Bush v. United States Department of Agriculture Risk Management Agency

Filing 25

ORDER: The Plaintiff's 19 Pro Se Motion for Judgment on the Pleadings is denied. The Defendant's 20 Motion to Dismiss for Failure to State a Claim Or In The Alternative For Summary Judgment is denied in part. Only Defendant's mo tion to dismiss is denied. Defendant's motion for summary judgment remains pending. Plaintiff's response to the Defendant's Motion for Summary Judgment due by 6/22/2017. The Plaintiff's 22 Pro Se Motion to conduct limited discovery is denied. See text of Order. Signed by Chief Magistrate Judge CJ Williams on 06/08/2017. (copy w/NEF mailed to Pltf) (jjh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
WILLIAM J. BUSH,
Plaintiff,

No. 16-CV-4128-CJW

vs.

ORDER

RISK MANAGEMENT AGENCY/
UNITED STATES DEPARTMENT OF
AGRICULTURE,
Defendant.
____________________
I.

INTRODUCTION

Pending before the Court is (1) plaintiff’s Rule 12(c) motion (Doc. 19);
(2) defendant’s Rule 12(b)(6) motion, or in the alternative, for summary judgment (Doc.
20); and (3) plaintiff’s motion for a Rule 56(d) continuance to conduct limited discovery
and extend deadlines. (Doc. 22). Neither party has requested oral argument and the
Court finds argument unnecessary.

For the reasons that follow, the Court denies

plaintiff’s motions and denies in part and grants in part defendant’s motion. Only the
summary judgment motion remains pending.
II.

PROCEDURAL HISTORY AND FACTS

In February 2016, plaintiff William J. Bush, filed a Freedom of Information Act
(FOIA) request with the Risk Management Agency (RMA). Plaintiff asked for “the total
production, acres harvested, and yield for corn and for soybeans aggregated by section

for Amherst, Rock, Sheridan and Tilden townships in Cherokee County, Iowa for 2015,
2014, 2013 and 2012.” The agency provided a “no records” response to plaintiff’s
request. The agency explained that it did not have information available by sections1 for
townships within a county. The agency also explained that the Federal Crop Insurance
Act prohibits the disclosure of identifying producer information and limits disclosure of
producer information to the public only in the aggregate form. The agency also directed
plaintiff to (http://www.rma.usda.gov/ftp/Miscellaneous_Files/Area_Yield_Data/), a
page on its website containing several data files. Specifically, RMA’s FOIA Officer
directed plaintiff to “cy2016_production_area_yield_history_1130.zip” for an average
yield of soybeans and corn. (Doc. 1, at 25). Upon the Court’s own review, this zip file
contains historical aggregate yields for the production area of Cherokee County, Iowa,
for irrigated and non-irrigated soybeans (from crop years 1991 to 2014) and for irrigated
and non-irrigated corn (from crop years 1991 to 2014). Plaintiff appealed the agency’s
response. The agency upheld its “no records” response on appeal.
On November 16, 2016, plaintiff filed this action in this Court. As a pro se
litigant, plaintiff sued “United States Department of Agriculture Risk Management
Agency” in his original complaint. (Doc. 1). The original complaint referred to a
singular defendant. A few weeks later, in a pro se amended complaint, plaintiff sued the
“Risk Management Agency” and the “United States Department of Agriculture” and
referred to plural defendants. (Doc. 3). In February 2017, plaintiff filed a motion for
default judgment against the United States Department of Agriculture (USDA) for failure
to respond to the amended complaint. (Doc. 12). The same month, this Court entered
an order denying plaintiff’s motion for default judgment against the USDA. (Doc. 14).

