Riccardi v. United States Department of Justice , 32 F. Supp. 3d 59 ( 2014 )


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  •                            UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    )
    JAMES RICCARDI,             )
    )
    Plaintiff,      )
    )
    v.              )                          Civil Action No. 12-cv-1887 (KBJ)
    )
    UNITED STATES DEPARTMENT OF )
    JUSTICE, et al.             )
    )
    Defendants.     )
    )
    MEMORANDUM OPINION
    Proceeding pro se, plaintiff James Riccardi has filed this action to challenge the
    adequacy of the search for records that the Executive Office for United States Attorneys
    (“EOUSA”) conducted in response to a Freedom of Information Act (“FOIA”) request
    that Riccardi submitted. (Compl., ECF No. 1.) 1 In addition to claiming that
    “Defendants have wrongfully withheld the requested records,” (Compl. ¶ 27),
    Riccardi’s complaint also faults the EOUSA for denying his plea for expedited
    processing of his FOIA request. (Compl. ¶¶ 29 -32.) Having twice released responsive
    records to Riccardi, the Department of Justice, of which EOUSA is a component, has
    filed a motion that seeks (1) entry of summary judgment in Defendant’s favor under
    Federal Rule of Civil Procedure 56 on the grounds that there is no genuine issue of
    material fact regarding the adequacy of its search, and (2) dismissal of Riccardi’s
    challenge to the agency’s denial of expedited processing, under Rule 12(b)(1), on the
    1
    The complaint, which was filed on November 20, 2012, has been brought against the United States
    Department of Justice, the Executive Office for United States Attorneys, and the Office of Information
    Policy. (See Compl. at 1.)
    1
    grounds that this Court lacks jurisdiction to consider that claim. (Defs.’ Renewed Mot.
    for Summ. J. & Mot. to Dismiss (“Defs.’ Mot.”), ECF No. 18.) Riccardi has opposed
    Defendants’ combined motion for summary judgment/motion to dismiss (see Pl.’s Resp.
    in Opp’n to Defs.’ Renewed Mot. for Summ. J. & Mot. to Dismiss (“Pl.’s Opp’n”), ECF
    No. 22), and Defendants have replied (see Defs.’ Combined Opp’n to Pl.’s Mot. to
    Conduct Disc. & Reply to Pl.’s Opp’n to Defs.’ Renewed Mot. for Summ. J. (“Defs.’
    Reply”), ECF No. 30). 2 Upon consideration of the parties’ submissions and the entire
    record, the Court GRANTS Defendants’ motion in both respects.
    I.      BACKGROUND
    Riccardi is currently serving a prison sentence of 262 months that the United
    States District Court for the District of Kansas imposed in 2003 following his
    conviction of possession of child pornography and related charges. See United States v.
    Riccardi, 
    405 F.3d 852
    , 856 (10th Cir. 2005). By letter of February 2, 2010, Riccardi
    submitted a FOIA request to EOUSA seeking “any and all documents pertaining to
    [him] in the possession of the Office of the United States Attorney in Kansas City,
    Kansas.” (Decl. of David Luczynski (“Luczynski Decl.”), ECF No.18-2, Ex. A.) By
    letter of August 20, 2010, EOUSA informed Riccardi that it had located approximately
    7,500 responsive pages and that the estimated processing fee would be $740.00,
    2
    In his opposition, Plaintiff Riccardi also requests discovery under Fed. R. Civ. P. 56(d). (Pl.’s Opp’n
    at 14-15.) Discovery in FOIA cases is rare and “is usually limited to the adequacy of the agency’s
    search and similar matters.” Voinche v. FBI, 
    412 F. Supp. 2d 60
    , 71 (D.D.C. 2006) (citations omitted).
    A discovery motion “should be denied” where, as the Court finds here, “ an agency’s declarations are
    reasonably detailed, submitted in good faith and . . . no factual dispute remains.” Schrecker v. DOJ,
    
