Eakin v. United States Department of Defense et al

Filing 34

REPORT AND RECOMMENDATIONS re 30 Motion to Strike, filed by John Eakin, be DENIED; 25 Motion for Summary Judgment, filed by United States Department of Defense, Robert M. Gates, United States Department of the Army, John McHugh, be GRANTED; 19 Motion for Summary Judgment, filed by John Eakin, be DENIED; 26 Motion to Strike filed by John Eakin be GRANTED. Signed by Judge Nancy Stein Nowak. (mailed on 11/28/2011 by certified mail, or sent via electronic transmittal)(rg)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

John Eakin,
Plaintiff,

v.
United States Department of Defense,
Robert M. Gates, in his Official
Capacity as Secretary of Defense,
United States Department of the Army,
John McHugh, in his Official
Capacity as Secretary of the Army,
Defendants.

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Civil Action No.
SA-10-CV-0784 FB (NN)

REPORT AND RECOMMENDATION
TO:

Honorable Fred Biery
Chief United States District Judge
This report and recommendation addresses the pending motions for summary

judgment, 1 motion to strike affidavit, 2 and motion to strike response. 3 I have authority
to enter this report and recommendation under 28 U.S.C. § 636(b) and the district
court's order referring all pretrial matters to me for disposition by order or to aid the
district court by recommendation where my authority as a magistrate judge is

1

Docket entry #s 19 & 25.

2

Docket entry # 26.

3

Docket entry# 30.

statutorily constrained.'' After considering the motions, the applicable law and the
summary-judgment evidence, I recommend summary judgment in favor of the
defendants for the reasons provided below.
Background of the case. This case flowed from two requests for government
information by plaintiff John Eakin. Eakin represents himself as "provid[ing]
professional aviation mishap investigators with aircraft service history information
from the most complete collection of aviation mishap and service history information
on earth." 5 Previously, Eakin developed an interest in identifying unidentified remains
of American military service members who died during World War II. Eakin's interest
flowed from his hobby of researching his family's history.
Eakin's cousin, Arthur H. Kelder, was an U.S. Army soldier who died in a
Japanese prison camp during World ·war II. Kelder's remains were not returned to his
family. In researching his family history, Eakin learned that the information the Army
provided to Kelder's family misrepresented the state of Kelder's remains. Motivated
perhaps by his belief "that every American Hero deserves better than to have his bones
wrapped in a tarp; hauled to the cemetery in the back of a truck; and then interred

4

Docket entry # 3.

5

John Eakin Air Data Research, http:ljwww.airsafety.com/ (last visited Nov. 16,

2011).

2

without religious or military ceremony," 6 Eakin began communicating with the Army
about Kelder's remains and ultimately obtained information to identify Kelder's
remains.
As part of his efforts, Eakin "bec[a]me aware that a great number of American
Servicemembers who had died in POW camps had not been identified simply because
of the ineptness, incompetence and corruption of the US government and that the
records of th[e] mismanagement had been classified as a defense secret to keep the
knowledge from the American public." 7 Eakin "decided to locate family members
for ... the other nine servicemembers originally interred with [his] cousin." 8 Ultimately,
Eakin's interest grew to include the identities of thousands of unknown service
members who died in the Philippines as World War II prisoners of war. This case
flowed from that effort.
Nature of the lawsuit. Two requests under the Freedom of Information Act

(FOIA) lie at the center of this dispute. Eakin sent the first request to defendant U.S.
Department of Defense (the DOD) on July 29, 2010. 9 The request asked for the

6

Docket entry# 19, p. 4.

7

0ocket entry# 19, p. 5.

8

Docket entry # 19, p. 6.

~ocket entry# 19,

ex. A.
3

following quoted information:
•
•

•

Consolidated extracts of camp death rosters for Camps O'Donnell
and Cabanatuan
Individual Deceased Personnel Files for all American service
members and American civilian employees of the US armed forces
whose remains were not recovered or identified. (Alternatively,
individual deceased personnel files for only those American
personnel who are referenced in the below requested X-files.)
X-files pertaining to unidentified remains, including (but limited
not to):
o
Camp Cabanatuan Cemetery
o
Camp O'Donnell Cemetery
o
Manila Cemetery # 2
o
Manila Mausoleum
o
Manila ABMC Cemeter)r10

