United States District Court, N.D. West Virginia, Clarksburg
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [ECF NO. 79], GRANTING MOTION FOR
SUMMARY JUDGMENT [ECF NO. 61], AND DENYING AS MOOT
PLAINTIFF'S NOTE AND CLARIFICATION [ECF NO. 60]
S. KLEEH, UNITED STATES DISTRICT JUDGE
before the Court is a Report and Recommendation
(“R&R”) entered by United States Magistrate
Judge Michael J. Aloi. Judge Aloi recommends that the Court
grant Defendant's Motion for Summary Judgment; deny as
moot Plaintiff's “Note and Clarification, ”
construed as a Motion to Compel; and dismiss the Amended
Complaint with prejudice. For the reasons discussed below,
the Court adopts the R&R in part.
is a former employee of the Department of Energy's
National Energy Technology Laboratory (“NETL”) in
Morgantown, West Virginia. ECF No. 12 at ¶ 1. On April
8, 2017, Plaintiff's supervisor proposed his removal from
NETL and federal service due to improper conduct involving an
intern whom Plaintiff had been assigned to mentor.
Id. ¶ 3. At the time of the notice, Plaintiff
was facing criminal charges in Pennsylvania regarding
harassment and unlawful use of computers. Id. On
April 19, 2016, Plaintiff was convicted by a jury for these
crimes. Id. Plaintiff was placed on administrative
leave from August 12, 2015, during an internal investigation.
Id. ¶ 4. He was forbidden from accessing NETL
property, and his former office at NETL was secured under
lock and key. Id. He resigned, effective June 17,
2016. Id. Plaintiff's claims in this case stem
from his attempts to retrieve his personal belongings after
being placed on administrative leave, along with his attempts
to gather information about the investigations conducted at
NETL and in Centre County, Pennsylvania.
Original Complaint [ECF No. 1]
November 6, 2017, Plaintiff filed a Complaint (the
“Original Complaint”) against Grace Bochenek
(“Bochenek”), Susan Malie (“Malie”),
and Isabel Cotero (“Cotero”) (together, the
“Original Defendants”), all of whom were
employees of NETL. ECF No. 1 at 1. First, Plaintiff claimed
that in violation of 18 U.S.C. § 21 (Stolen or
Counterfeit nature of property for certain crimes defined)
and since the summer of 2016, NETL had refused to return his
personal belongings, despite repeated requests. Id.
¶ 1. He also cited a parallel case in Morgantown
Magistrate Court. Id. Second, he claimed that Malie
“blocked” his certified registered court summons
by opening it when it was addressed to Bochenek, in violation
of 18 U.S.C. § 1702 (Obstruction of correspondence).
Id. ¶ 2. The summons allegedly opened by Malie
related to the Monongalia County Magistrate Court case.
Plaintiff argued that Cotero inappropriately signed the
certified registered Court Summons addressed to Bochenek, in
violation of 18 U.S.C. § 1701 (Obstruction of mails
generally). Id. ¶ 3. Fourth, Plaintiff wrote
that he sent several FOIA requests to NETL, and NETL failed
to provide a determination letter for FOIA
946”). Id. ¶ 4. Request 946, he said,
specifically requested all paperwork and records related to
the alleged official delivery of Plaintiff's personal
belongings to him by NETL. Id. Request 946 is the
only FOIA request specifically listed in Plaintiff's
Plaintiff argued that this Court had jurisdiction because the
case involved obstruction of mails, obstruction of
correspondence, federal employees, Plaintiff's personal
belongings being left at a federal site, and denial of
responses to FOIAs. Id. at ¶ 5. Plaintiff wrote
that the Department of Energy's Office of Hearing and
Appeals (“OHA”) indicated to him that he was
deemed to exhaust his administrative remedies for Request 946
and may proceed with the matter in federal district court
pursuant to 5 U.S.C. § 552(a)(6)(C)(i). Id.
Motion to Dismiss [ECF No. 11]
January 8, 2018, the Original Defendants moved to dismiss
Plaintiff's Original Complaint for lack of subject matter
jurisdiction and failure to state a claim. ECF No. 11.