    217 F. Supp. 2d 29
    , 35 (D.D.C. 2002). Consequently, this Court hereby denies Riccardi’s request for
    discovery.
    2
    pursuant to 
    28 C.F.R. § 16.11
    (i)(2). (See 
    id.
     ¶ 8 & Ex. E.) 3 The letter also informed
    Riccardi that he was required to pay this fee before processing could continue; however,
    the letter also noted that the fee could be reduced if, among other things, Riccardi
    “reformulate[d his] request” to limit the documents to “a specific category or
    categories.” (Id., Ex. E.)
    Riccardi narrowed his FOIA request by letter of August 25, 2010. The revised
    request sought “[a]ny and all documents pertaining to plea negotiations, plea offers,
    plea deals, [and] plea agreements in [his criminal case],” including “all correspondence
    and communication between the [U.S. Attorney’s Office] in Kansas City, Kansas, and
    any attorneys, the District Court [or] any other agency[,]” as well as “any inter-office
    and inter-agency communication (notes, memoranda, etc.).” (Id., Ex. F.)
    Following a search, EOUSA determined that “[t]here were no records created by
    [the office of the United States Attorney] pertaining to any plea negotiations, offers, or
    agreements.” (Decl. of Merry L. Baxter (“Baxter Decl.”), ECF No. 18-3, ¶ 3.) Indeed,
    the only responsive records in the office files were documents that had previously been
    filed in court in conjunction with habeas proceedings that Riccardi had brought under
    
