Bonilla v. United States Department of Justice et al
Filing
65
ORDER denying as moot 30 Motion to Dismiss for Failure to State a Claim; granting 30 Motion for Summary Judgment. Signed by Judge Marcia G. Cooke on 8/29/2012. (tm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-20450-Civ-COOKE/TURNOFF
MARIO SIMBAQUEBA BONILLA,
Plaintiff
vs.
U.S. DEPARTMENT OF JUSTICE, et al.,
Defendant.
____________________________________/
ORDER GRANTING DEFENDANT U.S. DEPARTMENT
OF JUSTICE’S MOTION FOR SUMMARY JUDGMENT
THIS MATTER is before me on Defendant U.S. Department of Justice’s Motion for
Summary Judgment.1 (ECF No. 30). I have reviewed the parties’ arguments, the record, and the
relevant legal authorities. For the reasons explained in this Order, the Defendant’s Motion is
granted.
I. BACKGROUND
Plaintiff, Mario Simbaqueba Bonilla, pro se, has filed this action against the U.S.
Department of Justice (“DOJ”) pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. §
552. Plaintiff alleges that he filed two FOIA requests with DOJ, to which he has not received
adequate responses.
Plaintiff addressed one of his requests to DOJ’s Office of Professional
Responsibility (“OPR”) and the other to DOJ’s Executive Office for U.S. Attorneys (“EOUSA”),
which DOJ forwarded to its Criminal Division.
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Defendant U.S. Department of Justice initially filed a “Motion to Dismiss or for Summary Judgment,”
which I converted into a Motion for Summary Judgment. (See ECF No. 63).
A. DOJ OPR FOIA Request No. F100011
On October 19, 2009, Plaintiff sent a FOIA request to DOJ’s OPR seeking documents on
DOJ employees Vijay Shanker, William Yurek, and Richard Dominguez Boscovich, who he
contends committed “several violations of Federal Criminal law while performing official duties.”
(Riersen Decl. Ex. A, ECF No. 30-1). OPR assigned this request number F1000011. (Riersen Decl.
Ex. B).
OPR is responsible for investigating allegations of misconduct involving DOJ attorneys or
law enforcement personnel. (Riersen Decl. ¶ 3). OPR reports the results of any inquiries and
investigations to DOJ officials, and, when appropriate, recommends disciplinary and other
corrective action. (Id.)
OPR received Plaintiff’s October 19, 2009 FOIA request on November 4, 2009. (Riersen
Decl. ¶ 4). On December 14, 2009, OPR Special Counsel Marlene Wahowiak sent Plaintiff a
response refusing to confirm or deny the existence of records pertaining to these individuals based
on FOIA Exemptions 6 and 7(C). (Riersen Decl. Ex. B). On December 20, 2009, Plaintiff appealed
the OPR’s determination to the Office of Information Policy (“OIP”). (Riersen Decl. Ex. C). On
August 11, 2010, OIP’s Associate Director, Janice Galli McLeod, affirmed the OPR’s
determination and notified Plaintiff of mediation services available through the Office of
Government Services and his judicial appeal rights. (Riersen Decl. Ex. D).
B. DOJ Criminal Division FOIA Request No. 200900783
On September 14, 2009, Plaintiff submitted a FOIA request to DOJ’s EOUSA, which
referred the letter to DOJ’s Criminal Division for review and response on around October 15, 2009.
(Cunningham Decl. ¶ 6).
The request sought all records pertaining to himself and to DOJ
employees Richard Dominguez Boscovich, William Yurek, Vijay Shanker, and Department of
Defense Special Agent Jim Olmstead. (Cunningham Decl. Ex. 1). After conducting various record
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searches, the Criminal Division informed Plaintiff on April 7, 2010, that it had located records
responsive to the request, but those records related to open and ongoing law enforcement
proceedings. (Cunningham Decl. Ex. 7). As a result, release at that time could reasonably be
expected to interfere with those proceedings. (Id.) Additionally, the documents concerned personal
privacy information about third parties. (Id.) The Criminal Division claimed that the documents
were exempt from disclosure under Exemptions 5, 6, 7(A), and 7(C). (Id.) The Criminal Division
informed Plaintiff that he had the right to file an administrative appeal to OIP, which OIP must
receive within sixty days of April 7, 2010, the date of the letter. (Id.)
