Carter v. USDA et al
ORDER granting 24 Amended Motion to Dismiss; case dismissed as moot. Signed by Honorable Susan O. Hickey on September 13, 2017. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
CASE NO. 1:16-CV-01050
USDA and JENNIFER WEATHERLY
in her official capacity
Before the Court is Defendants’ Amended Motion to Dismiss. ECF No. 24. Plaintiff has
filed a response. ECF No. 25. The Court finds this matter ripe for consideration.
This case concerns Freedom of Information Act (“FOIA”) requests Plaintiff submitted in
2015. Plaintiff filed his Complaint seeking to compel Defendants to produce responses to his
FOIA requests. ECF No. 1. In his Complaint, Plaintiff references three outstanding FOIA requests:
(1) 2016-FNS-02999-F; (2) 2015-FNS-04394-F; and (3) 2015-FNS-3001-F. ECF No. 1. The Court
subsequently found that only FOIA request 2015-FNS-3001-F (styled 2015-00207 as an appeal)
is properly before the Court. ECF No. 8. Thus, this is the only FOIA request the Court will address.
With this FOIA request, Plaintiff seeks information on institutions that were disqualified from
participation in the Child and Adult Care Food Program between January 1, 1995, and December
31, 2001. ECF No. 15-1.
In their original Motion to Dismiss, Defendants stated that they had supplied Plaintiff with
the requested information and that, therefore, this action should be dismissed. ECF No. 15. In
Plaintiff’s response, he stated that Defendants had not yet disclosed all requested information. ECF
No. 16. Although Plaintiff conceded that Defendants had provided the bulk of the information he
seeks in his FOIA request, he argued that Defendants had not supplied information regarding
“when did institutions become eligible to return/continue to participate in the program again?”
ECF No. 18. Defendants contended that they had provided this information, having informed
Plaintiff that “[i]nstitutions are typically disqualified for 7 years, unless they owe a debt” and “if a
debt is owed they remain disqualified until the debt is paid.” ECF No. 15-1.
The Honorable Barry A. Bryant, Magistrate Judge for the Western District of Arkansas,
subsequently issued a Report and Recommendation in which he found that Defendants had
provided the requested information and recommended that Defendants’ Motion to Dismiss (ECF
No. 15) be granted. ECF No. 20. In his objections, Plaintiff again stated that he had not received
the requested information as to when entities disqualified from 1995 through 2001 were again
allowed to take part in agency programs. ECF No. 21. Further, Plaintiff argued that the seven-year
disqualification period did not come into effect until after the period covered by his FOIA request.
ECF No. 21.
The Court declined to adopt Judge Bryant’s Report and Recommendation, finding that
Defendants had failed to sufficiently demonstrate that they had fully responded to Plaintiff’s FOIA
request. The Court noted that Plaintiff appeared to seek “a list of specific dates upon which each
organization that was disqualified from 1995 through 2001 again became eligible to participate in
the program” and that Plaintiff believed that “Defendants maintain records that note the exact date
upon which a disqualified entity again becomes eligible.” ECF No. 23. Accordingly, the Court
directed Defendants to respond to Plaintiff’s request for specific dates each entity disqualified from
1995 through 2001 again became eligible to participate in agency programs. Likewise, the Court
stated that “if Defendants do not maintain such records, they are to advise Plaintiff of that fact and
describe the process by which Defendants determine eligibility dates for entities disqualified from
1995 through 2001.”
In their Amended Motion to Dismiss, Defendants inform the Court that they do not
maintain records of specific dates upon which entities again become eligible to participate in
agency programs. ECF No. 24. Further, Defendants have attached a Declaration of Defendant
Weatherly in which she describes the reinstatement process. ECF No. 24-1. Defendant Weatherly
Under FNS policy, a disqualified institution is generally disqualified for seven
years, unless that institution owes a debt. If a debt is owed the institution remains
disqualified until the debt is paid. In specific situations, an institution can request
and be granted early removal from the disqualified list, if the institution creates an
acceptable corrective plan and owe no debt. When an institution comes off of the
National Disqualified List (NDL) of Providers, they would have to reapply to
participate. They are not guaranteed approval. In order to have been placed on the
NDL, there had to have been serious deficiency (or a suspension) which led to
termination and disqualification. The serious deficiency(ies) which caused the
termination and disqualification must be fully and permanently corrected. An
institution may not be approved to participate until full and permanent correction
is achieved. The institution needs to have completed the required corrective action
for the serious deficiencies which led to their termination and disqualification.
Paying a debt and waiting seven years does not remove the requirement that the
institution achieve full permanent corrective action. Because this process has
variations, FNS does not keep records with specific dates stating when each
institution is eligible to re-apply. 1
ECF No. 24-1, ¶¶ 6, 7.