    28 U.S.C. § 2255
    . (See 
    id. ¶ 3
    ; see also Decl. of Leon Patton (“Patton Decl.”), ECF No.
    18-5, ¶ 3 (explaining that Riccardi had filed a habeas action in which he alleged that his
    attorneys had been ineffective in not persuading him to enter into a plea agreement).)
    These documents included “a response filed by [the AUSA] in the 2255 proceeding”; an
    3
    Under 
    28 CFR § 16.11
    (i)(2), if the estimated fee for processing a FOIA request exceeds $250.00,
    EOUSA may collect an advance payment related to the document processing and duplication costs.
    When EOUSA took into account the fact that the first 100 pages of Riccardi’s FOIA response could be
    copied for free, and then calculated the duplication costs for the remaining pages at $.10 per page, the
    estimated fee for processing Riccardi’s initial request was $740.00. (See Decl. of David Luczynski,
    ¶ 8; see also 
    id.
     Ex E.)
    3
    affidavit from one of Riccardi’s attorneys that “discussed verbal plea negotiations”; “a
    memo to the file by [Riccardi’s] other attorney which contemporaneously memorialized
    plea discussions with [Riccardi]”; and “a handwritten post-sentencing letter from
    [Riccardi] to one of his attorneys in which [Riccardi] expressed regret for ‘not working
    out a plea agreement.’” (Patton Decl. ¶ 4.) All of the responsive documents were
    forwarded to Riccardi in response to the FOIA request. (Baxter Decl. ¶ 3.)
    By letter of January 31, 2012, EOUSA then informed Riccardi that it had decided
    to make a “full release” with respect to his request, explaining that “[a]ll of the records
    you seek are being made available to you.” (Luczynski Decl., Ex. K.) This letter also
    informed Riccardi that the agency’s decision in this regard was a final action of the
    agency, and that he had the right to appeal the decision to the Office of Information
    Policy (“OIP”). (Id.) In November of 2012, following an unsuccessful appeal to OIP
    (see 
    id. ¶¶ 15-18
    ), Riccardi filed this civil action.
    Riccardi’s complaint contains two counts: violation of FOIA (Count I), and
    violation of the APA (Count II). (Compl. at 7-8.) The complaint alleges that Riccardi’s
    FOIA request was “simple and straightforward” insofar as it sought “from the
    Government what they (the Government) offered as a plea deal in plaintiff’s criminal
    case” (id.¶ 9), but that Defendants had omitted from their production any “documents
    from the U.S. Attorney’s Office explaining what the government offered as a plea deal
    as requested” (id. ¶ 15). The complaint also maintains that EOUSA had wrongfully
    refused to grant Riccardi’s request for expedited processing with respect to the
    documents he sought. (Id. ¶¶ 24-26.)
    In response to the filing of Riccardi’s complaint, the U.S. Attorney’s Office in
    4
    Kansas revisited the FOIA search request—interpreting the request “very lenient[ly]”—
    and conducted another search of its “computer files for anything pertaining to plea
    offers, negotiations, or agreements,” and of its “paper files concerning [Riccardi that
    were] retriev[ed] from the National Archives and Records Administration facility in
    Lenexa, Kansas.” (Patton Decl. ¶¶ 6-7.) This search encompassed the files of Assistant
    United States Attorney (“AUSA”) Kim Berger (now Martin), who had prosecuted
    Riccardi; the closed files of Riccardi’s prosecution, appeal, and collateral proceedings;
    and the case-management database known as LIONS. (Id.) On July 29, 2013, EOUSA
    released in their entirety “25 court-filed documents compris[ing] a total of 343 pages”
    and informed Riccardi about his obligation to pay $24.30 for the duplication costs of
    the pages exceeding the first 100 free pages, and his right to appeal the determination to
    OIP. (Suppl. Luczynski Decl., ECF No. 18-4, ¶ 4 & Ex. A.)
    Defendants then filed the instant motion for summary judgment/motion to
    dismiss, arguing that its obligation to search for, and to produce, responsive documents
    had been fulfilled and that the Court lacked jurisdiction over Riccardi’s expedited
    processing claim in light of the completed production. (Defs.’ Mot. at 3-4.) Riccardi
    has opposed the dismissal of his expedited processing claim and/or having summary
    judgment issued in Defendants’ favor on the issue of the adequacy of the search, on the
    grounds that Defendants have neither provided a complete response to its FOIA request,
    nor conducted an adequate search. (Pl.’s Opp’n at 4-6.)
    II. LEGAL STANDARD
    There are two aspects to the pending motion—Defendants’ request for entry of
    summary judgment in the absence of a genuine issue of material fact regarding the