"X-files" document information about unidentified remains. 11 Eakin asserted that he is
a representative of the news media and asked the DOD to provide the information at no
cost on an expedited basis. He also asked the government to copy responsive
documents to electronic files rather than produce hard copy documents.
The DOD determined that: Eakin is not a representative of the news media, Eakin
must pay for the requested information at the established DOD fee rate schedule, and

lOJd., p. 1.
11

According to Dr. Cynthia A. Chambers, Deputy Director of Research and
Analysis, World War II Division for the Defense Prisoner of War/Missing Personnel
Office, X-files were created by the American Graves Registration Service. Docket entry
# 25, ex. C, 'II 6. The files contain such information as reports on the conditions and
locations of remains, personal effects found with remains, wreckage or hardware found
near the remains, and details about burial, reburial and recovery.
4

Eakin's request does not meet the criteria for expedited processing. 12 Eakin appealed
the determination. Before the DOD resolved the appeal, Eakin sent the second FOIA
request to the Department of the Army (the Army).
On September 20, 2010, Eakin asked the Army for the same information, except
that he did not ask for the consolidated extracts of camp death rosters for Camps
O'Donnell and Cabanatuan. 13 He again asserted that he is a representative of the news
media, requested expedited processing, and asked for the information at no cost. The
Army denied the requests for a fee waiver and expedited processing. 14 After the DOD
and the Army failed to resolve his appeals within the time provided for by the FOIA,
Eakin filed this lawsuit to challenge the denials of his requests. 15
Nature of the lawsuit. The FOIA provides for judicial review of denials of
document production, requests for fee waivers, and requests for expedited processing.16
Although Eakin sought review under the FOIA and the Administrative Procedures Act

12

Docket entry# 19, ex. A, pp. 7-10.

13

ld., ex. B, p. 1.

14

ld., ex. B, pp. 11-13.

1

%e FOIA requires a plaintiff to exhaust his administrative remedies prior to
filing a lawsuit. There is no dispute about whether Eakin exhausted his administrative
remedies.
16

5 U.S.C. § 552(4)(C) (iii).
5

(APA), there is no independent basis for review under the APA. 17 As to the claim for
relief under the FOIA, Eakin maintains the DOD and the Army (together, the
government) unlawfully and unreasonably withheld documents. 18 He also contends
that the denials for his requests for expedited processing and fee waivers violated the
FOIA. Eakin moved for summary judgment, asserting that he is entitled to a fee waiver
because his requests are in the public interest and because he is a representative of the
news media. 19
The government also moved for summary judgment.20 The government argued
that the agencies correctly determined that Eakin is not a representative of the news
media and that Eakin's requests do not serve the public interest. The government also
argued that Eakin's request is unreasonable. The government estimated that it would
take a decade to produce the requested documents in electronic form.
Summary judgment is appropriate "if the movant shows that there is no genuine

17

See Inst. for Wildlife Protection v. U.S. Fish and Wildlife Serv., 290 F. Supp. 2d 1226,

1229 (D. Or. 2003) (where complaint sought relief under the AP A as well as under
FOIA, finding "no provision of the APA (other than FOIA) which provides for the
disclosure of documents or for the waiver of fees" and explaining that "[t]he FOIA is
part of the APA and was originally enacted because the public disclosure section of the
APA ... had proven ineffective in providing disclosure of documents to the public.").
18

Docket entry# 13.

19

Docket entry# 19.

2tbocket entry# 25.
6

dispute as to any material fact and the movant is entitled to judgment as a matter of
law." 21
Subsequent pleadings. Since the motions were filed, Eakin advised the court

that the government produced "a substantial quantity of digital documents not
previously acknowledged by Defendants" and characterized the motions for summary
judgment as moot. 22 Eakin asserted that the only issues for the court to decide are: (1)
whether his requests are in the public interest, (2) whether Eakin is a representative of
the news media, and {3) whether the government incorrectly calculated the fees
associated with his requests. Eakin characterized the government's production of
documents as selective and asked the court to sanction the government to deter future
misconduct.
The government responded and produced summary judgment evidence
showing that the referred-to digital documents were produced in response to a third
FOIA request for "digital copies of all WWII era (1941-1945) Individual Deceased
Personnel Files (IDPFs) and X-files in the possession of your command which have been
digitized in to a machine readable format." 23 Because documents responsive to the third

21

Fed. R. Civ. P. 56(a).

22

Docket entry # 30.

