Rivera v. United States

Filing 40

ORDER DISMISSING CASE WITH PREJUDICE. Signed by Magistrate Judge Thomas S. Hixson on 3/7/2019. (rmm2S, COURT STAFF) (Filed on 3/7/2019)

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1 DAVID L. ANDERSON (CABN 149604)
United States Attorney
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SARA WINSLOW (DCBN 457643)
3 Chief, Civil Division

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Hixso
4 JENNIFER S WANG (CABN 233155))
mas S.
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Assistant United States Attorney
5
ER
450 Golden Gate Avenue, Box 36055
C
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San Francisco, California 94102-3495
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F
D IS T IC T O
Telephone: [phone]
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FAX: [phone]
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[e-mail]
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GRANTED. Case is Dismissed with Prejudice.
Attorneys for Defendants
9 UNITED STATES DEPARTMENT OF
The Clerk shall close the file.
ENERGY and NATIONAL NUCLEAR
DATED: 3/7/2019
10 SECURITY ADMINISTRATION, an
agency of the U.S. Department of Energy,
11
UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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ANTHONY RIVERA,

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Plaintiff,

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v.
UNITED STATES DEPARTMENT OF
ENERGY and NATIONAL NUCLEAR
SECURITY ADMINISTRATION,
,
Defendants.
.

) Case No. 3:18-cv-1016 TSH RMI
)
)
) STIPULATION OF SETTLEMENT AND
) DISMISSAL WITH PREJUDICE
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Plaintiff Anthony Rivera (“plaintiff”) and defendants United States Department of Energy and
National Nuclear Security Administration (“defendants”) hereby enter into this Stipulation of Settlement
and Dismissal with Prejudice (“Stipulation”), as follows:
WHEREAS, on February 15, 2018, plaintiff filed his Complaint under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, as amended;
STIP. OF SETTLEMENT AND DISMISSAL WITH PREJUDICE
Case No. 3:18-cv-1016 TSH RMI
1

WHEREAS, plaintiff and defendants wish to avoid any further litigation and controversy and

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2 compromise fully any and all claims and issues that have been raised, or could have been raised in this
3 action;
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NOW, THEREFORE, in consideration of the mutual promises contained in this Stipulation, and

5 other good and valuable consideration, receipt of which is hereby anticipated, the parties agree as
6 follows:
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1.

The parties do hereby agree to settle and compromise each and every claim of any kind,

8 whether known or unknown, arising directly or indirectly from the acts or omissions that gave rise to the
9 above-captioned action under the terms and conditions set forth in this Stipulation.
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2.

Defendants agree to provide to plaintiff the executed declarations of National Nuclear

11 Security Administration (NNSA) FOIA Officer, John Weckerle, attached hereto as Exhibits A and B.
12 Defendants further agree to pay to plaintiff the amount of nine thousand dollars and zero cents
13 ($9,000.00) (“Settlement Amount”), in full and complete satisfaction of plaintiff’s claims for attorney’s
14 fees, costs, and litigation expenses under the FOIA, 5 U.S.C. § 552, in the above-captioned matter. This
15 payment shall constitute full and final satisfaction of any and all of plaintiff’s claims for attorneys’ fees,
16 costs, and litigation expenses in the above-captioned matter, and is inclusive of any interest. Payment
17 will be made by electronic funds transfer, and plaintiff agrees to promptly furnish defendants’ counsel
18 with the information necessary to effectuate payment, including but not limited to, bank name and
19 address, wire transfer number, ABA number, routing number, account number, name of account, and
20 federal taxpayer identification number. Defendants’ counsel agrees to submit all paperwork necessary
21 to effectuate the electronic funds transfer to NNSA within fourteen calendar days of either entry of this
22 Stipulation onto the Court's docket, or receipt from plaintiff of the information described in this
23 Paragraph, whichever is later. Payment shall be made as promptly as practicable, consistent with normal
24 processing procedures followed by NNSA, after plaintiff provides the necessary information for the
25 electronic funds transfer to the undersigned Assistant United States Attorney. Counsel for plaintiff
26 agrees to send confirmation of the receipt of the payment to counsel for defendants within fourteen
27 calendar days of such payment.
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STIP. OF SETTLEMENT AND DISMISSAL WITH PREJUDICE
Case No. 3:18-cv-1016 TSH RMI
2

1

3.

