Berk v. Exct Ofc US Atty

Case: 21-10693 Document: 00516562038 Page: 1 Date Filed: 11/30/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-10693
Summary Calendar FILED
November 30, 2022
Lyle W. Cayce
Michael Berk, Clerk
Plaintiff—Appellant,
versus
Executive Office of United States Attorneys,
Defendant—Appellee,
______________________________
Michael Berk,
Plaintiff—Appellant,
v.
United States Department of Homeland Security,
Defendant—Appellee,
______________________________
Michael Berk,
Plaintiff—Appellant,
versus
U.S. Department of Justice, Federal Bureau of Prisons,
Case: 21-10693 Document: 00516562038 Page: 2 Date Filed: 11/30/2022
No. 21-10693
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC Nos. 3:18-CV-1349–51
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
Michael Berk appeals pro se from a summary judgment in favor of
Defendants, the Department of Homeland Security (“DHS”), the Federal
Bureau of Prisons (“BOP”), and the Executive Office for United States
Attorneys (“EOUSA”), after the court found that Defendants conducted a
reasonable search and did not improperly withhold information under the
Freedom of Information Act (“FOIA”). This court AFFIRMS.
I
Berk, a current inmate at the Federal Correctional Institution in
Seagoville, Texas, was convicted for enticing a minor, in violation of
18 U.S.C. §§ 2422(b) and 3583(k), and possession of child pornography, in
violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 3583(k). He was sentenced to
200 months’ imprisonment. The First Circuit affirmed.
While detained in New Hampshire and awaiting transportation to a
BOP facility, Berk pled guilty to possessing contraband in prison, in violation
of 18 U.S.C. § 1791(a)(2) and was sentenced to twelve months’
imprisonment to be served consecutively with his other convictions. Berk
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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was imprisoned initially in New Jersey before being transferred to the
Seagoville, Texas prison under a sex offender program.
Berk submitted FOIA requests to the BOP, DHS, and EOUSA. The
request to the BOP was incomplete because Berk’s authorization for his
attorney to request his records was over the three-month limit. 1 The DHS
interpreted Berk’s request, as one for copies of information that the agency
maintained leading up to Berk’s prosecution. The DHS returned several
documents. Berk requested from the EOUSA his prosecution file and related
documents. The EOUSA returned files in several responses.
Berk then sued the agencies, alleging that they improperly withheld
information and had not timely responded to his FOIA requests. Berk moved
for partial summary judgment against EOUSA, and the agencies jointly
cross-moved for summary judgment. Berk failed to timely respond to the
agencies’ motion. Nonetheless, the magistrate judge considered his response
on the merits and recommended summary judgment for the agencies. The
district court accepted the findings, conclusions, and recommendation of the
magistrate judge, and prospectively certified that appeal of the action would
not be in good faith under 28 U.S.C. § 1915(a)(3). 2 This appeal followed.
1
Berk’s subsequent request was filed after his complaint; thus, it is not subject to
this appeal.
2
Berk does not appeal the district court’s denial of his motion to proceed IFP.
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II 3
FOIA allows district courts “to enjoin the agency from withholding
agency records and to order the production of any agency records improperly
withheld.” 5 U.S.C. § 552(a)(4)(B). 4 FOIA requires federal agencies to
disclose documents within their control upon request unless the documents
fall within one of nine enumerated exceptions. See Id. § 552(b)(1)–(9). In a
FOIA case, the agency has the burden of justifying nondisclosure. See Id.
§ 552(a)(4)(B). The agencies have met their burden.
FOIA does not require an agency to show that it has identified every
document that is responsive to a request, but only that “it performed a search
reasonably calculated to yield responsive documents.” Batton v. Evers,
598 F.3d 169, 176 (5th Cir. 2010). The agency can satisfy that requirement
with affidavits that provide a detailed description of its search methods. Id.The reasons the agency gives have a “presumption of legitimacy.” Id. That
presumption can be defeated only by showing that the agency acted in bad
faith, and at summary judgment by presenting evidence that the affidavits do
not describe an adequate search. Id.Here, the agencies provided detailed descriptions of their search
methods along with the relevant records. Berk presented nothing but
speculation that either EOUSA or DHS failed to account for responsive
documents. Further, the agencies reasonably excluded non-responsive
3
Jurisdiction is established by 5 U.S.C. § 552(a)(4)(B), which provides that such
complaints may be filed in the district court for the district in which the complainant resides
or has his principal place of business, in the district where the records are located, or in the
District of Columbia.
4
Berk’s claim that EOUSA was untimely in producing its records is moot because
the EOUSA has produced. His similar claims of untimeliness against the other agencies
are moot for the same reason.
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documents that fell outside the request’s scope and reasonably excluded
records relating to the New Hampshire proceeding because Berk’s counsel,
at the time, did not request those records in his narrowed list of requested
files.
Moreover, the agencies produced lengthy documentation with
specific explanations of what they withheld and why each exemption applied.
This information, contradicted only by Berk’s conclusory assertions, carried
their burden under FOIA. “The exemptions to disclosure are explicitly
limited by statute and should be construed narrowly.” Dep’t of the Air Force
v. Rose, 425 U.S. 352, 361, 96 S. Ct. 1592, 1599 (1976). The agency “may
sustain its burden through the submission of detailed affidavits or
declarations that identify the documents and explain why they fall within the
claimed exemptions.” Payne v. Dep’t of Just., 121 F.3d 704 (5th Cir. 1997).
This court “generally will grant an agency’s motion for summary judgment
only if the agency identifies the documents at issue and explains why they fall
under exemptions.” Id. The agencies complied with these strictures.
After careful consideration of the record and the briefs, we find no
error or law or fact in the district court’s decision.
Finally, the appointment of counsel occurs in only exceptional cases.
Jackson v. Dallas Police Dep’t., 811 F.2d 260, 261 (5th Cir. 1986). A review
of the record confirms that the district court correctly assessed four factors
to determine whether to appoint counsel. Id. The district court did not abuse
its discretion in denying Berk appointed counsel.
For the foregoing reasons, we AFFIRM the judgment of the district
court.
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