    5
    adequacy of the search, and Defendants’ argument that the Court lacks jurisdiction over
    Riccardi’s claim regarding expedited review—each of which is governed by a different
    legal standard.
    Under Federal Rule of Civil Procedure 56, summary judgment is warranted “if
    the movant shows 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). The moving
    party must support the assertion that no facts are in dispute by “citing to particular parts
    of materials in the record, including . . . affidavits or declarations.” Fed. R. Civ. P.
    56(c)(1)(A).
    In a FOIA case, where the adequacy of an agency’s search is questioned, the
    Court may grant summary judgment based on information provided in “[a] reasonably
    detailed affidavit, setting forth the search terms and the type of search performed, and
    averring that all files likely to contain responsive materials (if such records exist) were
    searched.” Valencia-Lucena v. U.S. Coast Guard, 
    180 F.3d 321
    , 326 (D.C. Cir. 1999).
    Such agency affidavits attesting to a reasonable search “are afforded a presumption of
    good faith,” and “can be rebutted only ‘with evidence that the agency’s search was not
    made in good faith.’” Defenders of Wildlife v. U.S. Dep’t of Interior, 
    314 F. Supp. 2d 1
    , 8 (D.D.C. 2004) (quoting Trans. Union LLC v. FTC, 
    141 F. Supp. 2d 62
    , 69 (D.D.C.
    2001)). In determining the adequacy of a FOIA search, the Court is guided by
    principles of reasonableness. Campbell v. DOJ, 
    164 F.3d 20
    , 27 (D.C. Cir. 1998). The
    Court must also be mindful that an agency is required to produce only those records in
    its custody and control at the time of the FOIA request. McGehee v. CIA, 
    697 F.2d 1095
    , 1110 (D.C. Cir. 1983). However, summary judgment is inappropriate “if a review
    6
    of the record raises substantial doubt” about the adequacy of the search. Valencia-
    Lucena, 
    180 F.3d at
    326 (citing Founding Church of Scientology v. NSA, 
    610 F.2d 824
    ,
    837 (D.C. Cir. 1979)).
    As relevant to Defendants’ motion to dismiss Riccardi’s claim regarding the
    agency’s denial of expedited processing, FOIA states that “[a] district court of the
    United States shall not have jurisdiction to review an agency denial of expedited
    processing of a request for records after the agency has provided a complete response to
    the request.” 
    5 U.S.C. § 552
    (a)(6)(E)(iv). Under Federal Rule of Civil Procedure
    12(b)(1), the plaintiff bears the burden of establishing that the Court has jurisdiction,
    and the plaintiff must do so by a preponderance of the evidence. See Adams v. U.S.
    Capitol Police Bd., 
    564 F. Supp. 2d 37
    , 40 (D.D.C. 2008). In deciding whether to grant
    a motion to dismiss for lack of jurisdiction, the court must “accept all of the factual
    allegations in the complaint as true[,]” M.J. ex rel. Jarvis v. Georgetown Univ. Med.
    Ctr., 
    962 F. Supp. 2d 3
    , 5 (D.D.C. 2013); however, “need not accept inferences
    unsupported by the facts or legal conclusions that are cast as factual allegations,” Rann
    v. Chao, 
    154 F. Supp. 2d 61
    , 63 (D.D.C. 2001).
    III. ANALYSIS
    A. Motion for Summary Judgment
    Defendants’ motion for summary judgment asks that the Court grant summary
    judgment in its favor because the agency’s search for responsive records was
    “reasonable” and “adequate” as a matter of law, and all responsive documents have
    been produced to Riccardi without withholdings or redactions; therefore, no genuine
    issues of material fact remain. (Defs.’ Mot. at 1-2.) In opposing Defendants’ summary
    7
    judgment motion, Riccardi asserts that neither the January 2012 release nor the July
    2013 release provided records responsive to his FOIA request. (See Pl.’s Opp’n at 2.)
    He contends that “there is indication that the plea offer and related discussions were
    reduced into writing and memorialized into a record which would be subject to FOIA
    disclosure[,]” but that a copy of this written plea offer was not included in the
    documents that were released to him. (Id. at 6.) Based on this assertion, it is clear that
    Riccardi is raising a challenge to the adequacy of Defendants’ search.
    “FOIA requires government agencies to describe their searches in enough detail
    for a court to determine whether the search was sufficiently exhaustive to satisfy the
    Act.” Sennett v. DOJ, 
    962 F. Supp. 2d 270
    , 277 (D.D.C. 2013). “To meet its burden,
    the agency may submit affidavits or declarations that explain in reasonable detail the
    scope and method of the agency’s search.” Defenders of Wildlife v. U.S. Border Patrol,
    
