USDOJ: OIP: FOIA Guidance and Resources: Court Decisions: Litigation Considerations

Supreme Court Decisions

Lahr v. NTSB, No. 09-1283, 2010 U.S. Lexis 5143 (June 21, 2010). Denying petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit. The court below reversed the decision of the district court to disclose names of eyewitnesses to the explosion, it affirmed the remainder of the district courts rulings with respect to defendants' search and exemption claims, and it remanded for reconsideration of plaintiff's award of attorneys' fees.

Court of Appeals Decisions

Utah American Energy, Inc. v. U.S. Dep't of Labor, No. 10-5434, 2012 WL 3002572 (D.C. Cir. July 24, 2012) (per curiam). Holding: Concluding that defendant's appeal is moot with respect to the portion of its appeal concerning Exemption 7(A) where that exemption is no longer applicable in light of a plea agreement reached in a criminal case involving the mine collapse, vacating that portion of the district court's decision, and ordering release of transcripts for which defendant invoked no other FOIA exemptions and excepting any partial redactions supported by other exemptions that were upheld by the district court and not litigated in this appeal; reversing the judgment of the district court insofar as it ordered the release of transcripts that were protected by Exemption 7(C) and the disclosure of records that are the subject of other FOIA litigation pending before a different district court judge. The D.C. Circuit "reverse[s] the judgment of the district court insofar as it may be construed as directing the Labor Department to disclose the IRT transcripts that are protected by Exemption 7(C)." The D.C. Circuit determines that it need not consider the Department's appeal asserting that the "accident investigation privilege" of Exemption 5 applies to twelve sets of transcripts for which the agency also claimed Exemptions 7(A) and 7(C). The D.C. Circuit finds that these transcripts "are in the crosshairs" of the district court's findings that, on the one hand, the Department properly asserted Exemption 7(C) and, on the other, it "must 'disclose the IRT interview material it has withheld under Exemptions 5 and 7(A).'" The D.C. Circuit observes that "[o]n remand, the court may clarify its order" and states that "[i]f the court did not intend to order disclosure of those transcripts, that will be the end of the matter." Further, "if the court did intend to order disclosure, and if it renews that order, then it must explain why the order is consistent with the court's grant of summary judgment regarding Exemption7(C)." Moreover, the D.C. Circuit notes that "[i]n that event, the Department will be free to appeal again on the grounds of both Exemption 5 and Exemption 7(C)."

First-in time rule: The D.C. Circuit holds that the district court "abused [its] discretion when it ordered the government to release the MSHA transcripts" that are the subject of separate FOIA litigation pending before another district court judge and, accordingly, reverses the district court's judgment. The D.C. Circuit notes that "[t]he usual 'rule in this circuit has been that [w]here two cases between the same parties on the same cause of action are commenced in two different Federal courts, the one which is commenced first is to be allowed to proceed to its conclusion first.'" The D.C. Circuit finds that "[t]he rationale for allowing the first court to proceed to its disposition is fully applicable here: we should not expend judicial resources – and potentially produce contradictory decisions – by allowing the same FOIA plaintiff multiple bites at the apple." The D.C. Circuit notes that plaintiff "is litigating against both a component (MSHA) and its parent agency (DOL), seeking orders from two different judges directing the production of the same documents." The D.C. Circuit determines that "[w]ere both claims to proceed, the respective district courts would be required to duplicate their efforts" and, additionally, "the twin claims could generate contradictory results that could, in turn, generate dueling appeals."

Newport Aeronautical Sales v. Dep't of the Air Force, No. 10-5037, 2012 WL 2892372 (D.C.Cir. July 17, 2012) (Garland, J.). Holding: Affirming the district court's decision that 10 U.S.C. §10(a) is a withholding statute under Exemption 3 and that the Air Force properly withheld the technical orders at issue under that statute. The D.C. Circuit finds that the case is not mooted by the Air Force's production of unredacted copies of all the requested records under DOD's Directive 5230.25, rather than the FOIA. The D.C. Circuit concludes that, under the standard that it set forth in Payne Enterprises, Inc. v. United States, plaintiff's challenge to the Air Force's "practice of denying FOIA requests for data that does not depict 'critical technology,' and thus requiring [plaintiff] to seek the data under the restrictive terms of Directive 5230.25" is not moot. The D.C. Circuit notes that plaintiff specifically takes issue with the requirement that in order "to obtain technical data governed by the Directive, a qualified contractor [such as plaintiff] must sometimes identify a specific bid or contract that the data will support" at least when "release 'may jeopardize an important technological or operational military advantage,'" which plaintiff often cannot establish. The D.C. Circuit finds that plaintiff "has . . . shown that it will suffer continuing injury from this alleged unlawful policy [because] its business depends on continually requesting and receiving documents that the policy permits the Air Force to withhold in the absence of bid or contract information that [plaintiff] cannot always provide; and the Air Force has no intention of abandoning that policy because it does not believe the policy violates FOIA."

ACLU v. DOJ, Nos. 10-4290, 10-4289, 10-4647, 10-4668, 2012 WL 1829579 (2d Cir. May 21, 2012) (Wesley, J.). Holding: Reversing the district court's judgment insofar as it required disclosure of portions of two memoranda prepared by OLC and transcripts of an in camera, ex parte proceeding; and affirming the district court's determination with respect to the withholding of records and a photograph pursuant to Exemption 3. The Second Circuit agrees with both parties that "the district court's compromise, whereby the Government could avoid public disclosure of the redacted information by substituting a purportedly neutral phrase composed by the court, exceeded the court's authority under FOIA" because "FOIA does not permit courts to compel an agency to produce anything other than responsive, non-exempt records." The Second Circuit finds that "[i]f the Government altered or modified the OLC memoranda in accordance with the compromise, the Government would effectively be 'creating' documents – something FOIA does not obligate agencies to do." Moreover, the Second Circuit determines that "[t]he district court's apparent reliance on the Classified Information Procedures Act . . . as a basis for the compromise was erroneous" because that law "applies exclusively to criminal cases."

Earle v. Holder, No. 11-5280, 2012 WL 1450574 (D.C. Cir. Apr. 20, 2012) (per curiam). Holding: Affirming orders of the district court which dismissed individually-named District of Columbia employee-defendants, and dismissed claims against federal defendants based on plaintiff's failure to state a FOIA claim where he did not allege an improper withholding of agency records. The D.C. Circuit affirms the district court's decision to dismiss federal defendants, concluding that "the district court properly determined that appellant failed to state a claim under FOIA because he did not allege that agency records were withheld."

Negley v. FBI., No. 11-5296, 2012 U.S. App. LEXIS 6324 (D.C. Cir. Mar. 28, 2012) (per curiam). Affirming the district court's grant of summary judgment to the FBI; concluding that the FBI's use of the date of plaintiff's request as the cut-off for the search was reasonable, its search was adequate, and its withholdings pursuant to Exemption 7(C) were proper; and finding that the district court did not abuse its discretion when it declined to hold the FBI in contempt of a court order.

Wells v. State Att'y Gens. of La., No. 11-30498, 2012 WL 975056 (5th Cir. Mar. 22, 2012) (per curiam). Holding: Affirming the judgment of the district court, which dismissed plaintiffs' complaint, including their FOIA claim, for failure to state a claim upon which relief may be granted. The Fifth Circuit concludes that plaintiffs' "argument that the appellees refused to provide copies of investigatory documents in violation of the FOIA fails to state a claim because those federal provisions apply only to documents under the control of federal agencies."

Pa. Dep't of Pub. Welfare v. Sebelius, 674 F.3d 139 (3d. Cir. Mar. 15, 2012) (Vanaskie,J.). Holding: Affirming the judgment of the district court, which dismissed plaintiff's FOIA claim for lack of standing. The Third Circuit affirms the ruling of the district court, which concluded that plaintiff lacked standing to challenge HHS's failure to index certain final agency decisions and orders. The Third Circuit determines that plaintiff's "vague and indefinite allegations" that "the lack of an index causes it difficulty" because "its counsel 'can never be certain that [it has] located all important DAB decisions on a topic because sometimes the topic is not susceptible to a key-word search'" "are inadequate to establish injury-in-fact." Moreover, the Third Circuit notes that plaintiff "does not cure this deficiency by identifying any concrete information or cases that it was unable to find, or any other description of how this inability actually hampered its representation before the DAB." Accordingly, "[s]ince the lack of an index has not made it 'almost impossible' for [plaintiff] to find relevant DAB precedent, [the Third Circuit] conclude[s] that the District Court did not err in concluding that [plaintiff] lacks standing."

Shannahan v. IRS, 672 F.3d 1142 (9th Cir. Mar. 13, 2012) (Fletcher,J.). Holding: Affirming the district court's ruling that the IRS properly withheld information pursuant to Exemptions 3 and 7(A). In reviewing summary judgment in a FOIA case, the Ninth Circuit first "decide[s] de novo if the district court's ruling was supported by an adequate factual basis" and then "review[s] 'the district court's conclusions of fact . . . for clear error, while legal rulings, including its decision that a particular exemption applies, are reviewed de novo."

Hulstein v. DEA, No. 11-2039, 2012 WL 671964 (8th Cir. Mar. 2, 2012) (Bright,J.). Holding: Reversing the judgment of the district court; and concluding that DEA properly withheld certain information pursuant to Exemptions 7(C) and 7(D). The Eighth Circuit "review[s] the applicability of FOIA exemptions de novo."

Yonemoto v. VA, No. 10-15180, 2012 U.S. App. LEXIS 1108 (9th Cir. Jan. 18, 2012) (Berzon,J.) (amended op.). Holding: Reversing the district court's decision that the VA's offer to provide certain emails to plaintiff in an unredacted form with restrictions on distribution mooted his FOIA claims, and remanding for court to consider the VA's claims of exemption on those records; vacating district court's decision as to certain withholdings under Exemption 6, and remanding for further consideration of those withholdings. The Ninth Circuit holds that the district court improperly concluded that the VA's offer to produce certain emails to plaintiff in an unredacted form in his capacity as an agency employee while placing certain restrictions on his distribution mooted his FOIA claims to those records. The Ninth Circuit finds that "[u]nder the FOIA, [plaintiff is] entitled to the records unencumbered by restrictions on further use or dissemination" and determines that "[a]ccess as a VA employee entails restrictions on dissemination, and so does not provide access granted by the FOIA." The Ninth Circuit rejects the VA's argument that "because [plaintiff] has not identified a way in which he wanted to use the information that would have contravened [the agency's rules governing employees' dissemination of restricted information], the restrictive terms of the VA's offer of disclosure would not have effectively limited his use of the information." Instead, the Ninth Circuit finds that "[a] requestor's purpose for requesting the documents or his intended use of the information sought does not matter under the FOIA" and therefore "has no bearing on whether or not his claim is moot." As to the VA's argument that the Ninth Circuit's prior ruling in this case precluded it from reexamining the issue of mootness, the Ninth Circuit finds that its earlier decision did not take into consideration that the alternate means of access to the emails placed restrictions on plaintiff's ability to disseminate them. The Ninth Circuit remands the matter to "the district court for it to rule on the propriety of the VA's claimed exemptions in the first instance."

Cooper v. Stewart, No. 11-5061, 2011 WL 6758484 (D.C. Cir. Dec. 15, 2011) (per curiam). Holding: Affirming district court's dismissal of FOIA claims against individual defendants and its grant of summary judgment to DOJ based on the adequacy of defendant's search; and concluding that the Federal Torts Claims Act does not provide a basis for considering plaintiff's FOIA claim. The D.C. Circuit holds that the Federal Torts Claims Act (FTCA) does not provide a basis for the court to consider plaintiff's FOIA claim, noting that "'all agency decisions' regarding the classification of information under FOIA are reviewable only under FOIA and are 'not subject to judicial second-guessing in tort' though an FTCA claim."

Eckardt v. Clerk of Cir. Ct. of Tenth Judicial Circuit of Ill., No. 11-CV-1243, 2011 U.S. Dist. LEXIS 124452 (C.D. Ill. Oct. 27, 2011) (Mihm, J.). Holding: Adopting magistrate's recommendation, and dismissing plaintiff's FOIA claim for lack of subject matter jurisdiction. Adopting the magistrate's recommendation, the court dismisses plaintiff's FOIA claim brought against a state employee for lack of subject matter jurisdiction. The court finds that "a suit against the Clerk of the Court of Tazewell County cannot proceed under the Federal Freedom of Information Act... because the statute is inapplicable to an Illinois state agency and its officer" and "the Clerk is not an 'agency' for purposes of the Federal FOIA."

Wadhwa v. VA, No. 11-1718, 2011 WL 4495600 (3d Cir. Sept. 29, 2011) (per curiam)(unpublished disposition). Holding: Affirming the district court's decision to grant summary judgment with respect to information redacted pursuant to Exemption 6; vacating and remanding with respect to the district court's determination regarding the adequacy of the VA's search. The Third Circuit employs "a two-tiered test in reviewing an order of a District Court granting summary judgment in proceedings seeking disclosure under the FOIA." First, the Third Circuit "'decide[s] whether the district court had an adequate factual basis for its determination'; and, second, . . . '''decide[s] whether that determination was clearly erroneous.'"

Robert v. DOJ, No. 09-4684, 2011 WL 3890446 (2d. Cir. Sept. 6, 2011) (unpublished disposition). Holding: Affirming the district court's grant of summary judgment to defendants with respect to multiple FOIA cases; and modifying the district court's final judgment to clarify that the court's filing injunction with respect to plaintiff applies only to future complaints raising FOIA claims and not to FOIA requests. The Second Circuit concludes that the district court did not err in dismissing plaintiff's multiple FOIA claims and rejects the various arguments raised by plaintiff. Additionally, the Second Circuit "agree[s] with the District Court's finding that the DOJ demonstrated through its supplemental declarations that it had conducted searches that were reasonably calculated to locate the requested documents (assuming any exist), and that [plaintiff] offered only conclusory allegations that were insufficient to rebut the DOJ's showing." Filing injunction: The Second Circuit finds that "given [plaintiff's] history of filing vexatious, burdensome, and meritless FOIA complaints," "the District Court did not err or abuse its discretion in enjoining [him] from filing further complaints raising FOIA claims without leave of the court." The Second Circuit clarifies the order issued by the Clerk of the Court, noting "[i]t is clear that the District Court intended only to enjoin [plaintiff] from filing further FOIA complaints without leave of the court and not to enjoin [him] from filing FOIA requests with appropriate government agencies or officials."

Yonemoto v. VA, No. 10-15180, 2011 WL 3606596 (9th Cir. Aug. 17, 2011) (Berzon, J.). Holding: Reversing the district court's decision that the VA's offer to provide certain emails to plaintiff in an unredacted form with restrictions on distribution mooted his FOIA claims, and remanding for court to consider the VA's claims of exemption on those records; vacating district court's decision as to certain withholdings under Exemption 6, and remanding for further consideration of those withholdings. Standard of review: The Ninth Circuit "consider[s], de novo, whether the VA's offer of 157 of the disputed emails to [plaintiff] in his capacity as a VA employee mooted his claim to those emails under the FOIA" and "evaluat[es], de novo, whether the district court had an adequate factual basis to undertake the balancing of interests" in connection with information withheld pursuant to Exemption 6. Mootness: The Ninth Circuit holds that the district court improperly concluded that the VA's offer to produce certain emails to plaintiff in an unredacted form in his capacity as an agency employee while placing certain restrictions on his distribution mooted his FOIA claims to those records. The Ninth Circuit finds that "[u]nder the FOIA, [plaintiff is] entitled to the records unencumbered by restrictions on further use or dissemination" and determines that "[a]ccess as a VA employee entails restrictions on dissemination, and so does not provide the access granted by the FOIA." The Ninth Circuit rejects the VA's argument that "because [plaintiff] has not identified a way in which he wanted to use the information that would have contravened [the agency's rules governing employees' dissemination of restricted information], the restrictive terms of the VA's offer of disclosure would not have effectively limited his use of the information." Instead, the Ninth Circuit finds that "[a] requestor's purpose for requesting the documents or his intended use of the information sought does not matter under the FOIA" and therefore "has no bearing on whether or not his claim is moot." As to the VA's argument that the Ninth Circuit's prior ruling in this case precluded it from reexamining the issue of mootness, the Ninth Circuit finds that its earlier decision did not take into consideration that the alternate means of access to the emails placed restrictions on plaintiff's ability to disseminate them. The Ninth Circuit remands the matter to "the district court for it to rule on the propriety of the VA's claimed exemptions in the first instance." Burden of proof: Contrary to the VA's arguments, the Ninth Circuit finds that allowing plaintiff to view the unredacted versions of the emails at issue does not shift the burden to plaintiff "to disprove the propriety of particular redactions."

Cent. Platte Nat. Res. Dist. v. USDA, 643 F.3d 1142 (8th Cir. 2011) (Murphy,J.). Holding: Affirming the district court's ruling which granted summary judgment to the USDA on the basis that it properly withheld the requested geospatial data pursuant to Exemption 3 and dismissed plaintiff's Administrative Procedure Act claim. The Eighth Circuit holds that the district court properly dismissed plaintiff's APA claim "seek[ing] declaratory judgment and a court order requiring the production of documents under both its APA claim and its FOIA claim." The Eighth Circuit finds that FOIA "provides [plaintiff] with an 'adequate remedy in a court'" and notes that "Congress did not mean for the APA's review process to duplicate existing review mechanisms." "Such a duplication would result if both [plaintiff's] APA and FOIA claims proceeded simultaneously because the district court would twice determine whether the agency should be required to disclose the same data."

Campbell v. SSA, No. 10-2255, 2011 U.S. App. LEXIS 11267 (3d Cir. June 3, 2011) (per curiam). Holding: Affirming district court's grant of summary judgment to SSA based on finding that plaintiff's FOIA claim was moot. As an initial matter, the Third Circuit finds that plaintiff's "contentions on appeal that the District Court wrongly concluded that he had abandoned his FOIA claim in [his] Third Amended Complaint . . . do not provide a basis for upsetting summary judgment in favor of the SSA." The Circuit notes that "[w]hether or not the District Court thought it likely that the claim had been abandoned, the court fully analyzed [plaintiff's] FOIA claim on the merits in reaching its mootness determination" and "[a]ny error was thus harmless."

Heide v. LaHood, No. 10-2506, 2010 WL 5122385 (8th Cir. Dec. 16, 2010) (unpublished disposition). The Eighth Circuit affirms the district court's decision dismissing plaintiff's complaint as moot where the Department of Transportation responded to his FOIA requests "notwithstanding his claim seeking a written finding under 5 U.S.C. § 552(a)(4)(F), and his request for costs." Additionally, the Eighth Circuit finds that "the district court did not abuse its discretion in denying [plaintiff] costs."

Kaminsky v. NASA, No. 10-1016, 2010 WL 4923910 (2d Cir. Dec. 6, 2010) (unpublished disposition). The Second Circuit affirms the district court's holding that NASA conducted an adequate and good faith search for records responsive to plaintiff's request.

Pickering-George v. Alcohol & Tobacco Tax & Trade Bureau, No. 10-5243, 2010 WL 4464576 (D.C. Cir. Nov. 8, 2010) (per curiam). The court rules that "[t]he district court correctly determined appellant failed to state a claim under the [FOIA] . . . or for mandamus relief" for firearms licensing and registration. Additionally, "the district court did not abuse its discretion in denying as futile appellant's motion to amend the complaint."

Pac. Fisheries, Inc. v. United States, No. 09-35618, 2010 WL 3611645 (9th Cir. Sept. 15, 2010) (unpublished disposition). Litigation considerations/considerations on appeal: The court determines that the declarations from the IRS "provided the district court an adequate factual basis from which it could decide whether disclosure would seriously impair federal tax administration." Additionally, the court concludes that the district court's findings were "not clearly erroneous" where the IRS declarations provided "the specific reasons why federal tax administration would be impaired" and plaintiff did not present any contrary evidence or show "bad faith on the part of the IRS."

Lasko v. DOJ, No. 10-5068, 2010 WL 3521595 (D.C. Cir. Sept. 3, 2010) (per curiam). The court denies appellant's request for appointment of counsel where he has "not demonstrated sufficient likelihood of success on the merits."

Reynolds v. Att'y Gen. of the United States, No. 09-3675, 2010 WL 3370280 (2d Cir. Aug. 26, 2010) (unpublished disposition). Based on its review of the record, the court concludes that "the District Court did not abuse its discretion in denying [plaintiff's] reconsideration motion, as the motion largely reiterated the allegations in the complaint and did not demonstrate that the District Court had overlooked any facts or controlling authority that might alter its decision granting summary judgment."

Peavey v. Holder, No. 09-5389, 2010 WL 3155823 (D.C. Cir. Aug. 9, 2010) (per curiam). The court grants agencies' motion for summary affirmance where "[a]ppellant has not demonstrated that any agency 'improperly withheld' a record within its possession" and "the district court correctly concluded that the agencies conducted searches reasonably calculated to uncover all relevant documents."

Zavala v. DEA, No. 09-5357, 2010 U.S. App. LEXIS 11582 (D.C. Cir. June 7, 2010) (Per curiam). Plaintiff's motion for appointment of counsel is denied where he has failed to demonstrate "sufficient likelihood of success on the merits."

Isasi v. Office of the Att'y Gen., No. 09-5122, 2010 U.S. App. LEXIS 11409 (D.C. Cir. June 2, 2010) (Per curiam). The district court properly dismissed appellant's claim for damages against individual federal employees "because no Bivens-type remedy is available for an alleged FOIA violation." Moreover, "[t]he FOIA claim against the agency was properly dismissed as moot, because the two pages appellant had requested were subsequently released to him in their entirety."

Lewis v. DOJ, No. 09-5225, 2010 U.S. App. LEXIS 7367 (D.C. Cir. Apr. 7, 2010) (per curiam) (unpublished disposition). Plaintiff's motion for counsel is denied. Appellants in civil cases "are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits." Additionally, "the district court did not abuse its discretion when it denied appellant's motion for a continuance in order to obtain discovery."

Pototsky v. DHS, No. 09-15247, 2010 WL 737751 (9th Cir. Mar. 3, 2010) (unpublished disposition). The court reviews the district court's findings of fact for clear error and its conclusions of law regarding the applicability of FOIA exemptions de novo.

Batton v. Evers, No. 08-20724, 2010 WL 625988 (5th Cir. Feb. 24, 2010) (Haynes, J.). Because the court is ordering defendant to produce a new Vaughn index, the court need not reach the question of whether plaintiff is entitled to discovery.

Sindram v. Fox, No. 09-1802, 2010 WL 582625 (3rd Cir. Feb. 19, 2010) (per curiam) (unpublished disposition). The district court appropriately dismissed plaintiff's FOIA claim because he failed to file in a timely manner anything containing evidence that he had exhausted his administrative remedies. Though plaintiff has attempted to cure this defect before this court, his new submissions were not part of the record before the district court.

