Williams Mullen v. United States Army Criminal Investigation Command

Filing 26

MEMORANDUM OPINION RE: 11 Deft's Motion to Vacate 10 Scheduling Order (and Stay Proceedings)and 12 Deft's Motion to Stay Proceedings (and Vacate Scheduling Order). Signed by District Judge James C. Cacheris on 6/14/2010. (jall)

IN THE UNITED STATES
FOR THE EASTERN

DISTRICT COURT

DISTRICT OF VIRGINIA Division

Alexandria

WILLIAMS MULLEN,

)

Plaintiff,

)

v.
UNITED STATES ARMY CRIMINAL

)
) )

l:10cv262

(JCC/TCB)

INVESTIGATION COMMAND,

Defendant.

)

MEMORANDUM

OPINION

This matter States Court's
is

is before

the Court

on

Defendant Motion

United the

Army Criminal

Investigation Command's 4, 2010.

to Vacate

Scheduling Order of May

Also before

the Court

Defendant United States Army
to Stay the reasons, Proceedings the Court

Criminal
for Ninety grant

Investigation Command's
(90) Days. to For the the

Motion

following

will

both

Motion

Vacate

Court's

Scheduling Order of May

4,

2010

and Motion

to

Stay

the

Proceedings. I. This case arises out Background of an alleged illegal withholding

of

certain

records

by

Defendant

United

States

Army

Criminal
or "USACIDC").

Investigation

Command

("Defendant,"

"Government,"

Plaintiff Williams

Mullen

("Plaintiff"

or

"Williams

Mullen")

filed a

complaint

("Complaint")

to

compel

production

of

certain

documents

in USACIDC's possession
Concepts, Inc.

relating to its
and Michael

clients
J.

-

Unconventional

("UCI")

Hopmeier

("Mr.

Hopmeier")

-

in

compliance

with

the

Freedom of

Information

Act
are

("FOIA"),
as

5 U.S.C.

§

552.

The allegations

in

the Complaint

follows.

Williams Mullen is a Virginia law firm that
Mr. Hopmeier and UCI in connection with the FOIA

represented

request at

issue.

(Compl.

1 3.)

USACIDC is a United States government
and controls
On July 31,

agency that possesses
Mullen. (Compl. SI 4.)

the

records
on

sought

by Williams

2007,

behalf

of Mr.

Hopmeier and UCI,

Williams Mullen

sent a FOIA request

to USACIDC

seeking "all
1 5; Ex. A.)

records pertaining to" Mr.
On September 4, 2007,

Hopmeier or UCI.

(Compl.

Williams Mullen

submitted a

Privacy Act waiver and release
USACIDC

for the requested documents
14, 2007

to
for

in response to the USACIDC's August

request

the waiver.

(Compl.

n

7-8.)

On October

16,

2007,

USACIDC

denied Williams Mullen's July 31,
active investigation regarding Mr.
(j)(2) of

2007 FOIA request because an
Hopmeier and UCI
the

was

still
as

in

progress

under Exemption

Privacy Act as

well

Exemptions
(Compl. 1

(b)(7)(A),
8; Ex. 3.)

(b)(2),

(b) (6)

and

(b) (7) (C)

of FOIA.

On

July 7,

2009,

the United States Attorney's Office

for the District of Maryland,

Northern Division

("USAO")

sent a

letter

to Mr.

Hopmeier's personal

attorney

informing him

that

it

has

"completed

[its]

investigation of allegations criminal

that

[UCI,

Mr.

Hopmeier,]

and others violated federal

law in

securing

and completing a number of contracts with the United States." letter, Williams Mullen (Compl. 1

and cooperative 9; Ex. 4.)

agreements this

Based on

resubmitted its

FOIA

request

to USACIDC

on August 31,

2009.

(Compl.

<il

10;

Ex.

5.)

On September 29,

2009,
August

USACIDC denied Williams Mullen's renewed FOIA request of
31, 2009 because "an active investigation [was] in

progress with an undetermined completion date" pursuant to the same exemptions cited in its Ex. 6.) On October 15, 2009, first denial letter. (Compl. 1[ 11;

Williams Mullen appealed USACIDCs

denial
Army Mr.

to the Office of the General Counsel,
{Compl. SI 12; Ex. 8.)

Department of the
2009, the

("Army OGC") .

On December 31, on behalf of

Hopmeier and an Army contracting officer,

United States of America,

entered into a settlement agreement

regarding certain cases that were pending litigation before the

Armed Services Board of Contract Appeals
15; Ex. 7.)

("ASBCA").

(Compl.