Bochenek argued that she “never personally directed any
action taken by NETL concerning the Plaintiff's
belongings at issue, and in fact, has never had any contact
with the Plaintiff through her employment at NETL's
Pittsburgh, PA office.” ECF No. 12 at 2.
Original Defendants argued that Cotero signed for the
summons, Malie signed an internal correspondence
accountability log, and Bochenek never received a copy of the
summons or signed a receipt for one. Id. at 6. They
argued that the claims against them should be dismissed for
failing to meet the standards under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). Id. at 7, 8.
Plaintiff had cited criminal statutes in the Original
Complaint, for which no civil relief was available, and to
the extent he cited 5 U.S.C. § 552(a) regarding FOIA
requests, the Original Defendants argued that the Original
Complaint did not request the provision of documents pursuant
to that statute. Id. at 9, 10.
January 22, 2018, Plaintiff filed a response to the Motion to
Dismiss. ECF No. 17. Plaintiff emphasized that several
requests were made to NETL about his belongings, and
“[n]o proper response was received.” Id.
at 11. He argued that NETL failed to respond to
Plaintiff's Request 946. Id. at 12. He provided
his version of the history of Request 946: (1) FOIA applied
in May 2018; (2) NETL responded with “No
Records”; (3) Plaintiff appealed to OHA; (4) NETL
withdrew its “No Records” response and stated
that a new determination letter would be issued. Id.
at 13. Plaintiff stated that it had not been issued.
Id. OHA informed him that because NETL had not
issued a final determination as to Request 946, Plaintiff
might be deemed to have exhausted his administrative remedies
for that Request and proceed in federal court. Id.
Judge Aloi's First R&R [ECF No. 30]
February 21, 2018, Judge Aloi entered an R&R on the
pending motion to dismiss. ECF No. 30. Judge Aloi recommended
that the action be dismissed against Cotero, Bochenek, and
Malie. Id. at 16. He concluded that the Court lacked
subject matter jurisdiction over the criminal allegations by
Plaintiff. Id. at 11. He further found that the
Court lacked jurisdiction over the claims potentially made
under the Federal Tort Claims Act (“FTCA”).
Id. at 13. To the extent the complaint could be read
as a request for injunctive relief, neither the FTCA nor the
Administrative Procedure Act (“APA”) would be an
adequate remedy. Id.
the complaint liberally, however, Judge Aloi found that
Plaintiff may proceed in federal court under 5 U.S.C. §
552(a)(6)(C)(i). Id. at 15-16. He recommended that
the request to dismiss Plaintiff's FOIA claims be denied
and that NETL be substituted as a defendant, noting that
“[t]he claim under FOIA . . . must proceed against
NETL.” Id. at 16. He deemed the following FOIA
requests exhausted because there was no evidence that a
revised fee letter was sent:
• HQ-2017-01069-F/NETL-2017-01141-F (Request 1069);
• HQ-2017-01268-F/NETL-2017-01260-F (Request 1268); and
• HQ-2017-01284-F/NETL-2017-01308-F (Request 1284).
Id. at 15. He also found that NETL had not issued
final determinations within the statutory time limit for the
following six FOIA requests: 833, 890, 1070, 946, 1347, and
1348. Id. Therefore, he deemed those Requests
exhausted as well. Id. Judge Aloi directed NETL to
respond to the nine FOIA requests listed above. Id.
at 16-17. Judge Keeley adopted the R&R on May 21, 2018,
and substituted NETL as the defendant. ECF No. 52.
April 6, 2018, Judge Aloi directed NETL to provide certain
documents to the Court for in camera review. ECF No.
44. On April 10, 2018, NETL filed a Motion for Relief from
Requirements of that order, arguing, among other things, that
Plaintiff had been adding new claims without amending his
complaint. ECF No. 46. Judge Aloi then ordered NETL to
provide Plaintiff a response to Request 946 by April 26,
2018. ECF No. 48 at 3. He also found that NETL cured its
violation as to Request 1070 before this cause of action was
initiated on November 6, 2017. Id. at 4-5. Judge
Aloi directed Plaintiff to file an Amended Complaint,
including the FOIA requests for which he had exhausted his
administrative remedies, on or before April 26, 2018.
