BEHRENS v. UNITED STATES ATTORNEY
MEMORANDUM OPINION re: 36 Defendant's Second Supplemental Motion for Summary Judgment. See attached Memorandum Opinion for additional details. Signed by Judge Amit P. Mehta on 12/21/2016. (lcapm1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
United States Attorney,
District of Nebraska,
Bryan C. Behrens,
Case No. 14-cv-00838 (APM)
This matter is before the court on Defendant United States Attorney’s Office for the District
of Nebraska’s Second Supplemental Motion for Summary Judgment. Def.’s Second Supp. Mot.
for Summ. J., ECF No. 36. For the reasons discussed below, the Motion is granted.
Plaintiff Bryan C. Behrens, proceeding pro se, alleges that, “[o]n July 28, 2008[,] in the
[United States District Court for the] District of Nebraska, Omaha, Chief Judge Laurie Smith
Camp issued a judgment as to . . . Bryan S. Behrens in case 8:08CV13,” which, among other
things, “ordered that no judicial proceedings of any kind[,] civil or criminal, may be commenced
against Bryan S. Behrens without leave first being granted by the Court.” Compl., ECF No. 1
[hereinafter Compl.], at 3. 1 Plaintiff asserts that Judge Smith Camp’s order required the United
States Attorney’s Office for the District of Nebraska (“USAO-Nebraska”) to obtain leave of court
before it commenced criminal proceedings against him, see id. at 3–4, and that without leave of
All docket entry page numbers refer to those designated by ECF.
court, “there [sh]ould [have been] no indictment or judgment entered against [him],” see id. at 4.
Nevertheless, Plaintiff states, the USAO-Nebraska convened a grand jury, which returned an
indictment on April 22, 2009. Id. at 3. Plaintiff ultimately pleaded guilty to one count of securities
fraud. See Compl., Appendix, ECF No. 1-1 [hereinafter Compl. App’x], at 44.
Plaintiff brought this action under the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552. His claim arises from a request for information submitted to the Executive Office for United
States Attorneys (“EOUSA”) in August 2013. In relevant part, the request read:
I need a copy of the Court order that allowed the Nebraska US
Attorney[’]s Office to conduct criminal proceedings and issue the
indictment. If the Nebraska US Attorney[’]s office did not receive
a Court order from Judge Smith Camp, granting leave to proceed as
required, Behrens is asking for an admission that the US
Attorney[’]s office in Nebraska violated the orders issued by Judge
Smith Camp when they issued the indictment and commenced legal
proceedings against me.
Compl. App’x at 3. Attached to the request were copies of orders issued by Judge Smith Camp
on July 28, 2008, and March 24, 2009, in civil matter 8:08CV13. See id. at 5–14. Plaintiff repeated
his request in early November 2013, see id. at 15–18, and, in September 2014, the EOUSA
responded that the USAO-Nebraska had located no responsive records, Errata, ECF No. 20, Ex.
C, ECF No. 20-3.
In its first motion for summary judgment, Defendant asserted that its search had not yielded
any responsive records. See Def.’s Mot. for Summ. J., ECF No. 14, Mem. in Supp., ECF No. 141, at 6–7. The court denied that motion because Defendant had failed to submit a supporting
affidavit or declaration. Mem. Op. & Order, ECF No. 21 [hereinafter Mem. Op. II], at 3–4.
Defendant’s second motion for summary judgment was no more successful. Again, Defendant
argued that it had conducted a search for responsive records and located none. See Def.’s Supp.
Mot. for Summ. J., ECF No. 22 [hereinafter Def.’s Supp. Mot.]. The court deemed Defendant’s
search inadequate because Defendant had limited its search to records pertaining only to Plaintiff’s
civil case and had not searched his criminal case file. Mem. Op. & Order, ECF No. 35, at 6–8.
The court now turns to Defendant’s third motion for summary judgment. See Def.’s
Second Supp. Mot. for Summ. J, ECF No. 36 [hereinafter Def.’s Second Supp. Mot.].
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). The court
grants summary judgment to an agency as the movant if the agency shows that there is no genuine
dispute as to any material fact and the agency is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(a). “When, as here, an agency’s search is questioned, the agency is entitled to summary
judgment upon a showing, through declarations that explain in reasonable detail and in a
nonconclusory fashion the scope and method of the search, that it conducted a search likely to
locate all responsive records.” Brestle v. Lappin, 950 F. Supp. 2d 174, 179 (D.D.C. 2013) (citing
Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (per curiam)).
The EOUSA’s Searches for Responsive Records
An agency “fulfills its obligations under FOIA if it can demonstrate beyond material doubt
that its search was reasonably calculated to uncover all relevant documents.” Ancient Coin
Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (internal quotation
marks omitted). To this end, it may submit affidavits to explain the method and scope of its search.
