BRUSTEIN & MANASEVIT, PLLC v. UNITED STATES DEPARTMENT OF EDUCATION

Filing 12

MEMORANDUM OPINION. See attached Memorandum Opinion and accompanying Order for details. Signed by Judge Ketanji Brown Jackson on 03/31/2014. (lckbj2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Plaintiff,
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v.
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UNITED STATES DEPARTMENT OF )
EDUCATION,
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Defendant.
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BRUSTEIN & MANASEVIT, PLLC,

Civil Action No. 13-cv-0714 (KBJ)

MEMORANDUM OPINION
Plaintiff Brustein & Manasevit, PLLC (“Brustein” or “Plaintiff”) filed a
complaint against the United States Department of Education (“DOE” or “Defendant”)
under the Freedom of Information Act (“FOIA”), 5 U.S.C. §552 (2014), on May 15,
2013,. (See Complaint (“Compl.”), ECF No. 1.) 1 The complaint seeks injunctive and
declaratory relief in the form of a court order compelling DOE to release records that
pertain to a computer program—known as the “State and Local Educational Agencies
Risk Model” (“Risk Model”)—that DOE uses to identify state and local education
agencies that are at risk of misusing federal funds. (Id. ¶ 7.) DOE initially withheld all
responsive records; however, after the complaint was filed, DOE released in their
entirety the documents that the agency had found in response to Plaintiff’s FOIA
request. (Def.’s Statement of Material Facts as to Which There is no Genuine Dispute

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Plaintiff Brustein & Manasevit, PLLC, is a law firm located in Washington D.C. that primarily
practices federal education law, and that works with various state and local education agencies and
other institutions on federal education programs and federal grant management. (Compl. ¶ 5.)

(“Def.’s Facts”), ECF No. 8 at 3-4, ¶ 2.) 2 DOE then filed a motion to dismiss the
complaint, or in the alternative, motion for summary judgment—the pleading that is
before this Court today. (See (Def.’s Mem. in Supp. of Mot. to Dismiss or, in the
Alternative, Mot. for Summ. J. (“Def.’s Mem.”), ECF No. 8, at 6-13.)
In its motion, DOE argues that the complaint must be dismissed pursuant to
Federal Rule of Civil Procedure 12(b)(1) on the grounds that the agency’s production of
documents has mooted this matter. (Id. at 9-11.) Alternatively, DOE maintains that
summary judgment should be entered in its favor because there is no genuine issue of
material fact regarding the reasonableness and adequacy of its search for responsive
records. (Id. at 11-13.) In opposition to DOE’s motion, Plaintiff maintains that the
search was inadequate and the case is not moot, because the documents that DOE
provided suggest that additional (unreleased) records responsive to the FOIA request
exist. (Pl.’s Mem. in Opp’n to Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 9-1, at 3-6.)
Upon consideration of the motion and associated submissions from the parties, the
entire record, and the applicable law, and for the reasons explained below, the Court
rejects Defendant’s argument that the complaint must be dismissed as moot, but agrees
that Defendant is entitled to summary judgment because the agency’s search for records
was reasonable and adequate. Accordingly, Defendant’s motion is GRANTED, and
summary judgment will be entered in its favor with respect to the one and only count of
the complaint. A separate order consistent with this opinion will follow.

2

Page numbers throughout this opinion refer to the page numbers generated by the Court’s electronic
filing system.

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I. BACKGROUND
In November of 2012, DOE’s Office of the Inspector General (“OIG”) released a
semi-annual report to Congress, in order to update lawmakers on “the activities and
accomplishments of [the OIG.]” (Compl. Ex. 1 (OIG Semiannual Report (“OIG
Report”)), ECF No. 1-2, at 2.) 3 In this report, the OIG affirmed its “commitment to
promoting accountability, efficiency, and effectiveness in our oversight of [DOE’s]
programs and operations[,]” (id. at 2), and described the Risk Model as one of the “data
analytic tools” that the OIG had developed to promote this goal (id. at 18). 4 According
to the report, OIG staff members use the Risk Model to “better identify which SEAs
[state education agencies] and LEAs [local educational agencies] are at higher risk” of
misusing federal education grants and other sources of federal education funding. (Id.)
On December 7, 2012, Plaintiff submitted a FOIA request to DOE. (See Compl.
Ex. 2, ECF No. 1-3, at 1.) The request specifically referenced the OIG Report’s
statement regarding use of the Risk Model, and stated: “I am requesting a complete
copy of this State and Local Educational Agencies Risk Model[,]” or “[i]f a copy of the
model is not available, I request a complete description of the State and Local
Educational Agencies Risk Model.” (Id.) DOE confirmed receipt of Plaintiff’s FOIA
request on December 11, 2012. (Compl. ¶ 9.)