Id. at 5.
Amended Complaint [ECF No. 50]
filed an Amended Complaint on April 25, 2018. ECF No. 50. He
did not reference whether administrative remedies had been
exhausted for each of the FOIA requests in the Amended
Complaint. Plaintiff states in his Amended Complaint that its
purpose is “to obtain the documented truth through the
opportunity FOIA request.” Id. at 1. He argues
that “[a]ccording to FOIA regulation 5 U.S.C. §
552(a)(6)(A), the Agency must issue a determination letter
within 20 days of receiving a FOIA request, ” and in
this case, “[t]he determination letter response for
many FOIA requests took months.” Id. Plaintiff
generally objects to NETL's alleged destroying and
withholding of records and its claims of attorney-client
privilege and confidentiality.
discusses the following Requests in his Amended Complaint:
1070, 946, 833, 890, 1347, 1759, 78, 1348, 1069, 1268, and
1284. Specific arguments made by Plaintiff as to each Request
are included in the Discussion section below. Plaintiff
reiterates requests for documentation and, generally, argues
that NETL is not in compliance with the Court Order. He asks
the Court to do the following: “order the Agency to
release all the records/documents that have been withheld,
redacted, and allegedly destroyed. A proper judicial review
is requested to determine the matter de novo and may examine
the contents of the Agency records in camera that
are withheld/redacted from the complainant.”
Id. at 20. NETL filed an Answer to the Amended
Complaint on May 10, 2018. ECF No. 51. Plaintiff then filed a
“Note and Clarification, ” which Judge Aloi has
construed as a Motion to Compel, asking the Court to compel
NETL to respond to his FOIA requests. ECF No. 60.
Motion for Summary Judgment [ECF No. 61]
filed a Motion for Summary Judgment, which is now ripe for
consideration. ECF No. 61. NETL attached to its Motion an
affidavit from Ann C. Guy, a Paralegal Specialist for NETL
who manages all FOIA requests sent to the laboratory. ECF No.
62-1. In support of the Motion, NETL argues that the FOIA
action began on April 25, 2018, with the filing of the
Amended Complaint, because the Original Complaint was against
three individual employees for obstruction of correspondence
and merely contained a reference to FOIA requests. ECF No. 62
at 3. NETL discusses the four FOIA requests for which OHA
determined Plaintiff could not be assessed fees: 833, 890,
946, and 1070. Requests 833 and 1070, NETL argues, were
properly exhausted, and Plaintiff was permitted to seek
judicial review. Id. at 6, 9. Requests 890 and 946,
on the other hand, were not properly exhausted. Id.
Motion, NETL explains the standard for summary judgment
pursuant to FOIA. Id. at 9. It then argues that NETL
conducted an adequate search for responsive records.
Id. at 10. It also argues that the exemptions
applied by NETL in providing responsive records were properly
applied. Id. at 15. In conclusion, NETL wrote the
The plaintiff, as a result of nine FOIA requests which
demanded the search and production of thousands of documents,
received each document to which he was entitled, and which
NETL was obligated to provide. Searches were not conducted
for five of the requests because the plaintiff failed to
provide the fee required. The plaintiff failed to exhaust his
administrative remedies with regard to another two requests.
The remaining two requests moved carefully and diligently
through the system set up to address FOIA matters within
NETL, as did the requests that were not exhausted. Each
decision by OHA analyzed NETL's response to each request,
often requiring additional searches or less redaction, until
the Office of Hearing Appeals was satisfied that NETL had
complied with its obligation under FOIA. Hence, as the
Declarations and Exhibits demonstrate, there is no genuine
issue of material fact and NETL is entitled to judgment as a
matter of law.
Id. at 24-25. Plaintiff filed a Response to the
Motion, primarily arguing that exemptions were improperly
applied and an in camera review of the documents by
the Court is warranted. ECF No. 69. He also argues that NETL
never performed an adequate search and that constructive
exhaustion applies to all requested FOIAs. He believes NETL
is destroying or hiding evidentiary records.