23

Docket entry # 31, ex. F, p. 2.
7

request fall outside the scope of this lawsuit, the pending motions for summary
judgment are not moot. In a subsequent pleading, Eakin withdrew his motion for
sanctions. 24

Withheld ·documents. The FOIA requires governmental agencies to make
governmental records

~~promptly

available" upon a request "which (i) reasonably

describes such records and (ii) is made in accordance with published rules stating the
time, place, fees (if any), and procedures to be followed." 25 As to Eakin's first FOIA
request, the DOD produced some records, denied Eakin's request for a fee waiver, and
advised Eakin about the agency's efforts to produce records responsive to the request.
11

The DOD stated that it had asked the responsible component to provide ... a
preliminary fee estimate, in terms of the number of search hours likely to be required to
search for the records" and stated that it would communicate with Eakin again if the
estimate exceeded Eakin's $250.00 agreed-to fee limit.
The DOD component responsible for the requested records-the Army-denied
Eakin's requests for a fee waiver and expedited processing. The Army estimated the
cost of copying requested records as $24,000.00. The Army explained that to obtain the
records, Eakin must indicate his willingness to pay applicable fees.

24

Docket entry # 32.

25

5 U.S.C. § 552(a)(3)(A).
8

Because Eakin did not indicate he would pay the fees, and instead sought judicial
review of the denials of his requests for fee waivers and expedited processing, this case
is not about the withholding of documents. Eakin seeks the documents at no cost and
prioritized over other FOIA requests. Eakin wants the government to scan responsive,
fragile, paper documents and to produce the resulting electronic files. The government
did not deny Eakin's requests. Instead, the government denied the requests for
production per Eakin's terms. Thus, the court need not decide whether the government
withheld documents, but instead the court must determine whether Eakin is entitled to
the documents at no cost and whether the government must prioritize Eakin's requests
over other FOIA requests.
Fee waiver. "In any action by a requester regarding the waiver of fees under [the
FOIA], the court shall determine the matter de novo: Provided, That the court's review of
the matter shall be limited to the record before the agency." 26 Generally, FOIA
requesters must pay reasonable charges associated with processing requests, to include
search, review and duplication charges.27 To qualify for a waiver, the requestor must
show that "the disclosure of the information is in the public interest because it is likely
to contribute significantly to public understanding or operations or activities of the

26

5 U.S.C. § 552(a)(4)(A)(vii).

27

5 U.S.C. § 552(a)(4)(A).
9

government and is not primarily in the commercial interest of the requester." 28 As to
the latter showing, nothing in the record suggests Eakin has a commercial interest in the
requested information. As to the first showing, Eakin cannot demonstrate the
disclosure of the documents serves the public interest.

Public interest. Under the DOD regulations, a FOIA requester must satisfy four
factors to show the disclosure of requested information is in the public interest: "(1) the
subject of the requested records must concern the 'operations or activities' of the
government; (2) the disclosure must be 'likely to contribute' to an understanding of
government operations or activities; (3) the disclosure of information must contribute to
the public's understanding; and (4) the disclosure must be likely to contribute
'significantly' to public understanding of government operations or activities." 29
As to the first and second factors, Eakin argued that the documents "will
significantly contribute to the public's understanding of the government's activities to
identify deceased American servicemembers," 30 but the summary-judgment record
shows that the requested documents pertain to individuals. The summary-judgment
evidence show the requested documents consist of: the Army's interment reports for

28

5 U.S.C. § 552(a)(4)(iii).

29

/ud. Watch v. United States DO], 133 F. Supp. 2d 52, 54 (D.D.C. 2000). See 32
C.F.R. § 286.28(d) (fee waivers).
~ocket entry#

19, p. 14.
10

individual servicemembers, disinterment records to move the remains of individual
deceased servicemembers from the Philippines to the United States, reports of physical
and dental examinations of individual deceased servicemembers, non-recoverable case
files for individual servicemembers, and correspondence between the Army and the
families of individual deceased servicemembers.31
As to the third factor, "[t]he key element in determining the applicability of this
factor is whether disclosure will inform, or have the potential to inform the public,
rather than simply the individual requester or small segment of interested persons." 32
The best measure of public interest lies in Eakin's FOIA requests. Eakin asserted in his
requests that he will use the requested documents to "[c]reate a database of MIA/POWs
whose remains were determined to be non-recoverable and were interred as unknowns,
associated X files, their family members and last known location." 33 Eakin stated that he
intended to use the documents to generate publicity designed to locate family members
and to encourage family members to provide DNA family reference samples so as to
facilitate the identification of unidentified remains. Eakin alleged that the best family
reference samples are passed through a continuous maternal or paternal line, a line that

31

Docket entry# 19, ex. G.