On June 14, 2010, OIP received Plaintiff’s appeal. (Cunningham Decl. Ex. 9). On July 9,
2010, OIP closed Plaintiff’s appeal because it received the appeal eight days after the regulatory
deadline. (Cunningham Decl. Ex. 10). Plaintiff claims his appeal was timely because the sixty-day
period to file his appeal excludes holidays and weekends.
C. Procedural History
On February 9, 2012, DOJ filed a “Motion to Dismiss or for Summary Judgment.” DOJ
argues that Plaintiff’s claims regarding the Criminal Division FOIA request must be dismissed
because Plaintiff failed to exhaust his administrative remedies, and his claims based on the OPR
request must be dismissed because the records are exempt from disclosure.
After reviewing the record, on May 25, 2012, I entered an Order denying Plaintiff’s Motion
for Discovery and Granting Defendant’s Motion for Protective Order (ECF No. 54), in which I
found that discovery was not necessary for Plaintiff to respond to the DOJ’s “Motion to Dismiss or
for Summary Judgment.” I did, however, order DOJ to provide the records at issue in the OPR
FOIA request, if they exist, for in camera inspection to determine whether DOJ properly invoked
FOIA exemptions with respect to that request.
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On June 8, 2012, DOJ submitted materials for in camera review. Because I had to refer to
outside materials to resolve the motion to dismiss, on August 9, 2012, I filed an Order notifying
Parties of Conversion of Motion to Dismiss into Motion for Summary Judgment (ECF No. 63),
giving the parties ten days to submit any additional evidence or arguments regarding the Criminal
Division FOIA request. I have reviewed the materials and the parties’ additional submissions.
(ECF Nos. 55-61, 64).
II. LEGAL STANDARDS
Summary judgment is appropriate when “the movant shows 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). The function of the trial court is not “to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986). “The moving party bears the initial burden to show the district court .
. . that there is no genuine issue of material fact that should be decided at trial. Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Only when that burden has been met does the
burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that
precludes summary judgment.” Id. Any inferences drawn from the underlying facts must be
viewed in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378
(2007).
III. ANALYSIS
A. DOJ OPR FOIA Request No. 100011
DOJ argues that OPR properly refused to deny or confirm the existence of records
pertaining to third parties that would be exempt from disclosure pursuant to FOIA Exemptions 6
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and 7(C). DOJ further argues that it issued the Glomar response2 because to acknowledge the
existence of records would reveal personal information that the FOIA exemptions are intended to
protect. FOIA Exemption 6 exempts disclosure of information contained in “personnel and medical
files and similar files the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C) exempts from disclosure “records and information
compiled for law enforcement purposes, but only to the extent that the production of such law
enforcement records or information…could reasonably be expected to constitute an unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).
To determine whether records are exempt from disclosure under Exemptions 6 or 7(C), a
court must “balance the individual’s right of privacy against the basic policy of opening agency
action to the light of public scrutiny.” Office of the Capital Collateral Counsel, N. Region of Fla. ex
rel. Mordenti v. Dep’t. of Justice, 331 F. 3d 799, 802 (11th Cir. 2003) (quoting U.S. Dep’t of State
v. Ray, 502 U.S. 164, 175 (1991)).
Exemption 7(C) provides more privacy protection than
Exemption 6. Exemption 7(C) prohibits any disclosure that “could reasonably be expected to
constitute an unwarranted invasion of privacy,” while Exemption 6 prevents any disclosure that
“would constitute a clearly unwarranted invasion of privacy.” See id. at 803 n.6. “The fact that an
event is not wholly ‘private’ does not mean that an individual has no interests in limiting disclosure
or dissemination of the information.” Id. at 803 (internal quotation marks omitted) (citing U.S.
