CHARNOCK, JR. v. SESSIONS et al
Filing
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MEMORANDUM OPINION: Regarding Defendant's Motion for Summary Judgment 7 and Plaintiff's Cross-Motion for Summary Judgment 11 . Signed by Judge Tanya S. Chutkan on 7/18/2019. (lctsc3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DOUGLAS C. CHARNOCK, JR.,
Plaintiff,
v.
WILLIAM BARR, Attorney General of
the United States,
Defendant.
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Civil Action No. 18-cv-676 (TSC)
MEMORANDUM OPINION
Plaintiff Douglas Charnock, Jr. brings this action against the Department of Justice
(“DOJ”), through Attorney General William Barr, 1 under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 701 et seq., to compel the DOJ to process and release records in response to his FOIA request.
The parties have filed cross-motions for summary judgment. For the reasons stated herein, the
DOJ’s Motion for Summary Judgment will be GRANTED, and Plaintiff’s Cross-Motion for
Summary Judgment will be DENIED.
I.
BACKGROUND
Charnock filed a complaint with the DOJ’s Civil Rights Division in January 2017,
alleging that the Supreme Court of Virginia violated his rights by denying him federal assistance
under the Americans with Disabilities Act (“ADA”). 2
1
William Barr is substituted for Jeff Sessions as the proper party defendant pursuant to Federal
Rule of Civil Procedure 25(d).
2
The substance of Plaintiff’s ADA claim with the Commonwealth of Virginia is unclear.
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The DOJ decided not to act on Charnock’s complaint in May 2017, explaining that the
DOJ “receives thousands of ADA complaints each year,” and “do[es] not have the resources to
resolve all of them.” Def.’s Mot. For Summ. J., Decl. of Nelson D. Hermilla, Ex. D at 19–21, 3
ECF No. 7-1 (“DOJ’s First Denial Letter”). The next month, the DOJ sent a follow-up letter to
Charnock and stated that the DOJ “represents the interests of the United States, rather than
individual complainants” in ADA enforcement claims, and because of the large number of
complaints it receives compared to its limited resources, the DOJ is “unable to open an
investigation of every complaint” it receives. Id. at 22 (“DOJ’s Second Denial Letter”).
Charnock then submitted a FOIA request to the DOJ for “documents, communications,
notes, etc. that the Agency has used in its determination not to assist Mr. Charnock.” Complaint,
ECF No. 1 (“Compl.”) ¶ 6. The DOJ searched for responsive documents and found one
responsive document, DOJ’s Second Denial Letter, which it forwarded to Charnock’s counsel in
its final FOIA response. Id. at ¶ 7.
Charnock then filed this suit alleging that: (1) the DOJ unlawfully withheld agency
records under FOIA and (2) the DOJ’s decision to not investigate his complaint against the
Supreme Court of Virginia violated the APA. See id. at ¶¶ 9–15, 17–18.
After receiving the complaint, the DOJ conducted another search for responsive
documents, using Charnock’s name as the search term in two databases, the correspondence
tracking system (“CTS”) and the case management system (“ICM”)—“the only locations within
the agency where it is reasonably likely to find records responsive to the FOIA request.” Decl.
of Nelson D. Hermilla, ECF No. 7-1 at 2, ¶ 5 (“Hermilla Decl.”). The DOJ’s second search
found three responsive documents, which it produced to Charnock’s counsel: (1) The DOJ’s First
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The court is using the ECF page numbers.
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Denial Letter, (2) the DOJ’s Second Denial Letter (which had been produced after the first
search), and (3) a summary of Charnock’s complaint to the DOJ. Id.
The DOJ has moved for summary judgment, arguing that it conducted a reasonable and
adequate search under FOIA, and that its decision not to investigate Charnock’s complaint is an
unreviewable exercise of the agency’s prosecutorial discretion under the APA. Charnock crossmoved for summary judgment, arguing that the DOJ’s search was inadequate and that its
prosecutorial discretion under the APA is rebuttable and reviewable by the court.
II.
LEGAL STANDARD
Summary judgment is appropriate where there is no genuine issue of material fact, and
the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.