32

32 C.F.R. § 286.28(d)(3)(i)(C).

33

Docket entry # 19, ex. A, p. 3 & ex. B, p. 3.
11

becomes more unavailable over time because those who are most concerned and most
qualified to provide the samples are elderly or deceased. 34 Eakin explained that the
requested information is more than 60 years old, such that surviving family members of
unidentified deceased service member are now of advanced age and that many of the
best DNA donors have died.
Eakin's explanation shows that the public interest in the requested documents is
limited to the surviving parents, siblings, and children of American service members
and civilian employees who died during World War II in the Philippines and whose
remains were unrecovered or unidentified. Because of the passage of time, the number
of interested persons is necessarily a small segment of the public. That segment may
have been larger immediately following WWII, but the passage of time-now over 65
years-decreased the number of persons interested in identifying the remains of
unrecovered and unidentified remains of persons who died during WWII. While
Eakin's efforts may be noble, the requested disclosure will not inform, and does not
have the potential to inform, a larger segment of the public. Instead, the disclosure
promises to inform a small segment of the public, a segment which will continue to
decrease. In the absence of a contribution to the public's understanding of government
operations or activities, the government correctly determined that Eakin was not

34

Docket entry# 13, ~en 66-71.
12

entitled to a fee waiver on the basis of contribution to the public interest.
Representative of the news media. In addition to the public-interest fee waiver,
the FOIA provides for fee waivers for certain categories of requesters. Relevant here,
FOIA fees are "generally limited to document duplication costs when the records are
sought by 'a representative of the news media."' 35 The FOIA defines "a representative
of the news media" as "any person or entity that gathers information of potential
interest to a segment of the public, uses its editorial skills to tum the raw materials into
a distinct work, and distributes that work to an audience." 36
Eakin relied in large part on his work in the field of aviation accident
investigation in seeking a representative-of-news-media waiver. Eakin asserted that his
work in the area of aviation accident investigation has been frequently published and
that he has been quoted in many regional and international publications. He also stated
that he publishes current aviation safety news on his website, www.airsafety.info.
Those efforts, however, are directed toward professional scholarship in the area of
aviation accident investigation and advertising Eakin's services as an aviation mishap
investigator, not toward gathering information of potential interest to a segment of the
public.
35

Southam News v. U.S. Immigr. & Naturalization Serv., 674 F. Supp. 881 (D.D.C.

1987).
36

5 U.S.C. § 552(a)(4)(A)(ii).

13

Eakin also relied on his efforts in researching and publicizing the disposition of
his cousin's remains and nine other unidentified persons interred with this cousin.
While commendable, those efforts do not constitute gathering information of potential
interest to a segment of the public, using editorial skills to turn raw materials into a
distinct work, and distributing that work to an audience. The public interest in those
efforts is limited to the families of the ten decedents, with the exception of the general
public interest generated by Eakin in local news stories. Eakin may have contributed
information that actual representatives of news media described in newspaper articles,
but those efforts did not make him a representative of the news media.
Eakin is not employed by a television or radio station broadcasting and/or
communicating to the public at large or a publisher of a periodical. Eakin purported to
have a commitment from a national news organization to publish a feature article using
information he provides,37 but Eakin's potential contribution to such a story does not
make him a freelance journalist. In addition, Eakin's reliance on his website
memorializing "the thousands of American servicemen who were imprisoned and died
of starvation, disease and mistreatment on the Bataan Death March and in Japanese
prison camps in the Philippines during World War 11" 38 does not make Eakin a
37

Docket entry # 25, ex. A, p. 4.

38

Bataan Missing: Return Then to Their Families Now, www.bataanmissing.com
(last visited Nov. 16, 2011).

14

representative of the news media. 39
Moreover, it is questionable whether the sought-after information constitutes
"news." The DOD regulations define "news" as "information that is about current
events or that would be of current interest to the public." 40 The information Eakin seeks
is historical in content. No reasonable interpretation of the FOIA indicates Congress
intended for the government to waive fees simply because a requestor intends to share
requested information with the public. The government correctly determined that
Eakin is not a representative of the news media and thus properly denied Eakin's
request for a fee waiver on that basis.
Expedited processing. The FOIA directs governmental agencies to "process as
soon as practicable any request for records to which the agency has granted expedited
processing .... " 41 To obtain expedited processing, the requestor must demonstrate a
compelling need. 42 The FOIA defines "compelling need" in the following two

39

See Brown v. U.S. Pat. & Trademark Office, 445 F. Supp. 2d 1347, 1357 (M.D. Fla.
2006) ("[T]he presence of a website alone does not qualify a FOIA requester as a
representative of the news media."); ]ud. Watch, 122 F. Supp. 2d at 20-21 ("Merely
making information available to the public does not transform a requester into a
representative of the news media.").
40