Dep’t of Justice v. Reporters Comm. For Freedom Of The Press, 489 U.S. 749, 770 (1989)).
Where privacy concerns exist, the requesting party must show “a sufficient reason for the
disclosure.” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004). To do so, the
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“A Glomar response neither confirms nor denies the existence of the documents sought in the FOIA
request. The term has its origin in a case involving a FOIA request for information on the GLOMAR
EXPLORER submarine-retrieval ship.” Office of the Capital Collateral Counsel, N. Region of Fla. ex rel.
Mordenti v. Dep’t of Justice, 331 F.3d 799, 801 n.3 (11th Cir. 2003).
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requesting party must show (i) “that the public interest sought to be advanced is a significant one,
an interest more specific than having the information for its own sake,” and (ii) “the information is
likely to advance that interest.” Id.
I have conducted a careful in camera review of materials DOJ provided, and to the extent
that the requested documents exist, they fall under Exemptions 6 and 7(C).3 The records, if any
exist, constitute DOJ employees’ personnel records, and reflect an OPR investigation into DOJ
employees alleged to have committed acts of professional misconduct, which may result in civil or
criminal penalties. They contain personal reflections and assessments on the reasons why DOJ
employees took certain actions. They also contain third parties’ reflections and assessments. These
third parties retain their privacy interests in the information they provided.
Based on these
considerations, I find that these records, to the extent they exist, raise privacy concerns that
Exemptions 6 and 7(C) address.
Having determined that privacy issues exist with respect to the requested materials, I turn to
whether Bonilla demonstrates a sufficient reason for the disclosure. I find that he does not. Bonilla
alleges that the DOJ employees committed “several violations of Federal Criminal law while
performing official duties” in his criminal case. Although the public has an interest in knowing
about governmental misconduct, Bonilla does not provide any facts or information to suggest some
form of governmental misconduct would come to light if he had access to the requested materials.
See Favish, 541 U.S. at 174 (“[W]here there is a privacy interest protected by Exemption 7(C) and
the public interest being asserted is to show that responsible officials acted negligently or otherwise
improperly in the performance of their duties, the requester must establish more than a bare
suspicion in order to obtain disclosure. Rather, the requester must produce evidence that would
3
I am mindful that the government has issued a Glomar response to this FOIA request. To preserve the third
parties’ privacy interests, I will neither confirm nor deny that any such actual records exist.
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warrant a belief by a reasonable person that the alleged Government impropriety might have
occurred.”). In sum, Bonilla has not presented any evidence “that would warrant a belief by a
reasonable person” that any government misconduct occurred in his criminal case or in any other
case. See id.
Having carefully reviewed the record and all submissions, I conclude that the disclosure of
any requested materials, if they exist, would constitute an unwarranted invasion of privacy that is
disproportionate to the public interest. Cf. Office of the Capital Collateral Counsel, 331 F. 3d at
803; Kimberlin v. Dep’t of Justice, 139 F.3d 944, 949 (D.C. Cir. 1998). The DOJ employees’ and
third parties’ privacy interests here outweigh the public’s interest in disclosure, especially
considering that a lot of the events discussed in the requested materials, if they exist, are already in
court files in the public domain. Cf. Office of the Capital Collateral Counsel, 331 F. 3d at 804.
B. DOJ Criminal Division FOIA Request No. 200900783
DOJ contends that Plaintiff’s FOIA request to the Criminal Division must be dismissed
because Plaintiff failed to exhaust his administrative remedies.