Upon the execution of this Stipulation, plaintiff, having received the records he

2 requested, hereby releases and forever discharges defendants, their successors, the United States of
3 America, and any department, agency, or establishment of the United States, and any officers,
4 employees, agents, successors, or assigns of such department, agency, or establishment, from any and all
5 claims and causes of action that plaintiff asserts or could have asserted in this litigation, or which
6 hereafter could be asserted by reason of, or with respect to, or in connection with, or which arise out of,
7 the FOIA requests on which this action is based or any other matter alleged in the Complaint, including
8 but not limited to all past, present, or future claims for attorneys’ fees, costs, or litigation expenses in
9 connection with the above-captioned litigation.
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4.

Execution of this Stipulation by counsel for the parties shall constitute a dismissal of all

11 claims in this action with prejudice, effective upon entry of this stipulation onto the Court’s docket,
12 pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii).
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5.

This Stipulation shall not constitute an admission of liability or fault on the part of the

14 defendants or the United States or their agents, agencies, servants, or employees, and is entered into by
15 both parties for the sole purpose of compromising disputed claims and avoiding the expenses and risks
16 of further litigation. This Stipulation shall not be construed as evidence or as an admission on the part of
17 defendants, the United States, its agents, servants, or employees regarding any issues of law or fact, or
18 regarding the truth or validity of any allegation or claim raised in this action, or as evidence or as an
19 admission by the defendants regarding plaintiff’s entitlement to attorney’s fees, costs, or other litigation
20 expenses under FOIA. This Stipulation shall not be used in any manner to establish liability for fees or
21 costs in any other case or proceeding involving defendants.
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6.

This Stipulation may be pled as a full and complete defense to any action or other

23 proceeding, including any local, state or federal administrative action, involving any person or party
24 which arises out of the claims released and discharged by this Stipulation.
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7.

This Stipulation is binding upon and inures to the benefit of the parties hereto and their

26 respective successors and assigns.
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STIP. OF SETTLEMENT AND DISMISSAL WITH PREJUDICE
Case No. 3:18-cv-1016 TSH RMI
3

1

8.

If any provision of this Stipulation shall be held invalid, illegal, or unenforceable, the

2 validity, legality, and enforceability of the remaining provisions shall not in any way be affected or
3 impaired thereby.
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9.

This Stipulation shall constitute the entire agreement between the parties, and it is

5 expressly understood and agreed that this Stipulation has been freely and voluntarily entered into by the
6 parties hereto. The parties further acknowledge that no warranties or representations have been made on
7 any subject other than as set forth in this Stipulation.
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10.

The persons signing this Stipulation warrant and represent that they possess full authority

9 to bind the persons on whose behalf they are signing to the terms of the Stipulation.
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11.

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“A general release does not extend to claims which the creditor does not know or suspect to exist
in his or her favor at the time of executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.”

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The provisions of California Civil Code Section 1542 are set forth below:

Plaintiff, having, been apprised of the statutory language of Civil Code Section 1542, and fully
understanding the same, nevertheless elects to waive the benefits of any and all rights he may have
pursuant to the provision of that statute and any similar provision of federal law. Plaintiff understands
that, if the facts concerning plaintiff’s claim and the liability of the government for damages pertaining
thereto are found hereinafter to be other than or different from the facts now believed by it to be true, the
Stipulation shall be and remain effective notwithstanding such material difference.
12.

If any withholding or income tax liability is imposed upon plaintiff or plaintiff’s counsel

based on the Settlement Amount or any other term of this Stipulation, plaintiff and plaintiff’s counsel
shall be solely responsible for paying any such determined liability from any government agency.
Nothing in this Stipulation constitutes an agreement by defendants concerning the characterization of the
Settlement Amount for the purposes of the Internal Revenue Code, Title 26 of the United States Code.
13.

This Stipulation may not be altered, modified or otherwise changed in any respect except

in writing, duly executed by all of the parties or their authorized representatives.
14.

The Stipulation may be executed in counterparts and is effective on the date by which

both parties have executed the Stipulation.

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STIP. OF SETTLEMENT AND DISMISSAL WITH PREJUDICE
Case No. 3:18-cv-1016 TSH RMI
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1

SO STIPULATED AND AGREED.