32 C.F.R. § 286.28(e)(7)(1).

41

5 U.S.C. § 552(a)(6)(E)(iii).

42

5 U.S.C. § 552(a)(6) (E)(i)(I).
15

circumstances:
(I) that a failure to obtain requested records on an expedited basis ... could
reasonably be expected to pose an imminent threat to the life or physical
safety of an individual; or
(II) with respect to a request made by a person primarily engaged in
disseminating information, urgency to inform the public concerning actual
or alleged Federal Government activity. 43
In making his request for expedited processing, Eakin relied on the second
circumstance.
Under the DOD regulations, representatives of the news media ordinarily qualify
as "an individual primarily engaged in disseminating information in order to inform the
public," but others "must demonstrate that their primary activity involves publishing or
otherwise disseminating information to the public." 44 Eakin is not a person primarily
engaged in disseminating information. Eakin is a person primarily engaged in
"searching for reports of aviation mishaps and mechanical difficulties .... " 45 While his
pleadings indicate he is passionate about "locat[ing] and contact[ing] family members

43

5 U.S.C. § 552(a)(6) (E)(v). See also 32 C.F.R. § 286.4(d)(3)(ii) ("Compelling need
also means that the information is urgently needed by an individual primarily engaged
in disseminating information in order to inform the public concerning actual or alleged
Federal Government activity.").
44

32 C.F.R. § 286.4(d)(3)(ii).

45

John Eakin Air Data Research, http://www.airsafety.info/Services/ (last visited
Nov. 16, 2011).
16

of... unknown service member[s] who died while a prisoner of the Japanese
Government in the Philippine Islands and provid[ing] them with documents
appropriate to their family members," 46 Eakin's passion does not make him a person
primarily engaged in disseminating information any more than his interest in
identifying the remains of unknown decedents make him a representative of the news
media.
Nor has Eakin set forth an urgent need. Under the DOD regulations, "[u]rgently
needed means the information has a particular value that will be lost if not
disseminated quickly." 47 Eakin identified the particular value as providing surviving
family members with "information concerning the death of their family members by the
actions of, and for the convenience of, the US Military forces." 48 Eakin asserted that his
need for the information is urgent due to the continuing deterioration of unknown
remains and the difficulty in locating family members to provide reliable family
reference samples. Surviving family members, however, may provide family reference
samples regardless of whether the requested documents are provided to Eakin on an
expedited basis. Eakin's summary-judgment exhibits show that the government solicits

46

Docket entry# 19, ex. A, p. 2.

47

32 C.F.R. § 286.4(d)(3)(ii)(A).

48

Docket entry# 19, ex. A, p. 5.
17

family reference samples.49 Expediting the disclosure of the information to Eakin will
not impact the deterioration of unknown remains or the difficulty in locating family
members to provide reliable family reference samples. If surviving family members
want to provide the government with family reference samples, they may do so without
Eakin's assistance.
To the extent Eakin relies on informing the public about the government's lack of
diligence and mistakes made by US graves registration personnel," 50 that interest is
historical, not current. That the U.S. military made mistakes and misrepresentations in
the recovery of service members who died in the Philippines is not a breaking news
story of general public interest. An example of breaking news would be that the U.S.
military is making mistakes and misrepresentations about the recovery of service
members who die in Iraq and Afghanistan. 51

4

~ocket entry # 19, ex.

J (web pages: Defense Prisoner of War/Missing Person

Office & Joint POW/MIA Accounting Command).
SOOocket entry# 19, ex. A, p. 14
51

See Jill Laster, Lawmakers Seek Answers on Mishandled Remains, Air Force Times
(Nov. 9, 2011 ), http://www .militarytimes.com/news/2011/11/air-force-lawmakersseek-answers-on-mishandled-remains-11091lw/ (reporting the results of an Office of
Special Counsel investigation reporting the mishandling of the remains of
servicemembers killed in Afghanistan); Elisabeth Bumiller & James Dao, Air Force
Officials Disciplined Over Handling of Human Remains, New York Times, N.Y. Times, Nov.
8, 2011 (reporting that three senior Air Force officials were reprimanded because they
knew about the lost body parts of two service members killed in Afghanistan but did
nothing to correct the sloppy practices leading to the losses).
18

