Morales v. Pension Benefit Guaranty Corporation
Filing
43
CORRECTED MEMORANDUM. Signed by Judge Benson Everett Legg on 1/25/2012. (aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
PAUL MORALES
:
Plaintiff
:
v
Civil Case No. L-10-1167
:
PENSION BENEFIT GUARANTY
CORPORATION
Defendant
:
:
o0o
MEMORANDUM
This case arises under the federal Freedom of Information Act (―FOIA‖) 5 U.S.C. § 552
et seq., and the Privacy Act, 5 U.S.C. § 552a et seq. Plaintiff Paul Morales seeks disclosure of
various documents that he requested from the Defendant, Pension Benefit Guarantee Corporation
(―PBGC‖) pursuant to those statutes. Now pending before the Court are five motions: (i)
PBGC’s initial Motion to Dismiss (Docket No. 9); (ii) PBGC’s Motion to Withdraw its initial
Motion to Dismiss (Docket No. 12); (iii) PBGC’s second Motion to Dismiss or, in the
Alternative, for Summary Judgment (Docket No. 13); (iv) Morales’s Supplemental Motion for
Attorneys’ Fees (Docket No. 38); and (v) PBCG’s Motion to Strike Morales’s Supplemental
Motion for Attorneys’ Fees (Docket No. 39). The issues have been comprehensively briefed,
and on September 29, 2011 the Court convened a hearing and heard oral argument. For the
reasons stated herein, the Court will, by separate Order, award summary judgment in favor of
PBGC and deny Morales’s requests for an award of costs and fees.
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I.
BACKGROUND
The procedural history of this case, which is unusually complex, is fully set forth in the
parties’ briefs and need not be fully restated here. In brief, Morales has filed nine separate FOIA
and Privacy Act requests for access to documents in the custody of PBGC, against which he has
a presently pending Title VII action in the United States District Court for the District of
Columbia. See Morales v. Solis, Civil No. HHK-10-221 (D.D.C.). PBGC has now produced
some 2,200 pages of documents in response.
On March 29, 2010, PBGC mailed Morales a letter informing him that it was suspending
processing of his two pending requests for failure to pay an outstanding invoice from 2009.
Though Morales promptly sent payment, PBGC apparently misplaced his check, and did not
acknowledge receipt until April 22, 2010. In the meantime, Morales submitted two additional
requests. With slight exceptions, these were duplicative of his already pending requests.
On May 11, 2010, Morales filed the instant suit, alleging that he had not received full and
timely responses to his four outstanding requests. His complaint sought both declaratory and
injunctive relief, as well as costs and attorneys’ fees. Following the institution of suit, PBGC
continued to process Morales’s requests. On May 13, 2010, it made a partial disclosure of
documents and informed Morales that it was continuing to search for responsive records.
On May 24, 2010, PBGC sent Morales a letter informing him that it was again
suspending its search because it was approaching the $500 initial limit on processing costs set by
Morales, who had asked that he be consulted if anticipated fees might exceed this amount.
Receiving no reply to this correspondence, PBGC, on June 25, 2010, filed a Motion to Dismiss
on the grounds that Morales had failed to exhaust his administrative remedies by neglecting to
provide assurance that he would pay the cost of processing his requests. See Docket No. 9.
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On July 13, 2010, Morales filed a Response in Opposition, in which he pledged to pay for
all ―properly assessed‖ fees. Docket No. 11 at 20. Based on this representation, PBGC resumed
processing Morales’s requests. On July 30, 2010, PBGC turned over what it asserted were all
responsive documents. On August 12, 2010, it moved for leave to withdraw its initial Motion to
Dismiss and to substitute a new Motion to Dismiss or, in the Alternative, for Summary
Judgment. See Docket Nos. 12 and 13. While PBGC’s initial Motion rested on the ground of
failure to exhaust, its new Motion asserts that, because it has now produced all responsive
documents, Morales’s case is moot. To the extent Morales challenges any of the limited
redactions in the documents he received, PBGC further argues that the redactions were proper
and that it is entitled to summary judgment.
II.