2 DATED: March 6, 2019

Respectfully submitted,

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DAV ID L. ANDERSON
United States Attorney

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/s/
JENNIFER S WANG*
Assistant United States Attorney
Attorneys for Defendants U.S.
Department of Energy and National
Nuclear Security Administration

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DATED: March 6, 2019
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/s/
SCOTT J. YUNDT
Attorney for Plaintiff Anthony
Rivera

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13 * In compliance with Civil Local Rule 5-1(i), the filer of this document attests that plaintiff has
concurred in the filing of this document.
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STIP. OF SETTLEMENT AND DISMISSAL WITH PREJUDICE
Case No. 3:18-cv-1016 TSH RMI
5

Exhibit A

1 DAVID L. ANDERSON (CABN 149604)
United States Attorney
2
SARA WINSLOW (DCBN 457643)
3 Chief, Civil Division
4 JENNIFER S WANG (CABN 233155))
Assistant United States Attorney
5
450 Golden Gate Avenue, Box 36055
San Francisco, California 94102-3495
6
Telephone: [phone]
FAX: [phone]
7
[e-mail]
8
Attorneys for Defendants
9 UNITED STATES DEPARTMENT OF
ENERGY and NATIONAL NUCLEAR
10 SECURITY ADMINISTRATION, an
agency of the U.S. Department of Energy,
11
UNITED STATES DISTRICT COURT
12
NORTHERN DISTRICT OF CALIFORNIA
13
SAN FRANCISCO DIVISION
14
15
16

ANTHONY RIVERA,

17

Plaintiff,

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19
20

v.
UNITED STATES OF AMERICA,
Defendant.

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22
23

) Case No. 3:18-cv-1016 TSH RMI
)
)
) DECLARATION OF JOHN WECKERLE
) REGARDING FOIA REQUEST NO. 18-00016-R
)
)
)
)
)

I, John Weckerle, declare and state as follows:
1.

I am currently the Freedom of Information Act (FOIA) Officer for the National Nuclear

24 Security Administration (NNSA), which is part of the United States Department of Energy. I have
25 occupied this position since June 23, 2018. My primary duties include management of requests
26 submitted to NNSA for records made under both the FOIA, 5 U.S.C. § 552, and the Privacy Act of
27 1974, 5 U.S.C. § 552a. In that capacity, I oversee NNSA’s receipt and login of incoming FOIA
28
WECKERLE DECL. RE: FOIA REQUEST 18-00016-R
Case No. 3:18-cv-1016 TSH RMI
1

1 requests, the tasking and coordination of searches for responsive records, and review of out-going
2 responses. Prior to accepting this position, I worked as a National Environmental Policy Act Compliance
3 Officer in the NNSA Office of General Counsel (NA-GC), also serving as the Contracting Officer’s
4 Representative for NA-GC’s FOIA technical support contract and assisting the FOIA Officer in
5 administering the NNSA FOIA program.
6

2.

The statements contained in this declaration are based upon my personal knowledge,

7 upon information provided to me in my official capacity, and upon conclusions and determinations
8 reached and made in accordance therewith.
9

3.

Around October 17, 2017, NNSA received a FOIA request from Anthony Rivera, seeking

10 documents relating to an event that occurred on August 30, 2013, at the Lawrence Livermore National
11 Laboratory (LLNL) High Explosives Applications Facility (HEAF). Mr. Rivera’s FOIA request was
12 assigned control number FOIA 18-00016-R, and on October 23, 2017, NNSA sent a letter to Mr. Rivera,
13 acknowledging receipt of his FOIA request.
14

4.

The FOIA office contacted the NNSA Livermore Field Office, which has oversight

15 responsibility for the LLNL, regarding Mr. Rivera’s FOIA request. The LLNL HEAF files were
16 searched for documents responsive to FOIA 18-00016-R, including any post experiment documentation.
17 Six responsive records were located and released to Mr. Rivera on July 19, 2018, with redactions of
18 material protected pursuant to FOIA exemptions 5 U.S.C. § 552(b)(3), (b)(6), and (b)(7)(E).
19 Subsequently, NNSA modified some of the redactions on these six records and sent a revised release to
20 Mr. Rivera on January 7, 2019. No other responsive documents were located.
21

I declare under penalty of perjury under the laws of the United States that the foregoing is true

22 and correct.
23

Executed on February 27, 2019 at Albuquerque, New Mexico.