The DOD regulations also provide for expedited processing based on "an
imminent loss of substantial due process rights and humanitarian need." 52 Eakin
asserted that "[f]amily members of the deceased service members, including the
requester, have been deprived of the right of due process in seeking judicial review of
the US Government's finding of non-recoverability of the remains of the persons who
are the subject of the requested files." 53 To the extent, Eakin asserts a due process right
on behalf of family members of the deceased service members, Eakin lacks standing to
the assert the rights of others. To the extent Eakin asserts a right on behalf of himself as
the requester, Eakin has not been denied due process. The government provided
documents relevant to his family member.
As a humanitarian need, Eakin identified the "consideration of the advanced age
of family members of the deceased service members who have been deprived of
information concerning the death of their family member by the actions of, and for the
convenience of the US military services." 54 Under the DOD regulations,
11

[h]umanitarian need means that disclosing the information will promote the welfare

and interest of mankind." The requested documents do not implicate the welfare and

52

32 C.F.R. § 286.4(d)(3)(B)(iv).

53

Docket entry # 19, ex. A., p. 4.

54

Docket entry# 19, ex. A., p. 5.
19

interest of mankind.55 The government properly denied Eakin's request for expedited
processing.
Unreasonableness. The government asked for summary judgment, in part, by
arguing that Eakin's request imposes an unreasonable burden upon the government. 56
To support its argument, the government presented an affidavit by Dr. Cynthia
Chambers. Chambers is the Deputy Director of Research and Analysis, World War II
Division for the Defense Prisoner of War/Missing Personnel Office, a DOD field activity.
Dr. Chambers attested that Eakin's requests require processing of millions of pages of
government records and conducting a manual page-by-page, line-by-review to redact
materials exempted by the FOIA.57 Dr. Chambers opined that it would take the next
decade to scan applicable paper files and that producing responsive documents will
detract from the agency's worldwide mission of recovering WWII missing. 58
Eakin responded and argued that the government is precluded from relying on
unreasonableness because the government did not rely on unreasonableness in denying
Eakin's requests. Eakin asked the court to strike Chambers's affidavit, in part, because

55

32 C.F.R. § 286.4(d)(3 )(B)(iv).

56

Docket entry# 25, pp. 7-14.

57

Docket entry # 25, p. 13 & ex. C.

58

Docket entry# 25, ex. C, p. 16.

20

it is outside the administrative record.59 The government maintained that it is not
precluded from filing an affidavit to assist the court in considering summary
judgment.60 Thus, the court must decide whether to consider Chambers's affidavit and
the government's unreasonableness argument.
The FOIA limits judicial review to the record before the agency. Previously, the
Ninth Circuit determined that a court reviewing the denial of a fee waiver "cannot
consider new reasons offered by the agency not raised in the denialletter." 61 Although
the Fifth Circuit has not addressed this issue, courts outside Ninth Circuit jurisdiction
have universally applied the rule. 62 Because the FOIA restricts judicial review of fee-

59

Docket entry # 26.

WOocket entry # 28, pp. 6-7.
61

Friends of the Coast Fork v. U.S. Dep't of the Interior, 110 F.3d 53, 55 (9th Cir. 1997).

62

See W. Watersheds Project v. Brown, 318 F. Supp.2d 1036, 1039 (D. Idaho 2004)

("[T]he district court may not consider reasons not offered by the agency in the denial
letter."); Inst.for Wildlife Prot. v. U.S. Fish and Wildlife Serv., 290 F. Supp.2d 1226, 1228 (D.
Or. 2003) ("The agency must adhere to the reasons given at the administrative level to
prove their case and cannot later employ post hoc rationales .... "); Manletj v. Dep't of
Navy, No. 1:07-CV-721, 2008 WL 4326448, at* 2 (S.D. Ohio Sept. 22, 2008) ("[T]he Court
may not consider reasons not advanced by the agency in the administrative denial
decision."); ]ud. Watch v. Gen. Services Admin., No. Civ. A. 98-2223, 2000 WL 35538030, at
* 4 (D.D.C. Sept. 25, 2000) ("[T]he court may not consider new reasons by the agency
that were not advanced in its denial letter.").
21

waiver denials63 and expedited processing to the record before the agency, 64 it is
unlikely the Fifth Circuit would deviate from the rule. Using this reasoning, an "agency
must stand on whatever reasons for denial it gave in the administrative proceeding." 65
Applying that rule here, the court lacks jurisdiction to consider the government's
argument that Eakin's requests· are unreasonable. The agency record consists of Eakin's
requests, the government's letters responding to the requests, and Eakin's appeals. The
government's responses do not rely on unreasonableness. Therefore, the court may not
consider the government's unreasonableness argument. Because Chambers's affidavit
supports the government's unreasonableness argument, it is appropriate to strike
Chambers's affidavit.
Recommendation. The government properly denied Eakin's requests for fee

waivers and expedited processing. For that reason, I recommend granting the
government's motion for summary judgment (docket entry # 25) and denying Eakin's
motion for summary judgment (docket entry# 19) to that extent. To the extent the
government relied on unreasonableness as a basis for summary judgment, I recommend
dismissing that argument as outside the administrative record. I recommend granting