Cir. 2002). In determining whether a genuine issue of material fact exists, the court must view
all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A fact is material if “a dispute over it
might affect the outcome of a suit under governing law; factual disputes that are ‘irrelevant or
unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d
889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
An issue is genuine if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. (quoting Anderson, 477 U.S. at 248).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
ViroPharma Inc. v. Dep’t of Health & Human Servs., 839 F. Supp. 2d 184, 189 (D.D.C. 2012)
(citations omitted). When an agency moves for summary judgment on the grounds that it has
discharged its FOIA obligations, all underlying facts and inferences are analyzed in the light
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most favorable to the FOIA requester, and only after the agency proves that it has fully
discharged its FOIA obligations is summary judgment appropriate. Moore v. Aspin, 916 F.
Supp. 32, 35 (D.D.C. 1996); see also Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1350
(D.C. Cir. 1983) (“[T]he agency bears the burden of showing that there is no genuine issue of
material fact, even when the underlying facts are viewed in the light most favorable to the
requester.”).
III.
ANALYSIS
A. FOIA Claim
Charnock challenges both the sufficiency of the DOJ’s affidavit (the Hermilla
Declaration), and the adequacy of the search.
1. The Hermilla Declaration
An adequate search is “reasonably calculated to uncover all relevant documents.” Morley
v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Weisberg v. U.S. Dep’t of Justice, 705
F.2d 1344, 1351 (D.C. Cir. 1983)). An agency “must provide a ‘reasonably detailed’ affidavit
describing the scope of [the] search” to meet its burden for summary judgment. Pinson v. U.S.
Dep’t of Justice, 245 F. Supp. 3d 225, 241 (D.D.C. 2017) (quoting Iturralde v. Comptroller of
Currency, 315 F.3d 311, 313–14 (D.C. Cir. 2003)).
In support of the adequacy of its search, the DOJ submitted the declaration of Nelson D.
Hermilla, the Chief of the FOI/PA Branch of the DOJ’s Civil Rights Division. Hermilla Decl. ¶
1. Agency affidavits, like Hermilla’s declaration, 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, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir.1981)). Here, the DOJ’s search
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encompassed two databases containing the correspondence and investigation/case information
for the Civil Rights Division. Hermilla Decl. ¶ 5. Hermilla’s declaration explained that the DOJ
conducted “a further search using Plaintiff’s name in the correspondence tracking system
(“CTS”) and the case management system (“ICM”) . . . [which] located 5 pages of records
responsive to its request.” Id. Hermilla further explained that these two databases “are the only
locations within the agency where it is reasonably likely to find records responsive to the FOIA
request.” Id.
Hermilla’s declaration supports the adequacy of the DOJ’s search by providing the
specific search term used, the files searched, and an explicit declaration that all files likely to
contain responsive records were searched. See id.; Ryan v. FBI, 174 F. Supp. 3d 486, 492–93
(D.D.C. 2016) (defendant satisfied its burden to demonstrate an adequate search when its
affidavit “provided the search terms used, the files searched, and explicitly declared that all files
likely to contain responsive records were searched”). Hermilla’s assertion regarding the CTS
and ICM databases indicate those databases “constitute the entire universe of files likely to
contain responsive materials.” Hermilla Decl. ¶ 5 (“[The CTS and ICM] databases . . . are the
only locations within the agency where it is reasonably likely to find records responsive to the
FOIA request.”); see also Mobley v. CIA, 806 F.3d 568, 584 (D.C. Cir. 2015) (finding the FBI’s
search of the CRS to be adequate because of, in part, an agency declaration asserting that the
FBI’s search was “reasonably likely to produce the information [plaintiff] requested”) (citation
omitted); Walston v. U.S. Dep’t of Def., 238 F. Supp. 3d 57, 64 (D.D.C. 2017) (holding an
agency’s search was inadequate when its agent’s affidavit did not state that the searched
databases “constitute the entire universe of files likely to contain responsive materials”). Thus,
Hermilla’s declaration illustrates in “relatively detailed and non-conclusory” terms that the
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DOJ’s search was both reasonable and adequate, and that the search method was “reasonably
calculated to uncover all relevant documents.” See SafeCard, 926 F.2d at 1200; Morley, 508
F.3d at 1114.
Charnock argues that Hermilla’s declaration is inadequate because it provides no
evidence of what search the DOJ actually conducted. See ECF No. 10, Pl.’s Op. to Def.’s Mot.
for Summ. J. and Cross-mot. for Summ. J. (Pl.’s Mot. Summ. J.) at 1. Specifically, Charnock
claims the DOJ does not explain why the CTS and ICM databases were reasonably likely to
produce results, and which other sources were unreasonably likely to produce results. Id. at 8
n.1. However, “[t]here is no requirement that an agency seek every record system.” Oglesby v.