Houghton v. CIA, No. 09-3936, 2010 WL 582628 (3rd Cir. Feb. 19, 2010) (per curiam) (unpublished disposition). Because defendant did not actually withhold any documents from plaintiff, it was not required to invoke a FOIA exemption to justify its actions.

Moore v. FBI, No. 09-2345, 2010 U.S. App. LEXIS 3114 (7th Cir. Feb. 17, 2010) (per curiam) (unpublished disposition). The adequacy of the Chicago Field Office's response to plaintiff was not properly before the district court at summary judgment, because plaintiff had not exhausted his administrative remedies with regard to the field office's actions. Additionally, though plaintiff argues that the FBI was obligated to help him reformulate a request the district court found was too broad, the FBI did in fact ask him to provide more information concerning his request in order to facilitate its processing.

Wilner v. Nat'l Sec. Agency, No. 08-4726, 2009 WL 5158035 (2d Cir. Dec. 30, 2009) (Cabranes, J.). Plaintiffs' challenge to the legality of the underlying TSP is beyond the scope of this FOIA action.

Alley v. HHS, No. 08-16914, 2009 WL 4877935 (11th Cir. Dec. 18, 2009) (Carnes, J.). The court concludes HHS did not improperly withhold records under the FOIA where an injunction in a 1979 district court decision bars disclosure of the records requested by plaintiff. The plaintiff cannot collaterally attack the injunction issued by the Middle District of Florida by bringing a FOIA suit in the Northern District of Alabama. Rather, plaintiff must petition the "issuing court [to] modify or vacate the injunction barring disclosure." Additionally, the court observed that "[n]o argument has been, or could be, made that the court that issued the [1979] injunction lacked personal or subject matter jurisdiction or that the decision to issue the injunction was frivolous." With respect to the scope of the injunction, the court rejects the lower court's narrow interpretation. "HHS certainly could not claim to be surprised that the injunction covers the data Alley requested - could not contend that the injunction failed to give fair warning - because HHS asserted the injunction as a reason for not disclosing that data to her." Focusing on the "fair meaning" of the text of the injunction, the court finds that "[e]ven though Alley has requested data on procedures for which Medicare reimbursed physicians, while the [1979] injunction bars disclosure of reimbursement amounts, disclosing the former is tantamount to disclosing the later." The court finds that the plain text of the injunction belies plaintiff assertions that the injunction does not cover the requested records and that plaintiff's arguments challenging the rationale behind the injunction represent impermissible collateral attacks.

Pavlenko v. Department of Treasury, No. 09-12223, 2009 WL 4691784 (11th Cir. Dec. 10, 2009) (unpublished disposition) (per curiam). The court finds that the district court did not err in dismissing complaint for lack of subject matter jurisdiction where the IRS's declaration showed that it "conducted a search reasonably calculated to uncover the requested documents" and plaintiff's "unsubstantiated and speculative arguments" failed to prove that the agency improperly withheld records.

Kishore v. DOJ, No. 09-5050, 2009 WL 2762823 (D.C. Cir. Aug. 31, 2009) (unpublished disposition) (per curiam). Plaintiff's motion for appointment of counsel is denied. "With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits."

Zarcon, Inc. v. NLRB, No. 08-2330 (8th Cir. Aug. 27, 2009) (Shepherd, J.). "[A]s the NLRB produced the requested documents and [plaintiff] withdrew its complaint pursuant to settlement of the case . . . further discovery is unneeded." Thus, plaintiff's appeal of the district court's denial of plaintiff's request for admissions and further discovery is dismissed as moot.

Wadhwa v. VA, No. 09-1835, 2009 WL 2606661 (3d Cir. Aug. 26, 2009) (unpublished disposition) (per curiam). Because plaintiff made a request for records and alleged in his complaint that defendant did not respond to his request within the statutory deadline, plaintiff had standing to bring his complaint before the district court.

Bonaparte v. DOJ, No. 08-5381, 2009 U.S. App. LEXIS 18984 (D.C. Cir. Aug. 20, 2009) (per curiam) (unpublished disposition). Plaintiff's motion for appointment of counsel is denied. "With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits."

Lahr v. NTSB, No. 06-56717, 2009 WL 1740752 (9th Cir. June 22, 2009) (Berzon, J.). Plaintiff waived his right to argue that "evidence of government misconduct, crime, and fraud bars the application of Exemption 5" by not raising this issue in the district court. Though appellate courts "do have limited discretion to consider purely legal arguments raised for the first time on appeal," this is only true "where 'consideration of the issue would not prejudice the [opposing party's] ability to present relevant facts that could affect [the] decision.' . . . Here, considering the issue for the first time on appeal would unfairly prejudice the government." Plaintiff's claim that defendants' Vaughn indices do not provide enough information in several instances fails. Additionally, though plaintiff is correct that "an agency's proven misconduct can undermine the presumed veracity of its affidavits[,] [h]e points to no authority . . . that proof of fraud obviates the general rule applicable in FOIA cases that an affiant need not have personally conducted the search. Furthermore, [plaintiff's] complaints about the CIA's handling of his FOIA requests might suggest some bureaucratic mismanagement, but they do not prove fraud in that regard."

Pietrangelo v. U.S. Army, No. 07-3124, 2009 WL 1580183 (2d Cir. June 4, 2009) (unpublished disposition) (summary order). The district court did not abuse its discretion by denying plaintiff's motion for discovery on his pattern or practice claim. The district court appropriately relied on the Army's affidavits on this issue, plaintiff having made no showing of bad faith on the Army's part.

Pickering-George v. DEA, No. 08-5227, 2009 U.S. App. LEXIS 12064 (D.C. Cir. June 3, 2009) (unpublished disposition) (summary order). The district court did not abuse its discretion when it denied plaintiff's motion to amend his complaint.

Citizens for Responsibility & Ethics in Washington v. Office of Admin., No. 08-5188, 2009 WL 1373612 (D.C. Cir. May 19, 2009) (Griffith, J.). Though plaintiff is correct that the district court erred in ruling that it lacked subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), this error does not warrant reversal, as the district court had proper grounds for dismissal for failure to state a claim under Rule 12(b)(6). The district court's discovery rulings were proper. "The . . . court appropriately refused [plaintiff's] discovery requests that did not speak to the question whether OA is an agency," and "provided [plaintiff] ample opportunity to obtain materials exploring whether OA is an agency under FOIA."

Town of Winthrop v. FAA, No. 08-1703, 2009 WL 1260410 (1st Cir. May 8, 2009) (Howard, J.). The record from the district court proceedings indicates that plaintiff agreed to the district court's procedures for expediting treatment of this case, including in camera review of contested documents. Plaintiff failed to timely object to the district court's rulings, and thus cannot now complain of the procedures employed or the rulings made by the district court. A future requester of these same documents would not, however, be bound by the procedures used or the rulings on withholdings made in this case.

District Court Decisions

Venkataram v. Off. of Info. Pol'y, No. 09-6520, 2012 WL 3283485 (D.N.J. Aug. 9, 2012) (Simandle, J.). Holding: Denying plaintiff's motion for contempt; and ordering defendant EOUSA to provide a Vaughn Index for any withheld information on the date 45 days after plaintiff has tendered full pre-payment of the estimated search fee. The court denies plaintiff's motion to hold defendant in civil contempt based on its assessment of search fees and its proposed timeline regarding the search for responsive records. The court finds that "Plaintiff has not, apparently, requested a waiver of fees on the grounds provided in [the Department of Justice regulations]" and "[t]herefore, the Court sees no reason why Plaintiff should not be required to comply with agency regulations and pre-pay the estimated search fees [which exceed $250] before the Department of Justice undertakes a time-consuming search." As to plaintiff's allegations of delay regarding the timing of the search, the court notes that "Plaintiff points to no statute or regulation, and the Court finds none in its own research, that would suggest that Defendant's proposed schedule is unusually or unacceptably slow." The court orders defendant to submit a Vaughn Index within 45 days after plaintiff's pre-payment of the assessed search fee.

Inst. for Pol'y Stud. v. CIA, No. 06-960, 2012 WL 3301028 (D.D.C. Aug. 14, 2012) (Lamberth, J.). Holding: Granting, in part, defendants' motion for summary judgment on the basis that certain withholdings under Exemptions 1, 2, 3 and 7(E) were proper and that plaintiff conceded other withholdings under Exemptions 2, 3, 6, 7(C), 7(D) and 7(F), and that all reasonably segregable material was released; denying plaintiff's motion to strike portions of the declarations; and ordering CIA to conduct searches for responsive records in three different directorates which were not initially searched. The court denies plaintiff's request for declaratory relief based on the CIA's failure to respond to its FOIA appeal within twenty days. The court finds that "[i]n light of the remedy of initiating a cause of action within federal court provided by FOIA, . . . declaratory judgment for the plaintiff on this point is improper." Mootness: The court denies as moot plaintiff's argument that it is entitled to declaratory relief where defendant initially denied its fee waiver request but ultimately waived fees as a matter of administrative discretion. The court determines that "the fact that plaintiff might at some point in the future file another FOIA claim and that defendant might then refuse to waive fees is no more than speculative."

The court denies plaintiff's APA claim because it finds that the "FOIA itself provides plaintiff with an adequate remedy."

Banks v. DOJ, No. 06-1950, 2012 WL 3061167 (D.D.C. July 26, 2012) (Sullivan, J.). Holding: Granting United States Postal Inspection Services (USPIS's) renewed motion for summary judgment where it released unredacted versions of the documents remaining in dispute, and disclosed all reasonably segregable information. The court grants USPIS's renewed motion for summary judgment where it released unredacted versions of the only documents remaining in dispute for which it previously asserted Exemptions 7(D) and 7(E). Furthermore, the court finds that "USPIS is not obligated to explain why it did not release unredacted versions of the documents previously." The court concludes that summary judgment is appropriate because "USPIS no longer relies on Exemptions 7(D) and 7(E), and defendants have established that all records responsive to all of plaintiff's FOIA requests either have been produced or have been withheld properly under the claimed exemptions."

Brown v. FBI, No. 10-1292, 2012 WL 2786292 (D.D.C. July 10, 2012) (Lamberth, J.). Holding: Denying defendant's motion to dismiss; but granting defendant's motion for summary judgment on the basis that it conducted an adequate search, and properly withheld certain information pursuant to Exemptions 3, 7(C), 7(D) and 7(E); and denying plaintiff's motion for sanctions as well as his motion to supplement his motion for sanctions. Noting that "[t]he imposition of Rule 11 sanctions is generally not something the court takes lightly," the court denies plaintiff's motion for sanctions, finding "no reason for such an extreme punishment without substantial evidence that defendant frustrated judicial proceedings." Here, the court finds plaintiff's arguments "incredulous enough to merit only a limited discussion," and determines that, in addition to being untimely, plaintiff's motion "simply provided no probative evidence to buttress his claims."

Lardner v. FBI, No. 03-874, 2012 WL 2870177 (D.D.C. July 13, 2012) (Lamberth, J.). Holding: Denying plaintiff's motion to alter or amend its judgment pursuant to Rule 59(e), and denying his request for discovery. The court denies plaintiff's motion to alter or amend its judgment. As an initial matter, the court notes that, although plaintiff brought his motion for reconsideration under Rules 52(b) and 59(b), it will consider the motion under Rule 59(e), which affords guidance on such motions, which are "reserved for 'extraordinary circumstances.'" With respect to plaintiff's argument that the FBI was required to provide copies of documents that were transferred to NARA, the court finds that his "argument fails because he is merely re-litigating a stale legal theory, which will not be entertained under a Rule 59(e) motion." As to plaintiff's argument that the FBI failed to search certain indices for responsive records, the court concludes that "mere speculation as to the existence of records not located as a result of the agency's search does not undermine the adequacy of the search." The court finds that "[t]he FBI adequately searched for responsive documents since an agency is only required to search in the places 'likely' to possess responsive records." The court also rejects plaintiff's argument that the FBI should have searched its "Confidential Source Indices" for records related to one of the subjects, finding that "[p]laintiff does not proffer any proof that such documents would exist in the [these] [i]ndices, other than asserting that the FBI, on 'an official form,' searches the Confidential Source Indices for responsive records." The court also determines that, despite plaintiff's claims to the contrary, he "cannot point to evidence that would constitute 'acknowledgement' on the part of the FBI" as to the subject's status as a confidential informant. With regard to plaintiff's contention that he should have been provided certain "photographic copies," the court finds that "the FBI provided photocopies of the records plaintiff requested, thus fulfilling [his] FOIA request" and states that "[i]f plaintiff wanted the negatives of the photographs, he should have specified that in his original FOIA request." To the extent that plaintiff alleges the existence of certain missing files, the court concludes that he "fail[s] to cite any new evidence that would support his contentions." Regarding the court's previous finding that plaintiff "failed to comply with the [agency's] applicable FOIA regulations and thus did not 'effectively initiate a FOIA request'" for records located in FBI field offices, the court holds that "[t]he law is clear on this issue: parties seeking FBI records must send FOIA requests to individual FBI field offices." The court concludes that "[s]ince plaintiff failed to submit individual FOIA requests to various field offices for responsive documents, as is required by law, he cannot challenge the adequacy of the FBI's search."

Schulze v. FBI, No. 05-180, 2012 WL 2571254 (E.D. Cal. July 2, 2012) (Ishii, J.). Holding: Denying without prejudice defendants' motion to dismiss the FBI, DEA and the U.S. Marshals Service as parties to the action. The court denies without prejudice defendants' motion to dismiss the FBI, DEA and U.S. Marshals Service (USMS) as parties to this action. Reviewing the case law from the District of Columbia Circuit cited by defendants, the court finds that "there is no jurisdictional impediment to a suit against FBI, DEA or USMS in their own names under FOIA as they are all 'agencies' subject to FOIA within the meaning of section 551(1)." Moreover, the court determines that "where [as here, the] Department is a named party, courts may dismiss Department of Justice component entities where there is no object to the dismissal without impairing the rights of either party." Nevertheless, "[w]hether or not the components are dismissed, the court retains jurisdiction to issue injunctive orders that are binding on the components." Additionally, the court observes that "where [the] Department is a named defendant along with other named components of [the] Department, there is no clear and ambiguous authority for the proposition that the component entities are entitled to dismissal." Accordingly, the court observes that it "can see no reason why it would matter much either way." However, the court grants defendants leave "to amend the motion should new authorities or facts become available."

Huene v. U.S. Dep't of the Treasury, No. 11-2110, 2012 WL 2261007 (E.D. Cal. June 15, 2012) (Mendez,J.). Holding: Adopting recommendation of magistrate finding that plaintiff's FOIA claim brought against an IRS agent be dismissed with prejudice for failure to state a claim upon which relief may be granted.

Wingate v. DHS, No. 11-223, 2012 U.S. Dist. LEXIS 75270 (M.D. Fla. May 31, 2012) (Hernandez Covington, J.). Holding: Dismissing plaintiffs' complaint for lack of subject matter jurisdiction because they lack standing to bring the case. The court holds that plaintiffs lack standing to bring the instant case where they "were not mentioned by name in the FOIA requests or related correspondence with the agency." The court rejects plaintiffs' argument that "they were not required to be mentioned by name because their attorney submitted the request in a representative capacity." Additionally, the court dismisses "Plaintiffs' argument that they have standing because their counsel identified them in a series of telephone calls to the Department of Homeland Security." The court finds that "[t]he case law does not support Plaintiffs' contention, and Plaintiffs have not supplied the Court with any support for this misguided proposition."

Hiken v. DOD, No. 06-2812, 2012 WL 1929820 (N.D. Cal. May 24, 2012) (Ware,J.). Holding: Granting defendants' partial motion for reconsideration; allowing defendants to assert Exemption 1 with regard to information for which it had asserted Exemption 2 prior to Milner, and holding that those documents are properly classified under Exemption 1; and concluding that defendants properly asserted Exemption 6. The court grants defendants' motion for reconsideration insofar as they seek to invoke Exemption 1 for "certain information that they unsuccessfully sought to withhold under Exemption 2." The court determines that there is "good cause to allow Defendants to [now] assert Exemption 1 as to the documents at issue," noting that "three years after the briefing in this case was completed, but prior to the Court's issuance of the February 2 Order – the Supreme Court issued its opinion in Milner, which overturned an interpretation of Exemption 2 that had 'been consistently followed, or favorably cited, by every Court of Appeals to have considered the matter during the past 30 years.'" The court concludes that "the Supreme Court's decision, in Milner, to overturn the interpretation of Exemption 2 on which Defendants had relied constitutes an 'interim development in applicable legal doctrine' sufficient to warrant the government's assertion of a belated FOIA exemption."

Bosman v. United States, No. 12-1320, 2012 WL 1747972 (N.D. Cal. May 15, 2012) (Rogers,J.). Holding: Dismissing plaintiff's FOIA claim, without prejudice, based upon improper venue. The court dismisses plaintiff's FOIA claim, without prejudice, on the basis that she "has not alleged or offered facts to show that venue is proper in the Northern District of California." For one, the court finds that plaintiff "cannot establish proper venue . . . by virtue of her residence" where she resides in Virginia and "does not allege that she resided in the Northern District of California when she filed her complaint or at any other time." The court determines that plaintiff's "intentions to make California her ultimate 'domicile' have no bearing on whether, at the time that she filed her complaint, venue was proper in this district" and notes that the FOIA "look[s] only to 'residence'" for the purpose of establishing venue. Additionally, the court concludes that plaintiff also fails to meet "non-residency bases for venue" where she "does not allege that she has a 'principal place of business' in this district, or that the records she seeks are located in this district." The court notes that, in fact, "the evidence offered in support of the motion indicates that none of the records would be in California."

Castro v. ATF, No. 11-2197, 2012 WL 1556248 (D.D.C. May 2, 2012) (Bates, J.). Holding: Granting defendant's motion for summary judgment where plaintiff failed to respond to defendant's motion for summary judgment. The court grants defendant's motion for summary judgment where plaintiff was directed to respond to defendant's motion for summary judgment "or risk entry of judgment for defendant" and he failed to do so. The court finds "[p]laintiff has not responded to the motion and, thus, has not disputed defendant's fact establishing its compliance with the FOIA by disclosing all responsive records."

Schoenman v. FBI, No. 04-2202, 2012 WL 1475983 (D.D.C. Apr. 30, 2012) (Kollar-Kotelly,J.). Holding: Denying plaintiff's motion for reconsideration brought under Federal Rule of Civil Procedure 59(e). The court denies plaintiff's motion for reconsideration as to the court's decision to deny his two motions to late file, the FBI's invocation of Exemption 2, and the reasonableness of the FBI's search for records. As to plaintiff's claim with respect to his request to late file, the court determines that plaintiff "failed to meet his burden of justifying relief under Rule 59(e)" where he did not "explain[] how his proffered factual allegations, if undisputed or not genuinely disputed, would have any meaningful bearing on the Court's decision on the merits," he did not "mention, let alone supply a basis for questioning" the "independent and adequate grounds" underlying the Court's decision, and he failed to establish that "the Court's conclusion that [he] failed to satisfy the 'good cause' and 'excusable neglect' standards" was an abuse of discretion.

The court also rejects plaintiff's argument that the court should reconsider its "decision granting summary judgment to the FBI because, in his view, the FBI 's withholdings under FOIA Exemption 2 are no longer valid in light of the United States Supreme Court's March 7, 2011 decision in Milner v. Department of Navy." Although the court agrees that "the Milner decision narrowed the scope of Exemption 2 in this Circuit and calls into question the FBI's reliance on the exemption as a basis for withholding confidential source symbol numbers and confidential source file numbers," the court notes that plaintiff "offer[ed] no explanation for why he waited an extraordinary eleven months and two weeks, and until after the Court entered a final judgment, before he sought reconsideration on this basis." The court notes that "[a] party acting with reasonable diligence could and would have sought reconsideration of the Court's February 9, 2011 decision while it was still interlocutory under Federal Rule of Civil Procedure54(b)" or "at the bare minimum, . . . would have alerted the Court to the potential issue sometime in the eleven months and two weeks between the issuance of the Milner decision and the entry of final judgment in this case." As such, the court denies the Rule 59(e) motion on the basis that plaintiff "failed to 'exercise due diligence.'" The court also rejects plaintiff's claim that "the mere 'fact that Exemption 2 was cited in tandem with Exemption 7(D) raises a question as to whether the FBI made a careful, independent evaluation of the Exemption 7(D) claim,'" concluding that "[a]n argument of this kind – speculative, unsupported, and contradicted by all the competent evidence in the record – is insufficient to warrant relief under Rule59(e)."

The court also declines to exercise its discretion to grant relief under Rule 59(e) with respect to plaintiff's claim regarding the adequacy of the FBI's search. For one, the court notes that plaintiff's "has not sought reconsideration" of the court's decision which determined that the he "'conceded [this] issue' by failing to respond to the FBI's arguments [on this point] in any of his submissions." Additionally, the court determines that plaintiff "failed to 'exercise due diligence' in pursuing this issue" by waiting "two years, ten months, and three weeks" before filing the instant motion. Lastly, the court finds that the "'new information' cited by [plaintiff]"consisting of "a recent news article and a recent opinion" from another district court judge in this Circuit "in an unrelated case," do not justify relief because "[n]either bears upon the adequacy of the FBI's search under the specific facts of this case nor persuades the Court to question whether 'the FBI made a good faith, informed, and reasonable effort to locate the identified records.'"

Fair Pol. Pracs. Comm'n v. USPS, No. 12-93, 2012 U.S. Dist. LEXIS 58759 (E.D. Cal. Apr. 26, 2012) (Burrell, J.). Holding: Denying petitioner's application to intervene in the instant action because he failed to establish that he is entitled to intervene as a matter of right under Federal Rule of Civil Procedure24(a)(2) or that permissive intervention would be appropriate under Rule 24(b)(2). The court denies petitioner's application to intervene in the instant FOIA action. With respect to petitioner's request to intervene as a matter of right, the court at the outset notes that it will not consider his argument that "he has 'an unconditional right to intervene by a federal statute under Rule24(a)(1)'" where he "raise[d] it for the first time in his reply brief and the issue has not been fully briefed by the parties." Second, the court determines that petitioner has not established that he is entitled to intervene as a matter of right under Rule 24(a)(2), which allows an unconditional right to intervene where the applicant has a "'significant protectable interest.'" Here, the court determines that petitioner's allegation that the information sought would invade his constitutional right to privacy is not sufficient to show a substantial protectable interest where he "has not shown how a record of the number of pieces of mail that were sent using the . . . bulk mailing permit [which he asserts belongs to a committee rather than himself] is his 'personal data.'" Lastly, the court concludes that petitioner also has not established that permissive intervention under Rule 24(b)(2) would be appropriate. The court finds that petitioner "alleges only . . . that disclosure would violate his rights to privacy, freedom of speech, and freedom of association, and that [plaintiff] has unclean hands," but "has not demonstrated how these defenses share a common issue of law or fact with [plaintiff's] FOIA claim." Accordingly, the court concludes that "[t]he language of [Rule 24(b)(2)] makes clear that [permissive intervention under Rule 24(b) must be denied since [petitioner's] defenses and claims] contain[] no question of law or fact that is raised [in] the main action."