63

5 U.S.C. § 552(a)(4)(vii) (limiting review to the record before the agency).

64

5 U.S.C. § 552(a)(6)(E)(iii) (providing that review of denials of requests for
expedited review shall be based on the record before the agency).
65

Friends of the Coast Fork, 110 F .3d at 55.
22

Eakin's motion to strike Chambers's affidavit (docket entry# 26) because it supports
that argument. I recommend denying Eakin's motion to strike the government's
response (docket entry# 30) because the response is responsive to Eakin's arguments.
The court, however, need not consider that portion of the government's argument
addressing unreasonableness. To the extent that Eakin sought summary judgment
about the government's calculation of fees, there is no need to consider whether the
government's initial estimate was correct because Eakin asked for the records in
electronic form and the estimate addressed the cost of paper copies. To the extent Eakin
sought review of the government's reliance on the privacy exemption, 66 the government
has since determined the exemption does not apply and produced responsive
information; the argument is moot. Also, because individual officers are not proper
parties to a lawsuit under the FOIA, 67 I recommend dismissing Robert M. Gates,
Secretary of the Department of Defense, and John McHugh, Secretary of the Army, as
defendants. If the district court accepts my recommendations, the district court can
enter a final judgment in favor of the Department of Defense and the Department of the
Army.
Instructions for Service and Notice of Right to Object/Appeal. The United
66

Docket entry# 19, pp. 20-22.

67

Petrus v. Bowen, 833 F.2d 581, 582 (5th Cir. 1987) (stating that the FOIA does not

create a cause of action against an individual employee of a federal agency).
23

States District Clerk shall serve a copy of this report and recommendation on all parties
by either (1) electronic transmittal to all parties represented by attorneys registered as a
"filing user" with the clerk of court, or (2) by mailing a copy to those not registered by
certified mail, return receipt requested. Written objections to this report and
recommendation must be filed within 14 days after being served with a copy of same,
unless this time period is modified by the district court. 68 Such party shall file the
objections with the clerk of the court, and serve the objections on all other parties. A
party filing objections must specifically identify those findings, conclusions or
recommendations to which objections are being made and the basis for such objections;
the district court need not consider frivolous, conclusive or general objections. A
party's failure to file written objections to the proposed findings, conclusions and
recommendations contained in this report shall bar the party from a de novo
determination by the district court. 69 Additionally, failure to file timely written
objections to the proposed findings, conclusions and recommendations contained in this
report and recommendation shall bar the aggrieved party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and

68

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

69

Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, 200 F.3d 335,

340 (5th Cir. 2000).
24

legal conclusions accepted by the district court.7°
SIGNED on November 23i 2011.

?]anu;= ~ 7J11v~
NANCY STEIN NOWAK
UNITEp STATES MAGISTRATE JUDGE

70

Douglass v. United Servs. Auto. Ass'ni 79 F.3d 1415i 1428-29 (5th Cir. 1996).
25

John Eakin- i\ir Data Research and Aviation .\llishap t\nalysis

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11/18/201 1 10:53

A~ l

Lawmakers seek answers on mi shandled remains- Mil itary News I News F ... Page 1 of3
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MilitaryTimes
http:/ / w'.v-w.militarytimes.comj news/201I/n/air-force-laV\makers-seek-answerson -mishandled-rema ins-110911 w /

Lawmakers seek answers on
mishandled remains
By Ji11 Laster - Staff wri ter
Posted: Wednesday Nov 9, 2011 20:31:18 EST
Pressure is mounting on Air Force leadership from lawm akers de manding to know why the
service"s Do\'er, Del., mortuary lost and improperly handled remains of the nation's war
dead.
Leaders in the Senate's Armed Service's Committee say they arc investigating the find ings of
a n Office of Special Counsel probe released Tuesday. The repo1 slammed the Air Force for
t
what it says is a fa ilure to acknowledge misha ndled and lost remains.
T he Democrat heading the committee, Sen. Carl Levin, announced that h is staff has an
investigation undenvay. The same Armed Service subcommittee team that investigated
problems last year at Arlington National Cemetery is also looking into the incidents at
Dover, Democratic Sen. Claire McCaskill, said in a rad io address Tuesday.