A section is “a unit of measure under a rectangular survey system describing a tract of land
usually one square mile and usually containing approximately 640 acres.” (Doc. 20-3, at 9)
(Chief Zanoni’s affidavit).
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The Court found that plaintiff failed to provide evidence demonstrating that the Risk
Management Agency (RMA) and the USDA are “legally-distinct” as the RMA’s answer
(Doc. 11 at 2, ¶ 5) states “RMA is an agency within the United States Department of
Agriculture, an agency within the meaning of FOIA.” The Court reasoned that “[e]ven
assuming RMA and USDA are distinct entities, I find that RMA’s answer should be
deemed to apply equally to USDA,” and therefore found default judgment against USDA
inappropriate. (Doc. 14). This distinction, if any even exists, of whether the USDA and
the RMA are one in the same or distinct legal entities does not impact this order. The
Court will refer to RMA/USDA as a singular defendant throughout this order.
Plaintiff seeks the following relief (Doc. 3 at 18-19, ¶42): that the records at a
section for township level be produced to him with a waiver of the search fee; declare
Section 1619 of the Food, Conservation and Energy Act of 2008 inapplicable; award of
attorney’s fees and other litigation costs; declare the attorney’s fee FOIA provision at
Section 522(a)(4)(E) unconstitutional as to pro se non-attorney litigants; issue a written
finding under Section 552(a)(4)(F)(i) that circumstances surrounding the improper record
withholding raise questions about whether agency personnel acted arbitrary or capricious,
prompting administrative investigation and further administrative corrective actions as
needed; and grant any other relief the Court deems proper.
Defendant maintains it did not improperly withhold agency records. Defendant
first argues that the information sought by plaintiff does not exist as requested and as
such the FOIA does not impose a duty on the agency to create new records to comply
with FOIA requests. In the alternate, defendant contends that even if such information
existed, or were produced in part, it would be exempt under Exemption 3 of the FOIA.
A District Court has federal jurisdiction over FOIA actions, when it is “in the
district in which the complainant resides, or has his principal place of business, or in
which the agency records are situated, or in the District of Columbia,” 5 U.S.C. §

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552(a)(4)(B), and the District Court has the power to “enjoin the agency from withholding
agency records and to order the production of any agency records improperly withheld
from the complainant.” (Id.). Neither party disputes the Court’s jurisdiction.
III.
A.

ANALYSIS

Motion for Judgment on the pleadings and Motion to dismiss for failure
to state a claim upon which relief can be granted

Plaintiff timely moved for judgment on the pleadings, FED. R. CIV. P. 12(c), on
May 4, 2017, after an answer was filed. (Doc. 19). Defendant timely resisted (Doc. 21)
and cited to its previously filed 12(b)(6) motion to dismiss, or in the alternative, summary
judgment. (Doc. 20). Thus, plaintiff’s 12(c) motion is ripe.
Defendant timely moved for a 12(b)(6) motion to dismiss, or in the alternative,
summary judgment (Doc. 20) on May 8, 2017. (the last day to file dispositive motions).
On May 23, 2017, plaintiff filed a motion under Rule 56(d) seeking to conduct limited
discovery to oppose defendant’s summary judgment motion. (Doc. 22).
The most appropriate vehicle to address plaintiff’s FOIA lawsuit is the pending
summary judgment motion. The other two pending motions—namely plaintiff’s motion
for judgment on the pleadings and defendant’s motion to dismiss for failure to state a
claim upon which relief can be granted—would not allow the Court to consider the
agency’s affidavit, attached to defendant’s motion at Doc. 20. If the Court did consider
the affidavit, then the Rule 12 motions would, nonetheless, be automatically converted
into summary judgment motions. See FED. R. CIV. P. 12(d) (Rules 12(c) and 12(b)(6)
motions will be treated as motions for summary judgment if the court is presented with
matters outside the pleadings and does not exclude them). On point “FOIA litigation is
typically adjudicated through summary judgment.” Judicial Watch, Inc. v. Export-Import
Bank, 180 F. Supp. 2d 19, 25 (D.C. Cir. 2000). See Defenders of Wildlife v. U.S.

