COLLEEN KOLLAR-KOTELLY, United States District Judge.
Plaintiff Anna Maria Agolli filed suit against the Office of Inspector General ("OIG") of the United States Department of Justice ("DOJ"), challenging the agency's handling of certain Freedom of Information Act ("FOIA") requests that she had filed, which appear to pertain to a complaint that she had previously filed with OIG. At the outset, the Court notes that, in Defendant's [20] Motion to Dismiss Plaintiff's Complaint and for Summary Judgment, which is now before the Court, Defendant construed Plaintiff's complaint — which is far from a modicum of clarity — as containing only FOIA claims. In her Opposition to Defendant's motion, Plaintiff states that she is not only bringing this action under FOIA but under "any applicable law" because she is seeking damages in this action. Pls.' Mem. of Points & Authorities, ECF No. 27, at 1. Plaintiff acknowledges that money damages — which she seeks — are not available under FOIA, but indicates no other basis for damages in relation to a FOIA request. Moreover, insofar as Plaintiff purports to challenge the handling of the underlying complaint previously filed with OIG — rather than the agency's subsequent handling of the FOIA requests — Plaintiff identifies no legal basis for doing so or for seeking damages with respect to any such claim. With this understanding, the Court addresses Defendant's motion to dismiss for lack of subject matter jurisdiction and for summary judgment. In that motion, Defendant argues that this Court lacks subject matter jurisdiction over all but one of the claims in Plaintiff's complaint because Plaintiff failed to file this action within the six-year statute of limitations for FOIA claims. With respect to the remaining claim, regarding Plaintiff's 2014 FOIA request, Defendant argues that summary judgment is warranted because the agency adequately responded to that request.
Upon consideration of the pleadings,
On June 20, 2006, Plaintiff submitted to OIG a 25-page FOIA request that requested all OIG documents pertaining to Plaintiff.
Following the agency's response to Plaintiff's FOIA request, a series of administrative appeals ensued:
After OIG's response to Plaintiff sent in September 2007, OIG did not receive any new appeals remanded from OIP pertaining to Plaintiff, and OIG did not receive any new FOIA requests from Plaintiff. Waller Decl. ¶ 19.
On May 9, 2014, Plaintiff submitted a FOIA request to OIP via letter which requested all correspondence between her and OIP. Declaration of Vanessa R. Brinkmann ("Brinkmann Decl."), ECF No. 20-3, ¶ 3, Ex. A. In response to Plaintiff's request, OIP conducted a search of its FOIA/Privacy Act tracking systems, using the search term "Agolli," between 1987 and the date of the search. Id. ¶ 5. As a result of the search, OIP located four administrative appeals, including the three aforementioned appeals and an appeal closed on July 7, 2003 (AP-200301872 (FBI)). Id. The agency discovered that, due to the age of those files, they had been destroyed "in accordance with the applicable records retention schedules." Id. Because Plaintiff specifically mentioned that she had corresponded with Michael Sherman, a former OIP employee, OIP also conducted a search of Sherman's e-mail archives using the search term "Agolli." Id. ¶ 6. OIP located 37 pages of e-mail correspondence between Sherman and Plaintiff. Id. By letter dated October 24, 2014, OIP provided a final response to Plaintiff's FOIA request, providing the 37-pages of the e-mail correspondence with Sherman, without redaction. Id. OIP also informed Plaintiff that the contents of her previous appeals had been destroyed in accordance with the applicable records retention schedules and that copies of the correspondence maintained as part of those records were no longer available. Id. ¶ 8, Ex. C.
Plaintiff filed this action on June 6, 2014. Subsequently, Defendant filed a motion to dismiss for lack of subject matter jurisdiction and for summary judgment. That motion is now fully briefed and ripe for resolution.
"Federal courts are courts of limited jurisdiction" and can adjudicate only those cases entrusted to them by the Constitution or an Act of Congress. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The Court begins with the presumption that it does not have subject matter jurisdiction over a case. Id. To survive a motion to dismiss pursuant to Rule 12(b)(1), a plaintiff bears the burden of establishing that the Court has subject matter jurisdiction over its claim. Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C.Cir.2007). In determining whether there is jurisdiction, the Court may "consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C.Cir.2003) (citations omitted). "At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact." Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1106 (D.C.Cir.2005). "Although a court
Congress enacted FOIA to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (citation and internal quotation marks omitted). Congress remained sensitive to the need to achieve balance between these objectives and the potential that "legitimate governmental and private interests could be harmed by release of certain types of information." Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C.Cir.1992) (en banc) (citation and internal quotation marks omitted). To that end, FOIA "requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material." Milner v. Dep't of Navy, 562 U.S. 562, 564-66, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). Ultimately, "disclosure, not secrecy, is the dominant objective of the Act." Rose, 425 U.S. at 361, 96 S.Ct. 1592.