Related read ing
• Military families split on mishan dled remains (Nov. 9)
• Recent pa ttern of embarrassing Air Force errors (Nov. 9)
• AF leaders accept blame fo r misha ndled remains (Nov. 8)
• Air Force morgue lost bodv parts from war dead (Nov. 8)
It's still too ea rly to tell the breadth of the congressional response to the investigation . Sen.
J on Tester, 0-Mont., said in a pho ne inteniew Wednesday that lawmakers on Capitol I-lill
will - at a minimum - conduct some sort of congression al hearing. Tester's office has sent a
letter to Air Force Secreta ry Michael Donley requesting a "full explan ation of what wen t
wrong and who is accountable."
He also questioned in his letter to Donley why the th ree supervisors implicated in the Office
of Special Counsel report were disciplined but not fired. Col. Robert H. Edmondson,
commander of mortuary operations al the time o f t he incidents, received a letter of
reprimand for gross mis management and fa ilure of leadership, according to the Office of
Special Counsel. He rotated out of the command before the Air Force finished its
investigation.
Former mortua ry d irecto r Quinton Keel was downgraded to a nonsup e1visory GS-13
position and is currently serving as th e Air Force sunivor assista nce progra m manager, a
positio n created specifically for him. Trevor Dean, Edmondson's top civil ia n deputy, was

http://rnilitarytimes.com/news/20 11/1 1/air-force- lawmakers-seek-answers-... 11/ I 8/2011

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Lawmakers seek answers on mishandled remains- Military News I News F .. . Page 2 of3
reassigned as the e ntitleme nts brnnch chief in the Mortuary Affairs D ivis ion , accord ing to
the Office of Special Counsel.
"For those fa m ilies who have lost a lo,·ed one in battle, that's one thing- that's hard e nough
- but to ha,·e their re mains mis handled, that's a real d olation of public trust,·· T este r sa id.
··r can't even put into words how totally unacceptable it is."
The Office o f Special Counsel investigation confirmed that a fragment of re mains of two F-15
crew members, killed whe n their plane went down in Afghanis tan in ,July 2009, disappeared
from a small plas tic bag at the mortuary. A Marine's left arm also was s awed off to fit into a
military uniform without notificat ion or consent from the family. In another case, a portion
of a soldier's remains disappea red, the Office of Special Counsel investigation found.
In five separate cases, fetal re mains from mil ita!)' families we re shipped to DO\·er using
plastic pails ins ide non-reinforced, used ca rdboard boxes, the im·estiga tion found. In
another case, whistleblowers sa id mortuary management didn't prope rly notify staff that
they were ha ndling the remnins of a contractor who had contagious tube rculosis.
Congressio nal representath·es from Delaware had been following the investigatio n for two
years, long before family me mbe rs of the fallen troops were told over 1he weekend of the
mis handled remains , according to multiple sources on Capitol Hill.
Se n. Tom Carper, D-Del., said in a s tatement to Air Force Times that his office was contacted
in 2009 regarding issues at the mortuary affairs operations center, and that his office
immediately con tacted the Defense Department Inspecto r Gene ral.

Discuss
Improper handling of remains
··My office has maintained ongoing contact for the pas t 24 months with the Departme nt of
th e Air Force to make sure the investigation progressed appropriately," Carpe r said in a
s tate me nt.
Sen. Chris Coons, D-Del., was briefed about the im·estigatio n when he assumed o ffice in
November 2010, and all membe rs of Delaware's congressional delegation received updates
from the Air Force about the progress of the investigation, congress ional s taff membe rs said.

)'-

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The delegation me t with Air Force officials on Wednes day and has requested follow-up
meetings.

r
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On Tuesday, Defe nse Secretary Leon Panetta called for a separate investigation. His press
secretary, George Lit tle, told reporte rs that ''everyone is aware in the depa rtmen t of these
certain discrepancies between .. the Air Force's investigatio n into the incide nts and the Office
of Special Counsel's report, ··and this is something that "ill continue to be worked.··

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Little said Tuesday that Panella "is someone who believes s tro ngly in accountability for
mis management, misconduct and wrongdoing."
'" lie is aware of the disciplinary actions thatiHI\"e been levied," Little said. "He, I think, as is
the prerogath·e of a ny defense secre tary, le<wes open the possibility for further
accountability.''

Staff writers Bri(ln Everstine and Andrew Tilghman contributed to this repo1·t.

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