Judge Aloi's Second R&R [ECF No. 79]
February 8, 2019, Judge Aloi issued an R&R on the Motion
for Summary Judgment. ECF No. 79. He recommended that the
Court dismiss Requests 1069, 1268, 1284, 1347, 1348, 78, and
1759 because they were closed for failure to pay fees.
Id. at 18. He recommended that the Court find that
Plaintiff failed to exhaust his administrative remedies for
Requests 890 and 946 and that constructive exhaustion is not
available. Id. at 19. He recommended that the Court
find that NETL performed an adequate search for Requests 833,
1070, and 1284. Id. at 20. He also recommended that
the Court find that NETL properly applied Exemptions 5 and 6.
Id. at 22. Plaintiff filed Objections to the R&R
on March 18, 2019. ECF No. 86.
STANDARD OF REVIEW
reviewing a magistrate judge's R&R, the Court must
review de novo only the portions to which an
objection has been timely made. 28 U.S.C. §
636(b)(1)(C). Otherwise, “the Court may adopt, without
explanation, any of the magistrate judge's
recommendations to which the [parties do] not object.”
Dellarcirprete v. Gutierrez, 479 F.Supp.2d 600,
603-04 (N.D. W.Va. 2007) (citing Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983)). Courts will uphold portions
of a recommendation to which no objection has been made
unless they are clearly erroneous. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).
Plaintiff objected to Judge Aloi's findings that
exemptions were proper, along with his
“contradictory” analysis between this R&R and
the first R&R. Plaintiff's objections reiterate many
of his points raised earlier: that he exhausted his remedies
for multiple Requests, that NETL did not make timely
disclosures, and that exemptions were improperly applied. Due
to the broad scope of Plaintiff's objections, the Court
will review the R&R de novo. Plaintiff's
Amended Complaint will be liberally construed because he is
proceeding pro se. See Estelle v. Gamble,
429 U.S. 97 (1976).
judgment is appropriate if “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(c). The
movant “bears the initial responsibility of informing
the district court of the basis for its motion, and
identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,' which it
believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). The nonmoving party must “make a
sufficient showing on an essential element of her case with
respect to which she has the burden of proof.”
Id. Summary judgment is proper “[w]here the
record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there [being] no
‘genuine issue for trial.'” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (citing First Nat'l Bank of Ariz. v.
Cities Serv. Co., 391 U.S. 253, 288 (1968)).
brought under FOIA “are generally resolved on summary
judgment once the documents at issue have been properly
identified.” Wickwire Gavin, P.C v. U.S. Postal
Serv., 356 F.3d 588, 591 (4th Cir. 2004). “In a
suit brought to compel production, an agency is entitled to
summary judgment if no material facts are in dispute and if
it demonstrates ‘that each document that falls within
the class requested either has been produced . . . or is
wholly exempt from the Act's inspection
requirements.'” Students Against Genocide v.
Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2011)
(citing Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir.
1978)). “[T]he district court has the discretion to
limit discovery in FOIA cases and to enter summary judgment
on the basis of agency affidavits in a proper case.”
Simmons v. DOJ, 796 F.2d 709, 711- 12 (4th Cir.
1978). These affidavits are required to be
“‘relatively detailed' and nonconclusory and
must be submitted in good faith.” Goland, 607
F.2d at 352.
the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, subject to certain exemptions, “federal
agencies generally must make their internal records available
to the public upon request[.]” Coleman v. Drug
Enf't Admin., 714 F.3d 816, 818 (4th Cir. 2013).
FOIA disclosure “shines a light on government
operations ‘to check against corruption and to hold the
governors accountable to the governed.'”
Id. (citing NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 242 (1978)).
FOIA expressly requires an agency receiving an information
request to do the following:
(i) determine within 20 days (excepting Saturdays, Sundays,
and legal public holidays) after the receipt of any such
request whether to comply with such request and . . .
immediately notify the person making such request of . . .
such determination and the reasons therefor . . . [and] in
the case of an adverse determination the right of such person
to appeal to the head of the agency . . .; and
(ii) make a determination with respect to any appeal within
twenty days (excepting Saturdays, Sundays, and legal public
holidays) after the receipt of such appeal.