    623 F. Supp. 2d 83
    , 91 (D.D.C. 2009). Here, as explained above, Defendants have
    submitted multiple declarations attesting to the fact that they conducted three separate
    searches of the relevant office files related to Riccardi’s FOIA request: one after
    receiving Riccardi’s initial expansive request; one in response to Riccardi’s narrowed
    request for documents related specifically to plea negotiations; and one in response the
    complaint’s allegation that documents were being improperly withheld. Defendants
    aver that the only set of documents in their possession that were responsive to the
    request for documents related to plea negotiations were those that had been submitted in
    relation to Riccardi’s 2255 proceeding. (Patton Decl. ¶ 4.) One of those documents
    reflects that a meeting had indeed occurred between AUSA Berger and Riccardi’s
    attorneys but that they engaged only in “verbal plea negotiations” that were ultimately
    8
    unsuccessful. (Id.) In the Court’s view, these declarations attesting to the multiple
    searches Defendants carried out and the few responsive documents they turned up are
    sufficient to carry Defendants’ burden of showing that they conducted a reasonable and
    adequate search for such documents. See, e.g., Concepción v. FBI, 
    606 F. Supp. 2d 14
    ,
    30 (D.D.C. 2009) (“If an agency does not locate records responsive to a FOIA request,
    it still may prevail on summary judgment if it establishes that it located no records
    responsive to plaintiff’s request after a reasonable search[.]” (internal quotation marks
    and citation omitted)).
    In response to Defendants’ declarations, Riccardi merely speculates that
    Defendants failed to produce responsive records because his defense attorney allegedly
    told him that, during a plea negotiation meeting, AUSA Berger had “‘worked from
    notes and other documents she had in her possession’” and had “‘sketched out her
    thinking on how the sentencing guidelines would be applied under such a plea[.]’”
    (Pl.’s Opp’n at 6.) For support, Riccardi points to a statement in an affidavit that was
    filed in the § 2255 proceeding, but the paragraph he cites does not support his position
    (or any reasonable inference) that a written document should exist. (See Compl. App’x
    at A-30 (Aff. of J. Justin Johnston ¶ 9) (recounting discussion at a pre-trial meeting
    where “Ms. Berger sketched out her thinking on how the Sentencing Guidelines would
    be applied under such a plea” (emphasis added)).)
    Moreover, even if the statement regarding the AUSA’s notes and musings during
    plea negotiations could be construed as evidence that a plea offer document existed at
    some point in time, Riccardi nonetheless fails to establish that there is a genuine issue
    of fact regarding the adequacy of the search conducted here because “the adequacy of a
    9
    FOIA search is generally determined not by the fruits of the search, but by the
    appropriateness of the methods used to carry out the search.” Santana v. DOJ, 
    828 F. Supp. 2d 204
    , 209 (D.D.C. 2011) (internal quotation marks and other citation omitted)
    (quoting Iturralde v. Comptroller of Currency, 
    315 F.3d 311
    , 315 (D.C. Cir. 2003)).
    Thus, a finding that a search for records is inadequate is neither based on the fact that a
    particular document was not found, Boyd v. Crim. Div. of DOJ, 
    475 F.3d 381
    , 390-91
    (D.C. Cir. 2007), nor on unsupported assertions or “speculation as to the existence of
    additional records[,]” Concepción, 
    606 F. Supp. 2d at 30
    . Rather, once an agency has
    carried its burden of showing that it conducted an adequate search, “the burden is on the
    requester to rebut that evidence by a showing that the search was not conducted in good
    faith[,]” which can be accomplished “either by contradicting the defendant’s account of
    the search procedure or by presenting evidence showing the agency’s bad faith.” Kim v.
    U.S. Dep’t of the Interior, 
    859 F. Supp. 2d 13
    , 18 (D.D.C. 2012). In this case, Riccardi
    has failed to offer any evidence or argument that calls into question either the agency’s
    account of its search or the agency’s good faith in conducting that search.
    Finally, it is worth noting that Defendants’ primary declarant, Leon Patton,
    reasonably surmises—partly based on Riccardi’s own statements during the § 2255
    proceeding—that the plea documents Riccardi seeks were not found during the agency’s
    search because such documents never existed. (See Patton Decl. ¶ 8 (citing Riccardi’s
    affidavit in support of his § 2255 motion in which “he stated ‘[n]o proffered agreement
    was ever drafted by the Government[.]’” (alterations in original)).) Riccardi takes issue
    with the fact that Patton’s declaration does not include a “full reading” of the statement
    in his 2255 affidavit, i.e., that “no proffered agreement was ever drafted by the
    10
    Government and all the details of this [the plea] proposal were provided to me by
    attorney Johnston.” (Pl.’s Stmt. of Material Facts as to Which There Exists a Genuine
    Dispute, ECF No. 22, ¶ 21 (alteration in original).) But even in its full context,
    Riccardi’s challenge to Patton’s characterization of his prior statement does not create a
    material factual dispute about the adequacy of Defendants’ search or records, nor does
    it rebut the presumption that Defendants undertook to find the requested documents in
    good faith. Riccardi simply has not produced any evidence that casts doubt on
    Defendants’ declarations establishing that it conducted a reasonable search for records,
    and that the search did not, in fact, uncover any written plea offers that were then
    improperly withheld from the FOIA production. Accordingly, the Court concludes that
    summary judgment must be entered in favor of Defendants.
    B. Motion to Dismiss
    Defendants’ motion to dismiss Riccardi’s claim regarding the denial of expedited
    processing is also well founded. By the terms of the FOIA statute, this Court is
    divested of jurisdiction over a claim regarding “an agency denial of expedited
    processing” once “the agency has provided a complete response to the request.” 
    5 U.S.C. § 552
    (a)(6)(E)(iv). Riccardi bears the burden of establishing that this Court
    does, in fact, have jurisdiction over his expedited processing claim, see Adams, 
    564 F. Supp. 2d at 40
    , which means he must demonstrate that a “complete response” to his
    FOIA request was not provided in this case. This is a burden that Riccardi is unable to
    bear, given that there is no dispute that the agency produced all of the records that it
    located, and in light of the Court’s conclusion that the agency conducted a reasonable
    search. Therefore, Defendants’ motion to dismiss the claim for expedited processing
    11
    must be dismissed for lack of jurisdiction. See Al-Fayed v. CIA, 
    254 F.3d 300
    , 303 n.1
    (D.C. Cir. 2001) (dismissing expedited processing claims against agencies that had fully
    complied with FOIA requests); see also Citizens for Responsibility & Ethics in
    Washington v. DOJ, 
    535 F. Supp. 2d 157
    , 160 n.1 (D.D.C. 2008).
    IV. CONCLUSION
    In the absence of any evidence of bad faith, the Court concludes that Defendants
    are entitled to summary judgment because their search for responsive records was
    adequate and Riccardi has raised no other issues regarding Defendants’ response to his
    FOIA request. In addition, Defendants’ production of all records in its possession that
    were responsive to Riccardi’s request deprives the Court of jurisdiction over the claim
    for expedited processing and that claim must be dismissed. Accordingly, Defendants’
    motion for summary judgment/motion to dismiss is GRANTED. A separate final order
    accompanies this Memorandum Opinion.
    Ketanji Brown Jackson
    Ketanji Brown Jackson
    United States District Judge
    DATE: March 27, 2014
    12
    

