BORDA v. EXECUTIVE OFFICE FOR THE UNITED STATES ATTORNEY
Filing
21
MEMORANDUM OPINION AND ORDER: Defendant's motion for summary judgment 10 is DENIED. Plaintiff's motion for leave to amend 20 is GRANTED. Plaintiff's amended complaint shall be FILED. See Order for details. Signed by Judge Randolph D. Moss on August 28, 2015. (lcrdm3, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
)
)
)
)
)
)
)
)
CHRISTIAN BORDA,
Plaintiff,
v.
EXECUTIVE OFFICE FOR THE
UNITED STATES ATTORNEY,
Defendant.
Civil Action No. 14-229-RDM
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant’s motion for summary judgment (Dkt. 10)
and Plaintiff’s motion for leave to amend (Dkt. 20). For the reasons stated herein, Defendant’s
motion is DENIED and Plaintiff’s motion is GRANTED.
I.
BACKGROUND
Plaintiff, who is a prisoner proceeding pro se, filed this suit under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, in 2014. His
initial complaint sought to compel the Executive Office for United States Attorneys (“EOUSA”)
to produce documents in response to three FOIA requests. Dkt. 1. The requests—dated,
respectively, November 4, November 5, and November 20, 2013—all seek information related to
grand jury proceedings in cases before this Court, such as the date the grand jury convened and
the name of the judge who summoned the grand jury. Id. ¶¶ 6-11. Plaintiff’s complaint alleged
that he had not received responses to any of these requests.
On February 6, 2015, EOUSA filed the pending motion for summary judgment. The
Court subsequently issued an order directing Plaintiff to respond to the summary judgment
motion by March 13, 2015 and advising him that failure to respond could result in the motion
being “treated as conceded.” Dkt. 11 (citing Neal v. Kelly, 963 F.2d 453, 456-57 (D.C. Cir.
1992)). On Plaintiff’s motion, the Court subsequently extended the deadline to file his
opposition to the summary judgment motion to May 18, 2015. April 17, 2015, Minute Order.
Rather than oppose the summary judgment motion, Plaintiff submitted a proposed amended
complaint on May 18, 2015. Because the Court concluded that Plaintiff was not, at that time,
entitled to amend as of right, see Fed. R. Civ. P. 15(a)(1), it directed Plaintiff to submit a motion
for leave to amend. May 21, 2015 Minute Order. Plaintiff filed such a motion well within the
deadline imposed by the Court. See Dkt. 20. However, to date he has still not filed an
opposition to EOUSA’s motion for summary judgment. EOUSA has not filed an opposition to
Plaintiff’s motion for leave to amend.
II.
LEGAL STANDARDS
The Freedom of Information Act is premised on the notion that an informed citizenry is
“vital to the functioning of a democratic society, needed to check against corruption and to hold
the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
242 (1978). It embodies a “general philosophy of full agency disclosure.” United States Dep't of
Defense v. FLRA, 510 U.S. 487, 494 (1994). To promote government transparency, FOIA thus
requires federal agencies to produce agency records to any person who requests them, unless the
request is procedurally defective or the information requested falls within one of nine
enumerated exemptions to the rule. 5 U.S.C. § 552(a)(3), (b).
FOIA cases are typically resolved on motions for summary judgment, which require that
the moving party demonstrate that there are no genuine issues of material fact and he or she is
entitled to judgment as a matter of law. See Celotex Corp v. Catrett, 477 U.S. 317, 325 (1986);
Beltranena v. U.S. Dep't of State, 821 F. Supp. 2d 167, 175 (D.D.C.2011) (noting that FOIA
2
cases are “frequently decided” on motions for summary judgment). To meet its burden, the
government must generally submit “relatively detailed and non-conclusory” affidavits or
declarations establishing the adequacy of its search for responsive documents, SafeCard Servs.
Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and an index of the information, if any,
withheld, see Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973); Summers v. Dep’t of
Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998) (explaining that to carry its burden, agency that
declines to produce a requested document “must submit a Vaughn index to explain why it has
withheld information”). Affidavits provided by an agency 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., 926 F.2d at 1200 (quotation marks
omitted). The standards used to evaluate FOIA claims on summary judgment also apply to suits
under the Privacy Act. See Chambers v. U.S. Dep’t of Interior, 568 F.3d 998, 1003 (D.C. Cir.
2009).
Under Federal Rule of Civil Procedure 15, “the grant or denial of an opportunity to
amend is within the discretion of the District Court,” but “leave to amend ‘shall be freely given
when justice so requires.’” Foman v. Davis, 371 U.S. 178, 182 (1962) (quoting Fed. R. Civ. P.
15).
III.
DISCUSSION
A. Defendant’s Motion for Summary Judgment
Because Plaintiff has not filed an opposition to Defendant’s motion for summary
judgment, the Court may treat that motion as conceded. See FDIC v. Bender, 127 F.3d 58, 67
(D.C. Cir. 1997); Local Civ. R. 7(b). Whether to do so is a matter for the Court’s discretion.
Bender, 127 F.2d at 67.