See Perry, 684 F.2d at 126. “[A] search need not be perfect, only adequate, and adequacy is
measured by the reasonableness of the effort in light of the specific request.” Meeropol v. Meese,
790 F.2d 942, 956 (D.C. Cir. 1986).
Following this court’s second denial of summary judgment, the Chief of the Civil Division
for the USAO-Nebraska, Robert Homan, directed both Rebecca K. Lesser, a Paralegal Specialist,
and the AUSA assigned to Plaintiff’s case, Russell X. Mayer, to search for the purported order
issued by Judge Smith Camp within “Plaintiff’s criminal case files maintained in the USAONebraska.” Def.’s Second Supp. Mot., Ex. A., ECF No. 36-1 [hereinafter Homan Decl.], ¶ 4.
Lesser “searched through Plaintiff’s criminal case files with USAO Number 2008R00023, and
bearing District Court Case Number 8:09CR129 . . . , maintained in the USAO-Nebraska for all
records pertaining to Plaintiff’s Civil Case Number 8:08CV13.” Def.’s Second Supp. Mot., Ex.
B., ECF No. 36-2, ¶ 4. Specifically, she searched for an “order granting leave to issue the
indictment and conduct criminal proceedings against Bryan Behrens,” but found no such order.
Id. ¶¶ 4–5. AUSA Mayer likewise found no such order. See Homan Decl. ¶ 4.
Notwithstanding Defendant’s compliance with this court’s prior orders, Plaintiff maintains
that “Defendant has failed to meet its burden and provide a copy of the Court order.” Pl.’s
Objection, ECF No. 41 [hereinafter Pl.’s Opp’n], at 20. He attacks Ms. Lesser’s declaration as
“not being truthful to this Court,” based on documents in his possession and those filed in the
criminal case. Specifically, Plaintiff points to correspondence and court filings tending to show
that “Defendant clearly had intensive knowledge” of the civil case against him. Id. at 17. For
example, Plaintiff relies on a copy of correspondence “from Joe Stecher, United States Attorney
[for the District of Nebraska], addressed to the Securities and Exchange Commission requesting
access to the investigative and other non-public files” relating to the SEC’s civil case against
Plaintiff. See id. at 18, 55. Based on this evidence, Plaintiff contends “that the USAO-Nebraska
has not completed a complete search of the criminal file and has provided contradictory evidence
as to its knowledge of the Civil proceeding.” Id. at 20. He further suggests that the USAO-
Nebraska knew or should have known of the requirement that Judge Smith Camp grant leave of
court before criminal proceedings could begin. Plaintiff asserts that “[w]hat is absent from the
Defendant[’]s filing is a declaration under oath made by AUSA . . . Russell X. Mayer stating [sic]
that he did not seek prior approval from the order issued by Judge Smith Camp presiding over
proceeding 8:08CV13 prior to the commencement of a criminal proceeding against Behrens.” Id.
Plaintiff misunderstands the limits of an agency’s obligations under the FOIA. The
EOUSA “must make ‘a good faith effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the information requested.’” Nation
Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (quoting Oglesby v. U.S. Dep’t
of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). There is no guarantee that the results of a search
will meet a requester’s expectations. “Rather, the adequacy of a FOIA search is generally
determined not by the fruits of the search, but by the appropriateness of the methods used to carry
out the search.” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). So
long as the agency demonstrates that its efforts were reasonably calculated to locate responsive
records, the fact that it found none does not render the search inadequate. See id. (“[I]t is long
settled that the failure of an agency to turn up one specific document in its search does not alone
render a search inadequate.”); Boyd v. Criminal Div. of U.S. Dep't of Justice, 475 F.3d 381, 391
(D.C. Cir. 2007).
Additionally, Defendant is not obligated to produce a declaration from AUSA Mayer to
serve as “an admission that the [USAO-Nebraska] violated the orders issued by Judge Smith Camp
when [it] issued the indictment and commenced legal proceedings against [Plaintiff].” Compl.
App’x at 3. As the court previously advised Plaintiff, this proceeding cannot be used as a means
of collaterally attacking his conviction. See Mem. Op. II at 3 n.2. The sole question before this
court is whether Defendant has complied with its search obligation under FOIA. It clearly has
done so. Defendant has produced declarations stating that it has searched both its civil and criminal
case files pertaining to Plaintiff and, despite its best efforts, it did not locate the order sought by
Plaintiff. Those declarations are entitled to a presumption of good faith, see Mobley v. CIA, 806
F.3d 568, 581 (D.C. Cir. 2015), and Plaintiff has offered nothing but speculation to overcome it.
Speculation alone cannot defeat Defendant’s motion for summary judgment. See, e.g., Judicial
Watch, Inc. v. U.S. Dep’t of Health and Human Servs., 27 F. Supp. 2d 240, 244 (D.D.C. 1998)
(concluding that “plaintiff's speculation as to the trustworthiness of the Clinton administration and
[the agency’s] failure to release documents that plaintiff apparently expected to be released is
insufficient as a matter of law to defeat defendant’s motion for summary judgment as to the
adequacy of the FOIA search”).
For the foregoing reasons, the court grants Defendant’s Second Supplemental Motion for
Summary Judgment. A separate order accompanies this Memorandum Opinion.
Dated: December 21, 2016
Amit P. Mehta
United States District Judge
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