July 24, 2015; May 4, 2015 (identical
to Request 4, received by email dated May 6, 2015); November 15, 2015
(identical to one of the requests included in Request 7); and November
19, 2015 (identical to the amended Request 6, except omitting bullet point
7).
64. On March 30, 2016, the DOL’s Appeals Unit, Office of the Solicitor
General, sent Plaintiff a letter acknowledging receipt of his appeal.
65. Pursuant to Department regulations, a party must file an appeal within
90 days of the date of the action being appealed. In addition, the appeal
must include the assigned request number, copies of the initial request, and
the agency’s response to that request.

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66. Mr. Barkley’s submission was deficient in that it was not submitted
within 90 days of any agency response, did not include the assigned
request number for each request, and did not contain copies of the
agency’s response to those requests. Furthermore, the letters Mr. Barkley
attached to his email did not correspond to the requests he originally sent to
the agency. For instance, he attached a July 24, 2015 letter that appears to
correspond to only a portion of Request 5, which he actually submitted by
email on August 25, 2015; he also attached letters dated November 15 and
19, 2015, which were not submitted to the agency on those dates, but
appear to be portions of Requests 6 and 7.
67. On September 9, 2016, the DOL issued its final response to Plaintiff’s
appeal. In its response, the agency noted that it had made an initial
disclosure to Plaintiff’s request on August 30, 2016, and that it
anticipated making the second disclosure by September 30, 2016.
68. The agency notified Plaintiff that his appeal was therefore being closed
as moot, and informed him that he could file a new appeal with respect to
any additional responses if he chose to do so. Plaintiff submitted no other
appeal than the February 29, 2016 appeal.

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(Doc. 35 at 12-13) (citations to record omitted).1
After Defendant filed its Motion for Summary Judgment (Doc. 34) and associated
Statement of Facts (Doc. 35), this Court issued an Order pursuant to Rand v. Rowland,
154 F.3d 952, 962 (9th Cir. 1998) (en banc). (Doc. 36) The Court instructed Plaintiff that
Rule 56.1 of the Local Rules of Civil Procedure required him to provide his own separate
statement of facts, specifically addressing Defendant’s statement of facts, by
“correspondingly numbered paragraph indicating whether [he] disputes the statement of
fact set forth in that paragraph and a reference to the specific admissible portion of the
record supporting the party’s position if the fact is disputed[.]” (Id. at 2) This Court
cautioned that if Plaintiff did not comply with the Local Rule requirements, such noncompliance “may be deemed a consent to the . . . granting of the motion and the Court

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As is discussed below, Plaintiff failed to submit a separate statement of facts
disputing any of Defendant’s statement of facts. Accordingly, to the extent this Section I
Background relies on Defendant’s Statement of Facts (Doc. 35) and supporting
documents, these statements are considered to be uncontroverted.
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may dispose of the motion summarily.” (Id. at 3) Despite this explicit instruction,

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Plaintiff did not file a separate statement of facts controverting any of Defendant’s

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statements.

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DOL made a discretionary release of additional redacted documents on March 30,

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2017. (Doc. 35-1 at 114-116) This release included 238 redacted pages. (Doc. 34 at 4)

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DOL explains that this release comprised documents previously provided with

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redactions, documents that were previously withheld from its response to Plaintiff’s

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seventh request, and pages not earlier identified or released that were “potentially

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responsive” to Plaintiff’s seventh request. (Id.)

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II.

LEGAL STANDARDS

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A.

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A court “shall grant summary judgment if the movant shows that there is no

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genuine dispute as to any material fact and the movant is entitled to judgment as a matter

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of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

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(1986). A material fact is one that might affect the outcome of the suit under the

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governing law, and a factual dispute is genuine “if the evidence is such that a reasonable

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jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

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477 U.S. 242, 248 (1986). “One of the principal purposes of the summary judgment rule

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is to isolate and dispose of factually unsupported claims . . . .” Celotex, 477 U.S. at 323-

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24. Summary judgment is “not a disfavored procedural shortcut,” but is instead the

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“principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and

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prevented from going to trial with the attendant unwarranted consumption of public and

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private resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute

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between the parties will not defeat an otherwise properly supported motion for summary

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judgment.” Liberty Lobby, 477 U.S. at 247–48. There must be a genuine dispute as to

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any material fact—a fact “that may affect the outcome of the suit.” Id. at 248.

Summary Judgment

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Under summary judgment practice, the moving party bears the initial

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responsibility of presenting the basis for its motion and identifying those portions of the

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record, together with affidavits, which it believes demonstrate the absence of a genuine

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issue of material fact. Celotex, 477 U.S. at 323. If the moving party meets its initial

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responsibility, the burden then shifts to the opposing party who must demonstrate the

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existence of a material factual dispute. Liberty Lobby, 477 U.S. at 248. To carry this

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burden, the nonmoving party must do more than simply show there is “some

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metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 586 (1986). In deciding a motion for summary judgment,

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the Court must view the evidence in the light most favorable to the nonmoving party,

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must not weigh the evidence or assess its credibility, and must draw all justifiable

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inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc.,

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530 U.S. 133, 150 (2000); Liberty Lobby, 477 U.S. at 255. Where the record, taken as

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a whole, could not lead a rational trier of fact to find for the nonmoving party, there is

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no genuine issue for trial. Matsushita, 475 U.S. at 587.