Carroll v. SSA, No. 11-3005, 2012 WL 1454858 (D.Md.Apr. 24, 2012) (Quarles, J.). Holding: Dismissing plaintiff's complaint for failure to state a claim. The court dismisses plaintiff's compliant, where he only alleged that he sent requests seeking the release of documents to SSA and "'sent them many more letters,' but never received a response compliant with FOIA." The court determines that "[a]bsent a description of the documents sought, as well as details of the refusal to turn over the requested information, it is impossible to determine if [plaintiff] has stated a viable claim." Additionally, the court finds that "[i]t is also impossible for the agencies he has sued to determine when or if his requests were ever received and, if so, whether a search was performed and an answer provided."

Lazaridis v. SSA, No. 10-1386, 2012 WL 1355656 (D.D.C. Apr. 19, 2012) (Collyer,J.). Holding: Denying defendant's motion to dismiss plaintiff's FOIA claim on the basis of the fugitive disentitlement doctrine. The court denies "SSA's motion to dismiss [plaintiff's] FOIA claim based solely on the fugitive disentitlement doctrine." The court notes that in connection with a separate FOIA action brought by plaintiff against DOJ, "[t]his Court previously determined that the Department of Justice had failed to establish 'the requisite connection between [plaintiff's] fugitive status and [the FOIA] proceedings,'... and it finds no reason to depart from that finding here."

Clemente v. FBI, No. 08-1252, 2012 U.S. Dist. LEXIS 51974 (D.D.C. Apr. 13, 2012) (Rothstein,J.). Holding: Granting, in part, the FBI's motion for summary judgment as to the adequacy of its search; denying, without prejudice, the FBI's motion for summary judgment with respect to the remaining issues; and ordering the FBI to reprocess all the records at issue in accordance with an earlier court order, and not simply the representative sample to which the parties agreed. The court orders the FBI to reprocess all records at issue, not simply the representative sample to which the parties agreed, in order to address deficiencies identified in the court's earlier order. The court notes that the FBI has now released certain information, such as references to informants and information identifying third-parties, "in explicit response to Judge Freidman's order from 26.5% of the sample documents." Referencing the D.C. Circuit's decision in Meeropol v. Meese as a guide, the court finds that this error rate is "'unacceptably high.'" Moreover, the court notes that, although the FBI has now "released the names of certain dead individuals," suggesting that it made a determination as to life status, its current submissions do not explain "how it determined the life status of individuals named or identified in the sample documents" and finds that there is "no indication that the Bureau applied this method to determine the life status of individuals identified in the non-sample documents." Likewise, the court determines that the FBI also did not provide sufficient detail for the court to determine whether its withholdings under Exemption 7(E) were appropriate. Accordingly, the court denies, without prejudice, the FBI's motion for summary judgment as to these issues and notes that it "should address these deficiencies if it renews its motion for summary judgment."

Lardner v. FBI,No. 09-874, 2012 WL 1109728 (D.D.C. Apr. 4, 2012) (Lamberth,J.). Holding: Granting, in part, defendants' motion for summary judgment with respect to the adequacy of the FBI's searches for responsive records; and denying, in part and without prejudice, their motion as it pertains to the merits of their withholdings; granting, in part, plaintiff's motion for partial summary judgment to the extent he requested that defendants reprocess the responsive records; and ordering defendants to reprocess a new sample of documents to be identified by plaintiff and to produce a complete Vaughn index addressing all withholdings; ordering DEA and IRS to also reprocess their respective records; and denying as moot plaintiff's motion to compel the release of records. In the course of preparing its sample Vaughn index, defendants released additional material in 219 of the 289 documents in the sample. The court finds defendants' Vaughn index "inadequate" where it did not effectively address the additional releases made during the course of litigation. Despite the FBI's assertion that "the newly released information was the result of discretionary releases of third party names and information previously withheld under Exemptions (b)(6) and (b)(7)(C) [and as a result of its re-review of Exemptions 1 and5 withholdings], not pure error," the court notes that "[t]he FBI provides no additional justification... as to why these documents were suddenly deemed proper for release" and concludes that "the sheer magnitude of the additional releases indicates that the sample is not an accurate illustration of the whole." In addition, the court finds that "the defendants' Vaughn index indicates that the FBI withheld a significant amount of information under Exemption (b)(2)," and in particular under "High 2," which was abrogated by the Supreme Court's decision in Milner. The court determines that "[i]n light of the Milner decision, a reprocessing of the responsive documents is justified to allow the FBI to release additional information that was withheld solely under Exemption 2."

Nat'l Whistleblower Ctr. v. HHS, No. 10-2120, 2012 WL 1026725 (D.D.C. Mar. 28, 2012) (Boasberg,J.). Holding: Granting, in part, HHS's motion for summary judgment to the extent that it properly asserted Exemptions 5, 7(C) and 7(E) to withhold certain information, but directing defendants to release other discrete information that it withheld under Exemptions 5 and 7(C); and concluding that plaintiffs' lack standing with respect to their "pattern and practice" claim. The court holds that plaintiffs lack standing to pursue their claim that "HHS maintains 'a policy or practice that intentionally avoids appellate or judicial review of withholding decisions' in violation of FOIA and the [Administrative Procedure Act]" based on HHS's decision to close plaintiffs' pending appeals following the withdrawal of its assertion of Exemption 7(A) and to process plaintiffs' requests under new tracking numbers. The court finds that "[h]ere the undisputed facts of the case disprove the substantive injury Plaintiffs allege they suffered as a result of Defendants' dismissal of their administrative appeals." The court finds that "Plaintiffs did not need to bring this suit to challenge Defendants' reliance on Exemption 7(A); such reliance – and, ergo, such injury – had ceased by the time of filing." Additionally, the court finds that any allegation that plaintiffs "'stand[] to continue to be harmed by this ongoing practice in the future'" is "too vague."

Union Leader Corp. v. DHS, No. 12-18, 2012 U.S. Dist. LEXIS 39730 (D.N.H. Mar. 23, 2012) (Laplante,J.). Holding: Granting, without prejudice, defendant's motion to dismiss on the basis that plaintiff fails to state a claim upon which relief may be granted where it failed to exhaust its administrative remedies; denying plaintiff's motion to amend its complaint; and denying plaintiff's motion for a preliminary injunction and request for an expedited hearing as moot. The court finds that "[t]he additional facts pled in the proposed amended complaint do not remedy [the exhaustion] deficiency" where "the proposed amendments allege that ICE withheld the information [plaintiff] sought [in connection with another FOIA request submitted after the instant litigation was commenced] and that [plaintiff] filed an administrative appeal with respect to that information." Rather, the court finds that "the right to appeal is not exhausted by merely filing an appeal; it is only exhausted when the agency either (a) issues a final decision denying the appeal, or (b) fails to act on the appeal within twenty days, as mandated by [the FOIA]." The court determines that "[n]either is the case here – [plaintiff] does not allege that ICE has denied its appeal, and that appeal was taken March 14, 2012, so ICE still has until April3, 2012, to issue a final decision on the appeal." Accordingly, the court denies plaintiff's motion to amend its complaint on the basis that such amendment would be "futile."

Pub. Emps. for Envtl. Resp. v. U.S. Sec. Int'l Boundary & Water Comm'n, No. 11-261, 2012 WL 933709 (D.D.C. Mar. 20, 2012) (Rothstein,J.). Holding: Granting defendant's motion for summary judgment on the basis that it demonstrated that it conducted an adequate search, released all reasonably segregable material, and properly justified its Exemptions 5, 6, 7(E), and 7(F) claims; dismissing plaintiff's Administrative Procedure Act claim as duplicative of its FOIA claims; denying plaintiff's cross-motion for summary judgment, and its motion for fees and costs on the basis that it did not substantially prevail; and denying plaintiff's claim for a written finding pursuant to Section 552(a)(4)(F)(i). The court denies plaintiff's request for a written finding pursuant to 5 U.S.C. 552(a)(4)(F)(i), referring the matter to the Office of Special Counsel, based on its claims that USIBWC "initially denied the existence of [a particular document], and that the agency exaggerated the threat of harm from releasing the withheld documents." The court notes that it "has already rejected these arguments" in connection with this decision, and notes that "the record is devoid of proof of any hostility on the part of the USIBWC." Additionally, the court comments that "there is actually some evidence to suggest the opposite; that the USIBWC handled [plaintiff's] FOIA request in exactly the same manner that it has handled requests from other parties."

Nat'l Whistleblower Ctr. v. HHS, No. 10-2120, 2012 WL 769478 (D.D.C. Mar. 12, 2012) (Boasberg,J.). Holding: Dismissing plaintiffs' FOIA claim for lack of subject matter jurisdiction based on lack of standing; and granting defendant's motion for summary judgment with respect to the adequacy of HHS's search, which was not contested by plaintiffs. The court dismisses for lack of subject matter jurisdiction plaintiffs' claim alleging that HHS failed to promulgate a regulation providing for expedited processing in violation of the FOIA, 5 U.S.C. §552(a)(6)(E)(i). The court concludes that plaintiffs lack standing to bring such a claim because they "have identified no real support for their allegation that they have suffered and will likely in the future suffer a cognizable injury." Here, the court notes that, in the absence of a final regulation, "[t]he agency considered and rejected Plaintiffs' request for expedited processing using the 'compelling need' standard outlined in the general FOIA statute." Accordingly, the court comments that "[i]f the standard HHS currently employs in evaluating requests for expedited processing is the same as that outlined in the statute and the same as that which a final regulation would likely entrench – given the language of the proposed rule and the agency's representations here – what injury accrued to Plaintiffs from HHS's failure to finalize its expedited-processing rule?" Moreover, the court finds that plaintiffs had notice regarding HHS's criteria for evaluating expedited processing, noting that "[i]t is clear on the face of Plaintiffs' first FOIA request that they were aware of HHS's use of FOIA's 'compelling need' standard because the request made specific reference to the 'compelling need' terminology" and this standard "is clearly set forth in FOIA itself and also on the agency's FOIA web page." Additionally, the court notes that "should HHS in the future fail to follow the statutorily mandated criteria for expedited processing or fail to provide requesters with notice of those criteria, a requester may well suffer a judicially cognizable injury sufficient to confer standing." Further, the court finds that such relief may be available against other agencies that "diverge from the statutory criteria so as to cause injury to requesters." Lastly, the court notes that while this provision of the FOIA "requires agencies to promulgate a regulation... [it] simultaneously dictat[es], with notable specificity, what the contents of such a regulation must be."

Mobley v. DOJ, No. 11-1437, 2012 WL 604153 (D.D.C. Feb. 27, 2012) (Howell, J.). Holding: Denying defendant's motion to dismiss, and concluding that plaintiff has proffered allegations sufficient to support his FOIA claim; and finding that an agency is not required to provide a listing of withheld records at the administrative stage of a FOIA request. The court denies defendant's motion to dismiss, which was based on the ground that plaintiff failed to allege that defendant improperly withheld documents and "therefore 'fails to state a legally-valid claim under FOIA or any other provisions of law.'" The court instead finds that "the Complaint does not 'explicitly disavow' that the defendant improperly withheld documents, but rather sets forth general allegations sufficient to maintain a cognizable FOIA claim." Although "plaintiff concedes in his opposition to the defendant's motion to dismiss that 'it is very likely that the records are properly classified and accordingly exempt under FOIA exemption (b)(1),... [the court finds that] this frank assessment of his own case does not negate the fact that plaintiff initiated the instant lawsuit because he suspects that the defendant improperly withheld documents, and states in his Complaint that he intends to contest withholdings that he deems to be improper."

Piccone v. NY State Dep't of Health, Nos. 12-92 & 12-641, 2012 U.S. Dist. LEXIS 21601 (E.D.N.Y. Feb. 21, 2012) (Kuntz,J.). Holding: Denying plaintiff leave to file, in consideration of the court's prior order barring him from filing complaints without first seeking such permission, where his complaint challenges the constitutionality of the exemptions cited by federal agencies but does not allege that the FBI and U.S. Marshals Service improperly withheld the records that he requested.

Weigel Broad. Co. v. FCC, No. 11-236, 2012 U.S. Dist. LEXIS 131797 (N.D. Ill. Feb. 17, 2012) (Guzman, J.). Holding: Granting, in part, the FCC's motion for summary judgment on the basis that it properly withheld certain material pursuant to Exemption 5; but ordering that the FCC produce for in camera review two documents, for which it did not provide sufficient detail. The court determines that the agency's descriptions "are too vague" for two specific records and orders "an in camera review of these documents in order to ascertain whether they were properly withheld."

Velazquez v. DEA Headquarters Unit (SARO), No. 11-820, 2012 WL 523919 (S.D. Cal. Feb. 16, 2012) (Sammartino,J.). Holding: Granting petitioner's motion to proceed in forma pauperis, and concluding that his claims are sufficiently pleaded to survive the sua sponte screening requirement of 28 U.S.C. §1915(e)(2) where petitioner alleged that DEA acknowledged, but failed to respond to his FOIA request, and consequently determining the petitioner is entitled service by the U.S. Marshal Service on his behalf; and denying petitioner's motion to direct service as moot .

Abuhouran v. U.S. State Dep't, No. 11-271, 2012 WL 473241 (D.D.C. Feb. 14, 2012) (Huvelle,J.). Holding: Dismissing the amended complaint brought by plaintiff's sister for lack of standing under Federal Rule of Civil Procedure 12(b)(1); treating as conceded defendants' claims of exemption, the court concludes that the defendants properly withheld information pursuant to Exemptions 1, 5, 6, 7(A) and 7(C) and that the State Department released all reasonably segregable information; and denying plaintiff's request for costs and fees as he is not a prevailing party. The court "grant[s] defendant's motion to dismiss the amended complaint brought by [plaintiff's sister] under Rule 12(b)(1) for lack of standing" where "she was not a party to the underlying FOIA request." The court concludes that the purported consent of plaintiff's sister submitted after the instant case was filed "does not cure the jurisdictional defect as to [her] because an agency's disclosure obligations are triggered by a request 'made in accordance with published rules... and procedures to be followed.'" Furthermore, the court notes that "a merits determination with regard to records about [plaintiff's sister] would undermine exhaustion principles."

Gonzales & Gonzales Bonds & Ins. Agency Inc. v. DHS, No. 11-2267, 2012 WL 424852 (N.D. Cal. Feb. 9, 2012) (Ryu, Mag.). Holding: Granting defendant's motion to dismiss the complaint, and granting plaintiff leave to file an amended complaint. The court "denies DHS's motion to dismiss for lack of subject matter jurisdiction under § 552," which was based on defendant's assertion that plaintiff does not reside or have a principle place of business in this judicial district and the "vast majority of the A-files" requested are not situated in this district. The court interprets §552(a)(4)(B) "as a restriction on venue rather than subject matter jurisdiction." The court also notes that it "need not address whether the Northern District of California is a proper venue for Plaintiff's claim, because DHS has waived any objection to venue by not raising it in its answer or the current motion."

Gonzales & Gonzales Bonds & Ins. Agency Inc. v. DHS, No. 11-2267, 2012 WL 424852 (N.D. Cal. Feb. 9, 2012) (Ryu, Mag.). Holding: Granting defendant's motion to dismiss the complaint, and granting plaintiff leave to file an amended complaint. The court dismisses plaintiff's complaint with leave to amend where "Plaintiff has not sufficiently articulated" its claim regarding the lawfulness of DHS's regulation that requires requesters making FOIA requests for third party records to submit that party's written consent, and where "the complaint presents no other cause of action that would exempt it from complying with DHS's consent procedures." The court notes that it "will not apply the administrative exhaustion doctrine [based on plaintiff's failure to comply with DHS's regulations], because the party's claim rests upon statutory interpretation."

The court also elects to address DHS's exhaustion argument, holding that because "DHS has responded to only one appeal in writing and has issued no decisions on any of" plaintiff's other 183 administrative appeals, "further appeals would be futile."

Rosenfeld v. DOJ, Nos. 85-1709, 85-2247, 90-3576, 2012 U.S. Dist. LEXIS 11643 (N.D.Cal. Jan. 31, 2012) (Laporte, Mag.) (order). Holding: Denying plaintiff's request to file additional challenges to withheld or redacted records that the FBI produced in August 2010 in connection with a settlement agreement, which allowed for a "reasonable number of challenges," where plaintiff has delayed too long in seeking to raise these claims.

Stanko v. BOP, No. 10-724, 2012 WL 336173 (D.D.C. Feb. 3, 2012) (Boasberg,J.). Holding: Granting BOP's renewed motion for summary judgment on the basis that it conducted an adequate search and properly withheld certain information pursuant to Exemption 7(C); and denying plaintiff leave to amend his complaint. The court denies plaintiff leave to amend his complaint to add a claim "solely on the Privacy Act and forego any FOIA claim." The court concludes that, in this case, "[a]mendment would be futile because Plaintiff cannot maintain a Privacy Act claim against BOP here, as Defendant is exempt from the provisions of the Act." The court also determines that plaintiff's claim based on the Privacy Act and his First Amendment rights is futile. Additionally, the court notes that plaintiff's delay in raising these claims "a full eighteen months after the filing of his initial Complaint here, over four months after the Court dismissed most of his case" also provide "an independent ground for denial of leave to amend." The court comments that "[t]hese are claims [plaintiff] certainly knew of at the outset of this litigation, and, even if they had a shred of merit, they should have been brought then."

Skybridge Spectrum Found. v. FCC, No. 10-1496, 2012 WL 336160 (D.D.C. Feb. 2, 2012) (Kollar-Kotelly,J.). Holding: Granting FCC's motion for summary judgment on the basis that plaintiff conceded the merits of the FCC's withholding decisions; but also concluding that, on the merits, the FCC's withholdings under Exemptions 4 and 6 were appropriate and that it properly released all reasonably segregable information. The court holds that plaintiff "has conceded the merits of the FCC's continued withholding decisions" where it failed to challenge these determinations in its opposition. The court notes that plaintiff's "opposition is consistently targeted not to information that is currently being withheld by the FCC, but rather [to] the propriety of the FCC's past withholding decisions – that is, the information the FCC withheld before its supplemental release" of additional documents in the course of this litigation. Furthermore, to the extent that plaintiff's "stray comment" in its opposition that the FCC's motion for summary judgment should be denied can be construed as a "challenge [to] the propriety of the FCC's continued withholding decisions," the court "nonetheless conclude[s] that [plaintiff] has conceded the merits of the FCC's arguments for continued non-disclosure by failing to tender a meaningful opposition." Accordingly, the court grants the FCC's motion for summary judgment on this basis. However, the court also notes that, on the merits, "the result would be the same because the FCC has properly invoked Exemptions 4 and 6 as a basis for continued non-disclosure."

Gasaway v. Williams, No. 11-549, 2012 WL 264611 (N.D.N.Y. Jan. 30, 2012) (Suddaby, J.). Holding: Adopting, with modification, the magistrate's recommendation to dismiss plaintiff's claim for failure to state a claim and to grant him an opportunity to amend his complaint; sua sponte dismissing with prejudice plaintiff's amended complaint for failure to state a claim and frivolousness pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(a),(b); and directing plaintiff to show cause as to why this court should not bar him from filing future pro se actions without first obtaining leave of the court. Subjecting the magistrate's report to a clear-error standard of review in light of the plaintiff's failure to challenge his findings, the court adopts the recommendation. The court notes that, in his amended complaint, plaintiff failed to cure the "primary pleading deficiency" identified by the magistrate and continued to name an individual rather than an agency as the defendant in his FOIA action. In connection with its adoption of the magistrate report, the court notes that the recommendation "would survive even a de novo review" and finds that "it would be inappropriate to permit Plaintiff to file a Third Amended Complaint before dismissal." Moreover, "the Court dismisses Plaintiff's Amended Complaint for two independent reasons." First, the court identifies seven deficiencies in plaintiff's FOIA request and, based on these defects, determines that it "cannot conclude that Plaintiff has alleged facts plausibly suggesting that agency records were withheld improperly when he has alleged facts plausibly suggesting that no proper request was made." Second, the court finds that "even if Plaintiff had alleged facts plausibly suggesting that he had properly made his FOIA request, he has alleged facts plausibly suggesting that much, if not all, of the information he is seeking (if it exists) is exempt from disclosure under FOIA."

Morales v. Pension Benefit Guar. Corp., No. 10-1167, 2012 U.S. Dist. LEXIS 9101 (D. Md. Jan. 26, 2012) (Legg, J.). Holding: Granting defendant's motion to withdraw its earlier motion to dismiss and granting its motion for summary judgment, on the basis that its withholdings under Exemptions 4, 5, and 6 were proper and its search was sufficient; and denying plaintiff's motions for attorney's fees. The court grants the Pension Benefit Guaranty Corporation's (PBGC's) motion to withdraw its earlier motion to dismiss, which was based on plaintiff's failure to exhaust administrative remedies for non-payment of properly assessed fees after PBGC received assurance of payment from plaintiff. The court rejects plaintiff's argument that PBGC "should not be permitted to withdraw the Motion because it was frivolous and filed in bad faith" and denies his request for an award for attorney's fees "incurred in responding to the agency's Motion." Rather, the court finds that, "[f]or the purposes of the Motion to Withdraw, [it] need not decide whether PBGC was ultimately justified in putting its search on hold, because there is no evidence of bad faith on its part." Moreover, "[c]onsidering [plaintiff's] prior non-payment and his counsel's request to be consulted when costs neared the $500 mark, PBGC was entitled to suspend work until [plaintiff] provided assurances of reimbursement for the costs of continued production."

Voigt v. Muffenbier, No. 11-89, 2012 WL 90486 (D.N.D. Jan. 11, 2012) (Viken, J.). Holding: Dismissing plaintiff's FOIA claim brought against four individuals for failure to state a claim upon which relief may be granted. The court dismisses plaintiff's FOIA claim for failure to state a claim upon which relief may be granted, noting that the FOIA "does not create a private cause of action against individuals but rather allows suit in federal district court against the agency which failed to comply with the disclosure obligations of the Act."

Citizens for Resp. & Ethics in Wash. v. VA, No. 08-1481, 2011 WL 6257201 (D.D.C. Dec. 15, 2011) (Friedman, J.). Holding: Granting, in part, plaintiff's request for additional discovery as it pertains to explanations provided by the VA regarding the retrievability of certain email backup tapes; denying plaintiff's request to depose another VA employee; and denying plaintiff's request for declaratory relief. The court denies plaintiff's "request to 'state clearly for the VA the obligations of federal agencies to preserve evidence and impose litigation holds for responsive materials upon receipt of FOIA requests.'" The court finds that "there is no claim for such relief in [plaintiff's] complaint and, even if there were, it is not clear that an FOIA lawsuit is the proper mechanism through which to litigate such a claim." The court further notes that "the court of appeals has not set forth a rule requiring that an agency always must preserve backup tapes upon the making of a FOIA request."