STANDARD OF REVIEW
The Court may grant summary judgment when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); see also
Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (recognizing that trial
judges have "an affirmative obligation" to prevent factually unsupported claims and defenses
from proceeding to trial). Nevertheless, in determining whether there is a genuine issue of
material fact, the Court views the facts, and all reasonable inferences to be drawn from them, in
the light most favorable to the non-moving party. Pulliam Inv. Co. v. Cameo Properties, 810
F.2d 1282, 1286 (4th Cir. 1987). Hearsay statements or conclusory statements with no
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evidentiary basis cannot support or defeat a motion for summary judgment. See Greensboro
Prof’l Fire Fighters Ass’n, Local 3157 v. City of Greensboro, 64 F.3d 962, 967 (4th Cir. 1995).
III.
ANALYSIS
a. Initial Motion to Dismiss and Motion to Withdraw
Both FOIA and the Privacy Act provide that documents must be disclosed within certain
specified time periods after ―receipt‖ of a request. While ―receipt‖ is ordinarily defined as the
date on which the agency physically comes into possession of the request, in certain situations a
request is not deemed ―received‖ by PBGC until the requester has paid the cost of processing the
request or made an assurance of payment. 29 C.F.R. § 4901.13. As relevant here, advance
payment or an assurance of payment is required if the requester has previously failed to pay a fee
in a timely fashion. See id.; 29 C.F.R. § 4901.33.
PBGC’s initial Motion to Dismiss asserted that Morales could not maintain suit because
he had failed to exhaust his administrative remedies. Specifically, it alleged that the processing
of the four requests that are the subject of this suit had been suspended because Morales had
already incurred $560 of fees and because Morales’s counsel had included a provision in the
request stating, ―[i]f you anticipate that in order to satisfy this request the total cost . . . will be in
excess of $500.00, please contact me . . . prior to proceeding so that I can have the opportunity to
narrow the request.‖
Because Morales had previously failed to pay a properly assessed balance, PBGC was
entitled to advance payment or reasonable assurances that Morales would pay. Morales’s
opposition to PBGC’s Motion stated that he was prepared to pay, but he also repeated certain
objections that he had previously lodged to the propriety of some fees. For example, Morales
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claims that he was overcharged insofar as PBGC searched for, copied, and produced certain
documents that exceeded the scope of his request.
Based on this response, PBGC resumed production and moved to withdraw its Motion.
Morales urges that the agency should not be permitted to withdraw the Motion because it was
frivolous and filed in bad faith. He claims that he has always been willing to pay any properly
assessed fees, and that PBGC’s Motion, coupled with suspension of document production, was a
disingenuous stall tactic. Morales urges the Court to sanction PBGC by requiring it to pay all
attorneys’ fees that he incurred in responding to the agency’s Motion.
For purposes of the Motion to Withdraw, the Court need not decide whether PBGC was
ultimately justified in putting its search on hold, because there is no evidence of bad faith on its
part. Considering Morales’s prior nonpayment and his counsel’s request to be consulted when
costs neared the $500 mark, PBGC was entitled to suspend work until Morales provided
assurances of reimbursement for the costs of continued production. See Pollack v. Dept. of
Justice, 49 F.3d 115, 120 (4th Cir. 1995). PBGC filed its Motion to Dismiss only after waiting a
full month and receiving no response to its letter requesting such assurances. It promptly moved
to withdraw the Motion once Morales’s promise to pay and its subsequent processing of his
requests had mooted this dispute. PBGC’s Motion to Withdraw will be granted, and Morales’s
request for an award of fees in connection with the briefing of the now-withdrawn Motion will
be denied.
b. Second Motion to Dismiss or, Alternatively, for Summary Judgment
PBGC’s revised Motion argues that this case should be dismissed as moot because
Morales has now received the relief requested in the Complaint. Furthermore, the agency argues
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that to the extent Morales challenges the withholding or redaction of certain documents, it is
entitled to summary judgment. The Court agrees.
FOIA provides that, subject to certain statutory exemptions, federal agencies shall ―upon
any request for records which reasonably describe such records . . . make the records promptly
available to any person.‖ 5 U.S.C. § 552(a)(3)(A). Similarly, the Privacy Act, 5 U.S.C. § 552A,
provides:
Each agency that maintains a system of records shall—
(1) upon request by any individual to gain access to his record or
to any information pertaining to him which is contained in the
system, permit him and upon his request, a person of his own
choosing to accompany him, to review the record and have a
copy made of all or any portion thereof . . . .
5 U.S.C. § 552A(d).
A FOIA action becomes moot when, during the pendency of a lawsuit seeking the
disclosure of documents, the requester is provided with all documents responsive to his request.
