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Manivannan v. Department of Energy

United States District Court, N.D. West Virginia, Clarksburg

September 30, 2019

DEPARTMENT OF ENERGY (National Energy Technology Laboratory), Defendant.



         Pending 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.

         I. BACKGROUND

         Plaintiff 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.

         A. Original Complaint [ECF No. 1]

         On 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.

         Third, 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 HQ-2017-00946-F/NETL-2017-01081-F (“Request 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 Original Complaint.

         Fifth, 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.

         B. Motion to Dismiss [ECF No. 11]

         On 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.

         The 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.

         On 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[1]; (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.

         C. Judge Aloi's First R&R [ECF No. 30]

         On 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.

         Construing 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.

         On 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.

         D. Amended Complaint [ECF No. 50]

         Plaintiff 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.

         Plaintiff 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.

         E. Motion for Summary Judgment [ECF No. 61]

         NETL 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. at 7.

         In its 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 following:

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.

         F. Judge Aloi's Second R&R [ECF No. 79]

         On 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.


         When 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).

         Here, 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).

         Summary 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)).

         Cases 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.


         Under 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)).

         The 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).

         To 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)).

         An 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).

         If 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)).

         To 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).

         As 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. ...

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