Specifically, DOJ states that
Plaintiff failed to file a timely administrative appeal of OIP’s April 7, 2010 determination of his
FOIA request. Plaintiff maintains that his appeal was timely because the sixty-day deadline to file
an appeal excludes weekends and holidays. In the alternative, Plaintiff argues that the relevant
regulation is ambiguous because it does not specify whether it means calendar days or business
days, that the agency’s interpretation of the regulation is not entitled to deference, this Court should
excuse the exhaustion requirement, and that filing an appeal would be futile.
Pursuant to 28 C.F.R. § 16.9, a person who is dissatisfied with an agency’s response to his
FOIA request must file an appeal “in writing and it must be received by the Office of Information
and Privacy within 60 days of the date of the letter denying your request.” In this litigation, DOJ
has construed the sixty-day deadline to mean sixty calendar days, not sixty business days. DOJ
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notes that there is nothing in § 16.9 or in the Criminal Division’s response letter to indicate that any
days should be excluded from the sixty-day appeal period. Plaintiff argues that this Court should
not give deference to DOJ’s interpretation that “60 days” means calendar days because the
interpretation is not supported by regulations, rulings, or administrative practice.
An agency’s construction of its own regulations is entitled to substantial deference, “unless
it is plainly erroneous or inconsistent with the regulation.” U.S. Steel Mining Co. v. Dir., OWCP,
386 F.3d 977, 985 (11th Cir. 2004); see also Martin v. Occupational Safety & Health Review
Comm’n, 499 U.S. 144, 150 (1991). Where “the meaning of the regulatory language is not free
from doubt, the reviewing court should give effect to the agency’s interpretation so long as it is
reasonable, that is, so long as the interpretation sensibly conforms to the purpose and wording of the
regulations.”
Martin, 499 U.S. at 150-51 (internal quotation marks and citations omitted).
“Because applying an agency’s regulation to complex or changing circumstances calls upon the
agency’s unique expertise and policymaking prerogatives, [courts] presume that the power
authoritatively to interpret its own regulations is a component of the agency’s delegated lawmaking
powers.” Id. at 151 (citing Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566, 568 (1980)).
Deference to an agency’s interpretation “is not to be withheld merely because the agency’s
reading of the regulation comes in form of a legal brief.” Drake v. F.A.A., 291 F.3d 59, 68 (D.C.
Cir. 2002); accord Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 880 (2011) (“[W]e defer to an
agency’s interpretation of its own regulation, advanced in a legal brief, unless that interpretation is
plainly erroneous or inconsistent with the regulation.”). An agency’s interpretation set forth in
litigation is entitled to deference if it meets the following three preconditions: (i) the interpretation
relates to ambiguous language in a regulation; (ii) there is “no reason to suspect that the
interpretation does not reflect the agency’s fair and considered judgment on the matter in question”;
and (iii) “the agency’s reading of its regulation must be fairly supported by the text of the regulation
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itself.” Drake, 131 S. Ct. at 68 (quoting Auer v. Robbins, 519 U.S. 452, 461, 462 (1997)).
DOJ argues that the regulation’s sixty-day filing requirement is not ambiguous.
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meaning of “sixty days” is plain on its face—it means sixty twenty-four hour periods, “as a day is
commonly understood.” See Pleasant-El v. Oil Recovery Co., 148 F/3d 1300, 1302 (11th Cir. 1998)
(quoting Reid v. Universal Maritime Serv. Corp., 41 F.3d 200, 202 (4th Cir. 1994)). This argument
is persuasive, considering the language of the regulation. The use of the word “days,” without a
qualifier suggests the regulation refers to calendar days. Plaintiff’s appeal was therefore untimely.
Even if I were to determine that the language is ambiguous, the result would be the same.
DOJ’s plain and reasonable interpretation of the sixty-day deadline in § 16.9 is not plainly
erroneous or inconsistent with the regulation, and therefore it is entitled to substantial deference.