See Regional Mgmt. Corp. v. Legal Servs. Corp., 186 F.3d 457, 465 (4th Cir. 1999); see also
Cornucopia Inst. v. U.S. Dep’t of Agric., 560 F.3d 673, 675 (7th Cir. 2009); Lechliter v. DOD,
371 F. Supp. 2d 589, 597 (D. Del. 2005).
PBGC certifies that it has performed a reasonable search and disclosed all records
responsive to Morales’s requests. Insofar as Morales’s Complaint sought fulfillment of his
outstanding requests, his demands are moot. Morales, however, challenges the sufficiency of
PBGC’s production in several respects. Following the hearing on September 29, 2011, the Court
conducted in camera review of all redacted documents pursuant to 5 U.S.C. § 552(a)(4)(B). The
Court now addresses Morales objections seriatim.
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i. Employee Payroll, Leave, and Attendance Records
Morales’s FOIA Request No. 2010-1764 sought ―[a] copy of my [sic] Employee Payroll,
Leave and Attendance file . . .‖, ―[a] copy of his Personnel File . . .‖, ―[a] copy of his Employee
Relations File . . .‖, ―[a] copy of Mr. Morales’ Personnel Security Investigation Records . . .‖,
and ―[a]ll documents reflecting any time and attendance entries made by anyone in C[ontract]
C[ontrols] D[ivision] for Mr. Morales from November, 2009 through present.‖ Request No.
2010-2295 sought this same information, but also added a further request for information related
to Morales’s demand for an inquiry into his claims of harassment by PBGC’s Harassment
Investigation Committee.
In PBGC’s final response to this request it provided, inter alia, leave submission slips,
certain emails from Morales reflecting requests for leave time, and handwritten Flex Time Sheets
on which employees sign in and out of work. PBGC redacted the names of Morales’s coworkers
on the Flex Time sign-in sheets pursuant to FOIA exemption (b)(6), which permits the
government to withhold all information about individuals in ―personnel and medical files and
similar files‖ when the disclosure of such information ―would constitute a clearly unwarranted
invasion of personal privacy.‖ 5 U.S.C. § 552(b)(6). Morales speculates that these Flex Time
Sheets ―may very well be the type of information that is supposed to be located within‖ his
Employee Payroll, Leave, and Attendance Records (a recognized system of employee records
under the Privacy Act) and contends that if they were, they should have been disclosed to him in
full, without redactions. Pl.’s Opp. 26–27, Docket No. 16.
PBGC argues persuasively that the Flex Time Sheets do not fall within the category of
Employee Payroll, Leave, and Attendance Records because they do not pertain to a specific
employee and would not be retrievable by searching for any given employee’s name. See
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Walker v. Gambrell, 647 F. Supp. 2d 529, 537 (D. Md. 2009) (a record is not within a Privacy
Act-covered ―system of records‖ unless the agency is able to ―retrieve the [record] by searching
under Plaintiff’s name or identifier‖); Decl. of Melinda Fitzpatrick, Docket No. 19-1 (flextime
records are filed by pay period). More importantly, Morales misunderstands the Privacy Act and
the nature of its interaction with FOIA. Even if the Flex Time Sheets were included within a
system of records, disclosure of which is mandated by the Privacy Act, this would not compel
their disclosure in unredacted form.
The Privacy Act states that when an agency has in its possession a record about an
individual in a ―system of records,‖ the agency is generally barred from disclosing that record to
any person unless an exception applies. See 5 U.S.C. § 552a(b). The enumerated exceptions
include when the individual to whom the record pertains gives his consent, and when disclosure
is mandated by FOIA. Id. The Privacy Act also permits an individual to request access to ―his
record or to any information pertaining to him.‖ 5 U.S.C. § 552a(d)(1).
Thus, under the terms of the Privacy Act, Morales is entitled only to that information in
the system of records that pertains to him. See Sussman v. U.S. Marshals Serv., 494 F.3d 1106,
1120–21 (D.C. Cir. 2007). PBGC is barred from disclosing information relating to other
employees absent their consent. Moreover, the definition of Employee Payroll, Leave, and
Attendance Records provides that ―the records listed herein are included only as pertinent or
applicable to the individual employee.‖ 61 FR 18184-01. To the extent that FOIA
independently compels disclosure, PBGC is permitted under exemption (b)(6) to redact the
records by removing the names of Morales’s fellow employees. See Judicial Watch, Inc. v. U.S.,
84 F. App’x 335, 338–39 (4th Cir. 2004) (finding that names of federal employees are
encompassed within the privacy interest protected by exemption (b)(6) and holding that the
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negligible public interest makes disclosure unwarranted in the absence of a compelling allegation
of agency corruption or illegality); see also Berger v IRS, 487 F. Supp. 2d 482, 504–05 (D.N.J.