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The Court is “not required to comb through the record to find some reason to deny

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a motion for summary judgment.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d

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1026, 1029 (9th Cir.2001) (quotation omitted). Instead, the “party opposing summary

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judgment must direct [the Court's] attention to specific triable facts.”

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California Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).

Southern

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B.

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Under FOIA, courts review de novo an agency’s decision whether or not to

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disclose. 5 U.S.C. § 552(a)(4)(B) See also Louis v. United States Dep’t of Labor,

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419 F.3d 970, 977 (9th Cir. 2005) (de novo review “requir[es] no deference to the

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agency’s determination or rationale regarding disclosures). Summary judgment should

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be granted if the evidence reveals no genuine dispute about any material fact and the

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moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

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III.

FOIA

DISCUSSION

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Defendant argues that summary judgment should be granted because: (1) Plaintiff

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failed to properly exhaust his administrative remedies with respect to his FOIA

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requests; (2) Defendant properly handled each of Plaintiff’s requests for information, and

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all non-exempt materials were released to him; and (3) Plaintiff failed to supply factual

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support for his assertion that DOL improperly withheld non-exempted material. (Doc. 38

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at 2-8)

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A.

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FOIA requires that, upon receipt of a FOIA request, an administrative agency shall

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“determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) . . .

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whether to comply with such request and shall immediately notify the person making

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such request of such determination and the reasons therefor, . . . [ and in the case of

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an adverse determination, of] the right of such person to appeal to the head of the

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agency, within a period determined by the head of the agency that is not less than 90 days

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after the date of such adverse determination. . . .”

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Likewise, an agency must make a determination within 20 days of receipt of an

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appeal. 5 U.S.C. § 552(a)(6)(A)(ii). If an agency does not respond to a FOIA request

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within the applicable time period, the requester may file a lawsuit, but

Exhaustion

5 U.S.C. § 552(a)(6)(A)(i).

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this option lasts only up to the point that an agency actually responds.
Once the agency has responded to the request, the petitioner may no
longer exercise his option to go to court immediately. Rather, the
requester can seek judicial review only after he has unsuccessfully
appealed to the head of the agency as to any denial and thereby exhausted
his administrative remedies.

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Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 61 (D.C. Cir. 1990). “Exhaustion of

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administrative remedies is generally required before filing suit in federal court so that

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the agency has an opportunity to exercise its discretion and expertise on the matter and to

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make a factual record to support its decision.” Id. (citing McKart v. United States, 395

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U.S. 185, 194 (1969)).

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B.

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Defendant argues that Plaintiff failed to comply with the requirement of 29 C.F.R.

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§ 70.22 to file an appeal within 90 days of the date of an “adverse determination,” which

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includes denial of a request for access to records. (Doc. 34 at 4-6; 29 C.F.R. § 70.22(a))

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Defendant asserts that Plaintiff did not timely appeal Defendant’s decisions respecting his

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first six requests, and failed to appeal at all Defendant’s decisions relating to his seventh

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request. (Doc. 34 at 5) Because of this asserted failure to exhaust required administrative

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remedies, Defendant argues that Plaintiff’s claims are not properly before the Court. (Id.)

Analysis

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Plaintiff seems to offer a reason for not timely appealing his second through fifth

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requests for information. (Doc. 37 at 7) In his Response to Defendant’s Motion for

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Summary Judgment, Plaintiff specifically identified “page 3, line 21 through [page] 6[,]

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line 11,” (apparently referring to Document Number 35, Defendant’s Statement of Facts),

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and then concluded that “[t]here were no appeals filed during this period” because “[i]t

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made no sense to appeal a FOIA request when the [ICEP union] election hadn’t been

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certified yet and all other requests were denied.” (Doc. 37 at 7) Plaintiff states that “[a]n

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appeal was filed with the Office of Labor Management Standards and Andrew Davis2

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acknowledge[d] the appeal but failed to respond to its contents.” (Doc. 37 at 7)

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As noted, Local Rule 56.1(a) requires the party moving for summary judgment to

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file a separate statement “setting forth each material fact on which the party relies in

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support of the motion.” This rule provides that each material fact must be “set forth in a

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separately numbered paragraph and must refer to a specific admissible portion of the

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record” to support the material fact, such as affidavits, depositions or discovery responses.

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LRCiv 56.1(a). Local Rule 56.1(b) requires the opposing party to also file a separate

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statement, stating whether the opposing party disputes the moving party’s statement of

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facts, and must do so citing each paragraph of the moving party’s statement.

The

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Mr. Davis provided a Declaration explaining that he was “the Chief of the
Division of Interpretations and Standards Office of Labor-Management Standards
(“OLMS”) at the United States Department of Labor . . . .” (Doc. 35-1 at 3) He further
stated that his office “was responsible for the processing of [Plaintiff’s] FOIA requests.”
(Id.)
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opposing party is further required to indicate whether he disputes each of the moving

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party’s statements, and if he disputes a statement, he must refer to the “specific admissible

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portion of the record supporting the party’s position . . . .” LRCiv 56.1(b).