Mullen v. U.S. Army Crim. Investigation Command, No. 10-262, 2011 WL 5870550 (E.D. Va. Nov. 22, 2011) (Cacheris, J.). Holding: Granting defendant's motion to vacate the court's previous scheduling order which required the parties to file proposed discovery plans; granting, in part, defendant's motion to set a summary judgment briefing schedule; and granting, in part, defendant's motion for leave to file a representative sampling. The court grants defendant's motion to vacate its previous scheduling order which required the parties to file proposed discovery plans in advance of a pretrial conference and before defendant moved for summary judgment. The court finds that it "can properly evaluate Plaintiff's concerns about production procedures and FOIA exemptions after the Government has filed its summary judgment motion explaining its decisions." In response to the cases cited by plaintiff which "address whether courts should have granted particular summary judgment motions," the court notes that the fact "[t]hat the Government may fail to meet its burden at the summary judgment stage, is not a reason to order discovery in FOIA cases before the Government has had the opportunity to meet that burden." Additionally, the court finds that plaintiff's claim that "an email produced pursuant to a different FOIA request indicates an attempt to manipulate documents that are responsive to the requests in this case," is not the type of evidence "that would alone necessitate discovery prior to summary judgment."

Mullen v. U.S. Army Crim. Investigation Command, No. 10-262, 2011 WL 5870550 (E.D. Va. Nov. 22, 2011) (Cacheris, J.). Holding: Granting defendant's motion to vacate the court's previous scheduling order which required the parties to file proposed discovery plans; granting, in part, defendant's motion to set a summary judgment briefing schedule; and granting, in part, defendant's motion for leave to file a representative sampling. In terms of filing times, the court finds that it is appropriate here for defendant to file its Vaughn Index with it motion for summary judgment and provides plaintiff with ninety days to file a response in opposition. The court also permits defendants to index a representative sample of the responsive records rather than all 23,726 pages, noting that "[c]ourts have permitted sampling in cases with a much smaller volume of documents than the volume in the case at hand." Additionally, the court generally approves of defendant's sampling methodology which will index certain responsive pages, and for other documents, will "describe the basis for withholding not only the specific page, but for the entire document that encompasses that page," and will provide a "categorical Vaughn index" for certain pages that were withheld in full based on the same justifications. In terms of volume, the court determines that "every 84th page [of the investigative reports and files] shall be indexed," which will account for approximately two percent of the responsive records, but "emphasizes that this is just the minimum, as the index shall describe the basis for withholding not only the specific page, but for the entire document that encompasses that page." The court also orders that "if any of the documents pulled as a result of every 84th page being indexed are documents that were fully released, then Defendant should index the next redacted or withheld document."

Islamic Shura Council v. FBI, No. 07-1088, 2011 WL 5593132 (C.D. Cal. Nov. 17, 2011) (Carney,J.). Holding: Granting plaintiffs' motion for sanctions in the amount of reasonable attorneys' fees for bringing the instant motion. The court grants plaintiffs' motion for sanctions against the government in the amount of reasonable attorneys' fees for bringing the instant motion. As an initial matter, the court finds that the safe harbor provision of Rule 11(c)(2) is inapplicable "here because the Government did not withdraw or amend its erroneous filings" within the required time period. As a general rule, the court notes that "[t]he imposition of sanctions [under Federal Rule of Civil Procedure 11] is a matter within the court's discretion." Here, the court notes that "[t]he parties do not dispute that the Government did not act out of some improper purpose or in bad faith when submitting misinformation to the Court," accordingly, "the court's inherent powers to impose sanctions [under Rule 11(b)(1)] do not apply." Although the court recognizes that "the Government did not act in bad faith," the court finds that it nevertheless "presented false information to the Court—not negligently or without reasonable inquiry—but with the Government's full knowledge, over the course of two years in litigating this action, and after diligent factual inquiry." The court rejects defendant's defense that its "delayed disclosure of the truthful facts to the Court is based on its policy and practice under FOIA to disclose information at the earliest time possible in litigation without alerting the requester to national security-sensitive information." Rather, the court notes that "[p]arties cannot choose when to tell the Court the truth" and must do so throughout the proceeding. The court observes that "[t]he Government could have availed itself of routine court procedures without compromising national security, such as by filing an in camera declaration concurrently with its public filings" or "could have employed a Glomar response or submitted sealed briefings concurrently with its public filings."

ACLU v. ODNI, No. 10-4419, 2011 WL 5563520 (S.D.N.Y. Nov. 15, 2011) (Sullivan, J.). Holding: Concluding that defendants have failed to justify the majority of their withholdings made pursuant to Exemptions 1, 3, and 7(E); denying plaintiff's motion to strike defendants' submission of classified declarations; granting, in part and denying in part, plaintiff's motion for an in camera review, and ordering defendants to submit for in camera review Vaughn indices and, if necessary, supplementary Vaughn affidavits; and deferring ruling on the parties cross-motions for summary judgment pending submission of supplemental materials. The court denies plaintiff's motion to strike the classified declarations submitted by NSA and an undisclosed declarant. The court notes that "[i]n a FOIA action implicating national security interests, the Court may conduct in camera review of agency affidavits after 'attempt[ing] to create as complete a public record as is possible.'" The court comments that here it "first considered the four public agency affidavits and attempted 'to create as complete a public record as possible,'... by making 'itemized findings' with respect to each affidavit," but "[f]inding the public affidavits insufficient, the Court deems it necessary to examine the classified declarations as well."

ACLU v. ODNI, No. 10-4419, 2011 WL 5563520 (S.D.N.Y. Nov. 15, 2011) (Sullivan, J.). The court notes that it "finds the classified declarations considerably more forthcoming, but ultimately insufficient to justify the relevant withholdings." In particular, the court finds that "[w]ithout an actual explanation as to why disclosure 'would reveal the scope of NSA's collection activities,' the Court simply cannot engage in a meaningful de novo review as is required by law."

ACLU v. ODNI, No. 10-4419, 2011 WL 5563520 (S.D.N.Y. Nov. 15, 2011) (Sullivan, J.). Based on the insufficiencies that it identified with defendants' public and in camera,classified submissions, the court finds that "limited in camera review is both necessary and appropriate," and orders defendants to "submit for in camera review Vaughn indices and, if necessary, supplementary Vaughn affidavits that include 'a relatively detailed analysis [of the withheld material] in manageable segments' without resort to 'conclusory and generalized allegations of exemptions. '"

Jolly v. Town of Randolph Police Dep't, No. 11-11588, 2011 U.S. Dist. LEXIS 129834 (D.Mass. Nov. 9, 2011) (Casper, J.). Holding: Denying, without prejudice, plaintiff's application to proceed in forma pauperis; and ordering plaintiff to show cause as to why this action should not be dismissed for lack of subject matter jurisdiction. "Since [plaintiff] seeks the release of records from state entities (a local police department and county prosecutor's office), the Court finds that FOIA does not govern Plaintiff's request." The court orders plaintiff to "show good cause why his action should not be dismissed for lack of subject matter jurisdiction."

Hossein v. City of Southfield, No. 11-12947, 2011 U.S. Dist. LEXIS 129481 (E.D. Mich. Nov. 9, 2011) (O'Meara, J.). Holding: Granting defendant's motion to dismiss for failure to state a claim. The court grants defendant's motion to dismiss plaintiff's action for failure to state a claim upon which relief may be granted, noting that "Plaintiff has sought to use the FOIA and Privacy Act to obtain information from state agencies and courts, to which the statutes do not apply."

Graff v. FBI, No. 09-2047, 2011 WL 5401928 (D.D.C. Nov. 9, 2011) (Jackson, J.). Holding: Granting, in part, defendants' motion for summary judgment as to the validity of their policies concerning third party law enforcement records; and denying, in part, defendants' summary judgment motion concerning the application of that policy to the two requests, and remanding for plaintiff to proffer a public interest and for defendants to balance that interest against any privacy interests; and denying, in full, plaintiff's cross-motion for summary judgment. The court holds that the question as to whether EOUSA and the FBI properly refused to search for law enforcement records related to the subjects of plaintiff's requests, Manuel Noriega and Fawaz Younis, is not ripe for summary judgment. The court comments that "now that the Court has determined that the [categorical privacy-protection] policy applied in connection with the two FOIA requests was valid, it must determine how to go about reviewing defendants' implementation of that policy in these instances." The court finds that, here, plaintiff's "conculsory statements [in his initial request and administrative appeal] identify no public interest beyond obtaining the information for its own sake, and they do not make clear that the focus of plaintiff's interest is the conduct of the government rather than the criminal activities of the subjects of the requests." Specifically, plaintiff "did not describe the nature or purpose of his research or how it will be advanced by the documents," "[n]or did he state what he seeks to uncover through his review of the material documents." Additionally, to the extent that plaintiff's request asked for information concerning a certain DOJ official in connection with the Noriega prosecution, plaintiff failed to "make a showing as to why he is entitled to material naming this U.S. Citizen." Conversely, the court finds that "[a]s the government has acknowledged, its categorical rule for considering requests for law enforcement records concerning third parties was not memorialized in policies or procedures available to the public" and "plaintiff was not told that the onus was on him to proffer a justification until after his request had already been turned down." "[I]n light of unique circumstances in this case – including plaintiff's failure to supply the public interest that would justify disclosure for the Court to consider, defendants' failure to balance that justification against whatever privacy interests remain under the particular circumstances pertaining to these two publicly tried and convicted individuals, and the parties' agreement at the motions hearing that remanding to the agency would be an appropriate way to proceed – the Court will deny defendants' summary judgment motion [as to defendants' application of the policy regarding third party law enforcement records] and remand to the agencies to consider a statement of public interest to be supplied by the plaintiff and conduct the balancing mandated by Exemption 7(C)."

N.Y. Times Co. v. FBI, No. 10-7920, 2011 WL 5346031 (S.D.N.Y. Nov. 8, 2011) (Patterson,J.). Holding: Granting defendants' motion to dismiss for lack of subject matter jurisdiction where all responsive records were released to plaintiff in an unredacted format, and denying plaintiffs' motion for summary judgment seeking a broad declaration by the Court that all "assessment statistics," not merely those sought in the Complaint, are public records under the FOIA and subject to disclosure. As an initial matter, the court notes that plaintiff's Complaint in this matter is confined to his narrowed FOIA request for specific "assessment statistics" that were provided by the FBI to the Senate Judiciary Committee in response to a Congressional inquiry. As such, the court finds "[p]laintiffs' summary judgment motion [seeking a declaration by the Court that all assessment statistics are public records under the FOIA and thus subject to disclosure] attempts to broaden their claims to all assessment statistics in an impermissible attempt to avoid mootness." The court concludes that because "the FBI's March 7, 2011 unredacted release of the Assessment Statistics provided to the Senate Judiciary Committee complied with [plaintiffs'] FOIA request in accordance with his later amended request, the [plaintiffs' initial] FOIA Request is now moot." The court rejects plaintiffs' arguments their claims are not moot. Instead, the court finds that "[d]efendant's initial withholding under Exemption2 was not improper under circuit court case law at the time Exemption 2 was invoked." As to the assertion of Exemption7(E), the court notes that "the FBI released the requested document after a review by its subject matter experts revealed that the release of the assessment statistics requested by [plaintiffs] would no longer harm a protected interest." The court also dismisses plaintiffs' contention that the case is not moot because "the FBI is engaged in the unlawful practice of the unwarranted withholding of assessment statistics pursuant to FOIA exemptions." Instead, the court finds that "Plaintiffs have failed to provide evidence of prior similar instances to support its claim" and notes that it "would be unwise [for the court] to issue a declaration [on the matter]... because 'such a declaration would be an advisory opinion which federal courts may not provide."

Lewis v. DOJ, No. 09-746, 2011 WL 5222896 (D.D.C. Nov. 2, 2011) (Walton, J.). Holding: Granting, in part, defendant's renewed motion for summary judgment based on the adequacy of EOUSA's and the Office of Professional Responsibility's (OPR) searches, and the propriety of OPR's assertion of Exemptions 5 and 6 as well as EOUSA's and DEA's invocation of Exemptions 7(C) and 7(D); and denying summary judgment as to four pages of records referred from OPR to EOUSA, and OPR's reliance on Exemption 2. At the outset, the court interprets plaintiff's motion for relief from an earlier ruling in this case, in which the court granted partial summary judgment to defendants, as a motion brought under Federal Rule of Civil Procedure 54. The court notes that "'[i]nterlocutory judgments are . . . subject to the complete power of the court rendering them to afford such relief from them as justice requires.'" The court rejects plaintiff's argument that its interlocutory decision dismissing a district court and the clerk of state court from this action should be reversed "[b]ased upon his discovery of a sealed case in the United States District Court for the Middle District of Florida." Rather, the court finds that "the existence of this sealed case is neither a controlling nor a significant change in the facts of the plaintiff's case" and, furthermore, because "neither a federal district court nor a state court is subject to the FOIA, . . . existence of the sealed case has no bearing on this FOIA action." The court also dismisses plaintiff's claim that the court's prior ruling affirming "DEA's refusal to confirm or deny the existence of law enforcement records" pertaining to two Special Agents should be reversed. Instead, the court determines that "plaintiff's recent discovery of information pertaining to the agents' resignation, . . . does not strip the agents of their privacy interests, and the plaintiff's arguments as to the existence of a public interest of greater magnitude than these individuals' privacy interests, . . . are not persuasive." Contrary to plaintiff's contention, the court also finds that that President Obama's 2009 memorandum on the FOIA, by its terms, "'does not create any right or benefit'" which would serve as a ground for relief. Lastly, with respect to its ruling that plaintiff failed to exhaust his administrative remedies for a specific request, the court finds that plaintiff's later attempt to remedy that failure by filing an administrative appeal is not sufficient to cure that deficiency. The court observes that "[e]xhaustion of one's administrative remedies is a prerequisite to filing a lawsuit, . . . and exhaustion by the plaintiff as to this claim did not occur "

Beltranena v. U.S. Dep't of State, No. 09-CV-01457, 2011 WL 5022789 (D.D.C. Oct. 21, 2011) (Rothstein, J.). Holding: Granting defendant's renewed motion for summary judgment based on the adequacy of its search and its claims of exemption; denying plaintiff's requests for discovery, an in camera review, and attorneys' fees. Noting that in camera review is generally only available "'when agency affidavits are insufficiently detailed to permit meaningful review of exemption claims, and when evidence of bad faith is before the court,'" the court concludes that "[n]either circumstance is present here." Rather, the court finds that the State Department's supplemental declaration "adequately describes the segregability analysis undertaken and provides sufficiently detailed justifications for the non-segregability of each document," and, additionally, "there is no bad faith on the part of the Department."

Taitz v. Ruemmler, No. 11-1421, 2011 WL 4916936 (D.D.C. Oct. 17, 2011) (Lamberth,J.). Holding: Granting defendant's motion to dismiss; and dismissing plaintiff's suit with prejudice because the White House Counsel's Office is not subject to the FOIA. The court grants defendant's motion to dismiss on the basis that the "FOIA does not apply to the White House Counsel's office." The court notes that "while the textual definition of 'agency' contained in 5 U.S.C. §552(f) is seemingly broad enough to cover any Executive agency, the Supreme Court has long held that the President's personal staff and advisors are not 'agencies' subject to FOIA requests." The court finds that "[t]he White House Counsel's Office is one such office that is not subject to FOIA, because the Office's sole responsibility is to render legal advice to the President." The court rejects plaintiff's argument that defendant's predecessor's participation in a press conference in which he announced the release of and intent to safeguard the birth certificate for the President demonstrated "sufficient independent authority from the President to warrant agency treatment under FOIA." Rather, the court maintains that "[t]here is no reason to believe that the Office of the White House Counsel's involvement in the release and continued retention of the birth certificate is independent in any sense or outside the traditional auspices of the office."

Taitz v. Astrue, No. 11-402, 2011 U.S. Dist. LEXIS 119453 (D.D.C. Oct. 17,2011) (Lamberth,J.). Holding: Denying plaintiff's Rule 59(e) motion for reconsideration. At the outset, the court notes that "motions [for reconsideration brought under Federal Rule of Civil Procedure 59(e)] are 'disfavored' and are reserved for 'extraordinary circumstances'" where the moving "party must show that 'there has been an intervening change of controlling law, that new evidence is available, or that granting the motion is necessary to correct error or to prevent manifest injustice.'" The court rejects plaintiff's claim that President Obama's posting of his 2009 tax return constitutes "new evidence" that "undermines [his] privacy interest in Form SS-5 for the social security number at issue" in this case, given that the tax return was posted "well before plaintiff filed her complaint." The court also dismisses plaintiff's contention that "the Court erred in declining to consider as evidence her allegation that she used the Selective Service System's online registration verification service to confirm the President's use of" a given Social Security number. The court finds that "[e]ven if true, this evidence would not undermine the President's privacy interest in the Form SS-5, and does nothing to 'warrant a belief by a reasonable person that the alleged government impropriety,' namely the President's purportedly fraudulent use of the number, 'might have occurred.'" The court likewise finds that other documentation submitted by plaintiff does not support any evidence of wrongdoing. Additionally, the court rejects plaintiff's various claims alleging "clear error" and "manifest injustice," concluding that "[n]one of plaintiff's arguments provides this Court any doubt that reconsideration would be inappropriate."

Bryant v. CIA, No. 09-0940, 2011 U.S. Dist. LEXIS 118841 (D.D.C. Oct. 14,2011) (Sullivan,J.) (revised mem. op. to correct clerical error in Sept. 30, 2011 decision). Holding: Denying plaintiff's motion for reconsideration of the court's denial of his request for attorney's fees. The court denies plaintiff's motion for reconsideration which asked the court to reconsider its denial of his request for attorney's fees. Focusing on the entitlement factors for attorney's fees under FOIA, the court finds that "[t]he crucial defect in plaintiff's request for attorneys' fees is that plaintiff, in both the initial request and again in this motion for reconsideration, fails to provide the Court with any basis for determining that the specific documents he obtained as a consequence of this litigation confer some benefit to the public." The court further notes that where "'there was no public benefit to the litigation, an award of attorneys' fees and costs is unwarranted.'" As such, the court concludes that "[e]ven assuming that the remaining factors – which evaluate whether plaintiff seeks to gain a commercial or personal benefit from the requested materials and whether the agency had a reasonable basis for not disclosing the material – would otherwise weigh in favor of an award of attorneys' fees, such a determination would not overcome the Court's conclusion here." Additionally, the court rejects plaintiff's claim that he was entitled to fees based on the fact that the agency, after first denying him representative of the news media fee status, ultimately granted him that fee status. The court finds this "provide[d] merely a personal benefit to plaintiff."

Raher v. BOP, No. 09-CV-00526, 2011 WL 4832574 (D. Or. Oct. 12, 2011) (Stewart, Mag.). Holding: Denying plaintiff's motions for sanctions; and denying plaintiff's request for discovery. The court denies plaintiff's motion for sanctions under Federal Rule of Civil Procedure 11 brought against BOP and its counsel based on the agency's decision to withhold records under former "High" 2 and Exemption 4. With respect to sixteen pages out of 8,000 pages of information that were initially withheld under Exemption 2 and later produced pursuant to the court's order, the court concludes that "any failure by BOP to [segregate and] disclose these few pages [initially] is nothing more than inadvertent and not sanctionable under Rule 11." Similarly, the court "declines to impose a Rule 11 sanction against BOP or its counsel" for its decision to withhold pricing information under Exemption 4 that was later found to exist in the public domain. The court determines that "there is no basis to conclude that BOP had any reason to know" that a state agency had made this information publicly available until it was brought to its attention by other parties to this action. Additionally, the court rejects Rule 11 sanctions on the basis that "BOP took affirmative steps to prevent discovery that [plaintiff] believes would have helped him refute misleading allegations." Rather, the court holds that "[g]iven [the] high bar to obtaining discovery in FOIA cases, BOP reasonably objected to [plaintiff's] motion to compel discovery and prevailed" and, accordingly, plaintiff failed to show "any unnecessary delay to justify Rule 11 sanctions caused by BOP opposing his discovery request." Moreover, contrary to plaintiff's arguments, the court finds that it "has no basis to find that BOP and its counsel acted unreasonably by not reviewing every document at issue." Rather, the court concludes that "performing a representative sampling is an inherently reasonable method of reviewing documents not only by the court, but also by BOP, its employees and counsel." The court also denies plaintiff's Rule 56(h) motion for sanctions against BOP and the defendant-intervenor on the basis that their declarations "were submitted in bad faith." The court declines to "impute knowledge" to defendants of the public availability of the withheld pricing information and finds no evidence that any of the parties willfully misled the court. The court also denies plaintiff's motion for sanctions on the basis of bad faith brought against BOP, the defendant-intervenor, and their counsel under 28 U.S.C. §1927. Based on the foregoing, the court also declines to sanction the defendants based on its "inherent authority," noting that "the requisite bad faith to impose sanction is absent."

Raher v. BOP, No. 09-CV-00526, 2011 WL 4832574 (D. Or. Oct. 12, 2011) (Stewart, Mag.). Holding: Denying plaintiff's motions for sanctions; and denying plaintiff's request for discovery. The court denies plaintiff's request for "discovery to show that sanctions are appropriate," and, specifically, to depose defendants' declarants. The court notes that it "is not persuaded discovery is necessary to ferret out any alleged wrongdoing."

Hajro v. U.S. Citizenship & Immigration Servs., No. 08-1350, 2011 U.S. Dist. LEXIS 117964 (N.D. Cal. Oct. 12, 2011) (Grewal,Mag.). Holding: Dismissing FOIA claims brought against individual defendants; holding that party who did not submit FOIA request at issue has standing to assert a "pattern or practice" claim under FOIA; granting declaratory relief that defendant engaged in pattern or practice of failing to abide by FOIA; granting plaintiffs' request for injunctive relief; concluding that defendant is required to release certain non-exempt information previously withheld pursuant to Exemption 5; concluding defendant's FOIA processing policy violates a previous settlement agreement as well as the terms of the Administrative Procedure Act (APA) and the FOIA; dismissing a claim brought under APA; and granting partial summary judgment to defendants on plaintiffs' equal protection claims. The court awards summary judgment to plaintiffs on the basis that they have "establish[ed] a pattern or practice of FOIA violations" by USCIS's actions in repeatedly exceeding the twenty-day response time for requests. The court finds that "[d]efendants have not offered evidence to the contrary, pointed out inconsistencies in the record that would suggest a genuine issue of fact for trial, or come forward with even assertions that USCIS is in compliance with the timing requirements of FOIA." With respect to plaintiffs' request for a permanent injunction, the court notes that such relief is available "in order to remedy a pattern and practice of FOIA violations by an agency where there is 'a probability that alleged illegal conduct will recur in the future.'" Here, the court finds that injunctive relief is warranted based on the "repeated occurrence of the delays and lack of any indication by Defendants of efforts to cease such violations in the future," "the history of past violations by USCIS and its predecessor agency," and the fact that "the effect on the public of disclosure or nondisclosure is substantial where the information sought is not available through any other means." Based on these findings, the court grants plaintiffs' request for injunctive relief and "require[es] USCIS to: 1) provide a copy of the requestor's file within the twenty-day time limit mandated by 5 U.S.C. §552(a)(6)(A); and 2) give the written notice mandated by 5 U.S.C. §552 (a)(6)(B) if an extension of time is needed due to 'unusual circumstances.'"