U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Rather, a search may be reasonable if
it includes all systems “that are likely to turn up the information requested.” Id. While
Hermilla’s description of the systems searched by the DOJ is brief, it meets Oglesby’s reasonable
search standard. Id. (“A reasonably detailed affidavit, setting forth the search terms and the type
of search performed, and averring that all files likely to contain responsive materials (if such
records exist) were searched, is necessary . . . to determine if the search was adequate in order to
grant summary judgment.”). Additionally, Hermilla’s declaration adequately describes that the
DOJ searched the records systems “that are likely to turn up the information requested.” See id.;
Hermilla Decl. ¶ 5 (“[CMS and ICM] are the only two locations within the agency . . . to find
records responsive to the FOIA request.”).
Charnock requested written communications and notes related only to his name and his
complaint to the DOJ. In Coffey v. Bureau of Land Management, 249 F. Supp. 3d 488, 500
(D.D.C. 2017), the court found that “requiring a more painstakingly detailed search description .
. . would be incongruous with what [plaintiff] asked for: a discrete set of written communications
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for the two individuals named in her request.” Due to “the relative simplicity of the FOIA
request” in this matter, the court finds that the detail regarding the DOJ’s search supplied in
Hermilla’s declaration is sufficient. Id.
2. The Adequacy of the Search
Charnock also contends that the DOJ’s second search for responsive documents means
the first search was inadequate and not made in good faith. See Pl.’s Mot. Summ. J. at 6–7. As
noted above, the search in this case encompassed DOJ’s CMS and ICM databases, record
systems likely to possess the requested information; DOJ was not required to search every record
systems in the agency. See Oglesby, 920 F.2d 57 at 68. Moreover, Charnock does not suggest
any alternative search terms that should have been used, nor does he suggest any other DOJ
databases that should have been searched. See Long v. Immigr. and Customs Enf’t, 149 F. Supp.
3d 39, 60 (D.D.C. 2015) (searching the “authoritative” database was adequate because plaintiff
did not offer any reason to believe other database systems contained responsive records).
Charnock’s allegations “do not point to any place or source likely containing responsive records
that [the DOJ] failed to search.” See Coffey, 249 F. Supp. 3d at 500 (internal quotation marks
omitted) (quoting Valencia-Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999)).
Therefore, a “more thorough explanation of why [the DOJ] chose to search only the locations it
did” is not warranted. See Coffey, 249 F. Supp. 3d at 500.
Charnock further contends that because the first search did not uncover all five pages that
the DOJ eventually released to him, “it is logical to conclude by more than mere speculation that
there are still documents missing from the FOIA request.” Pl.’s Mot. Summ. J. at 8. He argues
that “interoffice memorandums, e-mails, memos, handwritten notes, inter alia” should exist if
the DOJ carried out an analysis of how and why it decided not to investigate Charnock’s
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complaint against the Supreme Court of Virginia. Id.; see also Plaintiff’s Rebuttal to
Defendant’s Opposition to Plaintiff’s Cross-Motion for Summary Judgment and Reply
Memorandum in Support of Defendant’s Motion for Summary Judgment, ECF No. 22 at 5
(“Pl.’s Reply”) (“Defendant continues to fail to provide a complete FOIA response that would be
reasonable for this type of request – documentation that it actually carried out an analysis of how
and why it determined not to investigate this Veteran’s complaint.”). However, even if such
emails, internal memorandums, inter alia once existed (and there is no evidence that they did
exist), “[t]he fact that a document once existed does not mean that it now exists; nor does the fact
that an agency created a document necessarily imply that the agency has retained it.” Greenberg
v. Dep't of Treasury, 10 F. Supp. 2d 3, 13–14 (D.D.C. 1998) (citing Miller v. Dep’t of State, 779
F.2d 1378, 1385 (8th Cir. 1985)).