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_________________
JOHN WECKERLE

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WECKERLE DECL. RE: FOIA REQUEST 18-00016-R
Case No. 3:18-cv-1016 TSH RMI
2

Exhibit B

1 DAVID L. ANDERSON (CABN 149604)
United States Attorney
2
SARA WINSLOW (DCBN 457643)
3 Chief, Civil Division
4 JENNIFER S WANG (CABN 233155))
Assistant United States Attorney
5
450 Golden Gate Avenue, Box 36055
San Francisco, California 94102-3495
6
Telephone: [phone]
FAX: [phone]
7
[e-mail]
8
Attorneys for Defendants
9 UNITED STATES DEPARTMENT OF
ENERGY and NATIONAL NUCLEAR
10 SECURITY ADMINISTRATION, an
agency of the U.S. Department of Energy,
11
UNITED STATES DISTRICT COURT
12
NORTHERN DISTRICT OF CALIFORNIA
13
SAN FRANCISCO DIVISION
14
15
16

ANTHONY RIVERA,

17

Plaintiff,

18
19
20

v.
UNITED STATES OF AMERICA,
Defendant.

21
22
23

) Case No. 3:18-cv-1016 TSH RMI
)
)
) DECLARATION OF JOHN WECKERLE
) REGARDING FOIA REQUEST NO. 18-00022-M
)
)
)
)
)

I, John Weckerle, declare and state as follows:
1.

I am currently the Freedom of Information Act (FOIA) Officer for the National Nuclear

24 Security Administration (NNSA), which is part of the United States Department of Energy. I have
25 occupied this position since June 23, 2018. My primary duties include management of requests
26 submitted to NNSA for records made under both the FOIA, 5 U.S.C. § 552, and the Privacy Act of
27 1974, 5 U.S.C. § 552a. In that capacity, I oversee NNSA’s receipt and login of incoming FOIA
28
WECKERLE DECL. RE: FOIA REQUEST NO. 18-00022-M
Case No. 3:18-cv-1016 TSH RMI
1

1 requests, the tasking and coordination of searches for responsive records, and review of out-going
2 responses. Prior to accepting this position, I worked as a National Environmental Policy Act
3 Compliance Officer in the NNSA Office of General Counsel (NA-GC), also serving as the Contracting
4 Officer’s Representative for NA-GC’s FOIA technical support contract and assisting the FOIA Officer
5 in administering the NNSA FOIA program.
6

2.

The statements contained in this declaration are based upon my personal knowledge,

7 upon information provided to me in my official capacity, and upon conclusions and determinations
8 reached and made in accordance therewith.
9

3.

On October 19, 2017, NNSA received a FOIA request from Anthony Rivera, seeking

10 documents related to reimbursements to Lawrence Livermore National Security (LLNS) associated with
11 “the DOE 708 Whistleblower Complaint that I, Anthony T. Rivera, filed against LLNS” from January
12 14, 2017 through October 18, 2017. Mr. Rivera’s FOIA request was assigned control number FOIA 1813 00022-M, and on October 20, 2017, NNSA sent Mr. Rivera a letter acknowledging receipt of his FOIA
14 request.
15

4.

NNSA conducted a search for documents responsive to FOIA 18-00022-M, including

16 “any and all documents related to the related-reimbursements defined as labor charged by internal LLNS
17 staff.” Seven responsive records were located and released to Mr. Rivera on May 4, 2018. One
18 document was released in its entirety, the other six documents were released with redactions of
19 information protected pursuant to FOIA exemptions 5 U.S.C. § 552(b)(4), (b)(5), (b)(6). No other
20 responsive documents were located.
21

I declare under penalty of perjury under the laws of the United States that the foregoing is true and

22 correct.
23

Executed on February 27, 2019 at Albuquerque, New Mexico.

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_________________
_________________
_
JOHN WECKERLE
JO
JOHN

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WECKERLE DECL. RE: FOIA REQUEST NO. 18-00022-M
Case No. 3:18-cv-1016 TSH RMI
2