CRUZ v. EXECUTIVE OFFICE FOR THE UNITED STATES ATTORNEY
MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 9/26/2017. (DAS)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
) Civ. Action No. 15-1977 (RMC)
EXECUTIVE OFFICE FOR
UNITED STATES ATTORNEYS,
Felix Cruz, appearing pro se, brought this lawsuit under the Freedom of
Information Act (FOIA) “to compel disclosure . . . of the documentary evidence and
documentary memorialization of statements and testimony given [regarding certain paragraphs]
of the Presentence Investigation Report of my criminal case.” Compl. [Dkt. 1] at 1. Defendant
Executive Office for United States Attorneys (EOUSA), to which Mr. Cruz addressed his request
in April 2015, has moved for summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. See Mot. [Dkt. 25]. Mr. Cruz has not filed an opposition by the latest deadline
of May 19, 2017, despite having been warned that his failure to respond timely, and in
accordance with Rule 56, might result in the Court’s entering judgment for EOUSA on its
undisputed factual assertions. See Order [Dkt. 26]. In addition, Mr. Cruz has not requested
additional time to respond. Accordingly, the Court will grant EOUSA’s motion for the following
In summary judgment proceedings, the Court may grant a properly supported
motion “if the movant shows [through facts supported in the record] that 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). In doing so, the Court “should state on the record the reasons for granting . . .
the motion.” Id. Summary judgment is the frequent vehicle for resolution of a FOIA action
because the pleadings and declarations in such cases often provide undisputed facts on which the
moving parties are entitled to judgment as a matter of law. McLaughlin v. DOJ, 530 F. Supp. 2d
210, 212 (D.D.C. 2008) (citations omitted). Agencies may rely on affidavits or declarations of
government officials, as long as they are sufficiently clear and detailed and submitted in good
faith. Id. (citing Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). The
Court may award summary judgment solely on the basis of information provided in such
affidavits or declarations when they describe “the documents and the justifications for
nondisclosure with reasonably specific detail . . . and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981).
Under 56(e), “[i]f a party fails to . . . properly address another party’s assertion of
fact as required by Rule 56(c), the court may: (1) give an opportunity to properly . . . address the
fact; (2) consider the fact undisputed . . . [or] (3) grant summary judgment if the motion and
supporting materials . . . show that the movant is entitled to it.” Fed. R. Civ. P. 56(e). Mr. Cruz
has had opportunities to address EOUSA’s asserted facts, which are properly supported by the
Declarations of David Luczynski and David M. Hardy and accompanying exhibits. See
Declaration of David Luczynski [Dkt. 25-2] ¶¶ 5-15; Declaration of David M. Hardy [Dkt. 25-2].
Moreover, Mr. Cruz’s complaint is premised on EOUSA’s decision to withhold records solely
under FOIA Exemption 7(A), but that decision has been rendered moot by the actions for which
EOUSA now seeks summary judgment.
EOUSA has shown that it properly referred responsive pages to the agency
components from which the pages originated and, as a result, thousands of responsive pages have
been released to plaintiff in whole or in part, with certain information withheld under FOIA
exemptions 3, 5, 6, and various subparts of exemption 7. See EOUSA Stmt. of Material Facts
[Dkt. 25-1] ¶¶ 14-30; 28 C.F.R. § 16.4(d) (“Consultation, referral, and coordination” duties).
Based on the summary judgment record, the Court finds that EOUSA has satisfied its obligations
under the FOIA and, in the absence of any contravening evidence, is entitled to judgment as a
matter of law. A memorializing order accompanies this Memorandum Opinion.
Date: September 26, 2017
ROSEMARY M. COLLYER
United States District Judge
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