2007) (holding that time sheet information of IRS employee was exempt from disclosure under
(b)(6)).
ii. Employee Relations File
A similar analysis applies to Morales objections regarding disclosure of documents he
claims should have been included in his Employee Relations File. In response to Morales’s
requests, PBGC produced 158 pages of unredacted documents relating to an investigation
conducted by its Harassment Investigation Committee in connection with claims of workplace
harassment lodged by Morales. It redacted 24 pages of emails to remove legal communication
between PBGC counsel and PBGC staff as well as other privileged, pre-decision discussions. In
support of these redactions, PBGC asserts FOIA exemption (b)(5), which shields all intra-agency
communications ―which would not be available by law to a party other than an agency in
litigation with the agency.‖
Again, Morales speculates that these emails should be part of his Employee Relations
File, which is defined to include ―[n]otices of reductions in force or disciplinary or performancebased actions and employees' replies to such notices, employees’ notices of grievance and
appeal, investigative reports, records of proceedings, appeal decisions, and related information.‖
60 FR 57462-01. Yet this description would seem to exclude emails between PBGC counsel and
staff discussing how to respond to a complaint. In addition, as with the Flex Time Sheets, the
record does not indicate, and Morales has not alleged, that these emails would have been
retrievable by searching for his name or other unique identifier. See Walker v. Gambrell, 647
F.Supp.2d 529, 537 (D. Md. 2009) (emails concerning plaintiff were not part of the system of
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records absent evidence indicating that they were kept in a filing system and were retrievable
under the employee’s name).
Though the records did fall within the scope of Morales’s FOIA request, the Court’s
review establishes that the redactions were proper under exemption (b)(5). The Fourth Circuit
has interpreted this exemption to incorporate both attorney-client and work-product privileges, as
well as the deliberative process privilege affecting pre-decisional communications. See Virginia
Beach v. U.S. Dep’t of Commerce, 995 F.2d 1247, 1251 (4th Cir. 1993); see also Ethyl Corp. v.
U.S. Envtl. Protection Agency, 25 F.3d 1241, 1248 (4th Cir. 1994).
iii. Law Firm Contracts
Morales’s request Nos. 2010-1549 and 2010-2341 sought copies of ―all contracts
awarded by PBGC to any attorney and/or law firm . . . and any information, in whatever format,
as regards the awarding of the contracts . . . including . . . the budget debited to pay for the
contract . . .‖ as well as ―any sole source contract awarded to any attorney and/or law firm
from . . . all information, in whatever format, pertaining to the award of the sole source
contract . . .‖ for certain specified years. In response, PBGC produced copies of fourteen
contracts with law firms and expert witnesses. Several of these were redacted to remove
provisions relating to forecasted hourly rates that would apply if PBGC were to exercise options
allowing it to extend the contracts.
PBGC argues that these redactions were proper under exemption (b)(4) of FOIA, which
protects ―trade secrets and commercial or financial information obtained from a person [that are]
privileged or confidential.‖ 5 U.S.C. § 552(b)(4). An agency asserting this exemption must
demonstrate that the information constitutes ―(1) trade secrets and commercial or financial
information, (2) obtained from a third person outside the government, (3) that is privileged or
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confidential.‖ Wickwire Gavin, P.C. v. United States Postal Serv., 356 F.3d 588, 591 n.5 (4th
Cir. 2004). Morales responds that the exemption is inapplicable in this case because the
contracts in question were not competitively bid.
Financial information is ―confidential‖ and, therefore, within the scope of exemption
(b)(4) if it is required to be submitted to the Government and if its disclosure is ―likely . . . to
cause substantial harm to the competitive position of the person from whom the information was
obtained.‖ Nat’l Parks & Conservation Assoc. v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).