ACLU v. DOD, No. 04 Civ. 4151, 2011 U.S. Dist. LEXIS 115171 (S.D.N.Y. Oct. 5, 2011) (Hellerstein,J.). Holding: Denying plaintiffs' motion to hold the CIA in civil contempt. The court denies plaintiffs' motion for civil contempt, concluding that such a finding "at this point would serve no beneficial purpose." The court finds that "[t]he CIA's failure to identify or produce the videotapes in response to plaintiffs' FOIA request and [the court's] repeated orders, and the destruction of the videotapes, has been remedied." The court further notes that although the requested videotapes have been destroyed, "the CIA has remedied that failure by a massive production of . . . records [that] describe the contents of the videotapes, corresponding in time to their creation, and records that relate to the videotapes' destruction, in particular, the persons and reasons behind the destruction, corresponding in time to both the videotapes' creation and destruction." Moreover, the court observes that "[p]laintiffs have had a full and fair opportunity to litigate whether those records, or any of them, are exempt from disclosure under FOIA Exemption 1or 3 or must be produced" and further notes that its rulings on those points are currently on appeal. Additionally, the court finds that "[t]he public gains an additional benefit from the remedial relief put in place by the CIA – improved protocols for the retention of records potentially relevant to an investigation or a judicial, congressional, or administrative proceeding." And, "contrary to plaintiff's view, [the court opines that] the CIA's new protocols would have a remedial and deterrent effect should a CIA official think to destroy documents." However, the court notes that the parties agree that it "ha[s] the inherent authority to impose an award of attorneys' fees and costs, as a matter of fairness and equity, without finding the CIA in contempt," and finds that "[t]he parties should endeavor to settle between them the amounts that fairly are due."

Kowak v. U.S. Forest Serv., No. 11-95, 2011 U.S. Dist. LEXIS 114230 (D. Mont. Oct. 4, 2011) (Molloy, J.). Holding: Denying plaintiff's request for in camera inspection; but ordering defendants to submit a Vaughn Index. The court denies plaintiff's request for in camera inspection, noting that "[w]hile the Court has discretion to order an in camera inspection, it will not do so here, where the agency has not yet filed a Vaughn Index." However, the court orders defendants to produce a Vaughn Index.

Earle v. Holder, No. 10-0422, 2011 WL 4526039 (D.D.C. Sept. 30, 2011) (Friedman,J.). Holding: Granting defendant's motion to dismiss FOIA claims based on lack of subject matter jurisdiction. The court dismisses plaintiff's FOIA claims on the basis that he has failed to establish jurisdiction because he "has not alleged that he requested the disclosure of records and was denied." Rather, the court observes that "[plaintiff] challenges the accuracy of the agency records, which is the exclusive province of the Privacy Act."

Families for Freedom v. CBP, No. 10 Civ. 2785, 2011 U.S. Dist. LEXIS 113143 (S.D.N.Y. Sept. 30, 2011) (Scheindlin, J.). Holding: Withdrawing the court's previous order directing CBP to produce certain records that the court now deems unresponsive, but ordering CBP to produce certain responsive records, asserting any applicable exemptions, by a specific date. Under the provisions of the court's local rules, motions for reconsideration "are committed 'to the sound discretion of the district court.'" Despite plaintiffs' objections, the court finds that CBP's motion for reconsideration is proper in this instance, because "while defendants have had ample time to present the arguments they now make, it is less clear that they have had the opportunity to do so." Therefore, "in the interests of both correcting material error and preventing clear injustice, [the court finds] it is appropriate to consider defendants' arguments, even if they were never fully presented prior to the motion for reconsideration." Accordingly, the court concludes that it "will now consider the responsiveness of each set of disputed documents, based on [its] in camera review, as well as the arguments of counsel."

Earle v. Holder, No. 10-0422, 2011 WL 4500827 (D.D.C. Sept. 28, 2011) (Friedman,J.). Holding: Granting defendant's motion to dismiss, under Rule 12(b)(6), plaintiff's FOIA and Privacy Act claims brought against two District of Columbia employees. The court dismisses plaintiff's FOIA and Privacy Act claims brought against two individuals employed by the District of Columbia. The court notes that "[b]oth the FOIA and Privacy Act concern the obligations of federal agencies." Moreover, "individuals are not subject to suit under either the FOIA or the Privacy Act."

Muttitt v. U.S. Cent. Command, No. 10-00202, 2011 WL 4478320 (D.D.C. Sept. 28, 2011) (Howell, J.). Holding: Dismissing plaintiff's APA claim; and concluding his claim under the FOIA's Section552(a)(7)(B), requiring agencies to provide time estimates for completion of FOIA requests, can proceed against State, but dismissing a similar claim brought against Treasury. The court dismisses plaintiff's claims that the Department of State and Department of the Treasury violated the APA by failing to provide him with estimated dates of completion for his FOIA requests. Although the court observes that, in certain cases disclosure of the requested record alone may not provide a sufficient remedy, here, the FOIA offers "an adequate remedy [which] include[s] the possibility of equitable relief directing a habitually noncompliant agency to comply with [the FOIA's provision requiring agencies to provide time estimates for the completion of FOIA requests,] §552(a)(7)(B)." Citing the D.C. Circuit's decision in Payne Enterprises Inc. v. United States, the court finds that "[c]ourts have interpreted Payne as authorizing declaratory or injunctive relief under FOIA even when a plaintiff's specific claim regarding a FOIA request is moot because the requested documents have been released." Similar to Payne, plaintiff "seeks declaratory and injunctive relief" – here, on the basis that defendants "allegedly violated FOIA by refusing to provide him with estimated dates of completion of his FOIA requests." The court finds that, "assuming . . . plaintiff has stated a claim for relief based on an impermissible agency pattern or practice of violating FOIA," then the "FOIA, as interpreted by Payne, provides plaintiff with an opportunity for the declaratory and injunctive relief he is seeking, [and therefore] relief under the APA is not available."

The court then goes on to find that plaintiff has "stated a plausible claim for relief against State for a pattern and practice of violating FOIA," but has not done so with respect to the Department of the Treasury. The court finds that plaintiff's allegations that State failed to respond to his inquires for estimated completion dates "for five separate FOIA requests" "are sufficiently detailed to state a pattern or practice claim." The court further notes that "[t]hese are not the type of 'naked assertions devoid of further factual enhancement' that require dismissal under [Ashcroft v.] Iqbal." In comparison, the court finds that "[u]nlike the multiple failures to provide time estimates alleged against State, the plaintiff alleges that Treasury failed to provide him with an estimated completion date only one time in relation to a single FOIA request" and "concludes that an allegation of a single FOIA violation is insufficient as a matter of law to state a claim for relief based on a policy, pattern, or practice of violating FOIA."

Fla. Med. Assoc., Inc. v. Dep't of Health, Educ. & Welfare, No. 78-CV-178, 2011 WL 4459387 (M.D. Fla. Sept. 26, 2011) (Howard, J.). Holding: Adopting, in part, magistrate's report and recommendation, granting Dow Jones' motion to reopen case, and granting Dow Jones' and RTMD's motions to intervene for the limited purpose of vacating or modifying the Final Declaratory Judgment and Permanent Injunction entered in this case on October 22, 1979; but disallowing all other cross-claims raised by the intervenors. At the outset, the court notes that "'[a] party seeking to intervene as of right under Rule 24(a)(2) must show that: (1) his application to intervene is timely; (2) he has an interest relating to the property or transaction which is the subject of this action; (3) he is so situated that disposition of the action, as a practical matter, may impede or impair his ability to protect that interest; and (4) his interest is represented inadequately by the existing parties to the suit.'" As to the first factor, the court finds that "[n]o party has challenged the timeliness of the Motions to Intervene." Moreover, in light of recent decisions in FOIA cases challenging HHS's withholding of certain Medicare data subject to the injunction issued in this case, the court finds that "although the 1979 FMA Injunction has been in existence for 32 years, the proposed intervenors have established that they have not been dilatory in seeking to intervene for the purpose of seeking vacatur or modification of the injunction in order to protect their interests." However, "the Court declines to adopt the Magistrate Judge's specific findings and observations regarding the 'additional circumstances militating in favor of determining that the applications are timely'" because those determinations "are beyond the scope of the issues presented by the Motions to Intervene and are not sufficiently supported, at this time, by evidence in the record." With regard to the second factor, the court concludes that Dow Jones and RTMD "have a sufficient interest in challenging the 1979 FMA Injunction to support their intervention as of right" because these parties "assert they have an interest obtaining the protected government records in conjunction with the operation of their business and/or disseminating the information to the public" and that "the 1979 FMA Injunction interferes with these interests." As to the third factor, the court finds that "Dow Jones and RTMD have both established that their interests are affected by the 1979 FMA Injunction" and "that their interests continue today, and that the Injunction, as a practical matter, impairs their interests." Lastly, the court finds that the proposed intervenors have also satisfied the fourth factor concerning whether the existing parties to the lawsuit adequately represented their interests. Here, the court observes that "the proposed intervenors' interest in obtaining access to Medicare records differs markedly from the interests of [the current] Plaintiffs [to the lawsuit which] represent[] Medicare providers, [as well as the interests of] . . . Defendant HHS, who opposes the proposed intervenors' cross-claims to obtain access to specified documents." In addition, the court also notes that "neither Plaintiffs nor Defendants have sought or are seeking to modify or vacate the 1979 FMA Injunction." Accordingly, the court holds that the Dow Jones and RTMD have satisfied their burden under Rule24(a)(2) to intervene as of right in this matter.

Sensor Sys. Support, Inc. v. FAA, No. 10-262, 2011 U.S. Dist. LEXIS 108142 (D.N.H. Sept. 16, 2011) (Barbadoro, J.). Holding: Granting FAA's motion to dismiss or, in the alternative, for summary judgment, but delaying entry of final judgment twenty days in order to allow plaintiff to file an amended complaint to set forth a claim for relief. The court determines that plaintiff "has made a conclusory allegation in the complaint that 'the FAA has wrongfully withheld agency records'" premised on the FAA's failure to act on an administrative appeal of its initial determination within 20-days as set forth by the FOIA. The court finds that "[t]he FOIA does not . . . authorize a court to review an agency's failure to act on an appeal" and, as such, plaintiff's "complaint does not plead sufficient facts to support a claim for relief under [the FOIA]." Accordingly, the court grants defendant's motion to dismiss or, in the alternative, for summary judgment, but "delay[s] entry of final judgment for 20 days to give [plaintiff] an opportunity to file an amended complaint setting forth a claim for relief under §552(a)(4)(B)."

Brancheau v. Sec. of Labor, No. 11-1416, 2011 U.S. Dist. LEXIS 104674 (M.D. Fla. Sept. 15, 2011) (Presnell, J.). Holding: Denying plaintiff motion for a preliminary injunction brought under the FOIA seeking to prevent public disclosure of material. The court denies plaintiff's request for injunctive relief as brought under the FOIA, noting that "the Freedom of Information Act does not provide a right of action to enjoin disclosure."

Ray v. BOP, No. 06-1673, 2011 WL 4015656 (D.D.C. Sept. 12, 2011) (Roberts, J.). Holding: Granting BOP's motion for summary judgment on the basis that it conducted an adequate search; and denying plaintiff's motion for leave to file additional "pleadings." The court dismisses plaintiff's APA claim that BOP "systematically delays processing prisoners' FOIA requests." The court concludes that "[b]ecause the FOIA provides an adequate remedy for agency delay – which [plaintiff] utilized in bringing this case – a claim under the APA is not maintainable." Moreover, the court notes that BOP's 98 percent processing rate, along with its "admitted mishandling" of plaintiff's request due to a processing error, "belie a sweeping claim predicated on a broken system."

Elec. Priv. Info. Ctr. v. DHS, No. 09-2084, 2011 WL 4014308 (D.D.C. Sept. 12, 2011) (Urbina,J.). Holding: Denying plaintiff's motion for relief upon reconsideration brought under Federal Rules of Civil Procedure 54(b), 60(b)(1), and 60(b)(6); and granting, in part, and denying, in part, plaintiff's award for attorney's fees. The court denies plaintiff's Rule54(b), 60(b)(1), and 60(b)(6) motions for relief upon reconsideration of the court's earlier order granting summary judgment to DHS with respect to records withheld under Exemption 2 on the basis that the Supreme Court's decision in Milner v. Department of the Navy represents "an intervening change in the controlling law for its case." The court rejects plaintiff's claim that "Rule 54(b) is an appropriate vehicle for requesting such reconsideration because, in light of the pending motion for statutory attorney's fees, the court's Order should not be considered a 'final judgment,' but rather an interlocutory decision." The court notes that "[i]f a court has resolved the merits of a case through a final order and only a statutory request for attorney's fees remains, the merits of the case are no longer pending for appeal purposes and the judgment is considered final and immediately appealable." Here, "[b]ecause the court's January 12, 2011 Order constitutes a final judgment as opposed to an interlocutory order, the plaintiff's motion seeking relief upon reconsideration of that Order is not properly brought under Rule 54(b), which can only be used to seek reconsideration of interlocutory orders." As for plaintiff's Rule 60(b)(1) motion, the court finds that such a motion, when "brought due to a change in controlling law[,] is timely only if either the movant has already filed an appeal or if the movant files its motion for relief within the appeal period." In this case, "plaintiff, despite knowing that Milner had been granted certiorari by the Supreme Court, . . . did not file its motion for relief upon reconsideration until ten days after the appeal period closed." The court concludes that "allowing the plaintiff to artificially extend its appeal time period in this fashion would embrace an interpretation of the reasonable time limits for a Rule 60(b)(1) motion that would undermine the finality of the court's judgment and promote uncertainty." Lastly, the court "determines that the plaintiff[ ] may not seek relief upon reconsideration under Rule 60(b)(6)," noting that "the change in law presented by Milner is not considered an 'extraordinary circumstance' under [that] Rule."

Smith v. Cnty. of Alameda, No. 11-2651, 2011 U.S. Dist. LEXIS 101607 (N.D. Cal. Sept. 8, 2011) (Davilla,J.). Holding: Dismissing plaintiff's FOIA claim for failure to state a claim upon which relief may be granted. Noting that FOIA "does not include state agencies," the court finds that "Plaintiff fails to state a cause of action under the FOIA against the County of Alameda, or departments under its authority, as a state agency."

Pinson v. Lappin, No. 10-1844, 2011 WL 3806160 (D.D.C. Aug. 30, 2011) (Howell,J.). Holding: Granting defendant's motion for summary judgment on the basis of its withholdings under Exemption 6; denying plaintiff's claim for declaratory relief; and granting plaintiff's motion for an award of costs. The court denies plaintiff's claim for declaratory relief, noting that "'[o]nce all requested records are surrendered, federal courts have no further statutory function to perform' with respect to the particular records that were requested." Litigation costs: The court grants plaintiff's motion for an award of costs incurred in litigating the instant action, consisting of his postage, copying fees, and partial court filing fee. First, the court finds that "[p]laintiff is eligible for an award of costs because the BOP released the requested records after the filing of and in response to plaintiff's civil complaint." Next, the court considers the four entitlement factors. With respect to the first factor, i.e., "'the public benefit derived from the case,'" the court finds that "[r]elease of lists of names and job titles of BOP staff does not obviously accomplish" either of plaintiff's stated goals of demonstrating gender discrimination or corruption in BOP's procurement process. However, the court notes that "it does not appear that an award of fees, or costs in this instance 'would merely subsidize a matter of [plaintiff's] private concern' or curiosity." As to the second and third factors – the commercial benefit and the nature of plaintiff's interest in the records, "[t]he Court accepts plaintiff's representations that he derives no commercial benefit and that his interest is in writing articles based in part on information obtained from the BOP." With regard to the final factor, which looks to the reasonableness of BOP's withholdings, the court finds that "BOP's response to plaintiff was not reasonable under the circumstances" where it "initially denied plaintiff's FOIA request based upon a mistaken belief that there 'was no method to query a BOP data system,'" only released the information subsequent to the filing of the instant lawsuit, and "relied on two FOIA exemptions to redact information, even though plaintiff had not even requested the redacted information so it was not responsive in the first place." Accordingly, the court determines that "[p]laintiff is entitled to an award equal to his monetary expenditures related to this case to date."

Navistar, Inc. v. EPA, No. 11-449, 2011 U.S. Dist. LEXIS 95128 (D.D.C. Aug. 25, 2011) (Wilkins, J.). Holding: Denying plaintiff's motions for a preliminary injunction seeking to enjoin EPA from withholding records in response to its FOIA requests and for an order directing immediate disclosure of the records at issue. The court denies plaintiff's motion seeking a preliminary injunction to enjoin EPA from continuing to withhold records in response to its FOIA requests as well as plaintiff's request for an order directing EPA to immediately produce responsive non-exempt records. The court considers four factor in deciding whether to grant what has been termed by the Supreme Court as "'an extraordinary and drastic remedy:''' "(1) irreparable harm to the movant, (2) the movant's showing of a substantial likelihood of success on the merits, (3) substantial harm to the nonmovant, and (4) public interest." In terms of the first factor, the court finds that plaintiff fails to substantiate its claim that "it stands to suffer irreparable harm to its competitive advantage because its competitors are able to avoid the research, development, and production costs associated with ensuring that their products comply with the EPA standards" and that it "risks losing sales to competitors." For one, the court finds that "the economic losses alleged by [plaintiff] do not constitute the type of irreparable competitive injury typically found by courts to support the entry of a preliminary injunction." Moreover, the court finds that plaintiff "has not demonstrated that a preliminary injunction will remedy its alleged injuries" because it "has not shown how the records it seeks will help it earn more profits or avoid losing sales to its competitors." Accordingly, the court concludes that the first factor "weighs heavily in favor of denying the motion for a preliminary injunction."

As to the second factor, the court finds that "even if the EPA failed to respond to [plaintiff's] requests by the statutory deadline, it only entitles [plaintiff] to constructive exhaustion of its administrative remedies, not immediate production of the requested documents." The court finds that "under no reasonable reading of the statute is [plaintiff] entitled to the immediate production that it seeks here." With regard to the third factor, "in light of the significant hardship that the EPA would suffer if forced to make an immediate production, and because [plaintiff] has alleged no additional harm if the EPA were allowed to produce the documents in the usual course, the Court finds that this factor weighs against [plaintiff]." Lastly, the court determines that "[t]he public interest would not be served by the Court's entry of a preliminary injunction" because the "likelihood of success on the merits weights heavily against [plaintiff]" and "there is no allegation that the status quo is being threatened because there is no imminent action by the EPA with respect to the documents requested in [plaintiff's] FOIA requests."

Carroll v. Dep't of the Army, No. 11-22, 2011 WL 3665336 (W.D. Va. Aug. 22, 2011) (Kiser,J.). Holding: Granting defendant's motion to dismiss based on plaintiff's failure to state a claim upon which relief may be granted. The court dismisses plaintiff's case on the basis that he failed to establish jurisdiction. In an earlier decision, the U.S. District Court for the Eastern District of Virginia concluded that plaintiff did not establish jurisdiction in his FOIA action because he did not identify the requested records, the dates of his request, the agency's grounds for denial, and "failed to allege that the records he sought were located anywhere in the Eastern District of Virginia." Similarly, the court holds that plaintiff's instant complaint fails "to overcome the deficiencies that the Eastern District observed" because it does not describe "the nature of the documents sought, the grounds on which his requests were denied, or whether the documents are in the Western District of Virginia."

Pickering-George v. Cuomo, No. 11-741, 2011 WL 3652211 (N.D.N.Y. Aug. 19, 2011) (D'Agostino, J.) (adopting magistrate's recommendation). Holding: Granting plaintiff's application to proceed in forma pauperis; and ordering plaintiff to file an amended complaint within thirty days. The court adopts the magistrate's recommendation and order granting plaintiff leave to proceed in forma pauperis on his FOIA claim. The court also concludes that although the magistrate "correctly found that plaintiff's complaint fails to state a claim," "in light of plaintiff's pro se status, [he] will be provided an opportunity to amend his complaint to provide additional factual support of his claims."

Marshall v. FBI, No. 10-871, 2011 WL 3497801 (D.D.C. Aug. 10, 2011) (Collyer, J.). Holding: Granting the FBI's motion for summary judgment on the basis that it conducted an adequate search and properly withheld third party information pursuant to Exemption 7(C). The court grants plaintiff's unopposed motion that it take judicial notice of an order in plaintiff's underlying criminal case whereby the Eastern District of Louisiana noted that he received copies of DNA reports related to him. However, the court finds that this "Order is not relevant to this proceeding because disclosure obligations under FOIA and disclosure obligations in criminal proceedings are separate matters, governed by different standards." "Accordingly, the Order in the criminal case against [plaintiff] noting that 'DNA records' were released to [him] does not mandate the release of documents in this case." The court observes that "[t]his case is governed by FOIA law and not [Federal Rule of Criminal Procedure] 16, Brady, or other rules of criminal procedure."

Bensman v. Nat'l Park Serv., No. 10-1910, 2011 WL 3489507 (D.D.C. Aug. 10, 2011) (Boasberg, J.). Holding: Concluding that because defendant exceeded the statutory time limit for responding to a FOIA request, it cannot assess search fees. The court notes that under the FOIA in reviewing agency determinations on fee waiver requests, the court's review is de novo, but is limited to the administrative record.

McGehee v. DOJ, No. 01-1872, 2011 WL 3375532 (D.D.C. Aug. 5, 2011) (Kessler,J.). Holding: Granting, in part, defendant's motion for summary judgment with respect to the adequacy of its search and its withholdings pursuant to Exemptions 3, 7(C), 7(D), and 7(E); and denying, in part, defendant's motion with respect to the adequacy of its Vaughn Index. The court notes that the FBI has advised that it will file supplemental submissions for records that it previously withheld under "high" 2, which it will no longer defend, as well as a revised declaration for its withholdings made under Exemption 1, and documents protected by a sealing order. The court therefore does not address those exemptions now, but rules that it will "not consider new exemptions raised by Defendant [for the re-processed material] at this late point in the litigation."