%

On January 8,

2010,

the Army OGC affirmed USACIDCs

denial of Williams Mullen's August 31,

2009 FOIA request based on

the fact that USACIDC was still engaged in an ongoing investigation with several other law enforcement agencies.
(Compl. f 14; Ex. 8.) On January 26, 2010, Williams Mullen sent

a

letter

to

the Army OGC
was no

to

reconsider

its

denial
of Mr.

of

the

appeal
and

because

there

ongoing

investigation

Hopmeier

UCI

based on

the

letter

it

received

from

the

USAO

on

July

7,

2009

as well as
1 15; Ex.

the
9.)
to

December 31,

2009

settlement
not

agreement.1

(Compl.
from

Williams Mullen has
its January 26,

received any response
(Compl. SI 15.)

the

Army OGC

2010

letter.

On March alleging a
of FOIA, 5

17, cause
§

2010,

Plaintiff

filed

the Complaint for
1.]

single
U.S.C.

of action
{Compl.

against USACIDC
flfl 16-17); [Dkt.

violation
In the

552.

Complaint,

Plaintiff

seeks

(1)

a

declaratory

judgment

that

"Defendant's judgment

failure

to

comply with

FOIA"

is

unlawful; records

(2)

a

order asking

Defendant

to produce

all

responsive

to (3)

Plaintiff's attorneys

July fees

31,

2008

and August litigation

31,

2009

FOIA (4)
4,

requests; any other
2010, the

and other

costs;

and

relief as
Court

the Court deems
scheduling

just
order

and proper.
(the

On May

issued a

"Scheduling

Order")

directing the parties
[Dkt. 10.] On May 5,

to

finish discovery by

September
its

10,

2010.
Set

2010,

Plaintiff propounded

"First

of Requests States

for

Production of

Documents

and Things {Mem.

to In

United Supp. Of

Army Criminal

Investigation Command."

Defendant FOIA request,

submits

that,

at

the 29,

time 2009

of

Plaintiff's of

August

31, FOIA

2009 request,

USACIDC's

September

denial

Plaintiff's

the Army OGC's January 8, 2010 denial of Plaintiff's appeal, and Plaintiff's January 26, 2010 request for reconsideration, the ASBCA still had active cases regarding UCI and Mr. Hopmeier before it. (Def.'s Mem. 3; Ex. A.) Defendant further Hopmeier submits until that the ASBCA 24,
4;

did

not

dismiss Mem.

the at 3;

cases Ex.

regarding C,) and

UCI

and

Mr.

February

2010
A.)

(Def.'s

that

USACIDC

did

not

close
(Def.'s

its

investigation
at Ex.

regarding

UCI

and Mr.

Hopmeier

until

April

15,

2010.

Mem.

Def.'s

Mot.

to Vacate

Scheduling

Order

and

Stay

Proceedings

("Def.'s the
the

Mem.") to

at

5;

Ex.

D.) 4,
(90)

On May 2010
days

14,

2010,

Defendant Order and
to

moved to stay

Court

vacate
for

the May
ninety

Scheduling
to allow

proceedings

USACIDC

review

and
to

release

the

documents
law

that

had been

previously

withheld

due

then-ongoing

enforcement

investigation.

[Dkts.

11-12.]

In

its it

Memorandum will begin

in

support

of

its

Motions, that as

Defendant had been

submitted

that

releasing 7(A)
fees.

documents so long

previously to pay

withheld under
the

Exemption

Plaintiff
at 9.)

agrees

required processing

(Def.'s

Mem.

Plaintiff

filed
filed

its
its

opposition
reply to

on May

24,

2010

[Dkt.

17,]
on

and
1,

Defendant
2010. [Dkt.

Plaintiff's

opposition

June

21.]
sua

In

its

reply,

USACIDC

suggested
case "has

to

the
lack to

Court
of

that

it

should

sponte

dismiss

Plaintiff's Plaintiff by

for

subject

matter

jurisdiction

because

failed to pay

exhaust

its fees."

administrative

remedies

refusing

the

requisite

(Reply Mem.

in

Supp. and

Of

Def.'s the

Mot

to Vacate

the

Court's Reply") at 6.)

Scheduling Order

Stay

Proceedings

("Def.'s

On the Court

June

9,

2010,

Defendant on

filed

a praecipe Hopmeier for

informing UCI,

that

Plaintiff, to pay for

behalf of Mr. estimated

and

recently agreed

the

fees

the

documents

they requested via
Specifically,

the

FOIA requests.
agreed to pay

(Praecipe at
for the

1.)
of the

Plaintiff

production

2005

investigation and

final

report

of

investigation

for

the

2006

investigation,

with the exception of the documents not within
(Praecipe at [its] 1-2; Ex. 2.) Plaintiff further

USACIDC's control. agreed that "upon

receipt and review of these documents,

[it]

will be in prompt communication regarding production of the

additional fourteen boxes" that constitute the remainder of the
2006 USACIDC investigation. (Praecipe at 1-2; Ex. 1.)

Defendant's Motions to Vacate the Court's Scheduling Order and to
Stay the Proceedings for Ninety (90) Days are before the Court.

