Windham v. Department of Housing and Urban Development

Filing 33

Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM OF DECISION AND ORDER granting 19 Defendant's Motion to Dismiss and denying 31 Plaintiff's Motion for Writ of Mandamus. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

RACHEL A. WINDHAM,
Plaintiff,
v.
DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT,
Defendant.

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CIVIL ACTION
NO. 14-14069-JGD

MEMORANDUM OF DECISION AND ORDER
ON GOVERNMENT’S MOTION TO DISMISS
October 19, 2015
DEIN, U.S.M.J.
I. INTRODUCTION
The plaintiff, Rachel A. Windham, filed a pro se “Complaint for Injunctive Relief” (Docket
No. 1) seeking to compel the Department of Housing and Urban Development (“HUD”) to
produce documents in response to her Freedom of Information Act (“FOIA”) request made
pursuant to 5 U.S.C. § 552. By her FOIA request, Windham is seeking, as a general statement,
documents relating to JP Morgan Chase’s mortgage loan on her home, which JP Morgan Chase
contends is in default. The government has moved to dismiss the complaint pursuant to Fed. R.
Civ. 12(b)(1) on the grounds that this court lacks subject-matter jurisdiction over this dispute
because HUD does not have the documents the plaintiff is seeking. (Docket No. 19). While the
motion to dismiss was under advisement, Windham filed a “First Amended Motion for Petition
for Writ of Mamandus [sic]” seeking a writ of mandamus requiring HUD to produce documents.

(Docket No. 31). HUD filed a Response, again asserting that HUD does not have the requested
documents, and again requesting that the complaint be dismissed. (Docket No. 32).
After careful consideration of the documents submitted and oral arguments of the
parties, this court finds that HUD has made a reasonable search for the requested information
and that it does not have any of the documents the plaintiff is seeking. The motion to dismiss
(Docket No. 19) is ALLOWED, and the motion for writ of mandamus (Docket No. 31) is DENIED.
II. ANALYSIS
Jurisdiction
HUD has brought this motion pursuant to Fed. R. Civ. P. 12(b)(1), alleging that this court
lacks subject-matter jurisdiction of this claim. “A court is permitted to look beyond the
pleadings to determine jurisdiction on a 12(b)(1) motion,” and doing so does not convert the
motion into one for summary judgment. Katz v. Pershing, LLC, 806 F. Supp. 2d 452, 456 (D.
Mass. 2011) (and cases cited). See also Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir.
2001) (explaining differences between Rule 12(b)(1) motion and motion for summary judgment). Therefore, this court will consider the affidavits and other exhibits submitted by both
parties in connection with this decision. See Gonzalez v. United States, 284 F.3d 281, 288 (1st
Cir. 2002).
In connection with a FOIA request, “federal jurisdiction is dependent upon a showing
that an agency has (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records.’” Kissinger v. Reporters
Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S. Ct. 960, 968, 63 L. Ed. 2d 267 (1980)
(citing 5 U.S.C. § 552(a)(4)(B)). Therefore, if an agency did not improperly withhold records, this
court lacks jurisdiction over the FOIA dispute. See Carson v. U.S. Office of Special Counsel, 534
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F. Supp. 2d 99, 103 (D.D.C. 2008) (“the Court’s jurisdiction under the FOIA extends only to
claims arising from the improper withholding of agency records” (emphasis omitted)). Under
such circumstances, dismissal pursuant to Fed. R. Civ. P. 12(b)(1) would be appropriate. See
Caracciolo v. U.S. Merit Sys. Prot. Bd., No. 07 Civ. 3487(KNF), 2008 WL 2622826, at *2 (S.D.N.Y.
July 3, 2008) (finding “that the defendant has met its burden of establishing that the Court lacks
jurisdiction to enjoin the defendant and to order the production of agency records sought by
the plaintiff, by showing that it did not withhold from the plaintiff any of her record
documents.”). Similarly, mandamus will only lie where there is “(a) some special risk of
irreparable harm, and (b) clear entitlement to the relief requested.” In re Recticel Foam Corp.,
859 F.2d 1000, 1005 (1st Cir. 1988). Therefore, if the complaint is dismissed, the motion for a
writ of mandamus must be denied as the plaintiff would not be entitled to the relief sought.
Agency Obligations Under FOIA
In response to a FOIA request, an agency must make “a good faith effort to conduct a
search for the requested records, using methods which can be reasonably expected to produce
the information requested.” Oleskey ex rel. Boumediene v. U.S. Dep’t of Defense, 658 F. Supp.
2d 288, 294 (D. Mass. 2009) (quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir.
1990) (and cases cited)). There is no obligation that every conceivable record be searched,
rather, the search must be of the files likely to contain responsive materials. Sephton v. F.B.I.,
365 F. Supp. 2d 91, 100 (D. Mass. 2005), aff’d, 442 F.3d 27 (1st Cir. 2006). Under FOIA,
adequacy of the search “is not determined by whether relevant documents might exist, but
whether the agency’s search was reasonably calculated to discover the requested documents.”
Moffat v. U.S. Dep’t of Justice, 716 F.3d 244, 254 (1st Cir. 2013) (internal quotations omitted).
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This is a case-specific inquiry, and the search is judged pursuant to a reasonableness standard.
Id. The burden is on the agency to establish the reasonableness of its search. Id.
“In order to establish the adequacy of its search, the agency may rely upon affidavits
provided they are relatively detailed and nonconclusory, and are submitted by responsible
agency officials in good faith.” Maynard v. C.I.A., 986 F.2d 547, 559 (1st Cir. 1993). Moreover,
“[a] satisfactory agency affidavit should, at a minimum, describe in reasonable detail the scope
and method by which the search was conducted.” Id. “The affidavit should additionally
describe at least generally the structure of the agency’s file system which makes further search
difficult.” Id. (internal quotations omitted). “[I]f an agency demonstrates that it has conducted
a reasonably thorough search, the FOIA requester can rebut the agency’s affidavit only by
showing that the agency’s search was not made in good faith.” Id. at 560. “An agency’s affidavit is accorded a presumption of good faith, which cannot be rebutted by purely speculative
claims about the existence and discoverablity of other documents.” Id. (internal quotations
omitted).
Applying these principles, and for the reasons detailed herein, this court finds that the
government has met its burden of proving that its search was reasonable, comprehensive and
appropriate, and that it has not withheld any responsive documents. The plaintiff has not
established that HUD’s search was not conducted in good faith. Therefore, the defendant’s
motion to dismiss will be allowed, and the plaintiff’s motion for a writ of mandamus will be
denied.