Niblock v. FBI, No. 09-1346 (D.D.C. July 29, 2011) (Boasberg,J.). Holding: Granting FBI's motion for summary judgment as conceded. The court grants the FBI's motion for summary judgment as conceded where the court advised plaintiff of his obligation to file an opposition and warned him of the consequence of his failure to do so.

Carlson v. DOJ, No. 10-5149, 2011 U.S. Dist. LEXIS 81740 (S.D.N.Y. July 21, 2011) (Fox, Mag.). Holding: Denying plaintiff's application for appointment of counsel. Appointment of counsel: The court denies plaintiff's application for appointment of counsel in connection with the instant FOIA action. The court holds that "[t]he key factual and legal issues are not complex, and this case does not present a need for extensive factual investigation." Moreover, the court finds that plaintiff's contention that "he believes 'the high profile nature of the case' and the need for 'assistance [of counsel in] locating witnesses and help [in] encouraging them to sign affidavits' justify his request, . . . do not constitute special reasons why appointment of counsel would be more likely to lead to a just resolution of this case."

Thome v. FDA, No. 11-676, 2011 WL 3206910 (N.D. Cal. July 27, 2011) (Grewal, Mag.). Holding: Dismissing plaintiff's claims with prejudice due to his lack of standing to bring this action; but noting that a third party requester may pursue his FOIA claims in a separate lawsuit. The court dismisses plaintiff's FOIA claims with prejudice based on his lack of standing to bring the instant action. Here, the court finds that plaintiff "was not identified in any of the FOIA requests" submitted by a third party and that the requester did not indicate in the body of any of the requests "that he made the request on behalf of the class [action lawsuit] plaintiffs or [plaintiff in the instant action] specifically." Accordingly, the court finds that the third party "is the only person who has made a formal FOIA request within the meaning of the FOIA statute." The court also denies plaintiff leave to amend his complaint to add the third party requester as a plaintiff. The court concludes that "[n]either [Federal Rule of Civil Procedure] 15, Rule 17, nor Rule 21 provide a mechanism by which [plaintiff] can remedy his lack of standing to file the original complaint or to add [the third party requester to his first amended complaint]." As such, the court determines that "[p]laintiffs have failed to meet their burden to show that jurisdiction is proper." The court notes, however, that the third party requester "may pursue his claims under FOIA in a new lawsuit."

Shehadeh v. FBI, No. 10-3306, 2011 WL 2909202 (C.D. Ill. July 18, 2011) (Cudmore, Mag.). Holding: Denying plaintiff's motion for appointment of counsel, his motion for a Vaughn Index, and his motions for subpoenas. In considering whether to grant a request for appointment of counsel in a civil proceeding, the court notes that it must determine "(1) whether the indigent plaintiff has made a reasonable attempt to obtain counsel or has been effectively precluded from doing so; and, (2) whether the plaintiff appears competent to litigate the matter for himself." Here, the court denies plaintiff's request for counsel, concluding that he "is capable of litigating this case on his own." The court finds plaintiff "is an experienced pro se litigator" and his "filings in this case are well written, show a firm grasp of the issues, and an ability to communicate effectively in writing."

Shehadeh v. FBI, No. 10-3306, 2011 WL 2909202 (C.D. Ill. July 18, 2011) (Cudmore, Mag.). Holding: Denying plaintiff's motion for appointment of counsel, his motion for a Vaughn Index, and his motions for subpoenas. Noting that defendants may satisfy their burden to demonstrate that the records at issue were properly withheld in a number of ways, the court denies plaintiff's motion for a Vaughn Index as premature concluding that "[a]t this juncture, the Court cannot determine whether production or disclosure of a Vaughn index would be appropriate in this case."

Shehadeh v. FBI, No. 10-3306, 2011 WL 2909202 (C.D. Ill. July 18, 2011) (Cudmore, Mag.). Holding: Denying plaintiff's motion for appointment of counsel, his motion for a Vaughn Index, and his motions for subpoenas. The court denies plaintiff's motions for various subpoenas. With respect to subpoenas requesting the documents at issue and related records from third parties, the court finds that plaintiff "cannot use subpoenas or other discovery to disclose the substance of the withheld documents before the final decision in the case." Moreover, the other subpoenas "are overly broad and would impose undue burdens on third parties."

Brown v. FBI, No. 10-1292, 2011 WL 2516420 (D.D.C. June 24, 2011) (Lamberth,J.). Holding: Denying as futile plaintiff's motion for leave to amend for all FOIA claims, except one brought against the Tax Division of DOJ; denying plaintiff's motion for summary judgment on the basis that he has not demonstrated that he exhausted his administrative remedies; and denying FBI's motion to dismiss. The court denies as futile plaintiff's motion for leave to amend his complaint to add new FOIA claims, except for his request to the Tax Division of DOJ. The court finds that plaintiff "has not placed information into the record showing that [any of the other] agenc[ies] denied his request or that he appealed their denial, and he has therefore failed to allege administrative exhaustion." However, with respect to his claim against the DOJ's Tax Division, the court notes that plaintiff, in his reply, alleged that he filed an administrative appeal of the agency's denial. The court finds that plaintiff’s claims "would survive a motion to dismiss" and, accordingly, grants him leave to amend his complaint, but also "urges plaintiff to submit evidence clearly demonstrating exhaustion of his administrative remedies should defendant file for summary judgment."

Pugh v. FBI, No. 10-1016, 2011 WL 2474026 (D.D.C. June 23, 2011) (Wilkins,J.). Holding: Dismissing plaintiff's constitutional tort and Bivens claims; denying plaintiff's request for monetary damages; and concluding that the FBI properly invoked Exemption 7(C) Glomar to neither confirm nor deny the existence of records on the two informants. The court dismisses plaintiff's constitutional torts claim for lack of subject matter jurisdiction and his Bivens claim, related to the processing of his FOIA request, for failure to state a claim upon which relief may be granted. Additionally, the court denies plaintiff's request for compensatory damages in the amount of $7 million because "[m]onetary damages are not available under the FOIA."

Rojas-Vega v. Cejka, No. 09-2489, 2011 WL 2417130 (S.D. Cal. June 10, 2011) (Benitez,J.). Holding: Dismissing plaintiff's third amended complaint without leave to amend for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2). As an initial matter, the court notes that "[a] complaint filed by any person proceeding, or seeking to proceed, [in forma pauperis] under 28 U.S.C. § 1915(a) is subject to mandatory sua sponte review and dismissal if the complaint is frivolous or malicious, fails to state a claim upon which relief may granted, or seeks monetary relief from a defendant immune from suit." In accordance with this review, the court dismisses plaintiff's third amended complaint without leave to amend. The court concludes that in terms of plaintiff's FOIA claim his "conclusory allegations that an agency improperly withheld tapes and transcripts of state court proceedings is not sufficient." The court notes that "[f]ederal agencies are not caretakers of state court documents" and finds that "[p]laintiff provides no basis for an agency to maintain tapes and transcripts of Plaintiff's state court plea proceedings decades after those proceedings took place and years after the state court destroyed those records."

Pickard v. DOJ, No. 10-5253, 2011 WL 2199297 (N.D. Cal. June 7, 2011) (Beeler, Mag.). Holding: Granting government's motion to transfer the case based on improper venue; and denying plaintiff's request for leave to amend his complaint without prejudice with leave to seek to amend in the district court to which the action was transferred. "Given the court's ruling that venue is not proper here, the court denies [plaintiff] leave to amend without prejudice to his seeking leave in the Eastern District of Virginia."

Daley v. Ct. Rep. Records, No. 10-313, 2011 WL 2110304 (D. Del. May 26, 2011) (Stark,J.). Holding: Dismissing complaint of pro se prisoner as malicious pursuant to 28 U.S.C. §1915(e)(2)(B). The court dismisses the complaint of a pro se plaintiff pursuant to 28 U.S.C. §1915(e)(2)(B). The court finds that plaintiff's complaint is a "malicious filing" because it duplicates a previously litigated action, which the Third Circuit concluded was time-barred. The court notes that the instant complaint "realleges a previously litigated issue seeking discovery, changing only the legal theory, which is now to assert a claim under the Freedom of Information Act" and further comments that "[n]o facts are provided as to how, when, or where [plaintiff] allegedly sought discovery from the named defendants." Additionally, the court determines that the claims alleged in the complaint "do not support any of the conditions required for [the] mandamus relief" requested by plaintiff.

Bundu v. S.C. FBI, No. 10-2004, 2011 WL 2066545 (D.S.C. May 26, 2011) (Childs, J.). Holding: Adopting magistrate's recommendation and dismissing plaintiff's complaint without prejudice. The court dismisses plaintiff's complaint on the basis that he "has failed to state a claim upon which relief can be granted as to the alleged violations of [the FOIA]." The court finds that plaintiff failed to plead sufficient facts to support his claim where he "merely asserts that he used the Freedom of Information Act to request information, first in 2006 and again in 2009, and that his request was denied on both occasions." Notably, "[h]e fails to explain, for example, what information he sought, the person or agency from whom he requested it, that person's or agency's basis for denying his requests, or what specific damages he suffered as a result of the denials."

McLeod v. DOJ, No. 11-958, 2011 WL 2112477 (D.D.C. May 24, 2011) (Huvelle, J.). Holding: Granting petitioner's in forma pauperis application, but dismissing petition pursuant to 28 U.S.C. §1915A. As a preliminary matter, the court notes that it "may not entertain an action for such extraordinary remedies as a writ mandamus or a declaratory judgment if another adequate remedy is available." The court notes that here the FOIA "is the proper vehicle for obtaining records from United States agencies." Accordingly, "[b]ecause there is no indication from the petition that petitioner has made a FOIA request to DOJ or EOUSA for the records he seeks, the Court finds that he has stated no claim upon which relief may be granted." The court therefore dismisses petitioner's mandamus petition pursuant to 28 U.S.C. §1915A.

Espino v. DOJ, No. 11-0909, 2011 WL 1841918 (D.D.C. May 16, 2011) (Huvelle, J.). Holding: Granting pro se prisoner's application to proceed in forma pauperis; and dismissing the case because complaint fails to meet the minimal pleading requirements of Federal Rule of Civil Procedure 8(a). The court dismisses plaintiff's complaint because it fails to meet the requirements of Federal Rule of Civil Procedure 8(a) which necessitate "'(1) a short and plain statement of the grounds for the court's jurisdiction [and] (2) a short and plain statement of the claim showing that the pleader is entitled to relief." Here, "[t]he instant complaint neither references a FOIA request number nor contains any other information, e.g, a copy of the actual request allegedly submitted to DOJ, from which a FOIA request may be reasonably identified." Accordingly, the court holds that the complaint "fails to provide adequate notice of a claim and grounds for federal court jurisdiction."

Burgess v. FBI, No. 10-628, 2010 WL 4818391 (D. Nev. Nov. 16, 2010) (McKibben, J.). The court dismisses plaintiff's "'motion to disclose F.O.I.A.'" with prejudice as frivolous on the grounds that plaintiff failed to reasonably describe the records requested, his "allegations are fantastic, delusional and irrational," and he "has not demonstrated that he exhausted his administrative remedies for a FOIA request prior to seeking judicial review."

Ruston v. U.S. Secret Serv., No. 10-0869, 2010 WL 4365541 (D.D.C. Nov. 4, 2010) (Friedman, J.). The court finds that, based on plaintiff's history of filing multiple vexatious and frivolous lawsuits in this district and other jurisdictions, "he has abused the privilege to proceed [in forma pauperis (IFP)]." Accordingly, the court "(1) grant[s] defendant's motion to vacate the order granting leave to proceed IFP, (2) revoke[s] plaintiff's IFP status in all of his pending civil actions, and (3) enjoin[s] plaintiff from proceeding IFP in this Court in any future civil actions."

Altston v. FBI, No. 09-1397, 2010 WL 4313686 (D.D.C. Nov. 2, 2010) (Urbina, J.). The court finds that "plaintiff has three strikes under [the Prison Litigation Reform Act], and because the plaintiff does not allege that he is in any imminent danger related to his [instant] FOIA action, the court strips him of his IFP status."

Pohl v. EPA, No. 09-1480, 2010 WL 4388071 (W.D. Pa. Oct. 29, 2010) (Standish, J.). The court rejects defendants' assertions that two counts of plaintiff's amended complaint alleging violations of the Administrative Procedure Act (APA) should be dismissed for lack of subject matter jurisdiction because the "FOIA provides an adequate remedy for the alleged violations." Rather, the court determines that the "FOIA itself . . . cannot provide an adequate remedy for the agency's failure to" obtain study data under the control of private grant recipients in response to plaintiff's FOIA request. However, the court finds that plaintiff's claims regarding an agency's decision to transfer her request to another agency as well as allegations of undue delay in responding to her administrative appeal are properly reviewed under the FOIA and dismisses that count to the extent that it "seeks relief through the APA." Additionally, the court dismisses plaintiff's mandamus claim because "the relief Plaintiff seeks through a writ of mandamus duplicates that available under the APA and/or FOIA."

Abou-Hussein v. Mabus, No. 09-1988, 2010 US Dist. LEXIS 114830 (D.S.C. Oct. 28. 2010) (Gergel, J.). The court adopts the magistrate's report and recommendation and grants defendant's motion for summary judgment where it finds no error of law and "[a]ll of Plaintiff's 'objections' [to the magistrate's findings] merely restate word for word or rehash the same arguments presented in his filings related to summary judgment."

Comer v. FBI, No. 09-2455, 2010 US Dist. LEXIS 111558 (D.D.C. Oct. 20, 2010) (Urbina, J.). The court dismisses plaintiff's FOIA action due to his failure to prosecute the case and to respond to the court's order to show cause. The court notes that plaintiff failed to notify the court of his change of address as required by the Local Civil Rules and did not "respond[] to any of the defendants' pending dispositive motions, notwithstanding a court order in each instance directing [him] to file an opposition by a date certain and advising him that his failure to respond could result in the motions being granted as conceded."

Voinche v. Obama, No. 09-1081, 2010 WL 3833736 (D.D.C. Sept. 29, 2010) (Sullivan, J.). The court grants defendants' motion to dismiss plaintiff's FOIA claims against the Executive Office of the President (EOP) and the Office of Administration of the EOP "because neither entity is an agency subject to the FOIA" and against former President Bush and President Obama "because 'no FOIA claim may be asserted against individual federal officials.'"

Brown v. FBI, No. 07-1931, 2010 WL 3833537 (D.D.C. Sept. 29, 2010) (Roberts, J.). Litigation considerations/amending complaint: The court denies plaintiff's request for leave to amend his complaint to include a new FOIA request where "he provides no explanation for why he waited more than two years to try to amend his complaint." The court observes that "[a]llowing [plaintiff] to amend his complaint to add an additional FOIA claim at this stage in the litigation – after his other FOIA claims were dismissed and summary judgment entered against him – would allow him to circumvent the effect of the order that terminated this action." The court also denies plaintiff's request to add a non-FOIA claim because "granting him leave to amend would prejudice the defendants by denying them the litigative repose to which they are entitled from entry of a final judgment in their favor following a fully contested case" and "by expanding the scope of the litigation . . . beyond its initial character as solely a FOIA action."

Jarvik v. CIA, No. 08-1911, 2010 WL 3832557 (D.D.C. Sept. 28, 2010) (Urbina, J.). Litigation considerations/In camera declaration: The court grants CIA leave to file an in camera Vaughn declaration where it "cannot meaningfully review the defendant's actions based on the current public record . . . and because the court is persuaded that the CIA cannot provide further information on the public record due to the reasonable chance that such information may cause harm to the national security and the CIA's functions."

Mullen v. U.S. Army Crim. Investigation Command, No. 10-262, 2010 U.S. Dist. LEXIS 100870 (E.D. Va. Sept. 23, 2010) (Cacheris, J.). Litigation considerations/stay of proceedings: The court grants defendant's request to extend a stay until it can produce a portion of plaintiff's request referred to as the "Field Files." The court rejects plaintiff's objection that extending the stay "will prevent it from challenging the Defendant's redactions of [other requested m]aterials until the stay is lifted." The court finds that "Plaintiff originally requested all three sets of materials together; then, only once informed of the cost of production, asked that the [other m]aterials be produced first, and only later requested the Field Files" and, accordingly, "[i]t seems unfair to penalize the Government for Plaintiff's change of heart." The court notes that "once the requested production is made in full, Plaintiff will be welcome to challenge its adequacy."

Gerstein v. CIA, et al., No. 06-4643, 2010 U.S. Dist. LEXIS 97766 (N.D. Cal. Sept. 17, 2010) (Chesney, J.). The court denies plaintiff's request for in camera review, noting that "[s]uch review is appropriate 'only after the government has submitted as detailed public affidavits and testimony as possible.'" Moreover, the court declines to grant plaintiff's request for discovery at this time.

Rosenfeld v. DOJ, No. 07-3240, 2010 WL 3448517 (N.D. Cal. Sept. 1, 2010) (Patel, J.). Litigation considerations/adequacy of declarant: The court dismisses plaintiff's contention that FBI's declarant is inadequate where the declarant supervises FOIA searches and "personally reviewed search notes, search slips, and other documentation regarding search results generated by FBI headquarters as well as the field offices in response to [plaintiff's] requests."

Rosenfeld v. DOJ, No. 07-3240, 2010 WL 3448517 (N.D. Cal. Sept. 1, 2010) (Patel, J.). The court rejects plaintiff's claim that the FBI did not abide by processing standards established in an earlier settlement agreement, finding that "in light of the 1996 agreement's explicit limiting terms, [plaintiff's] bare and self-serving allegations are insufficient to require the FBI to reprocess the records at issue here in accordance with that agreement." The court also finds that given that the FBI has agreed to reprocess certain files, which "contain approximately half of the errors identified by [plaintiff]," it is not required at this time to reprocess all of the responsive records as plaintiff requests.

Goodhart v. HHS, No. 09-3299, 2010 U.S. Dist. LEXIS 90012 (N.D. Ga. Aug. 30, 2010) (Thrash, J.). The court rejects plaintiff's argument that the court should not consider the agency's declaration, because Federal Rule of Civil Procedure 56 "explicitly permits parties to file supporting affidavits." Additionally, the court "finds no support" for plaintiff's argument that "Exemption 5 is not available to an agency during litigation." The court observes that "[t]o the contrary, courts have regularly applied this exemption to documents during civil discovery."

Holt v. DOJ, No. 09-1515, 2010 WL 3386016 (D.D.C. Aug. 26, 2010) (Walton, J.). "[B]ecause the defendant has not established that the BOP has fulfilled its obligations under the FOIA, its motion is denied in part without prejudice."

Uhuru v. U.S. Parole Comm'n, No. 09-0566, 2010 WL 3377710 (D.D.C. Aug. 24, 2010) (Leon, J.). The court determines that plaintiff is not entitled to judgment in his favor based on solely the U.S. Parole Commission's (USPC's) delay in releasing records responsive to his FOIA request. The court finds that "[w]here, as here, plaintiff concedes that he has received all the records he requested, it cannot be said that the USPC improperly withheld agency records."

Uhuru v. U.S. Parole Comm'n, No. 09-0566, 2010 WL 3377710 (D.D.C. Aug. 24, 2010) (Leon, J.). Litigation considerations/award of costs: The court concludes that plaintiff is not entitled to costs from USPC because he has not substantially prevailed under the FOIA. The court reasons that "[b]ecause the USPC released the requested records after plaintiff filed his lawsuit, its actions reasonably can be considered 'a voluntary or unilateral change in position by the agency.'" The court then considered whether plaintiff's claim was "insubstantial." The court first determines that since the requested records pertain to plaintiff's parole hearing, "it appears that the public derives no benefit from this case and that the plaintiff derives no commercial benefit." However, the court finds that notwithstanding its delay in responding, "USPC did not withhold records in this case." Based on the foregoing factors, "[t]he Court concludes that plaintiff's claim is insubstantial." Lastly, the court further notes that "to the extent that plaintiff demands an award of costs as a sanction for the USPC's delay in responding to this FOIA request, the FOIA does not recognize such a claim, . . . and plaintiff is not entitled to costs as a remedy for the USPC's untimeliness."

Feinman v. FBI, No. 09-2047, 2010 WL 3191787 (D.D.C. Aug. 13, 2010) (Huvelle, J.). Litigation considerations/class action certification: The court denies plaintiff's motion for certification pursuant to Federal Rule of Civil Procedure 23(b)(2) "in order secure injunctive and declaratory relief" for a class of persons who submitted FOIA requests to the FBI and EOUSA for information about third party foreign nationals and "'(1) were informed that processing of their respective requests could not begin until they had provided a signed privacy waiver or proof of death; and/or (2) were not provided with notice of their right to administratively appeal the response.'" Although the court finds that class relief may be available under the FOIA, it ultimately determines that plaintiff failed to show under Rule 23(a) that "'the class is so numerous that joinder of all the members is impracticable.'" The court finds that plaintiff's estimate that there are 200 affected parties, "lacks a reasonable basis." "Although [plaintiff] cites to agency data regarding the total number of FOIA requests made and the total number of requests that were denied under Exemption 6, it does not follow from these numbers that there are at least 200 potential class members."

Feinman v. FBI, No. 09-2047, 2010 WL 3191787 (D.D.C. Aug. 13, 2010) (Huvelle, J.). Litigation considerations/amending complaint: The court grants plaintiff leave to amend the complaint to add a new claim "that expressly alleges that defendants have violated FOIA through their policies of 'permitting FOIA personnel to categorically refuse to process searches for responsive records pertaining to third party foreign nationals absent proof of death, a signed privacy waiver or a demonstration that the public interest in disclosure outweighs the privacy interests of the particular foreign national.'" The court rejects defendants' argument the proposed amendment would be futile because "the facts of this case do not present the justifications for equitable relief upon which the D.C. Circuit relied in Payne Enterprises, Inc. v. United States." The court "is not yet persuaded that the particular facts of Payne define the only possible circumstances under which equitable relief may be justified in a FOIA case." Accordingly, the court finds that "[p]laintiff's proposed allegations 'present [ ] sufficient factual matter, accepted as true to 'state a claim to relief that is plausible on its face.'"

Contreras v. DOJ, No. 08-1801, 2010 WL 3021898 (D.D.C. Aug. 3, 2010) (Collyer, J.). Litigation considerations/award of costs: The court concludes that plaintiff is not entitled to filing fees or costs from DEA because he has not substantially prevailed under the FOIA. The court finds that plaintiff's initial FOIA request "was immensely broad" in scope and did not contain his full name, which "prevented the agency from finding records that pertained to him." Thus, plaintiff's claim was "insubstantial." The court also notes that "[i]t was not the FOIA complaint that spurred the later release of documents; instead, it was the notice from EOUSA to DEA of Plaintiff's full name that finally allowed for the search and release of relevant documents." Accordingly, the court finds that "there was no causal connection between the suit and the release of documents."