5 U.S.C. § 552(a)(6)(A)(i)-(ii).
determine whether an agency has met its obligation under the
FOIA, “[i]n the absence of countervailing evidence or
apparent inconsistency of proof, affidavits that explain in
reasonable detail the scope and method of the search
conducted by the agency will suffice to demonstrate
compliance with the obligations imposed by the FOIA.”
Ginarte v. Mueller, 496 F.Supp.2d 68, 69 (D.C. Cir.
2007) (citing Perry v. Block, 684 F.2d 121, 126
(D.C. Cir. 1982)). Agency declarations are “accorded a
presumption of good faith.” Carney v. DOJ, 19
F.3d 807, 812 (2d Cir. 1994), cert. denied, 513 U.S.
823 (1994) (citing Safecard Servs., Inc. v. SEC, 926
F.2d 1197, 1200 (D.C. Cir. 1991)).
agency has conducted an adequate search when it shows
“that is has conducted a search reasonably calculated
to uncover all relevant documents.” Weisberg v.
DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983). The adequacy
of an agency's search for records is “generally
determined not by the fruits of the search, but by the
appropriateness of the methods used to carry out the
search.” Iturralde v. Comptroller of Currency,
315 F.3d 311, 315 (D.C. Cir. 2003). It is “dependent
upon the circumstances of the case.” Truitt v.
Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990).
The FOIA “does not obligate agencies to create or
retain documents; it only obligates them to provide access to
those which it in fact has created and retained.”
Kissinger v. Reporters Comm. for Freedom of the
Press, 445 U.S. 136, 152 (1980).
responsive documents are withheld, the agency must
demonstrate that they fall within one of the nine disclosure
exemptions set forth in the FOIA. See 5 U.S.C.
§ 552(b). A government agency's burden of
demonstrating the applicability of the exemption may be met
by affidavits, as long as those affidavits are, again,
“‘relatively detailed' and nonconclusory and
. . . submitted in good faith.” Simmons, 796
F.2d at 711-12. “The court is entitled to accept the
credibility of the affidavits, so long as it has no reason to
question the good faith of the agency.” Bowers v.
DOJ, 930 F.2d 350, 357 (4th Cir. 1991) (citing
Spannaus v. DOJ, 813 F.2d 1285, 1289 (1987)).
overcome the presumption of an affidavit's credibility,
“a requestor must demonstrate a material issue by
producing evidence, through affidavits or other appropriate
means, contradicting the adequacy of the search or suggesting
bad faith.” Havemann v. Colvin, 629 Fed.Appx.
537, 539 (4th Cir. 2015) (citing Miller v. U.S. Dep't
of State, 779 F.2d 1378, 1384 (8th Cir. 1985)). Courts
have held that if an agency provides a reasonably detailed
explanation of the applicability of a claimed exemption, and
there is no contradictory evidence of bad faith, the in
camera inspection of contested documents is unnecessary.
Silets v. DOJ, 945 F.2d 227, 229 (7th Cir. 1991) (en
banc) (writing that “[b]ecause the Government's
affidavits adequately explain the redacted material, the
information logically fits within the claimed exemptions, and
there exists no contrary evidence or evidence of bad faith,
the District Court did not abuse its discretion in denying
in camera review”), cert. denied, 112
S.Ct. 2991 (1992).
stated above, the FOIA has nine exemptions. See 5
U.S.C. § 552(b)(1)-(9). Most relevant here are
Exemptions 5 and 6. Exemption 5 provides that FOIA disclosure
rules do not apply to “inter-agency or intraagency
memorandums or letters that would not be available by law to
a party other than an agency in litigation with an agency,
provided that the deliberative process privilege shall not
apply to records created 25 years or more before the date on
which the records were requested[.]” 5 U.S.C. §
552(b)(5). “Courts have interpreted Exemption 5 to
exclude from disclosure documents produced under the attorney
work product doctrine and the deliberative process
privilege.” Hanson v. U.S. Agency for Int'l
Dev., 372 F.3d 286, 290-91 (4th Cir. ...