In response, Plaintiff argues that he believes Defendants do maintain records of when
disqualified entities again become eligible to participate in agency programs. Plaintiff states that
“[c]ommon sense tells me that if any part of this information was not available, Defendants would
have brought this out long before now.” ECF No. 25, ¶ 5. Plaintiff argues that “[i]f there are no
records now, because FNS [does not] maintain detail[ed] records of when a disqualified institution
Plaintiff states that he is confused by “certain terms/language in FNS policy.” ECF No. 25, ¶ 9. Plaintiff asks
Defendants to direct him to a source where he can find this policy so that he may calculate the eligibility dates of
disqualified entities himself. ECF No. 25, ¶ 9. Plaintiff also requests that the Court “Have Defendants please direct
Plaintiff to where to find this policy/process.” ECF No. 25, p. 4. The Court will not address this petition, as such
information is outside of the scope of Plaintiff’s initial FOIA request that is before the Court.
becomes eligible, there could not have been records in 2015 for the same reason.” ECF No. 25, ¶
5. Plaintiff further cites Defendants’ previous motion (ECF No. 13) requesting an extension of
time to respond to Plaintiff’s Complaint in support of his contention that Defendants maintain the
records he seeks. 2 ECF No. 25, ¶ 6
Furthermore, Plaintiff notes that although Defendants contend that they do not maintain
the requested records, they have provided specific eligibility dates in the past. ECF No. 25, ¶ 8.
Plaintiff has included an email dated December 7, 2016, in which Defendant Weatherly stated that:
According to the NDL, Sparkman Learning Center was terminated on June 2, 2006
and became eligible to reapply to participate June 10, 2013 . . . COPE was
terminated on March 1, 1997 and became eligible to reapply to participate August
13, 2009.” 3
ECF No. 25, Doc. # 4. Plaintiff cites this email and argues that “Defendant did send just what she
swore she didn’t maintain.” ECF No. 25, ¶ 8.
The issue before the Court is whether Defendants have fully responded to Plaintiff’s FOIA
“In the context of the FOIA, it is widely accepted that, ‘[o]nce the government produces
all the documents a plaintiff requests, her claim for relief under the FOIA becomes moot.’” Vivek
Shah Reg. #43205-422 v. U.S. Dep’t of Justice, et al., 2016 WL 3690053, at *5 (E.D. Ark. July 7,
In that motion, Defendants noted that, after they had provided “Plaintiff with names of institutions that were
disqualified from participation in the Child and Adult Care Food Program and on the National Disqualified List (NDL)
between 1995 and 2001 . . . Plaintiff advised the Defendants that his FOIA request also included a request for when
all of these institutions would become eligible to return/continue participation in program and that this issue had not
[been] addressed.” ECF No. 13, ¶¶ 3, 4. Defendants further stated that they were “in the process of attempting to
obtain the additional information. However, due to the number of institutions on the list, the Defendants cannot
complete the compilation by December 12, 2016” and so requested more time to respond. ECF No. 13, ¶¶ 5, 6.
This information seems to be related to a different FOIA request than the one currently at issue. In the email,
Defendant Weatherly stated that “[t]he Food and Nutrition Service has been informed that you are seeking information
on when Sparkman Learning Center and Community Organization for Poverty Elimination (COPE) were placed on
the National Disqualified List (NDL), the date of removal from the list and if a debt is owed.” ECF No. 25, Doc. # 4.
Although this request is similar to the one currently before the Court, it is more specific, seeking information about
two particular entities.
2016) (quoting Anderson v. U.S. Dep’t of Health & Human Servs., 3 F.3d 1383, 1384 (10th Cir.
1993)); see also Walsh v. U.S. Dep’t of Veterans Affairs, 400 F.3d 535, 536 (7th Cir. 2005); Perry
v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982) (“[H]owever fitful or delayed the release of
information under the FOIA may be, once all requested records are surrendered, federal courts
have no further statutory function to perform”).
Further, FOIA does not require an agency to
create or retain documents; it only obligates the agency to provide access to those documents which
it in fact has created and retained. Kissinger v. Reporters Comm. for Freedom of the Press, 445
U.S. 136, 152 (1980).
In the case at bar, Defendants contend that they have provided Plaintiff with all the
documents they keep that are responsive to his FOIA request. In support of this claim, Defendants
have provided an affidavit attesting to the fact that they do not maintain records of specific dates
upon which disqualified entities again become eligible to participate in agency programs.
Furthermore, Defendants have informed Plaintiff of the process by which they determine eligibility
dates. Although Plaintiff has cited a previous instance in which Defendants were able to provide
specific eligibility dates, that does not necessarily mean Defendants maintain records of such dates.
Accordingly, it appears that Defendants have fully responded to Plaintiff’s FOIA request and,
therefore, this action should be dismissed as moot.
For the foregoing reasons, the Court finds that Defendants’ Amended Motion to Dismiss
(ECF No. 24) should be and hereby is GRANTED and this action is DISMISSED AS MOOT.
IT IS SO ORDERED, this 13th day of September, 2017.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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