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Actions Undertaken By HUD
The Record
In support of its motion to dismiss, HUD submitted the Declaration of Deena S. Jih, an
Attorney Advisor in the Office of General Counsel for HUD, who was personally and directly
involved in the search for documents responsive to the plaintiff’s FOIA request. (Docket No.
20-1). In connection with its reply memorandum in support of its motion to dismiss, HUD
submitted the Declaration of William I. F. Collins, Program Director for HUD’s National Servicing
Center, Single Family Servicing and Loss Mitigation Division. (Docket No. 26-1). Collins
addressed the facts and arguments raised by the plaintiff in her opposition to the motion to
dismiss. During oral argument on the motion to dismiss, the plaintiff represented that she had
spoken to Eugene McGirt of HUD in connection with her FOIA request, and that he was the
individual who had knowledge about the existence of records. At the request of the court, HUD
then filed a Declaration of Eugene A. McGirt, a Government Information Specialist (“GIS”) for
HUD’s FOIA Office. (Docket No. 30-1). Therein, McGirt addressed his responsibilities as a GIS,
and the facts relating to the processing of the plaintiff’s FOIA request. In addition to the
government’s filings, the plaintiff has also submitted a number of documents in connection
with her oppositions to the motion to dismiss (Docket Nos. 10, 22) and her first amended
motion for petition for writ of mandamus (Docket No. 31). While all of these materials
submitted by both parties have been considered by the court, no effort will be made herein to
address all the facts detailed in these pleadings.