The burden is on the agency to justify its response to the plaintiff's request. 5 U.S.C. § 552(a)(4)(B). "An agency may sustain its burden by means of affidavits, but only if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Multi Ag Media LLC v. Dep't of Agriculture, 515 F.3d 1224, 1227 (D.C.Cir.2008) (citation omitted). Summary judgment is proper when the pleadings, the discovery materials on file, and any affidavits or declarations "show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a).
Defendant moves to dismiss pursuant to Rule 12(b)(1), arguing that this Court lacks subject matter jurisdiction over all but one of Plaintiff's claims. Defendant moves for summary judgment on the remaining claim. The Court addresses the jurisdictional arguments first, concluding that the statute of limitations for FOIA claims deprives this Court of jurisdiction over all but one of Plaintiff's claims. With respect to the remaining claim — the claim regarding the 2014 FOIA request — the Court concludes that summary judgment for the agency is warranted.
Defendant moves to dismiss all of the FOIA claims in this action — other than the claim regarding the 2014 FOIA request — for lack of subject matter jurisdiction. The Court agrees that it has no jurisdiction over these claims.
A six-year statute of limitations applies to FOIA actions. Spannaus v. U.S. Dep't of Justice, 824 F.2d 52, 56 (D.C.Cir.1987); see also 28 U.S.C. § 2401(A) ("every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues"); Howard v. Pritzker, 775 F.3d 430, 437 (D.C.Cir.2015) ("§ 2401(a) applies to suits under [FOIA], which does not include
"A FOIA claim accrues once the requester has exhausted his or her administrative remedies, either actually or constructively; only then can the requester institute and maintain a suit in court." Kenney v. U.S. Dep't of Justice, 700 F.Supp.2d 111, 115 (D.D.C.2010); see also Spannaus v. Dep't of Justice, 824 F.2d at 56-57. Plaintiffs are considered to have constructively exhausted their remedies if the agency does not respond to a request within 20 business days (or 30 working days in unusual circumstances), Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm'n, 711 F.3d 180, 184 (D.C.Cir.2013), or if the agency does not respond to an administrative appeal within 20 business days, see Aftergood v. CIA, 225 F.Supp.2d 27, 29-30 (D.D.C. 2002) (citing 5 U.S.C. § 552(a)(6)(A)(ii)).
Defendant argues that any claim regarding the 2006 FOIA request accrued on or about December 5, 2007, which they calculate as 20 business days after November 5, 2007 — the date Plaintiff filed her last administrative appeal regarding her FOIA request. By contrast, in her complaint, Plaintiff states that the statute of limitations only begins to run from the date of Plaintiff's last correspondence with the agency. See Comp. at 7. She identifies this date as May 27, 2009, when she sent a letter to the agency regarding her 2006 request. Id. However, Plaintiff's argument is contrary to established precedent. See Spannaus, 824 F.2d at 57-59 (FOIA claim accrues when requester constructively exhausts administrative remedies, not when agency subsequently resolves appeal). Plaintiff constructively exhausted her administrative remedies no
Defendant argues that the agency's response to Plaintiff's May 2014 FOIA request complied with the requirements of FOIA and that the agency is entitled to summary judgment on this claim. It appears that Plaintiff may not continue to contest the adequacy of the agency's response to that FOIA request. See Pls.' Mem. of Points & Authorities at 21 (responding to Defendant's argument that the agency is entitled to summary judgment on the FOIA claim by stating "[t]his paragraph sounds about right"). Nonetheless, in an abundance of caution, the Court reviews the parties' arguments together with the record, and the Court concludes that summary judgment for Defendant is warranted on the claim regarding the 2014 FOIA request.
The adequacy of an agency's search for records in response to a FOIA request is measured by a standard of reasonableness and depends on the individual circumstances of each case. Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C.Cir. 1990). The question is not whether responsive documents may exist, but whether the search itself was adequate. Steinberg v. Dep't of Justice, 23 F.3d 548, 551 (D.C.Cir.1994) (citations omitted). There is no requirement that an agency search every record system, but the agency must conduct a good faith, reasonable search of those systems of records likely to possess the requested information. Oglesby v. Dep't of Army, 920 F.2d 57, 68 (D.C.Cir. 1990).