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Border Patrol, 623 F. Supp.2d 83, 87 (D.C. Cir. 2009) (“FOIA cases typically and
appropriately are decided on motions for summary judgment.”) (citing Bigwood v. United
States Agency for Int’l Dev., 484 F. Supp.2d 68, 73 (D.D.C. 2007) and Farrugia v.
Executive Office for United States Attorneys, No. Civ.A. 04-0294 PLF, 2006 WL
335771, at *3 (D. D.C. Feb. 14, 2006)).
Summary judgment is appropriate when “the pleadings, together with any
affidavits, ‘show that there is no genuine issue as to any material facts and that the moving
party is entitled to judgment as a matter of law.’” (Id.) (quotations omitted). The Court
reviews FOIA lawsuits under the de novo standard. (Id.). Specifically:
The agency bears the burden of justifying the withholdings. 5 U.S.C. §
552(a)(4)(B); Department of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 755, 109 S. Ct. 1468, 103 L.Ed.2d 774 (1989). To
meet its burden of proof, the agency may submit affidavits from their
officials. Hayden v. NSA, 608 F.2d 1381, 1386 (1979). The affidavits
“must show, with reasonable specificity, why the documents fall within the
exemption.” Id. at 1387. Once a court determines that the affidavits are
sufficient, no further inquiry into their veracity is required.
Judicial Watch, Inc., 180 F. Supp. at 25. Defendant attached an affidavit here. The
Court finds it appropriate and necessary to consider the affidavit to address the issues in
this dispute. Thus, these two Rule 12 motions are not the best vehicle to fairly adjudicate
this FOIA request. Therefore, the two pending Rule 12 motions are denied.
B.

Plaintiff’s discovery request

Defendant moved for summary judgment on May 8. Plaintiff had 21 days to resist.
LR 56(b) (providing that a resistance is due 21 days after service of the motion).
Therefore, plaintiff’s resistance was due May 29. Before this deadline, on May 23, 2017,
plaintiff filed a motion under Rule 56(d) seeking leave to conduct limited discovery and
extension of deadlines. (Doc. 22). Plaintiff seeks an extension to conduct limited

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discovery until June 30 (discovery closed on May 28) and also an extension to file a
resistance to defendant’s motion for summary judgment after such limited discovery
closes. Defendant timely resisted plaintiff’s Rule 56(d) motion. (Doc. 23). Plaintiff
filed a timely reply brief. (Doc. 24). Under Local Rule 56, plaintiff must file a motion
for a Rule 56(d) continuance “within 14 days after service of the motion for summary
judgment.” LR 56(g). Thus, the deadline to file a 56(d) motion was May 22. The
docket reflects, however, that the motion was entered on May 23. However, the Court
notes that plaintiff’s certificate of service is dated May 22. Considering plaintiff’s pro
se status, being a mere day late is a minor infraction. Furthermore, defendant was not
prejudiced in any way as it was informed of the instant motion. See Doc. 22, at 1
(“Defendants have represented, through counsel, they oppose Plaintiff’s motion for
limited discovery.”).

Thus, the Court now turns to assess the merits of plaintiff’s

discovery request.
Generally, discovery is “unavailable” in FOIA actions. Wheeler v. C.I.A., 271
F. Supp. 2d 132, 139 (D.C. Cir. 2003). Without a showing of bad faith or even the
inference of bad faith by the agency, there is no sufficient basis for granting limited
discovery. (Id.); see Judicial Watch, Inc., 108 F. Supp.2d at 25 (holding that FOIA
plaintiff did not allege, or even sufficiently raise the question, that the CIA acted in “bad
faith” with regard to his FOIA request so discovery was inappropriate; “[d]iscovery may
be appropriate when the plaintiff can raise sufficient question as to the agency’s good
faith in processing or in its search.”) (quotations omitted). The appropriateness of
discovery in FOIA lawsuits is succinctly summarized here:
Discovery “should be denied where an agency’s declarations are reasonably
detailed, submitted in good faith and the court is satisfied that no factual
dispute remains.” Schrecker v. Dep’t of Justice, 217 F. Supp.2d 29, 35
(D. D.C. 2002), cited with approval by Baker & Hostetler LLP v. U.S.
Dep’t of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006). Where an
agency’s declarations are deficient, “courts generally will request that an