Document Info

Docket Number: Civil Action No. 2012-1887

Citation Numbers: 32 F. Supp. 3d 59, 2014 U.S. Dist. LEXIS 40867, 2014 WL 1254616

Judges: Judge Ketanji Brown Jackson

Filed Date: 3/27/2014

Precedential Status: Precedential

Modified Date: 11/7/2024

Authorities (17)

United States v. Riccardi , 405 F.3d 852 ( 2005 )

Defenders of Wildlife v. United States Department of the ... , 314 F. Supp. 2d 1 ( 2004 )

Valencia-Lucena v. United States Coast Guard , 180 F.3d 321 ( 1999 )

Campbell v. United States Department of Justice , 164 F.3d 20 ( 1998 )

Voinche v. Federal Bureau of Investigation , 412 F. Supp. 2d 60 ( 2006 )

Defenders of Wildlife v. United States Border Patrol , 623 F. Supp. 2d 83 ( 2009 )

The Founding Church of Scientology of Washington, D. C., ... , 610 F.2d 824 ( 1979 )

Boyd v. Criminal Division of the United States Department ... , 475 F.3d 381 ( 2007 )

GUILLERMO FELIPE DUEÑAS ITURRALDE v. COMPTROLLER OF THE ... , 315 F.3d 311 ( 2003 )

Fielding M. McGehee III v. Central Intelligence Agency , 697 F.2d 1095 ( 1983 )

Adams v. United States Capitol Police Board , 564 F. Supp. 2d 37 ( 2008 )

Citizens for Responsibility & Ethics v. Department of ... , 535 F. Supp. 2d 157 ( 2008 )

Concepcion v. Federal Bureau of Investigation , 606 F. Supp. 2d 14 ( 2009 )

Trans Union LLC v. Federal Trade Commission , 141 F. Supp. 2d 62 ( 2001 )

Al-Fayed v. Central Intelligence Agency , 254 F.3d 300 ( 2001 )

Schrecker v. United States Department of Justice , 217 F. Supp. 2d 29 ( 2002 )

Rann v. Chao , 154 F. Supp. 2d 61 ( 2001 )

View All Authorities »