White v. Lappin, No. 08-1376, 2010 WL 2947355 (D.D.C. July 29, 2010) (Roberts, J.). The court concludes that plaintiff is not eligible for or entitled to an award for costs "to cover the portion of the filing fee he has paid, and typewriter ribbon and copy fees" where he "cannot show that the BOP voluntarily or unilaterally changed its position because of the lawsuit." Here, BOP demonstrated that it had "no record" of receiving a request from plaintiff at the time that he filed his complaint and, accordingly, it would have had "no reason to search or produce records [or] . . . to [otherwise] respond." Moreover, the court determines that an award of costs is not warranted by the factors enumerated by the D.C. Circuit in Davy v. CIA. "Although plaintiff derives no commercial benefit from these records, it does not appear that the public benefits in any way from their release." The court also notes that once BOP received notice of the request, it "acted promptly" to release certain records to him at no charge and also "promptly provided him 'the opportunity to view all of [his] medical x-ray films'" and "made arrangements for copying the films and sending them to the physician of plaintiff's choice."

James v. U.S. Secret Service, No. 06-1951, 2010 WL 2947762 (D.D.C. July 29, 2010) (Kessler, J.). The court denies plaintiff's motion for relief pursuant to Federal Rule of Civil Procedure 60(b) from an earlier order which granted summary judgment for defendants in connection with past FOIA requests. Plaintiff cannot "challenge the disposition of his April 15, 2009 FOIA request by reopening his action challenging the disposition of his September 15, 2005 requests, instead of filing a new complaint." The court concludes that plaintiff has not "present[ed] any new facts or arguments showing that the Court's July 23, 2007 judgment upholding Defendants' disposition of his . . . 2005 FOIA requests was unjust" and, accordingly, "has failed to present the kind of extraordinary circumstances required under Rule 60(b)."

Pa. Dep't of Public Welfare v. Sebelius, No. 09-808, 2010 WL 2976119 (W.D.Pa. July 28, 2010) (Standish, J.). The court finds that plaintiff "is not entitled to discovery concerning the search capabilities of HHS's website for DAB decisions pending a ruling" on whether plaintiff has standing to bring this claim.

Jacobs v. BOP, No. 09-2134, 2010 WL 2891174 (D.D.C. July 26, 2010) (Sullivan, J.). The court finds that "BOP's untimely response does not entitle plaintiff to judgment in his favor."

Smith v. Cummings, No. 10-1891, 2010 WL 2925880 (D. Md. July 22, 2010) (Messitte, J.). Due to his pro se status, the court construes plaintiff's complaint liberally "as a hybrid request for mandamus relief directed to the Social Security Administration and, alternatively, a request from that agency filed pursuant to the Freedom of Information Act." With respect to the FOIA claim, the court finds that plaintiff has not exhausted his administrative remedies, because there is "no indication" that he attempted to do so "or, if he has filed a claim with the agency, that a disclosure decision has been made by the agency."

Judd v. FCC, No. 10-0837, 2010 WL 2802654 (D.D.C. July 16, 2010) (Friedman, J.). The court "concludes that - unlike the other claims in plaintiff's complaint - [his] claims under the FOIA and the Privacy Act are not frivolous and may proceed" where the FCC responded to his FOIA request and informed him of his right to seek judicial review of its decision. The court adds that plaintiff has not properly served the agency but allows him "additional time to effect and prove service" "in light of the fact that [his] efforts presumably are hampered by his incarceration."

Fischer v. DOJ, No. 07-2037, 2010 WL 2745811 (D.D.C. July 13, 2010) (Huvelle, J.). The court treats as conceded the FBI's arguments with respect to "the exemptions and categories not challenged by plaintiff" and therefore grants summary judgment to the agency for those withholdings.

Vinzant v. United States, No. 06-10561, 2010 U.S. Dist. LEXIS 65615 (E.D. La. June 30, 2010) (Drell, J.). The court rejects the government's argument that FOIA exemptions prohibit disclosure of contact information requested by plaintiff in his interrogatories. The court finds that the FOIA may not "act as a prospective bar to discovery in a case in which no FOIA proceedings have been instituted, or FOIA arguments raised, by the party seeking discovery."

Exxon Mobil Corp. v. U.S. Dep't of Interior, No. 09-6732, 2010 WL 2653353 (E.D. La. June 29, 2010) (McNamara, J.). "[T]he court finds that ordering MMS to produce a Vaughn index would be premature and too burdensome when [plaintiff] can reduce the scope of its requests to certain SOPs." The court concludes that MMS will be required to provide a Vaughn index, if upon responding to the narrowed request, the agency withholds records pursuant to exemptions.

Union Pac. R.R. v. EPA, No. 08-235, 2010 WL 2560455 (D. Neb. June 24, 2010) (Camp, J.). The court grants plaintiff's motion for a temporary restraining order enjoining defendants from destroying records potentially responsive to FOIA requests. The court finds that "Union Pacific has identified evidence from which this court can draw an inference that EPA has engaged in a practice of deleting relevant emails in response to [its] FOIA requests" and further concludes that "[i]ssuance of the injunctive relief requested will not likely cause significant harm to third parties." The "temporary restraining order merely preserves the status quo by ensuring that no records relating to the FOIA requests are destroyed until the issues can be fully adjudicated."

Benavides v. DEA, No. 10-0043, 2010 U.S. Dist. LEXIS 60937 (D.D.C. June 18, 2010) (Roberts, J.); Benavides v. EOUSA, No. 10-0061, 2010 U.S. Dist. LEXIS 60938 (D.D.C. June 18, 2010) (Roberts, J.); Benavides v. BOP, No. 10-0062, 2010 U.S. Dist. LEXIS 60942 (D.D.C. June 18, 2010) (Roberts, J.). The court denies plaintiff's application to proceed in forma pauperis in connection with three separate FOIA actions on the basis that he has "accumulated more than three strikes" under the Prison Litigation Reform Act and that he does not qualify for such status under the imminent danger exception.

Mullen v. U.S. Army Crim. Investigation Command, No. 10-262, 2010 WL 2399991 (E.D.Va. June 14, 2010) (Cacheris, J.). The court grants defendant's motions to vacate the scheduling order and stay the proceedings. The original issue before the court-"whether [defendant's] withholding of the requested documents under Exemption (7)(A) is unlawful is moot because Defendant agrees that '[w]ithin next two weeks, [it] will provide [Plaintiff] with' the documents that were previously withheld on the basis of Exemption (7)(A)." In consideration of defendant's concern that plaintiff might request production of an additional fourteen boxes of documents for which he has not yet agreed to pay, the court "finds that a stay is justified and appropriate to afford adequate time for both parties to release and review the requested documents."

Geiersbach v. Comm'r of the IRS, No. 10-0025, 2010 WL 2349098 (W.D.Mo. June 8, 2010) (Kays, J.). The court dismisses plaintiff's complaint for mandamus relief against the IRS because the FOIA provides him with "an adequate remedy other than mandamus."

Feinman v. FBI, No. 09-2047, 2010 WL 2102326 (D.D.C. May 26, 2010) (Huvelle, J.). Plaintiff's claim under the Administrative Procedures Act is dismissed. "This Court and others have uniformly declined jurisdiction over APA claims that sought remedies made available by FOIA." Plaintiff claims that the court should hold differently because he invokes the APA not to challenge defendants' substantive determination on his FOIA requests, but to challenge defendants' "'procedural policies that authorize making that substantive determination.' . . . This distinction is unpersuasive. Because FOIA 'imposes no limits on courts' equitable powers in enforcing its terms,' . . . the Court finds that if [plaintiff] were to prevail on Counts Two and Five, the statutory and equitable remedies available to him under FOIA would provide the same relief from the alleged policies as would the APA." Furthermore, "within the context of Counts Two and Five, [plaintiff] can also challenge the validity of defendants' policies of categorically refusing to search for documents, without resort to the APA."

Lazaridis v. DOJ, No. 09-1177, 2010 WL 2093405 (D.D.C. May 26, 2010) (Collyer, J.). DOJ's motion to dismiss plaintiff's claim under the Fugitive Disentitlement Doctrine is denied. The court finds that "DOJ has not established the requisite connection between [plaintiff's] fugitive status and these proceedings," a requirement for application of this doctrine. "Moreover, because FOIA decisions typically turn on the sufficiency of the government's declarations, DOJ would be hard-pressed to assert prejudice based solely on [plaintiff's] absence from this jurisdiction."

Pickering-George v. Alcohol Tobacco Tax & Trade Bureau, No. 10-753, 2010 WL 1962667 (D.D.C. May 17, 2010) (Walton, J.). Plaintiff does not appear to have made a request for records under the FOIA, but instead seems interested in obtaining a firearms license. As such, he has failed to state a claim upon which relief may be granted.

FPL Group, Inc. v. IRS, No. 09-652 (D.D.C. May 14, 2010) (Huvelle, J.). Exemption 5 (deliberative process privilege)/Litigation considerations: Upon in camera review, the court determines that defendant's use of this privilege was appropriate. Plaintiff wrongly claims that defendant may not assert the deliberative process privilege for the first time, having only asserted the attorney work-product privilege previously. Though an agency may not invoke an exemption for the first time after a ruling in a plaintiff's favor, the agency is not invoking Exemption 5 for the first time here, it simply "articulated an additional basis for asserting [it]." Furthermore, the court's prior order, requiring additional submissions by defendant and in camera review by the court "was not a ruling in plaintiff's favor. A denial of a defendant's motion for summary judgment is not 'tantamount to a ruling in [the plaintiff's] favor,' especially where the plaintiff's own motion for summary judgment is not granted."

Lewis v. SSA, No. 09-319, 2010 WL 1936220 (S.D. Ind. May 13, 2010) (Lawrence, J.). Plaintiff's complaint is moot, as defendant has responded by disclosing the requested documents. Plaintiff's argument that there are additional responsive documents "is the result of the imprecise language of his FOIA request itself, not the result of the SSA's failure to respond to the request," and it is now past the point at which plaintiff can modify his request.

Melvin v. SSA, No. 09-CV-235, 2010 U.S. Dist. LEXIS 47998 (E.D.N.C. May 13, 2010) (Flanagan, C.J.). Under SSA's Privacy Act regulations, plaintiff was required to designate a third party to receive and review her medical records with her. Plaintiff's failure to do so constitutes a failure to exhaust administrative remedies as to that aspect of her request. To the extent that plaintiff's request includes other records not subject to this requirement, she may proceed with her FOIA claim, though it may also be subject to dismissal at a later date.

Mosby v. Hunt, No. 09-1917, 2010 WL 1783536 (D.D.C. May 5, 2010) (Bates, J.). Though defendant's response to one of plaintiff's requests may not have been timely, once the release is made "'federal courts have no further statutory function to perform.'"

Ctr. for Sustainable Economy v. U.S. Dep't of the Treasury, No. 09-00848 (D.N.M. May 5, 2010) (Kelly, J.). The court finds that plaintiff's action is moot. Defendant has already conceded that attempting to require a fee agreement from plaintiff before adjudicating plaintiff's fee waiver request was an incorrect application of defendant's regulations. Furthermore, defendant "has taken corrective measures to avoid the error in this case and others," so plaintiff's cause of action does not qualify as "capable of repetition, yet evading review." The court further finds that "[t]he corrective action taken by the Defendant is adequate to meet its burden," and is "unpersuaded" that defendant's "prior practice will recur."

Reunion, Inc. v. FAA, No. 09-269, 2010 WL 1759562 (S.D. Miss. May 3, 2010) (Lee, J.). Defendant has not shown that plaintiff's claim is moot. Thus, plaintiff's motion for partial summary judgment is granted, and defendant is ordered to produce the documents requested by plaintiff.

Teck Metals, Ltd. v. U.S. Bureau of Indian Affairs, No. 09-290, 2010 WL 1608864 (E.D. Wash. Apr. 16, 2010) (Suko, C.J.). The court finds that defendant did not timely respond to plaintiffs' request or administrative appeal, as required by the FOIA. Thus, the court grants plaintiffs' motion for declaratory relief.

Rojas-Vega v. Cejka, No. 09-2489, 2010 WL 1541369 (S.D. Cal. Apr. 15, 2010) (Benitez, J.). Plaintiff has failed to show that defendants improperly withheld agency records. The records he seeks are from a state court proceeding. Plaintiff has not shown that defendants maintained the documents in the first place, that they were "agency records," or that they were improperly withheld. Similarly, plaintiff has not shown that defendants "were ever in possession" of documents plaintiff seeks from a 2003 FOIA request. Plaintiff has not refuted defendants' statement that "any missing documents or redactions were made prior to the file being received [by defendants]." Plaintiff's claim is dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2).

Taitz v. Obama, No. 10-151, 2010 WL 1525030 (D.D.C. Apr. 14, 2010) (Lamberth, C.J.). Plaintiff has not justified her motion for mandamus relief. "'[T]he exclusive nature of the FOIA precludes mandamus relief.'"

Frankenberry v. FBI, No. 08-1565, 2010 U.S. Dist. LEXIS 35078 (M.D. Pa. Apr. 7, 2010) (Caputo, J.) (adoption in part and rejection in part of Magistrate's and Recommendation). The court conducts a de novo review of the contested portions of the magistrate's report and recommendation, "provided the objections are both timely and specific." However, "the [relevant statutory provision] permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper," and "[u]ncontested portions of the report may be reviewed at a standard determined by the district court." Additionally, the court orders the magistrate to reconsider plaintiff's motion for summary judgment, as it was not filed prematurely, as well as plaintiff's motion for appointment of counsel. The court affirms the magistrate's ruling denying plaintiff's motion for a temporary restraining order against two state agencies, as they are not parties to this action or agents of the parties to this action.

Holub v. EOUSA, No. 09-00347 (D.D.C. Mar. 31, 2010) (Walton, J.). The court finds that Federal Rule 12(b)(1) "is not the appropriate vehicle to dismiss the plaintiff's damages claims pled under the FOIA," because "the defendants do not assert that the Court lacks the power to adjudicate claims that arise out of the FOIA." Instead, "they argue that the Court should adopt a construction of the FOIA that would bar recovery for damages under that statute." As a result, "the issue here is not whether the Court has jurisdiction to entertain the plaintiff's damages claim, but rather whether the Court should dismiss the plaintiff's claims because the FOIA prevents the Court from granting the plaintiff the relief that he is seeking. The proper rule for seeking such a dismissal is . . . Federal Rule of Civil Procedure 12(b)(6)." Nevertheless, "the Court does conclude that the defendants are entitled to summary judgment as to all of the claims asserted by the Plaintiff in his Complaint."

Bigwood v. DIA, No. 08-1431, 2010 WL 1189850 (D.D.C. Mar. 30, 2010) (Urbina, J.). Plaintiff's claims are time-barred. He submitted his request in April, 2001, meaning that the six-year statute of limitations that applies in FOIA cases began to run on May 21, 2001, twenty business days after plaintiff made his request (to which defendant did not respond). Plaintiff claims that the statute of limitations was re-started in 2005 when he made a request for expedited processing of his initial request, but "he offers no legal authority for his position . . . and the court is unaware of any case law that would support such a result." Thus, plaintiff's time for filing suit expired in May 2007, more than one year before he filed his claim. Furthermore, even were the court to accept plaintiff's argument that his request for expedited processing re-started the statute of limitations, then plaintiff's claim would be dismissed for failure to exhaust administrative remedies, since he did not file an administrative appeal of defendant's denial of his request for expedited processing.

Trentadue v. CIA, No. 08-788, 2010 U.S. Dist. LEXIS 29324 (D. Utah Mar. 26, 2010) (Waddoups, J.). "[T]he court concludes that [plaintiff] has not made any credible argument or proffered any evidence that suggests that the CIA acted in bad faith in withholding any of the documents in this case." Moreover, he "points to no authority suggesting that a long delay in responding to FOIA requests alone will support a finding of bad faith by a withholding agency."

Banks v. DOJ, No. 06-1950, 2010 WL 1172593 (D.D.C. Mar. 26, 2010) (Sullivan, J.) (parties' motions for summary judgment denied without prejudice). "Neither plaintiff's status as a Native American or his intended use of the requested records leads inexorably to the conclusion that he is entitled to the release in full of all the records he requested."

Span v. DOJ, No. 08-2183, 2010 WL 1007858 (D.D.C. Mar. 22, 2010) (Kennedy, J.). "To successfully challenge an agency's showing that it complied with the FOIA, the plaintiff must come forward with 'specific facts' demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records. . . . [Plaintiff's] boilerplate allegations of bad faith do not constitute the 'specific facts' required to threaten the good faith presumption."

Additionally, plaintiff's "request for an index of the asserted exemptions is frivolous. . . . The FBI produced to [plaintiff] copies of records that show the precise location and extent of the redaction in context, and that correlate the claimed exemptions with each redaction. A separate index of redactions would not only be redundant . . . but would provide less, not more, information to him, because the index would remove the context." Finally, plaintiff's request for in camera review is denied, as he has not provided any justification for this request.

Schmidt v. Shah, No. 08-2185, 2010 U.S. Dist. LEXIS 25539 (D.D.C. Mar. 18, 2010) (Kollar-Kotelly, J.). Plaintiff "argues that he should be entitled to relief because USAID was not timely in its production of documents in response to his requests. However, 'a lack of timeliness or compliance with FOIA deadlines does not preclude summary judgment for an agency, nor mandate summary judgment for the requester.' . . . Moreover, to the extent that [plaintiff] seeks as a sanction monetary relief such as a fee waiver, his claim is not authorized by FOIA."

Ramstack v. Dep't of the Army, No. 08-0658, 2010 WL 966210 (D.D.C. Mar. 18, 2010) (Urbina, J.). "The applicable statute of limitations for FOIA actions is set forth in 28 U.S.C. § 2401(a), which requires that a complaint be filed within six years of the accrual of a claim." Under the FOIA, a "claim first accrues 'when the plaintiff has actually or constructively exhausted his administrative remedies.'" Defendant Department of State closed its case files pertaining to plaintiff's requests in 1988 and 1990, and then, pursuant to document destruction schedules, "destroyed these files in 1994 and 1995 based on the absence of activity. . . . Because the DOS destroyed the relevant files in 1994 and 1995, the court has no record of whether the DOS responded to the plaintiff's requests or whether the plaintiff appealed any such response by the agency. . . . [H]owever, the absence of such records does not prevent the court from reaching a disposition of these claims." If the State Department did not respond to plaintiff's request, the statute of limitations would have commenced ten business days after plaintiff's 1987 request. If the State Department did respond, and if plaintiff filed an administrative appeal, "any such activity must have concluded by 1995, when the DOS destroyed the files at issue, as the DOS recovered no subsequent correspondence or records reflecting activity in connection with these requests." Under either scenario, the statute of limitations on plaintiff's claims would have run long before 2008, when plaintiff filed his complaint with the court. Thus, the court does not have subject matter jurisdiction over plaintiff's claims against the Department of State.

Ioane v. Comm'r of IRS, No. 09-00243 (D. Nev. Mar. 11, 2010) (Jones, J.). Plaintiff's motion to add a fourth cause of action is granted even though at the time it was made defendant's response time under the FOIA had not yet run. "Though prior leave to amend weighs heavily against granting subsequent leave to amend, the same is not true for leave to supplement." Indeed, "[c]onsiderations of judicial economy favor granting Plaintiff's motion. . . . Allowing Plaintiff to supplement his pleading avoids the necessity of Plaintiff filing a new and separate complaint against Defendant." Plaintiff's motion to add the Department of Justice as a party will not be granted, though plaintiff retains the option of filing a motion to amend with an amended pleading so that the matter may be fully considered by the court. Plaintiff's motion for a Vaughn index is premature prior to the filing of dispositive motions.

Gov't Accountability Project v. HHS, No. 07-1702, 2010 WL 779774 (D.D.C. Mar. 9, 2010) (Kollar-Kotelly, J.). After reviewing the agency's Vaughn index, plaintiff concedes that Exemption 6 was properly applied. Accordingly, the court grants defendants' motion for summary judgment in part with respect to the information withheld under Exemption 6.

Pohl v. EPA, No. 09-1480, 2010 WL 786918 (W.D. Pa. Mar. 3, 2010) (Standish, J.). "[T]he Court is not persuaded that principles of sovereign immunity preclude us from requiring the Government to participate in a form of ADR which would require it to expend funds on its own behalf."

Reynolds v. BOP, No. 09-3096, 2010 WL 744127 (E.D. Pa. Mar. 2, 2010) (Bartle, C. J.). Plaintiff contends that, prior to his hearing before the Merit Systems Protection Board (MSPB), he did not receive a copy of a certain investigative report that was entered into evidence. He further complains that "he did not have the opportunity to verify the report's authenticity and that his ability to present an effective defense during his MSPB hearing was hindered by the defendants' refusal to transmit the document" before the proceeding. Since plaintiff has also submitted a FOIA request for the report, he raises this claim under the FOIA. Defendants counter that plaintiff's claim is "essentially a discovery dispute in connection with the matter presently pending with the MSPB and that the MSPB is the proper forum for resolution of whether the document was improperly withheld." The court concurs with the defendants and, accordingly, dismisses the FOIA claim "without prejudice to its assertion before the MSPB."

Fieger v. FEC, No. 08-14125, 2010 U.S. Dist. LEXIS 17284 (E.D. Mich. Feb. 26, 2010) (Lawson, J.). "[A] person whose name does not appear on a request for records has no standing to prosecute a lawsuit to compel disclosure of those records." The court finds that "[i]t is not possible to discern from the two letters [the requester] sent to the FEC a request for documents by or on behalf of plaintiff. . . . [Plaintiff] did not sign the letters, and nowhere in either letter is there a statement or suggestion that [the requester] was making the requests on [plaintiff's] behalf. Nor does the context of the request compel an inference that the true requesting party is plaintiff . . . himself." Though the identity of a FOIA requester is generally irrelevant to "'the exercise of the rights provided by the Act,' 'the nature of an entity suing under the FOIA is not without relevance.'" This is because "[a] plaintiff who has neither made a request for information on his own nor explicitly through counsel cannot show an injury in fact, which is a necessary constitutional requirement of standing."

Furthermore, "[t]he weight of authority cuts against recognizing third-party standing in the FOIA context, even when the request is made by a lawyer, in the absence of a clear statement that the request is being made on behalf of a named client." Though plaintiff claims that the requester was acting on his behalf, "federal FOIA jurisprudence leaves no doubt that a lawyer's request for information must plainly spell out the representative capacity and the identity of the client before that client can bring a FOIA action in her own name." Though the requester eventually mailed defendant a letter establishing his representative capacity to the plaintiff, this letter was not sent until after the complaint had been filed. "'Jurisdiction, including standing, is "assessed under the facts existing when the complaint is filed."' . . . Developments occurring after the lawsuit has been filed cannot confer standing that did not exist when the case was commenced."