3

The Inspector General Act of 1978 requires each Inspector General to “prepare semiannual reports
summarizing the activities of the Office during the immediately preceding six-month periods ending
March 31 and September 30.” 5 U.S.C. App. 3 § 5.
4

The Risk Model “consists of computer programs that interface with various database systems.” (Decl.
of Edward Slevin (“Slevin Decl.”), ECF No. 10-1, ¶ 4.) Using inputs from various sources, the
program computes a ranking of local education agencies based upon their risk of misusing federal
funds, and then makes that information available to the state education agency that oversees the local
agency. (State and Local Education Agencies Risk Model Project Proposal, ECF No. 8-4, at 8-10.) In
essence, the Risk Model is “an online robust risk model system” that permits evaluation of various
local education agencies within a particular jurisdiction. (Id. at 8.)

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After receiving the FOIA request, DOE searched its databases for responsive
documents. (Def.’s Facts ¶ 2.) As a result of this search, DOE was able to identify
three documents, totaling 16 pages, that in DOE’s view “provide[d] a complete
description” of the Risk Model. (Id.) 5 DOE refused to produce these documents,
however, citing FOIA Exemptions 5 and 7(E), see 5 U.S.C. §§ 552(b)(5), (b)(7)(E), as
the bases for its decision. (Compl. ¶ 10; see also Compl. Ex. 4, ECF No. 1-5.) Plaintiff
filed a timely administrative appeal of DOE’s decision to withhold the documents
(Compl. Ex. 5, ECF No 1-6), which was denied on February 13, 2013 (Compl. Ex. 6,
ECF No. 1-7). Plaintiff then filed the instant complaint, alleging one count of wrongful
withholding of documents in violation of FOIA, and seeking to “compel [DOE] to
disclose and release” the documents. (Compl. ¶¶ 1, 14-16.)
At some point thereafter, DOE reconsidered its determination regarding the
applicability of FOIA Exemptions 5 and 7(E), and on July 8, 2013, the agency released
the three documents in their entirety to Plaintiff, without any withholdings or
redactions. (Def.’s Facts ¶¶ 4-5.) Defendant then filed a motion to dismiss the
complaint on August 1, 2013, arguing that because the agency had produced all
responsive records in full, Plaintiff’s FOIA claim was moot. (Def.’s Mem. at 9-11.) In
the alternative, Defendant asserted that summary judgment should be granted in its
favor because it had conducted an adequate search for documents, and had released all
such documents to Plaintiff. (Id. at 11-13.) Plaintiff opposed Defendant’s motion,
arguing that certain aspects of the documents DOE produced appeared to indicate that
additional responsive documents are in DOE’s possession; therefore, the complaint was
not moot and DOE had failed to conduct an adequate search. (Pl.’s Opp’n at 3-6.)
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As explained further below, Plaintiff disputes this characterization.

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Defendant’s motion to dismiss, or in the alternative motion for summary judgment, was
fully briefed on August 26, 2013, and is currently pending before the Court.
II.

LEGAL STANDARDS
A. Motion To Dismiss For Mootness Pursuant To Federal Rule Of Civil
Procedure 12(b)(1)
A case becomes moot “when the issues presented are no longer live or the parties