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The FOIA Investigation
On May 9, 2013, Windham submitted a FOIA request on HUD’s public access link
website, which read as follows:
According to 7 CFR 1980.366,367, subpart D; USDA, FHA and HUD must
be notified and consent must be given for an FHA secured loan to be sold,
and the loan may not be in default. JP Morgan Chase sold my loan
internally to themselves in November 2011, and I was looking for any and
all documentation to support that they received approval and consent.
Additionally, I am looking for any and all documentation in accordance
with 7 CFR 1980.371 which would indicate the dates and methods JP
Morgan Chase used to make the “reasonable attempt to contact” me in
regards to my loan, AND to have the required face to face interview in
accordance with 7 CFR 1980.308. I was instructed by the lender to not
make ANY payments during my loan modification process, and asked
them if I could exercise my right to a partial claim option, and was told by
them that I was not eligible. Henceforth, and all documentation you may
be able to provide as to why my right of partial claim was revoked would
also be helpful since I just received correspondence from their attorneys
advising me that I have 60 days to vacate my home with my 3 small
children.
Jih Decl. ¶ 3; McGirt Decl. ¶ 7.1
As described more fully in the Jih and McGirt Declarations, the request was forwarded
to the appropriate office – the HUD Office of Housing – which was the program office most
likely to possess responsive records. See, e.g., McGirt Decl. ¶¶ 11-13. More specifically, the
HUD National Servicing Center (NSC) – Single Family Servicing and Loss Mitigation Division, was
assigned the task of searching for the documents. Id. ¶ 11; Jih Decl. ¶¶ 7-8 (“NSC has access to
the HUD files and systems that relate to the servicing of single family FHA-insured loans and,

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In her mandamus motion, Windham seeks an order that HUD produce “Documents pertaining to the
initiation, monitoring, conveyance, internal auditing of, initial insuring of, and claims relating to, all
binders/documents in possession or control of HUD, FHA and GNMA, in relation to The Plaintiff’s
property located at 207 North Street, Randolph, MA 02368[.]” (Docket No. 31 at Conclusion).

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therefore, would be the only office within HUD to conduct a search for records responsive to
[Windham’s] Request[.]”). NSC determined that HUD did not have any of these documents,
since they are not the type of records provided by the lender to HUD. McGirt ¶ 12; Jih ¶ 10.
HUD’s investigation continued. Jih reached out to Collins, the Program Director for NSC,
who reviewed plaintiff’s FOIA request, confirmed that HUD would not have records responsive
to the FOIA Request, and explained the controlling regulatory scheme. 2 Jih Decl. ¶ 11. Collins
further searched various other databases that might have information about plaintiff’s
property. Jih Decl. ¶¶ 12-13. Jih also contacted Justin Burch, Director of Office of Lender
Activities and Program Compliance – Quality Assurance Division (“QAD”), the division
responsible for monitoring and assessing FHA-approved lender performance, internal controls
and compliance with HUD/FHA origination and servicing requirements. Jih Decl. ¶ 14. QAD
confirmed that it did not have any records related to the plaintiff’s mortgage loan. Id.
The affidavits submitted by HUD in the instant case not only describe the search undertaken in response to the plaintiff’s FOIA request, but they also explain the regulatory scheme
which supports the conclusion that the requested information would not be in its possession.
See, e.g., Jih Decl. Section III (“FHA Official Guidance Supports HUD’s Position that Records
Sought By [Plaintiff’s Request] Are Not Federal Agency Records Subject to FOIA”). HUD has
painstakingly responded to all the factual and legal assertions made by the plaintiff, and has
addressed and explained all of the documents on which the plaintiff relies. See, generally,
Collins Decl.; HUD’s Resp. to Pl.’s First Am. Mot. for Pet. for Writ of Mandamus (Docket No. 32).

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The plaintiff was incorrectly relying on regulations that related to Department of Agriculture loans
only, not to FHA-insured loans. Jih Decl. ¶ 11.

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The affidavits are detailed, specific and non-conclusory. The government has met its burden of
establishing that it undertook a reasonable search, and that it is not withholding any
documents responsive to plaintiff’s request.
III. CONCLUSION
For all the reasons detailed herein, this court finds that HUD has not wrongfully
withheld any materials responsive to the plaintiff’s FOIA Request. This court lacks subjectmatter jurisdiction, and the defendant’s motion to dismiss is ALLOWED. The plaintiff’s motion
for a writ of mandamus is DENIED.
/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge

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