Kale v. United States Drug Enforcement Administration

Filing 40

ORDER by Judge Ronald A. White overruling plaintiff's objections to the Report and Recommendation of Magistrate Judge Steven P. Shreder ( 37 Report and Recommendation) and denying motion of the plaintiff to reopen the case and to enforce the settlement agreement ( 28 Motion to Reopen Case; 28 Motion to Enforce) (law, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF OKLAHOMA R O B E R T L. KALE, ) ) P l a i n t i f f, ) ) v. ) ) U N I T E D STATES DRUG ENFORCEMENT) A D M IN IS T R A T IO N , ) ) D efe n d a n t. ) ORDER B e f o re the court are the objections of the plaintiff to the Report and Recommendation o f the United States Magistrate Judge. Plaintiff brought this action pursuant to the Freedom o f Information Act, seeking any records relating to him held by the defendant. The parties h a d a settlement conference before Magistrate Judge Shreder and the case was settled. O n April 21, 2010, the plaintiff filed a motion to reopen the case and enforce s e tt le m e n t agreement. This court referred the motion to Magistrate Judge Shreder, who The Magistrate Judge

C a s e No. CIV-09-385-RAW

is s u e d a Report and Recommendation on June 18, 2010. re c o m m e n d e d denial of plaintiff's motion.

In his objection, plaintiff appears to recite his central dispute as follows: "Because a fu ll settlement agreement was reached that did not include payment of any costs, the DEA's s u b s e q u e n t attempt to impose fees or costs was not part of the agreed settlement." In the R e p o rt and Recommendation, the Magistrate Judge stated: "[t] he DEA did not agree to

w a iv e any costs applicable under the FOIA, but did represent there would be no charge u n less the costs were `a lot.'" (Report and Recommendation at 3). B a se d on these statements, plaintiff argues "[t]he Magistrate conducted the settlement c o n f ere n c e and is a witness in regard to the terms of the settlement conference." Plaintiff re q u e sts an evidentiary hearing on that basis. The court disagrees. The court has listened to a recording of the hearing held on June 16, 2010. On the witness stand, plaintiff affirmed th a t the settlement agreement did not include an agreement that the government would not a s s e s s fees. Plaintiff argues that the government is precluded from charging any copy costs b e c a u s e it did not comply with the statutory time limits in responding to his record requests. H e appears to place reliance upon 5 U.S.C. §552(a)(4)(A)(vii), but the court does not read th a t provision as plaintiff does. In any event, this case was resolved at a settlement

c o n f ere n c e. At that time, the government agreed to settlement despite its pending motion to dismiss based on the assertion that plaintiff had failed to exhaust administrative remedies. U n d e r the terms of the settlement agreement, there was no waiver of all reproduction costs b y the defendant* .

Pursuant to 28 C.F.R. §16.11(c)(2), an agency may charge duplication fees to all requesters, subject to certain limitations. If the requester is not seeking records for a commercial purpose, he is to be provided with the first 100 pages of duplication without charge. See 28 C.F.R. §16.11(d)(3).

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A s the court understands it, the settlement agreement contemplates that plaintiff may a d m in is tra tiv e ly appeal if he believes the government is not in compliance with the s e ttle m e n t's agreements terms, now or in regard to some future dispute. It is the order of the court that the plaintiff's objections (#39) are hereby overruled. T h e motion of the plaintiff to reopen the case and to enforce the settlement agreement (#28) is hereby DENIED. The settlement agreement reached by the parties remains in full force a n d effect. O R D E R E D THIS 13th DAY OF AUGUST, 2010.

D a te d this 13 t h Day of August 2010.

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