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Plaintiff has not filed a separate statement of facts as required by Local Rule of

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Civil Procedure 56.1(b). Moreover, in his response (Doc. 37), Plaintiff does not dispute

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Defendant’s statements respecting the timing or content of Plaintiff’s appeals and DOL’s

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responses. Plaintiff’s failure to controvert Defendant’s statement of facts means that he

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has “effectively admitted [Defendant’s] version of the facts . . . .” Szaley v. Pima Cnty.,

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371 Fed. App’x 734, 735 (9th Cir. 2010). See also Malcomson v. Topps Co., No. CV-02-

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2306-PHX-GMS, 2010 WL 383359, at *3 (D. Ariz. Jan. 28, 2010). Accordingly, the

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Court finds that Plaintiff has not exhausted his administrative remedies.

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In his Response, Plaintiff seems to respond to DOL’s Statement of Facts Paragraph

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4, which states “[o]n March 5, 2015, ICEP held elections, and the DOL subsequently

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certified the results of the election [citing Perez v. Local 1, Indep. Certified Emergency

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Prof’ls, CV-14-01723-PHX-NVW, Doc. 41].” (Doc. 37 at 5, in reference to Doc. 35 at 2)

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Plaintiff maintains that this statement is “false,” and asserts that “[t]he DOL (Defendant)

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lacks the authority to self-certify an election in the courts[,]” and seeks to “mislead this

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court to say the election was certified when it was not.” (Doc. 37 at 5-6) In the Perez

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case, the Court ordered DOL “to issue a determination certifying to the Court the election

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results.” Perez, CV-14-01723-PHX-NVW, Doc. 40 at 4 (emphasis supplied). After the

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election, Defendants complied with this order.

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evidentiary basis for his argument that the election was not certified, and in any event does

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not substantiate how this claim, even if it were true, is material to his argument in this case

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that Defendant violated the FOIA.

Id., Doc. 41.

Plaintiff provides no

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Plaintiff’s Response enumerates four “reasons” he characterizes as establishing

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material facts that would require denial of Defendant’s summary judgment motion: (1)

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that this Court “already prohibited mention of the election case [referring to Perez],

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disposed of in January 2017”; (2) that DOL mendaciously asserts that the election was not

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certified by a court; (3) that DOL is acting in a self-serving manner by refusing to divulge

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documents “that would show possible unlawful, ex parte, communications; and (4) that

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the “uncertified election” suggests collusion between DOL and ICEP. (Doc. 37 at 6)

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Plaintiff also alleges that: (1) two of the DOL officials responsible for supervising the

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election had stated that the ICEP constitution and by-laws were “altered through ex parte

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communication”; (2) DOL “closed the ‘mail in’ ballot box prior to receiving any ballots”;

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(3) no ballots were counted; and (4) DOL conducted a fraudulent investigation. (Id. at 7-

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In its Motion for Summary Judgment, Defendant argues that its redactions and

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withholdings of documents requested by Plaintiff were proper under statutory exemptions.

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(Doc. 34 at 6-16) Defendant explains which statutory exemptions applied and why the

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exemptions applied, and supports its argument with its Statement of Facts (Doc. 35), a

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sworn declaration, and a large number of supporting documents. (Doc. 35, 35-1, 35-2, 35-

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3, 35-4) Moreover, Defendant asserts that its disclosure in March 2017 of an additional

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238 pages of redacted documents moots Plaintiff’s claims. (Doc. 34 at 13-16) In contrast,

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Plaintiff has wholly failed to support his “reasons” and allegations of wrongdoing by

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DOL, the Acting United States Attorney, and “the courts” (Doc. 37 at 4) with specific,

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admissible evidence in the record.

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evidence to support his claim that DOL improperly redacted or withheld documents that

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he had requested.

LRCiv 56.1(b).

Plaintiff offers no substantive

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The U.S. Supreme Court instructs that “the plain language of Rule 56(c) [of the

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Federal Rules of Civil Procedure] mandates the entry of summary judgment . . . against a

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party who fails to make a showing sufficient to establish the existence of an element

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essential to that party’s case, and on which that party will bear the burden of proof at

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trial.” Celotex, 477 U.S. at 322. The Court reasoned that in this circumstance, “there can

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be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning

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an essential element of the nonmoving party’s case necessarily renders all other facts

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immaterial.” Id. at 322-23. Here, Plaintiff asserts merely conclusory assertions without

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evidentiary support to his opposition to Defendant’s Motion. This is not sufficient to

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establish a genuine issue of material fact. See, e.g., Greene v. Dalton, 164 F.3d 671, 675

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(D.C. Cir. 1999).

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Accordingly,

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IT IS ORDERED granting Defendant’s Motion for Summary Judgment (Doc. 34).

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IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment and

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terminate this action with prejudice.

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Dated this 9th day of June, 2017.

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*Magistrate Judge Duncan signing for Magistrate Judge Fine

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