To establish that an adequate search was conducted, agencies may and often do rely on affidavits in support of their motions for summary judgment. Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984). An agency's declarations are accorded "a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." SafeCard Servs. Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C.Cir.1991) (internal citation and quotation omitted). The declarations should "set[ ] forth the search terms and the type of search performed, and aver[ ] that all files likely to contain responsive materials (if such records exist) were searched." Oglesby, 920 F.2d at 68. Absent contrary evidence, such affidavits or declarations are sufficient to show that an agency complied with FOIA. See Perry v. Block, 684 F.2d 121, 127 (D.C.Cir. 1982).
Plaintiff does not seriously contest the adequacy of the search. Plaintiff only notes in her statement of material facts that "[t]here were other people Plaintiff emailed and these were not found or released, such as Stearns and Catherine Lev." Pl.'s Statement of Material Facts, ECF No. 27, ¶ 26. However, she does not provide any support for that statement in an affidavit or by reference to any other documentary evidence. In any event, the Court concludes that this search is adequate. See Oglesby, 920 F.2d at 68. The agency searched the record systems likely to possess the requested information. That is, the agency searched the official systems for maintaining correspondence regarding FOIA requests, and the agency searched the e-mail archives of the only employee whom Plaintiff specifically identified in her request. She did not identify "Stearns or "Catherine Lev" in her FOIA request. See Brinkmann Decl., Ex. A. Moreover, Plaintiff does nothing to rebut the agency's claim — supported by an affidavit — that email archives are not official records systems for maintaining correspondence regarding appeals. See Brinkman Decl. ¶ 6. Therefore, it was not necessary for the agency to search the e-mail archives of the employees that Plaintiff only identifies in her opposition to Defendant's motion. With respect to the appeal archives, Plaintiff does not contest the agency's representation that those archives were destroyed, and the agency cannot be commanded to produce what no longer exists. Accordingly, the Court concludes that the agency conducted an adequate search with respect to the 2014 FOIA request, that it did not improperly withhold any documents, and that it complied with its obligations under FOIA. Defendant is entitled to summary judgment on this FOIA claim.
As a final matter, Plaintiff has submitted numerous requests to correct the docket with respect to purported irregularities in the docketing of the voluminous additional attachments — totaling more than 2300 pages — that she filed in support of her
The Court has already addressed multiple requests from Plaintiff of this sort, including her first nine "Requests for Permission to File Correction of Online Pleadings, with Online Corrections Listed." See, e.g., Order dated May 7, 2015, ECF No. 120. The Court allowed Plaintiff to re-file certain documents and required the Office of the Clerk of the Court to correct and re-docket numerous filings, at considerable effort on its part. See Order dated April 8, 2015, ECF No. 91; see also Large Additional Attachments, ECF Nos. 62-80, 93-122 (re-docketed versions of attachments submitted by Plaintiff); Large Additional Attachments Parts 1-16, ECF Nos. 32-47 (initially docketed versions of attachments). Subsequently, Plaintiff submitted her tenth through thirty-fifth "Requests for Permission to File Correction of Online Pleadings, with Online Corrections Listed." The Court concludes that is not necessary to address those requests given its disposition of the claims in this action. The Court has thoroughly reviewed the voluminous filings in this case — including multiple versions of those filings that the Court allowed to be docketed. The Court concludes that none of those submissions provide a basis for rejecting Defendant's jurisdictional arguments or Defendant's argument for summary judgment on the 2014 FOIA request, the bases on which the Court dismisses this action. Accordingly, the Court will grant leave for Plaintiff to file the tenth through thirty-fifth Requests for Permission to File Correction of Online Pleadings, with Online Corrections Listed — which have already been submitted to the Court — and will simultaneously deny them as moot. Further addressing these requests to correct the docket is simply unnecessary. In addition, the Court will not allow Plaintiff to file any more requests to correct the docket.
For the foregoing reasons, the Court finds that it lacks subject matter jurisdiction over all of Plaintiff's claims other than claim regarding the 2014 FOIA request, and the Court concludes that summary judgment on the remaining claim, regarding the 2014 FOIA request, is warranted. Accordingly, Defendant's [20] Motion to Dismiss Plaintiff's Complaint and for Summary Judgment is GRANTED. Insofar as Plaintiff purports to bring any other claims in this action, those are dismissed as well. This action is dismissed in its entirety.
An appropriate Order accompanies this Memorandum Opinion.
The Court notes that, in a Minute Order issued on December 12, 2014, the Court stated that it would treat Plaintiff's December 8, 2014, "Motion for Indulgence," ECF No. 27, as Plaintiff's Opposition to Defendant's motion to dismiss and for summary judgment because that filing included Plaintiff's memorandum in opposition to the motion. In an [48] Order dated January 6, 2015, the Court stated that it would consider that December 8, 2014, filing as her final Opposition, although it would consider the additional exhibits subsequently filed in support thereof, which the Court had granted leave to file. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).