lack a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440
U.S. 625, 631 (1979) (internal quotation marks and citation omitted). A defendant who
asserts that a complaint is moot because of developments subsequent to its filing raises
a challenge to the court’s subject matter jurisdiction, see Flores ex rel. J.F. v. District
of Columbia, 437 F. Supp. 2d 22, 28 (D.D.C. 2006), because federal courts only have
constitutional authority to adjudicate “actual, ongoing controversies,” Honig v. Doe,
484 U.S. 305, 317 (1988). Consequently, Rule 12(b)(1) is the proper mechanism for a
defendant to assert that an action is moot. See Young v. D.C. Housing Auth., 13cv652,
2014 WL 948317, at *1, 3 (D.D.C. Mar. 12, 2014) (“A motion to dismiss for mootness
is properly brought under Federal Rule of Civil Procedure 12(b)(1).”); Toxco, Inc. v.
Chu, 801 F. Supp. 2d 1, 5 (D.D.C. 2011) (“Under Rule 12(b)(1), a party may move to
dismiss a case on grounds of mootness.”).
In FOIA cases, “[o]nce the records are produced the substance of the controversy
disappears and becomes moot since the disclosure which the suit seeks has already been
made.” Crooker v. U.S. State Dep’t, 628 F.2d 9, 10 (D.C. Cir. 1980) (citing Ackerly v.
Ley, 420 F.2d 1336, 1340 (D.C. Cir. 1969)). However, even where an agency has
already produced the requested records, the plaintiff may still have “a cognizable
interest in having [a] [c]ourt determine whether the search for records was adequate
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under the [FOIA] standards for adequate records searches[.]” Looney v. WaltersTucker, 98 F. Supp. 2d 1, 2 (D.D.C. 2000); see also, e.g., Judicial Watch, Inc. v. FDA,
514 F. Supp. 2d 84, 88 (D.D.C. 2007) (noting that “courts deciding FOIA disputes
always have jurisdiction to determine the adequacy of a search by the agency for
records duly requested under the FOIA”) (internal quotation marks and citation
omitted); Snyder v. CIA, 230 F. Supp. 2d 17, 19 n.1 (D.D.C. 2002) (“[P]laintiff has a
cognizable interest in having this Court determine whether [an agency’s] search for
records responsive to plaintiff’s request was adequate under the FOIA and relevant case
law. . . . The case is therefore not moot.”) The “heavy burden of establishing mootness
lies with the party asserting a case is moot.” Honeywell Int’l, Inc. v. Nuclear
Regulatory Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010) (internal quotation marks and
citation omitted).
B. Motion for Summary Judgment Under Rule 56
Summary judgment is appropriate if 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). “Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The “party seeking summary
judgment always bears the initial responsibility of [stating] . . . 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) (quoting Fed. R. Civ. P. 56). The nonmoving party must then
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go beyond the pleadings and with “affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is a
genuine issue for trial.” Id. at 324 (internal quotation marks omitted).
An agency seeking summary judgment in a FOIA case must show that it
conducted “a search reasonably calculated to uncover all relevant documents, and, if
challenged, must demonstrate beyond material doubt that the search was reasonable.”
Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (internal quotation marks
omitted). “The agency must establish through affidavits or declarations the adequacy of
both its search methods (where and how it looked for responsive records) and the scope
of its search (what it was looking for).” Looney, 98 F. Supp. 2d at 3. The agency’s
affidavits must be, “relatively detailed and non-conclusory[.]” Ground Saucer Watch,
Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981) (internal quotation marks and citation
omitted). Although the agency declarants need not “set forth with meticulous
documentation the details of an epic search for the requested records,” they must show
“that the search method was reasonably calculated to uncover all relevant documents[.]”
Looney, 98 F. Supp. 2d at 3 (internal quotation marks and citation omitted). Notably,
“[a]gency affidavits are accorded a presumption of good faith, which cannot be rebutted
by ‘purely speculative claims about the existence and discoverability of other
documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)
(quoting Ground Saucer Watch, 692 F.2d at 771). Moreover, in analyzing the
reasonableness of an agency’s search, “[t]he issue is not whether any further documents
might conceivably exist but rather whether the government’s search for responsive

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documents was adequate.” Truitt, 897 F.2d at 542 (internal quotation marks and
citation omitted).
III.