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agency supplement its supporting declarations” rather than order discovery.
Hall, 2000 U.S. Dist. LEXIS at *19. “Discovery may be appropriate when
the plaintiff can raise sufficient question as to the agency’s good faith in
processing or in its search.” Exp.-Imp. Bank, 108 F. Supp.2d at 25 (citing
Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2nd Cir. 1994)).
However, the presumption of good faith that applies to agency affidavits is
not “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)).
Wolf v. C.I.A., 569 F. Supp. 2d 1, 9-10 (D. D.C. 2008). See SafeCard Servs., Inc. v.
S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991) (“In order to establish the adequacy of a
search, agency affidavits must be, as the district court correctly noted, “relatively detailed
and non-conclusory, and . . . submitted in good faith.”) (quotation omitted). Here,
defendant submitted an affidavit. The affidavit was detailed and non-conclusory. As is
well-established, the agency’s affidavit enjoys the presumption that it was made in good
faith. The burden is on plaintiff to present more than speculative arguments to rebut this
good faith presumption. In the Court’s opinion, plaintiff falls short of this burden.
Defendant’s affidavit (Doc. 20-3, at 2-15) provides significant detail regarding
how the agency responded to plaintiff’s FOIA request. Specifically, it describes how the
database system of CIMS was not searched, how the limited search results from the CRBI
database would be both misleading (as only if a claim of loss was filed could the agency
even arguably match single sections from past acreage reports to particular production
reports) and it would, nonetheless, be prohibited from disclosure of such by Exemption
3 of the FOIA (as the limited results could be easily reverse engineered to reveal the
identity of the producers). Under Exemption 3, 5 U.S.C. § 552(b)(3), a matter is
“specifically exempted from disclosure by statute.”

According to the affidavit, the

governing statutes include Section 1502(c) of the Federal Crop Insurance Act (see 7
U.S.C. § 1502(c)(2)(A) holding that agency may only disclose to the public information

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provided by the producer if it “has been transformed into a statistical or aggregate form
that does not allow the identification of the person who supplied particular information”),
and Section 1619 of the Food, Conservation, and Energy Act of 2008 (see 7 U.S.C. §
8791 (b)(2)(B) (USDA shall not disclose “geospatial information otherwise maintained
by the Secretary about agricultural land or operations [provided by an agricultural
procedure or owners of agricultural land in order to participate in Department’s
programs]”). The Court recites the content of the affidavit to show that it is both
sufficiently detailed, and not conclusory.
Essentially, plaintiff contends that because defendant’s search was inadequate, in
his view, that it was therefore conducted in bad faith. (Doc. 22-1). Defendant responds
by characterizing plaintiff’s argument as stating that as the desired records do not exist,
then the agency did not search hard enough and thus acted in bad faith. Defendant says
“Plaintiff’s argument is merely a speculative attack on the agency’s record systems and
its searches and offers no evidence of bad faith.” (Doc. 23, at 2). Indeed, plaintiff’s
motion is devoid of evidence of bad faith. Plaintiff recites his main contentions alleged
in his Amended Complaint, and alleges possible foul-play involving FOIA Officer
Kimberly Morris because Ms. Morris did not provide an affidavit on defendant’s behalf.
The Court finds that a much more significant showing would be required.
In his reply brief, plaintiff claims that the question of whether the requested
records are “agency records,” whether Exemption 3 of FOIA applies, and whether his
request was one that required creation of new documents as examples of “material facts”
in dispute. The Court sees these as issues of law. Plaintiff has not identified any material
issues of fact in dispute, and certainly none for which discovery is necessary. When
weighing the consideration that discovery is generally inappropriate in FOIA actions with
plaintiff’s lack of evidence of any bad faith on defendant’s part or even insinuations that

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could lead to inferences of bad faith, the Court finds it appropriate to deny plaintiff’s
motion for a continuance to conduct limited discovery.
IV.

CONCLUSION

For the above listed reasons, the Court hereby:
(1) Denies plaintiff’s Rule 12(c) motion at Doc. 19;
(2) Denies in part defendant’s motion at Doc. 20. Only defendant’s motion to dismiss
is denied; defendant’s motion for summary judgment remains pending;
(3) Denies plaintiff’s motion at Doc. 22 to conduct limited discovery under Rule
56(d); and
(4) Sua sponte orders plaintiff to respond to defendant’s motion for summary judgment
within fourteen (14) days from the date of this order, namely on or by June 22,
2017. In responding to the defendant’s motion for summary judgment, plaintiff
must strictly comply with Local Rule 56(b)(1)-(4), listing and description of the
nature and contents of filings that must accompany plaintiff’s resistance to
defendant’s motion for summary judgment.
IT IS SO ORDERED this 8th day of June, 2017.

__________________________________
C.J. Williams
Chief United States Magistrate Judge
Northern District of Iowa

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