There is no reason for me to suspect that the DOJ’s interpretation of § 16.9 as referring to calendar
days, not business days, reflects anything other than DOJ’s fair and considered position on this
issue. Plaintiff has not pointed to any past practices or pronouncements that are inconsistent with
DOJ’s current position. Cf. Bigelow v. Dep’t of Defense, 217 F.3d 875, 878 (D.C. Cir. 2000). In
fact, OIP has consistently applied the deadline to mean sixty calendar days since its implementation
in 1998. (McLeod Decl. ¶¶ 4-6, 8, ECF No. 55-1). Further, as discussed below, DOJ’s reading is
fairly supported by the text of the regulation and the general statutory framework.
Plaintiff points to another regulatory provision in 28 C.F.R. Part 16, which specifies a
deadline as “calendar days.” See 28 C.F.R. § 16.5(d)(4). Plaintiff concludes that if the sixty-day
period in § 16.9 meant calendar days it would have explicitly stated so. DOJ counters that the
period in § 16.5 is a much shorter period of ten days, which would require a clarification that it
consisted of calendar days. This reading is consistent with 5 U.S.C. § 552. There, the time periods
consisting of twenty days or below include a clarification either by stating that holidays and
weekend days are excluded or that the period consists of “working days.” See, e.g., § 552(a)(6)(A),
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(6)(B). The time periods consisting of more than twenty days do not contain any clarification. See,
e.g., § 552(e)(1)(G).4
In the alternative, Plaintiff argues that this Court should excuse his non-compliance with the
administrative appeal process or find that compliance would be futile. “The FOIA clearly requires a
party to exhaust all administrative remedies before seeking redress in the federal courts.” Taylor v.
Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). The exhaustion requirement is a pre-suit condition
“intended to allow a federal agency to exercise its discretion and authority, as well as create a
descriptive factual record for the district court to review if necessary.” Id. at 1367-68. Once an
agency has responded to a FOIA request, “the requester can seek judicial review only after he has
unsuccessfully appealed to the head of the agency as to any denial and thereby exhausted his
administrative remedies.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 61 (D.C. Cir. 1990); accord
Smith v. F.B.I., 448 F. Supp. 2d 216, 220 (D.D.C. 2006) (“In a FOIA case, a plaintiff must exhaust
the administrative appeal process set forth in 5 U.S.C. § 552(a)(6)(A) before seeking judicial review
of a FOIA denial.”). A court may excuse the exhaustion of administrative remedies only in
“extraordinary circumstances,” and the petitioner “bears the burden of demonstrating the futility of
administrative review.” Jaimes v. United States, 168 F. App’x 356, 359 (11th Cir. 2006) (quoting
Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994)).
The FOIA contains a mandatory administrative appeals process. Plaintiff does not point me
to any legal authority to support a finding that this administrative remedy may be excused under the
facts of this case.
Whether a plaintiff may ever assert a futility exception to the FOIA’s
administrative appeals process is questionable. In any case, Plaintiff has not shown that this action
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DOJ’s reading of § 16.9 is also consistent with 28 C.F.R. § 76.8’s time computation provision, which
excludes weekends and holidays for periods shorter than eleven days. Although § 76.8 is not part of the
DOJ’s Judicial Administration regulations, it supports the consistent practice of only excluding weekends
and holidays when the time prescribed is a much shorter period than sixty days.
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presents extraordinary circumstances, nor has he adequately demonstrated that administrative
review would be futile. Cf. Jaimes, 168 F. App’x at 359; Smith, 448 F. Supp. 2d at 220. I conclude,
therefore, that Plaintiff’s FOIA request to the Criminal Division must be dismissed because Plaintiff
failed to exhaust his administrative remedies.
IV. CONCLUSION
It is ORDERED and ADJUDGED that Defendant U.S. Department of Justice’s Motion for
Summary Judgment (ECF No. 30) is GRANTED. The Clerk is directed to CLOSE this case. All
pending motions, if any, are DENIED as moot.
DONE and ORDERED in chambers at Miami, Florida, this 29th day of August 2012.
Copies furnished to:
William C. Turnoff, U.S. Magistrate Judge
Counsel of record
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