ANALYSIS
A. Defendant’s Motion To Dismiss On Mootness Grounds

Defendant maintains that the complaint should be dismissed as moot under Rule
12(b)(1) because DOE conducted an adequate search for records that describe the Risk
Model in response to Plaintiff’s FOIA request, and because the agency released in their
entirety the documents that it found as a result of its reasonable search. (Def.’s Mem.
at 9-10.) It is undisputed that DOE has produced fully the documents that it had
originally withheld. (Def.’s Facts ¶ 5; Pl.’s Statement of Material Facts as to Which
There is Genuine Dispute (“Pl.’s Facts”), ECF No. 9-2, ¶ 1.) But the production of
documents in the context of a FOIA case does not automatically render the case moot,
because, as explained above, the plaintiff may still hold “a cognizable interest” in
having a court determine the adequacy of the agency’s search for records. See
Conservation Force v. Ashe, 12cv1428, 2013 WL 5574185, at *1, 4 (D.D.C. Oct. 10,
2013) (“In the FOIA context, . . . a court maintains jurisdiction even after an agency
releases documents when other related issues, such as the proper scope of the agency’s
search, remain unresolved.”). Thus, when a plaintiff maintains a challenge to the
adequacy of a defendant’s search despite having received responsive documents, that
challenge will, in most cases, be sufficient to warrant the court’s rejection of a motion
to dismiss on mootness grounds. See, e.g., Short v. U.S. Army Corps of Eng’rs, 593 F.
Supp. 2d 69, 72 n.5 (D.D.C. 2009) (“Because [plaintiff] challenges the adequacy of the
search, the motion to dismiss as moot must be denied.”); Nw. Univ. v. USDA, 403 F.
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Supp. 2d 83, 85-86 (D.D.C. 2005) (refusing to dismiss action as moot despite belated
release of documents because plaintiff challenged adequacy of defendant’s document
production); Yonemoto v. Dep’t of Veterans Affairs, 686 F.3d 681, 689 (9th Cir. 2011)
(“A FOIA claim is not moot, for example, if the agency produces what it maintains is
all the responsive documents, but the plaintiff challenges whether the [agency’s] search
for records was adequate.”) (internal quotations marks omitted).
Here, Plaintiff has not conceded that DOE has conducted an adequate search and
has produced all responsive documents in full compliance with the FOIA request. To
the contrary, Plaintiff vigorously maintains that the dispute is still alive and well
because there are additional documents related to the Risk Model that DOE has not
located or released, and therefore DOE’s search was obviously inadequate. (Pl.’s
Opp’n at 3-4.) To support this contention, Plaintiff notes that the released documents
contain specific references both to “10 risk factors” and a scoring system that appears
to be based on those 10 factors, but “[n]owhere in the 16 pages of documentation is
there a description of how points are assessed and weighted” among the factors. (Id. at
4.) As a result, Plaintiff speculates that there must be “additional documents related to
the scoring system” that DOE’s search has not found. (Id.)
Given Plaintiff’s insistence that additional responsive documents must exist and
that therefore the released records have not been provided after an adequate search (see
Pl.’s Opp’n at 3-4), the Court concludes that Plaintiff has a cognizable interest in
having this Court determine whether the Defendant’s search for records was adequate.
See, e.g., Judicial Watch, 514 F. Supp. 2d at 88; Snyder, 230 F. Supp. 2d at 19 n.1.

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Accordingly, Defendant’s motion to dismiss Plaintiff’s complaint on mootness grounds
must be denied. 6
B. Defendant’s Motion For Summary Judgment
As an alternative to its mootness argument, Defendant asks that the Court grant
summary judgment in its favor because its search for responsive records was reasonable
and adequate as a matter of law, and thus no genuine issues of material fact remain.
(Def.’s Mem. at 11-13.) As noted above, in a FOIA case, “the issue to be resolved is
not whether there might exist any other documents possibly responsive to the request,
but rather whether the search for those documents was adequate.” Weisberg v.
DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (emphasis in original). Considering the
affidavits and information DOE has provided regarding the search it conducted in
response to Plaintiff’s FOIA request, this Court concludes that an adequate search was
conducted with respect to the FOIA request at issue here.
DOE has included with its motion a declaration from OIG Counsel Marta Erceg.
(See Declaration of Marta Erceg (“Erceg Decl.’”), ECF No. 8-1.) Ms. Erceg avers, in
relevant part, that she is “responsible for coordinating [FOIA] requests” (id. ¶ 1), and
that “upon receipt of Plaintiff’s request, OIG searched its electronic and hard copy
records for responsive documents” (id. ¶ 5), as a result of which the agency “located
three documents that provide a complete description” of the Risk Model (id. ¶ 7).
Erceg admits that DOE originally withheld these documents (id. ¶ 8), but after Plaintiff
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It is for this same reason that the Court rejects DOE’s assertion—made in a single footnote in the
memorandum accompanying its motion—that “Defendant’s release of all responsive documents also
requires dismissal pursuant to Rule 12(b)(6) of the Federal Rule of Civil Procedure.” (Def.’s Mem. at 6,
n.1 (internal citations omitted).) DOE is mistaken when it argues that the only way to state a claim
under FOIA is to “show that the agency has improperly withheld agency records.” (Id.) To the
contrary, if a plaintiff can establish that an agency’s search for records was inadequate, the fact that the
agency has turned over all of the documents that its unreasonable search turned up is beside the point.