Because Hermilla’s declaration is afforded “a presumption of good faith,” Charnock
cannot rebut the adequacy of the DOJ’s search with “purely speculative claims.” See Morley,
508 F.3d at 1120. And “[m]ere speculation that as yet uncovered documents may exist does not
undermine the finding that the agency conducted a reasonable search for them.” SafeCard, 926
F.2d at 1201. Additionally, “the failure of an agency to turn up one specific document in its
search does not alone render a search inadequate.” Iturralde, 315 F.3d at 315. Therefore, the
fact that the DOJ decided not to act on Charnock’s claim, yet no emails or inter-office
memoranda memorializing the decision were uncovered, does not render the agency’s search
inadequate. There is nothing to suggest the DOJ would uncover any additional documents in a
third search. Charnock’s assertion that documents should exist is speculative and is insufficient
to overcome the “presumption of good faith” established through Hermilla’s declaration. See
Safecard, 926 F.2d at 1200–01.
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The court therefore finds that there is no genuine issue of material fact as to the adequacy
of the DOJ’s search and will grant DOJ’s motion for summary judgment as to the FOIA claim.
B. APA Claim
Charnock claims the DOJ’s decision not to investigate his discrimination complaint
violated the APA because it was arbitrary, capricious, and contrary to law. On a motion
for summary judgment in a suit seeking APA review, the court must set aside any agency action
that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2). The court’s review is “highly deferential” and begins with a presumption that
the DOJ’s actions were valid. See Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir.
1981). The plaintiff bears the burden of establishing the invalidity of the agency’s action. Id.
In Heckler v. Chaney, 470 U.S. 821, 831–32 (1985), the Supreme Court concluded that
“an agency’s decision not to prosecute or enforce . . . is a decision generally committed to an
agency’s absolute discretion” and is “presumptively unreviewable” under the APA. See also
Citizens for Resp. and Ethics in Wash. v. Fed. Election Comm’n, 892 F.3d 434, 441 (2018)
(“Following [Heckler v.] Chaney, this court has held that if an action is committed to the
agency’s discretion under APA § 701(a)(2)—as agency enforcement decisions are—there can be
no judicial review for abuse of discretion, or otherwise.”). Additionally, “whether agency
resources are best spent on this violation or another” and “whether the particular enforcement
action requested best fits the agency’s overall policies” are presumptively decisions committed to
an agency’s discretion. Heckler, 470 U.S. at 831. The DOJ letters declining to act on
Charnock’s complaint cite both agency resources and the agency’s overall policies in explaining
its decision. See DOJ’s First Denial Letter; DOJ’s Second Denial Letter.
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Charnock argues that Heckler’s presumption is rebutted because the DOJ did not cite
authority for its prosecutorial discretion. See Pl.’s Mot. Summ. J. at 9. But Charnock bears the
burden of proof, and he fails to cite any statutory, regulatory, or case law to support his
contention. See Pl.’s Reply at 3. Because of the high deference afforded to agencies and “the
presumption that agency decisions not to institute proceedings are unreviewable,” Heckler, 470
U.S. at 837, the court finds that Charnock has not met his burden of establishing the invalidity of
the DOJ’s decision not to investigate his complaint.
Charnock also contends that the DOJ did not follow the steps listed on its ADA
Complaint Form website. See Pl.’s Reply at 2–3; Pl.’s Reply, Ex. B. Yet the same DOJ
webpage provides: “We cannot investigate or litigate every complaint. If we are unable to take
any action on your complaint, we will send you a letter telling you this.” See How to File an
Americans with Disabilities Act Complaint with the U.S. Department of Justice,
https://www.ada.gov/filing_complaint.htm#8%20l (last visited July 18, 2019). In both its first
and second denial letters to Charnock, the DOJ explained that its decision was based on the
volume of claims it receives compared with its limited resources, and the agency’s mission to
represent the interests of the United States, not individual claimants. See DOJ’s First Denial
Letter; DOJ’s Second Denial Letter. Again, Charnock has failed to meet his burden of
establishing that the DOJ’s exercise of discretion in this case is subject to judicial review under
the APA. The court therefore finds that there is no genuine issue of material fact as to the
reviewability of the DOJ’s decision not to investigate Charnock’s claim and will grant
Defendant’s motion for summary judgment as to the APA claim.
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IV.
CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment, ECF No. 7, will
be GRANTED and Plaintiff’s Cross-Motion for Summary Judgment, ECF No. 11, will be
DENIED.
A corresponding Order will be issued separately.
Date: July 18, 2019
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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