Though the Fourth Circuit does not appear to have addressed the question directly, courts in the
District of Columbia have routinely held that option year pricing is confidential and properly
withheld under exemption (b)(4). See Canadian Commer. Corp. v. Dep’t of Air Force, 514 F.3d
37, 43 (D.C. Cir. 2008); McDonnell Douglas Corp. v. Dep’t of Air Force, 375 F.3d 1182, 1189
(D.C. Cir. 2004); Landfair v. Dep’t of Army, 645 F. Supp. 325, 328–29 (D.D.C. 1986).
In this instance, the Court finds it immaterial that the contracts at issue were negotiated
rather than competitively bid. In either case, option year pricing would give competitors of the
present contractors leverage with which to persuade PBGC to open the contracts for bidding or
renegotiation with others rather than exercise its current option, thus harming the current
contractors’ competitive position. Moreover, while the public has a strong interest in
information concerning how much government agencies actually pay for goods and services, that
interest is significantly less compelling with regard to hypothetical future prices.
iv. Personnel Files
Morales next objects that while PBGC’s disclosure of his Personnel File contained
several awards that he received early in his tenure, it is also missing certain others that he claims
to have received while employed in the Financial Operations Department between 2000 and
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2009. According to the declaration of April Edwards, the PBGC Human Resources Specialist in
charge of employees’ Official Personnel Folders (―OPFs‖), there is good reason for this
discrepancy. Under the Office of Personnel Management’s Guide to Personnel Recordkeeping,
which became effective January 1,1999, the only awards authorized for long-term OPF retention
are (1) performance awards received from 1986 to 1998, and (2) those post-January 1, 1999
awards considered ―presidential rank‖ awards and separation incentives. Edwards Decl., Docket
No. 19-2. Because those awards the absence of which Morales protests were given after January
1, 1999, and because none was a ―presidential rank‖ award or separation incentive, they were not
a part of his OPF.
Likewise, Morales claims he did not receive all of his Personnel Security Investigation
Records insofar as he did not receive the actual results of the investigations. In response, PBGC
has submitted the declaration of Laura Stitt. Ms. Stitt is the manager of PBGC’s Facility
Services Division (―FASD‖), which maintains personnel security files. Stitt Decl., Docket No.
19-3. Ms. Stitt declares that certifications of investigations are the only documents related to the
background checks that were maintained in Morales’s personnel file. As such, Morales was
directed to the Office of Personnel Management as the custodian of the investigation results. See
Correspondence from William Fitzgerald to Pl.’s Counsel (May 24, 2010), Docket No. 9-3 Att.
15.
It appears from the record that PBGC conducted a reasonably thorough search for records
responsive to Morales’s requests. As to those additional records that Morales claims should have
been included but were not, PBGC not only certifies that these records were not contained in its
files but also submits reasonable explanations as to why this should be the case. In sum, the
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Court’s review of the evidence reveals that Morales has received all those records to which he is
entitled. PBGC is, therefore, entitled to summary judgment.
c. Attorneys’ Fees
Finally, Morales seeks an award of attorneys’ fees. On this subject, FOIA provides that
―[t]he court may assess against the United States reasonable attorney fees and other litigation
costs reasonably incurred in any case under this section in which the complainant has
substantially prevailed.‖ 5 U.S.C. § 552(a)(E)(i). A litigant may be said to have substantially
prevailed if he obtains relief through either a court order or ―a voluntary or unilateral change in
position by the agency, if the complainant’s claim is not insubstantial.‖ Id. § 552(a)(E)(ii).
Morales asserts that, because PBGC had stopped processing his requests and did not make full
and final disclosure until after he was forced to file suit, he can be said to have substantially
prevailed.
A FOIA plaintiff is not absolutely barred from an award of attorney fees when the
government acts to moot a claim before judgment has been entered in his suit. Nationwide Bldg.
Maintenance, Inc. v. Sampson, 559 F.2d 704 (D.C. Cir. 1977). Nor, however, does section
552(a)(4)(E) provide for an automatic award of attorneys’ fees to every successful FOIA
plaintiff. The decision whether to award fees is left to the discretion of the district court.
Consideration of a motion for fees requires a multifarious analysis of several factors, including:
(i) whether the documents released were of general public interest, (ii) commercial incentive and
pecuniary benefit to the complainant, (iii) the nature of the complainant’s interest in the records
sought, (iv) the reasonableness of the government’s asserted legal basis for withholding, (v)
whether the prosecution of the plaintiff’s action could reasonably have been regarded as
necessary, and (vi) whether his suit had a substantial causative effect on the delivery of the
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information. Id. at 711, 714; see also Reinbold v. Evers, 187 F.3d 348, 362 n.16 (4th Cir. 1999).