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filed the complaint, “Defendant provided Plaintiffs with a full release of all [the
documents] that completely describe the [Risk Model] as requested in Plaintiff’s initial
request[,]” without withholding or redacting any pages (id. ¶ 12). DOE has also
submitted a declaration from Edward Slevin, the Director of the Computer Assisted
Assessment Techniques team within OIG. (See Declaration of Edward Slevin (“Slevin
Decl.”), ECF No. 10-1.) Mr. Slevin’s declaration states that he is the director of the
team that created the Risk Model and has managed the Risk Model since its creation.
(Id. ¶¶ 4, 6.) Mr. Slevin further avers that “all records related to” the Risk Model are
stored on his “work-issued computer [and] secured under his user identification.” (Id. ¶
7.) Finally, Mr. Slevin reports that he personally conducted the search for Plaintiff’s
requests and located the documents that were eventually produced. (Id. ¶¶ 7-8.)
In the Court’s view, the declarations of Erceg and Slevin—which are presumed
to have been submitted in good faith and are entitled to great weight—are sufficient to
carry Defendant’s burden of showing that it conducted “a search reasonably calculated
to uncover all relevant documents[.]” Truitt, 897 F.2d at 542 (internal quotation marks
and citation omitted). Indeed, Slevin’s attestation that “all records related to” the Risk
Model are stored on his own work computer, which he personally searched in response
to Plaintiff’s FOIA request, eliminates any material questions of fact regarding the
scope of the search and also effectively disposes of any adequacy issue. (Slevin
Decl. ¶ 7.)
Plaintiff’s arguments to the contrary merely restate its assertions regarding the
mootness question—that is, Plaintiff asserts that DOE’s ‘“identification or retrieval
procedure [is] genuinely in issue” because the released documents “hint at a scoring

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system without providing details.” (Pl.’s Opp’n at 6.) But it is well established that
“the presumption of good faith” that accompanies agency affidavits submitted in the
FOIA context “cannot be rebutted by purely speculative claims about the existence and
discoverability of other documents.” SafeCard Servs., 926 F.2d at 1200 (internal
quotation marks and citations omitted); see also Hodge v. FBI, 703 F.3d 575, 580 (D.C.
Cir. 2013) (“Mere speculation that as yet uncovered documents may exist does not
undermine the finding that the agency conducted a reasonable search.”). Plaintiff here
has provided nothing beyond rank speculation about the possible existence of materials
that explain the various factors in the Risk Model in its attempt to undermine the clear
conclusion that DOE’s search was reasonable and adequate. And this speculation is
rendered all the more speculative in light of supplemental evidence that Defendant has
submitted to cast doubt on Plaintiff’s underlying assumptions. 7
In short, because Defendant has carried its burden of showing that it conducted a
reasonable and adequate search for responsive records, and because Plaintiff has
provided no reason for the Court to conclude otherwise, the Court will grant
Defendant’s motion and enter summary judgment in its favor.

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Defendant has filed a supplemental declaration from Marta Erceg to rebut Plaintiff’s assertion that the
released documents fail to explain how the various risk factors are “weighted” for use in the Risk
Model. The declaration explains that, in fact, “[t]he documents provided state that the user selects the
risk indicators he/she wants to include in the model” and “assigns weights to individual or grouped
indicators” (Suppl. Decl. of Marta Erceg, ECF No. 10-2, ¶ 9), a process that is typical of statistical
models that are designed to assess the impact of various factors. Cf. Federal Judicial Center, Reference
Manual on Scientific Evidence § 303 (3d ed. 2011) (explaining, with respect to multiple regression
analyses, that such models involve selecting multiple factors and assigning them specific values “to
predict the values of one variable using the values of others[]”).

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IV.

CONCLUSION
For the reasons set forth above, the Court concludes that Plaintiff’s complaint is

not moot, and so declines to dismiss the complaint on those grounds. However, the
Court also concludes that, because the agency’s search for records responsive to
Plaintiff’s request was reasonable and adequate, Defendant is entitled to summary
judgment. Accordingly, Defendant’s motion is GRANTED and summary judgment is
entered in its favor.

Ketanji Brown Jackson

Date: March 31, 2013

KETANJI BROWN JACKSON
United States District Judge

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