II.

Analysis

1.

Motion

to Vacate

the

Scheduling Order

Plaintiff brings this case before the Court

to obtain

the documents it originally requested from USACIDC through its

July 31,
request.

2007 FOIA request and the renewed August 31,
Thus, the operative question before the

2009 FOIA
is

Court

whether USACIDC is unlawfully withholding the requested documents from Plaintiff under Exemption 7(A)2.
Agency for Int'1
v.

See e.g.,
290

Hanson v.
2004);

U.S.
Willard

Dev.,

372

F.3d 286,

(4th Cir.
102

Internal Revenue Serv.,

116 F.2d 100,

(4th Cir.

1985);

(Mem.

in Supp.

of PL's Opp.

to Def.'s Mot.

to Vacate the Court's at 5.) in

Scheduling Order and Stay Proceedings

("PL's Opp.")

Exemption 7(A) authorizes the withholding of "records or information compiled for law enforcement purposes, but only to the extent that production of such law enforcement records or information . . . could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. ?> rj 5? (b) (i) {A)

2

the the

instant Court

case, on

it

is

clear

that

the in

ultimate the

question -

before

based

the

allegations

Complaint

whether

USACIDC's
7(A) is

withholding
is

of

the

requested

documents

under

Exemption

unlawful

moot

because

Defendant

agrees

that

"[w]ithin documents

next that

two

weeks,

[it]

will

provide on

[Plaintiff] the basis of

with"

the

were previously withheld

Exemption

7(A)

in

response 2;

to Ex.

Plaintiff's 2.) Thus,
of

August it

31,

2009

FOIA

request. that

(Praecipe at
discovery
the

logically

follows

into

the
under

propriety
Exemption

USACIDC's
at

previous
time,

withholding
is

of

documents

7(A),

this

unnecessary.3
Affairs,
general, plaintiff moot'")

See Walsh v.
F.3d 535,
the

United States Dep't of Veterans
(7th Cir. 2005)
all

400

536

(holding
the

that

"[i]n
a becomes &

'once

government her claim v.

produces for

documents the FOIA

requests,

relief

under

(quoting

Anderson

United States

Dep't

of Health

Human

Servs., 821

3

F.3d

1383, 799

1384 (D.C.

(10th Cir.

Cir. 1987)

1993));

Tijerina that

v.

Walters,

F.2d fitful

789, or

(holding

"Mh]owever

delayed

the

release

of

information

under

the

FOIA may be

.

.

.

if

we

are

convinced

appellees
we have

have,
no

however

belatedly,

released

all

nonexempt material,

further

judicial

function

to perform

under

the

FOIA.1")

(quoting

Perry v.

Contrary

to

Plaintiff's

contention,

the

Court

believes

that

granting

the

USACIDC's

motions

to

vacate

and

stay

the

proceedings

will

not

force

Plaintiff

back

into

administrative

proceedings

or

prejudice

Plaintiff

from

seeking
before

attorneys'
the Court.

fees

as

such

questions

are

neither

currently

nor

properly

Block,

684

F.2d

121,

125

(D.C.

Cir.

1982)).

Based

on

the
to

foregoing Vacate the

reasons, Court's

the May

Court 4,

will

grant

Defendant's Order.

Motion

2010

Scheduling

2.
In

Motion
its

to

Stay

the

Proceeding
seeks a

for Ninety
stay of

Days

praecipe,

USACIDC

proceedings

pending

release
the

of

the

requested

documents
and final

(i.e.,
report

documents
of

regarding

2005

investigation

investigation the asks documents for an

for not

the

2006

investigation,

with

the

exception

of

within

USACIDCs for

control). (90)

Further, days in the

USACIDC event

additional

stay

ninety

that
boxes

Plaintiff
of

requests
that

the production
constitute the

of

the

additional
of the

fourteen
2006

documents

remainder

USACIDC

investigation Based on the Court

and agrees the finds unusual that a

to pay

for

the particular circumstances and to release will
and

production. this case,

procedural stay is

of

justified

appropriate and
stay

to afford adequate the requested
for

time

for both parties However,
days -

review

documents.
ninety (90)

the

Court
is

only

the proceedings

that

until

including

Sunday,

September
the

12,

2010
for

a

and will
status

order

the

parties
on

to appear before

undersigned

conference

Friday,

September 10, extend or

2010 at lift the

10

a.m.

at which

time

the Court status at

will either
that time.

stay based on parties'

Ill.

Conclusion

For the

foregoing reasons,

the Court will grant

Defendant USACIDC's Motion to Vacate the Court's May 4,

2010

Scheduling Order as well as its Motion to Stay the Court's
Proceedings.

June

14,

2010

(_sj_

Alexandria,

Virginia

James C.
UNITED STATES

Cacheris
COURT JUDGE

DISTRICT