3
Here, there may be reasons to afford Plaintiff another opportunity to file an opposition to
Defendant’s motion. Had Plaintiff been entitled to amend his complaint as of right when he
sought to, his amended complaint would have mooted the summary judgment motion, obviating
the need to respond. See Barnes v. District of Columbia, 42 F. Supp. 3d 111, 117 (D.D.C. 2014)
(“[w]hen a plaintiff files an amended complaint as of right . . . the amended complaint becomes
the operative pleading . . . and any pending motion to dismiss becomes moot”) (citations
omitted). And although this Court concluded that Plaintiff was not entitled to amend as of right
pursuant to Rule 15(a)(1)(B) before a responsive pleading or Rule 12 motion had been filed,
there is a split of authority on that issue. Compare Villery v. District of Columbia, 277 F.R.D.
218, 219 (D.D.C. 2011) (“a party has an absolute right to amend its complaint at any time from
the moment the complaint is filed until 21 days after the earlier of the filing of a responsive
pleading or a motion under Rule 12(b), (e), or (f)”) with Jenkins v. Kerry, 928 F. Supp. 2d 122,
136 (D.D.C. 2013) (“because Plaintiff clearly amended her Complaint before the [defendants]
filed and served upon Plaintiff their Rule 12(b) motion, she may not invoke Rule 15(a)(1)”).
Plaintiff’s apparent and reasonable belief that he was entitled to amendment as of right may
constitute grounds for excusing Plaintiff’s failure timely to file an opposition.
The Court need not decide whether Plaintiff deserves an additional opportunity to oppose
EOUSA’s motion for summary judgment, however, because even absent any opposition
EOUSA’s motion fails. In its motion and statement of material facts not in dispute, EOUSA
describes its responses to two FOIA and Privacy Act requests filed by Plaintiff. One of those
requests—which EOUSA states was submitted on November 29, 2013—is easily identifiable as
the November 4, 2013 request Plaintiff describes in his complaint. Compare Dkt. 10-3 with Dkt.
1-2. To support its factual assertions regarding this request, EOUSA cites a “David Luczynski
Declaration,” but no such declaration was ever provided to the Court. The facts asserted in the
4
separate statement, even if treated as conceded, show only that EOUSA received Plaintiff’s
November 4, 2013, FOIA and Privacy Act request and subsequently notified Plaintiff that “a
search . . . had revealed no responsive records.” Dkt. 10-1 ¶¶ 1-3. This is plainly insufficient to
meet the government’s burden on summary judgment to establish that it conducted an adequate
search for Plaintiff’s records. See SafeCard Servs., 926 F.2d at 1201 (government’s burden to
show that search “was reasonably calculated to discover the requested documents”).
Almost two months after EOUSA filed its summary judgment motion, it filed an errata
attaching the declaration of Karin Kelly, which is also cited in EOUSA’s summary judgment
motion. Kelly is a “Paralegal Specialist[ ] and FOIA Coordinator” in the United States
Attorney’s Office for the District of Columbia. Dkt. 15-1 ¶ 1. The declaration states that
EOUSA “uploaded Mr. Borda’s [November 4, 2015] request” to a system EOUSA uses to
forward FOIA requests to individual United States Attorney’s Offices on October 17, 2014; that
Kelly searched two computer systems for information regarding the case identified in the
request; and that the searches yielded no results. Id. ¶¶ 15-18. Kelly further explains that the
case docket revealed that “the agency representing the United States of America was the
Criminal Division of the Department of Justice, not the” United States Attorney’s Office for the
District of Columbia. Id. ¶ 8. The Kelly Declaration merely concludes that “no records for Mr.
Borda exist in” the D.C. United States Attorney’s Office. Id. ¶ 13.
Accordingly, without an additional declaration demonstrating that a search was
conducted of records maintained by the Criminal Division, there is no evidentiary basis for the
Court to conclude that EOUSA has searched “all files likely to contain responsive materials.”
Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (1990); see 28 C.F.R. § 16.4(c) (“Where a
component’s FOIA office determines that a request was misdirected within the Department [of
Justice], the reviewing component’s FOIA office shall route the request to the FOIA office of the
5
proper component(s).”). Because the EOUSA’s evidence—even taken as undisputed—does not
establish that it conducted a search that was reasonably calculated to discover the documents
Plaintiff requested in his November 4, 2015, request, EOUSA is not entitled to summary
judgment as to that request.
The other request described by the government is an October 7, 2014, request for
documents relating to a criminal case. Dkt. 10-1 ¶¶ 4-6. This request, however, is never
mentioned in Plaintiff’s complaint. Any showing that EOUSA has complied with this request is
obviously insufficient to support summary judgment as to the requests actually at issue in this
litigation.
For these reasons, EOUSA’s motion for summary judgment will be denied.
B. Plaintiff’s Motion for Leave to Amend
Although the Court previously concluded that Plaintiff was not entitled to amendment as
a matter of right when he submitted his amended complaint, he has now filed a motion for leave
to amend. EOUSA has not opposed the motion, and the Court concludes that leave to amend is
warranted at this time. See Foman, 371 U.S. at 182. Plaintiff’s motion will be granted.
IV.
CONCLUSION AND ORDER
For the reasons stated herein, it is hereby ORDERED that Defendant’s motion for summary
judgment is DENIED. It is further
ORDERED that Plaintiff’s motion for leave to amend the complaint is GRANTED.
Plaintiff’s amended complaint shall be FILED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: August 28, 2015
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?