In short, fees should be awarded ―where doing so will encourage fulfillment of the purposes of
FOIA.‖ Nix v. United States, 572 F.2d 998, 1007 (4th Cir. 1978). Considering these factors, the
Court finds that an award of fees is not justified in this case.
As an initial matter, Morales’s suit may well have had a substantial causative effect on
PBGC’s final delivery of responsive documents. While the Court found no evidence of bad faith
or a conscious effort to improperly delay production on the part of PBGC, the record does reveal
a rather confused and disorganized system of processing FOIA requests.1 Morales clearly felt
that he had no recourse but to take PBGC to court, and there is a substantial likelihood that doing
so caused PBGC to take his requests more seriously and to devote the time and attention
necessary to ensure that they were processed quickly and carefully.
In the end, however, it is clear that the overwhelming majority of Morales’s requests
were made, not to serve the public interest or inform the public about the action of government
agencies, but to substitute for or supplement discovery in Morales’s personal Title VII suit. For
example, in addition to extensive records concerning his own employment, Morales requested
information relating to his request for an investigation by PBGC’s Harassment Investigation
Committee, as well as information relating to the grade, step, and position of various PBGC
employees referenced in his Title VII complaint. The only inquiry that might have yielded
information of public benefit was Morales’s request for information relating to contracts awarded
to law firms.
1
For example, Morales has submitted delivery confirmations showing that PBGC in fact received FOIA
requests and payment that it claims either not to have received or to have received only weeks later. Some had to be
re-sent multiple times. Additionally, while the Court need not thoroughly analyze the matter, there is some evidence
that PBGC may have improperly assessed certain fees relating to the processing of various requests.
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Morales is certainly correct that ―FOIA requests can be made for any reason whatsoever‖
and that ―as a general rule, the identity of the requesting party does not have any bearing on
proper disclosure of information under the act.‖ Pl.’s Opp. 37, Docket No. 11. The identity and
motive of the requester are entirely relevant, however, in assessing a motion for the award of
costs and fees. The Fourth Circuit has stated that FOIA ―was not designed to supplement the
rules of civil discovery.‖ Id. at 1003; see also NLRB v. Robbins Tire & Rubber Co., 437 U.S.
214, 242 (1978) (―FOIA was not intended to function as a private discovery tool.‖) (emphasis in
original); J.P. Stevens & Co. v. Perry, 710 F.2d 136, 143 (4th Cir. 1983) (where plaintiff sought
to use FOIA to obtain documents that would be used in later Title VII litigation, ―Robbins Tire
makes clear that such premature discovery was not intended‖). Morales does not deny that this
was his intent, but rather attempts to turn the public/private benefit analysis on its head by
claiming that his Title VII suit ―is arguably a matter of public benefit, as the investigation of civil
rights violations and the elimination of disparate treatment and derogatory conduct against
persons based upon their race or national origin benefits the public as a whole.‖ Pl.’s Supp. Mot.
for Attorneys’ Fees, Docket No. 38 at 8–9. The reasoning of Nix, Robbins Tire, and J.P. Stevens
& Co. (which itself involved a Title VII suit) forecloses such an argument.
The Court declines to award costs and fees because Morales is using FOIA as a substitute
for civil discovery and not to advance the purposes for which FOIA was enacted. Morales’s
requests, contained his Complaint and in his Supplemental Motion for Attorneys’ Fees (Docket
No. 38) will be denied.
IV.
CONCLUSION
For the foregoing reasons the Court will, by separate Order of even date:
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1. GRANT PBGC’s Motion to Withdraw its initial Motion to Dismiss (Docket No. 12);
2. GRANT PBGC’s Motion to Dismiss or Alternately for Summary Judgment (Docket
No. 13), construed as a Motion for Summary Judgment;
3. DENY Morales’s Supplemental Motion for Attorney Fees (Docket No. 38); and
4. DENY PBGC’s Motion to Strike Morales’s Supplemental Motion for Attorney Fees
(Docket No. 39).
Dated this 25th day of January, 2012.
/s/
_______________________________
Benson Everett Legg
United States District Judge
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