Long v. OPM, No. 05-1522, 2010 WL 681321 (N.D.N.Y. Feb. 23, 2010) (Mordue, C.J.). Plaintiffs have provided no legal basis for their request for an order "directing OPM to provide 'an "audit trail" from the execution of OPM's program(s) that generated the copies furnished [to the court]' to enable [them] to determine whether OPM properly marked all redactions."

Gerstein v. CIA, No. 06-4643, 2010 U.S. Dist. LEXIS 15578 (N.D. Cal. Feb. 23, 2010) (Chesney, J.). The court will not grant plaintiff's motion for in camera review and discovery. As to the former, for now the court will require defendant to make additional submissions where needed. As to the latter, the court has not previously addressed the adequacy of OPR's Vaughn index.

Robinson v. BOP, No. 09-1443, 2010 WL 610756 (N.D. Ohio Feb. 18, 2010) (Adams, J.). Defendant has not shown that its evidence on the adequacy of its search for responsive records is sufficient to deny the court jurisdiction over plaintiff's complaint.

Ullman v. United States, No. 09-3208 (E.D. Pa. Jan. 27, 2010) (Sánchez, J.). "Plaintiffs do not allege the various Defendants have failed to search for the missing document; rather, they claim the document is missing and seek injunctive relief and damages based upon its absence from the bankruptcy file. A FOIA claim requires [that] the agency involved possess the requested documents. . . . Because Plaintiffs do not claim Defendants actually have custody of the document they seek, they have failed to state a FOIA claim."

ACLU v. DOD, No. 04-4151, 2010 WL 308810 (S.D.N.Y. Jan. 26, 2010) (Hellerstein, J.). The court grants plaintiffs' motion for reconsideration. "The issues, of extraordinary public moment, demand full adversarial treatment. The in camera procedures that [the court] developed for review of the documents did not permit such adversarial treatment." The court determines that "[v]itally important questions need to be briefed and argued, "including, inter alia, whether "documents describing the techniques and procedures allegedly used by the CIA in questioning persons detained by the armed forces of the United States and its allies [are] exempt from disclosure under FOIA if those techniques and procedures allegedly violate applicable law[.]"

Feinman v. FBI, No. 09-2047, 2010 WL 276176 (D.D.C. Jan. 26, 2010) (Huvelle, J.). In a case of "first impression," the court finds that plaintiff lacks standing to bring a claim on behalf of a FOIA requester "who allegedly assigned all rights and interest in [her request] to [plaintiff]." "[C]ourts have held that a plaintiff whose name does not appear on a FOIA request lacks standing to challenge its denial, because she has not made a formal request within the meaning of the statute." Plaintiff asserts that nothing in the FOIA or its legislative history bars an assignment of rights in a FOIA claim. "This may be true, but it does not answer the question of whether FOIA in particular should be interpreted so as to permit assignment." Though the D.C. Circuit has ruled that a FOIA suit may under some limited circumstances survive the death of the original requester, the instant case is very different because the initial requester (who attempted to assign her rights to plaintiff) "did not invest any time, money, or other effort into pursuing this litigation." Thus, she "never acquired a stake in her FOIA claim that might counsel against letting her investment of litigation resources go to waste." Furthermore, there is no claim here that plaintiff is acting on behalf of the original requester, or that the original requester is incapable of asserting and protecting her own interests herself. The court finds that "strong policy concerns counsel against permitting assignments." Permitting assignment "could undermine [the] statutory distinction between categories of requesters by allowing requesters who need not pay certain fees to 'share' their status, via assignment, with potential plaintiffs who would otherwise be required to pay those fees. In addition, assignments would complicate FOIA administrators' adherence to the principle that disclosure exemptions based on privilege protections should not be invoked against 'first-party' requesters who are the very persons protected by the privilege." Furthermore, "pre-litigation assignments would multiply opportunities for mistake and mischief . . . . For instance, an individual - or even a nonexistent entity [] - could seek to thwart an adversary's search for information by claiming falsely to have been assigned a previous requester's FOIA rights." Additionally, "it would be unreasonable to expect overburdened FOIA administrators to verify the validity of an assignment by determining whether it complies with local law and reflects the original requester's actual intent." Thus, the court holds that "institutional regularity at the administrative level weighs against permitting pre-litigation assignments of FOIA rights where, as here, there is no indication (1) that the requester is unable to pursue her own litigation or (2) that the original requester shares the same interests and purposes as the plaintiff-assignee."

Houston v. Manheim-New York, No. 09-4544, 2010 WL 304513 (S.D.N.Y. Jan. 22, 2010) (Yanthis, Mag. J.). The FOIA "does not establish a cause of action for a violation of privacy. . . ."

Sterrett v. Dep't of the Navy, No. 09-2083, 2010 U.S. Dist. LEXIS 4046 (S.D. Cal. Jan. 20, 2010) (Gonzalez, C.J.). As defendant has provided plaintiff with an unredacted copy of its final investigative report on plaintiff, this portion of plaintiff's claim is now moot. As to plaintiff's request for the background material created in the process of producing the investigative report, defendant has not demonstrated that it provided all responsive materials, thus this portion of plaintiff's complaint is not moot.

Miller v. DOJ, No. 09-1393, 2010 WL 114955 (D.D.C. Jan. 11, 2010) (Leon, J.). Though plaintiff was advised to respond to defendant's motion for summary judgment, no response has been filed. Therefore, the court will consider defendant's motion without any challenge from plaintiff.

Elkins v. FAA, No. 08-1073, 2010 WL 23319 (D. Or. Jan 4, 2010) (King, J.) (adoption of magistrate's Findings and Recommendation). Plaintiff's motion for summary judgment addresses the allegations in his original complaint, rather than his amended complaint. As the amended complaint supersedes the original, plaintiff's motion must be denied for failure to address the allegations made in the amended complaint. The fact that the FAA did not assert Exemption 2 in its initial administrative responses to plaintiff does not mean that the agency was therefore barred from asserting the exemption at the litigation stage.

Brown v. FBI, No. 07-1931, 2009 WL 5102713 (D.D.C. Dec. 28, 2009) (Roberts, J.). Plaintiff "has no right of action under the FOIA for an agency's non-response to [what he characterizes as] 'federal questions.'" Accordingly, the court dismisses these claims for lack of subject matter jurisdiction.

Jones v. Mason, No. 09-3012, 2009 WL 5125206 (D.S.C. Dec. 28, 2009) (Norton, J.) (adoption of magistrate's recommendation). The court dismisses any FOIA claim that plaintiff potentially raises, because he "seeks relief against local government employees," not a federal agency.

Trevino-Garcia v. Univ. of Tex. Health Sci. Ctr. School of Medicine, No. 09-0572, 2009 WL 5195962 (W.D. Tex. Dec. 21, 2009) (Rodriguez, J.). Plaintiff’s FOIA claim against a state agency is dismissed. The court rejects the argument "that Defendant is required to comply with the FOIA because it is a federal contractor and/or receives federal funds" and, instead, finds that defendant is not a federal agency subject to the FOIA.

Washington v. Geren, No. 08-1502, 2009 WL 4911707 (D.D.C. Dec. 18, 2009) (Robertson, J.). The court dismisses plaintiff’s FOIA claims on the basis that he failed to exhaust his administrative remedies prior to filing suit.

Brodzki v. FBI, No. 09-2108, 2009 WL 4906877 (N.D. Tex. Dec. 18, 2009) (Boyle, J.) (adoption of magistrate's recommendation). Liberally construing plaintiff's complaint, the court dismisses his FOIA action for failure to state a claim upon which relief can be granted. First, the court is unable to ascertain what records plaintiff is seeking from the FBI. Second, the court lacks jurisdiction where plaintiff provided "no facts to suggest or indicate that the FBI improperly withheld any records." Third, plaintiff failed to demonstrate that he exhausted administrative remedies with respect to his FOIA request.

Capers v. Wayne County Probate Court, No. 08-11616, 2009 WL 4950547 (E.D. Mich. Dec. 16, 2009) (Battani, J.) (Order). The court denies plaintiff’s motion to reconsider his FOIA claim against Ford Motor Company. "Petitioner is not asking for information from a federal agency; the statute is not applicable."

Wilson v. U.S. Air Force, No. 08-324, 2009 WL 4782120 (E.D. Ky. Dec. 9, 2009) (Hood, J.). The court concludes that in camera inspection of certain withheld pages questioned by plaintiff is not warranted. In camera review of those pages would not serve judicial economy "as they are adequately described in the [agency's] affidavit." Moreover, plaintiff "has failed to allege any bad faith on part of Defendant." Lastly, in camera inspection of the documents would not serve to promote the public interest.

Casillas v. DOJ, No. 07-1621, 2009 WL 4546677 (D.D.C. Dec. 7, 2009) (Roberts, J.). Plaintiff is not entitled to answers to his interrogatories, since defendant's declaration provides sufficient details concerning its processing of plaintiff's request.

Cherry v. FCC, No. 09-680, 2009 U.S. Dist. LEXIS 112276 (M.D. Fla. Dec. 3, 2009) (Covington, J.) (adoption of magistrate's Report and Recommendation). The court finds that plaintiff lacks standing to bring this complaint, because it stems from a FOIA request filed by another individual. Though plaintiff claims that this individual was acting as plaintiff's counsel and made the FOIA request on plaintiff's behalf, courts ruling in similar cases "have uniformly concluded that an undisclosed client lacks standing to sue to enforce a FOIA request filed by his or her attorney."

Manfredonia v. SEC, No. 08-1678, 2009 WL 4505510 (E.D.N.Y. Dec. 3, 2009) (Townes, J.). Plaintiff's claims arising from requests made prior to 2002 are dismissed for failure to meet the six-year general statute of limitations requirement set out in 28 U.S.C. § 2401(a).

Nkihtaqmikon v. Bureau of Indian Affairs, No. 05-188, 2009 WL 4441262 (D. Me. Dec. 2, 2009) (Woodcock, C.J.). "Assuming the Court is authorized to issue a declaratory judgment condemning the BIA's pattern or practice of FOIA non-compliance, the evidence here does not warrant such a conclusion. The BIA's delays in the disclosure of FOIA-susceptible documents in response to NN's multiple requests reflect an unsettling haphazardness about the BIA's pattern and practices in other cases. But, to draw general conclusions about the BIA's agency-wide patterns and practices from its handling of one case is a step too far. Furthermore, as the record contains no evidence about the BIA's FOIA handbooks, guidance documents, policies or procedures, the Court will not order the BIA to amend documents it has never reviewed."

Pickering-George v. DEA Registration Unit, No. 09-2184, 2009 WL 4031223 (D.D.C. Nov. 19, 2009) (Friedman, J.). As this court has previously ruled against plaintiff for failure to exhaust administrative remedies in a claim based on the same facts, his current claim is barred by res judicata.

Pearson v. DHS, No. 08-1885, 2009 WL 4016414 (N.D. Tex. Nov. 17, 2009) (Boyle, J.) (adoption of magistrate's recommendation). Defendants incorrectly assert that plaintiff's claims are moot. "Plaintiff alleges an injury fairly traceable to Defendants' unlawful conduct and seeks disclosure of . . . documents. Because the case or controversy that existed at the conception of the lawsuit has not yet been resolved, Plaintiff's personal stake or legally cognizable interest in the litigation continues." Furthermore, plaintiff did not bring his claim under 5 U.S.C. § 552(a)(6)(C), challenging the timeliness of defendants' responses. Instead, his claim was brought under 5 U.S.C. § 552(a)(4)(B), seeking disclosure of records. As a result, defendant's motion to dismiss the case as moot is denied.

Wiesner v. FBI, No. 07-1599, 2009 WL 3767766 (D.D.C. Nov. 12, 2009) (Walton, J.). Plaintiff's motion for reconsideration is denied. He has failed to show bad faith on the FBI's part, notwithstanding the alleged inconsistencies between what plaintiff was told by an FBI employee in a phone conversation and what the FBI informed him of in written correspondence. Even if plaintiff was given inconsistent information on one point, it is immaterial to the outcome of the instant case. As to another alleged inconsistency, the court is "[u]nable to discern even a modicum of subterfuge on the part of the FBI."

Hall v. CIA, No. 04-00814, 2009 WL 3768002 (D.D.C. Nov. 12, 2009) (Kennedy, J.). "The principle of collateral estoppel applies here to prevent [plaintiffs] from arguing that the Senate Committee's records are 'agency records.'" The CIA must confirm though that it has searched for records "of its own creation" that were included in the Committee's documents. Plaintiff may not again challenge the CIA's use of search terms whose adequacy was litigated previously. The CIA will, however, be required to submit a Vaughn index explaining its withholdings from its November, 2005 release, as these were not covered by prior litigation. Plaintiff "has provided no evidence for his contention that the CIA engaged in 'misbehavior.'" As the court can find no evidence of bad faith by the agency, plaintiff's motion for discovery is denied. Similarly, because there is no evidence of bad faith, and because the CIA will be required to submit additional filings in this case, the court "declines to exercise its discretion to review records in camera at this time."

Schoenman v. FBI, No. 04-2202, 2009 WL 3720050 (D.D.C. Nov. 9, 2009) (Kollar-Kotelly, J.). Plaintiff's motion to intervene in the instant case is denied. Plaintiff has not shown that he is entitled to intervene as a matter of right. "He has not set forth any specific interest with respect to the instant FOIA action nor has he explained how disposition of the instant action may impede his ability to protect any specific interest of his own." Plaintiff has also not shown that he has standing under Article III of the Constitution. Additionally, plaintiff has "failed to demonstrate that he has met the threshold requirements necessary for permissive intervention. . . . Moreover, in light of the parties' joint opposition to [plaintiff's] motion and the untimely nature of his request to intervene, the Court finds that permitting intervention at this late stage would likely lead to undue delay and prejudice the original parties' rights." As a result, plaintiff's additional motions for rehearing en banc and to enforce a consent decree are also denied.

United States v. Rhines, No. 01-00310, 2009 U.S. Dist. LEXIS 104380 (M.D. Pa. Nov. 9, 2009) (McClure, J.). Plaintiff's letter to the court, asking it to "honor" his FOIA request to the Department of Justice, does not constitute a valid basis for judicial action by the court.

Watkins v. U.S. Bureau of Customs & Border Prot., No. 08-1679, 2009 WL 3633893 (W.D. Wash. Oct. 30, 2009) (Robart, J.). Plaintiff's motion for discovery is denied, as he has not shown any bad faith on defendant's part. Though defendant had a page count discrepancy in its Vaughn index, defendant has adequately explained that this was caused by an inadvertent clerical error.

Gonzales v. FBI, No. 09-13590, 2009 U.S. Dist. LEXIS 96289 (E.D. Mich. Oct. 16, 2009) (Cleland, J.). Plaintiff's application to proceed in forma pauperis is granted. "Complaints filed by a plaintiff proceeding in forma pauperis are subject to the screening requirements of 28 U.S.C. § 1915(e)(2)" which "requires district courts to screen and to dismiss complaints that are frivolous, fail to state a claim upon which relief can be granted, or that seek monetary relief from a defendant who is immune from such relief. . . . A complaint is frivolous and subject to sua sponte dismissal under § 1915(e) if it lacks an arguable basis in either law or fact." Plaintiff claims that defendants have not released records to her and that she is "therefore entitled to damages in the amount of seven million dollars." The FOIA, however, does not authorize damage awards. "Because Plaintiff does not have even an arguable claim to relief, the court will dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted."

ACLU v. DOD, No. 08-437, 2009 WL 3326114 (D.D.C. Oct. 16, 2009) (Lamberth, C.J.). The court has determined that defendants' "declaration is sufficiently detailed that in camera review is not necessary."

Detroit Int'l Bridge Co. v. Federal Highway Admin., No. 09-13805, 2009 WL 3271314 (E.D. Mich. Oct. 13, 2009) (Duggan, J.). Venue is proper in the Eastern District of Michigan because plaintiff "resides" in that district. Despite defendant's claim that plaintiff's suit is now moot, "the Court may be able to 'fashion some form of meaningful relief,' even if it cannot 'return the parties to the status quo ante.'"

Hull v. IRS, No. 09-00024, 2009 U.S. Dist. LEXIS 93204 (D. Colo. Oct. 6, 2009) (Shaffer, Mag. J.). Because a question of fact - whether U.S. West Pension Plan qualifies as a "taxpayer" under 26 U.S.C. § 6103 - remains unsettled, the court cannot determine whether plaintiff's request, which did not include consent from the pension plan, constitutes a proper FOIA request. Therefore, defendant's motion to dismiss is denied without prejudice.

Coven v. OPM, No. 07-1831, 2009 WL 3174423 (D. Ariz. Sept. 29, 2009) (Broomfield, J.). Plaintiff's motion to strike portions of OPM's response is denied. First of all, Federal Rule of Civil Procedure 12(f) only allows for the striking of immaterial matter from pleadings. Plaintiff has asked the court to strike portions of OPM's response, which is not a "pleading" for these purposes. Furthermore, on the merits the portions plaintiff asks the court to strike are not immaterial, as they address an issue - attorney fees and costs - that is clearly material to this litigation. As to plaintiff's challenge based on the expedited processing provision of the FOIA, 5 U.S.C. § 552(a)(6)(E)(iv) explicitly states that this court does not have jurisdiction to review plaintiff's request for expedited processing when the agency has already responded to plaintiff's underlying request.

Truesdale v. DOJ, No. 08-1862, 2009 WL 3088824 (D.D.C. Sept. 29, 2009) (Friedman, J.). Because the FOIA qualifies as a statute which provides a "'comprehensive system to administer public rights,'" the remedies it provides are the sole ones available to plaintiff. He cannot maintain a Bivens action for alleged refusal to release records.

Dasta v. Lappin, No. 08-1034, 2009 WL 3069681 (D.D.C. Sept. 25, 2009) (Sullivan, J.). As BOP has established that it released in full the responsive records, plaintiff's complaint is now moot.

Int'l Counsel Bureau v. DOD, No. 08-1063, 2009 WL 3069683 (D.D.C. Sept. 25, 2009) (Bates, J.). DOD's Vaughn Index is insufficient for the court to rule on the propriety of the agency's withholdings. "The Department merely lists the asserted exemptions by document. The Department does not 'subdivide the document[s] under consideration into manageable parts cross-referenced to the relevant portion of the government's justification.' . . . Nor does [the Index] describe how the asserted exemptions apply to the withheld documents." These problems are not "cured by [DOD's declarations]. Those declarations, like the Vaughn index, do not explain with the necessary detail how a particular exemption supports the Department's decision to withhold a responsive document. . . . Rather, the declarations simply assert, in general terms, the justifications for withholding documents." Though "the Court can certainly imagine that the asserted justifications may be valid as to some of the withheld records, it cannot conclude they are categorically valid as to all withheld records." As a result, "the Department has not provided this Court with sufficiently detailed explanations of why the claimed exemptions are relevant, and correlated, to the withheld records."

Sussman v. U.S. Marshals Serv., No. 03-610, 2009 WL 3068188 (D.D.C. Sept. 25, 2009) (Kennedy, J.). "The record submitted does not permit the Court to determine exactly which exemptions [apply] to which redacted portions of which documents [plaintiff] challenges. The information submitted by the Marshals Service in its Vaughn index, together with its declarations, is insufficient to support a determination that the Marshals Service has justified its nondisclosure decisions." The parties are ordered to confer as to what matters remain in dispute, and then defendant will be required to submit materials identifying precisely what exemptions have been applied to each redaction as well as justifications for their use.

Creation Upgrades, Inc. v. DOD, No. 08-2388, 2009 U.S. Dist. LEXIS 88658 (D.P.R. Sept. 25, 2009) (Fuste, C.J.). The court finds that defendants have disclosed in full the documents requested by plaintiff. Thus, because plaintiff has not challenged the adequacy of defendant's search, there is no longer any matter in dispute between the parties.

Davis v. DOJ, No. 08-128, 2009 U.S. Dist. LEXIS 86178 (D. W.Va. Sept. 21, 2009) (Memorandum and Opinion affirming & adopting magistrate's report) (Stamp, J.). "Plaintiff's failure to object to the magistrate judge's proposed findings and recommendation bars the plaintiff from appealing the judgement of this court."

Penny v. DOJ, No. 08-1666, 2009 WL 3003248 (D.D.C. Sept. 21, 2009) (Urbina, J.). Defendant's declarant failed to attest that she had personal knowledge of defendant's search or that she relied on information provided by the individuals who actually conducted the search. Thus, the court cannot grant defendant summary judgment on the adequacy of its search.

In Defense of Animals v. USDA, No. 02-557, 2009 WL 2974764 (D.D.C. Sept. 18, 2009) (Roberts, J.). Intervenor defendant, "after more than four years of litigation and two rounds of summary judgment where it conceded that the USDA obtained the documents at issue involuntarily," is now "judicially estopped" from arguing that the documents were voluntarily provided.

Watson v. Department of Social Services, No. 09-14388, 2009 U.S. Dist. LEXIS 83938 (E.D. Mo. Sept. 15, 2009) (Shaw, J.). Complaint was dismissed as frivolous "because the FOIA does not apply to state agencies."

Graves v. HHS, No. 09-552, 2009 WL 2915007 (D.D.C. Sept. 9, 2009) (Kennedy, J.). Following the initiation of litigation, defendant located and released in full one of the requested reports. Because the agency's affidavits established that the search was reasonable and "plaintiff ha[d] not offered any evidence to challenge the reasonableness of the search," defendant was entitled to summary judgment.

McDermott v. Potter, No. 09-0776, 2009 WL 2971585 (W.D. Wa. Sept. 11, 2009) (Lasnik, J.). Based on plaintiff's failure to submit a FOIA request, the court denied plaintiff's request for leave to amend his FOIA claim "as futile" and dismissed the claim for lack of subject matter jurisdiction.

Kosa v. DHS, No. 09-196, 2009 WL 2776699 (N.D. Tex. Aug. 31, 2009) (Godbey, J.) (adoption of magistrate's recommendation). The FOIA provides no “private right of action for money damages” and so plaintiff’s claim is barred by sovereign immunity. Plaintiff’s claim for the correction of records under the FOIA is likewise barred.

Moyston v. O'Mara, No. 09-CV-0045, 2009 WL 2854429 (D.N.H. Aug. 31, 2009) (magistrate's recommendation) (Muirhead, Mag. J.). The federal FOIA does not provide a basis for action against state officials under 42 U.S.C. § 1983 for failure to provide a free copy of prison policies.

Mingo v. DOJ, No. 08-2197, 2009 U.S. Dist. LEXIS 74830 (D.D.C. Aug. 24, 2009) (Kollar-Kotelly, J.). Plaintiff's assertion that defendant has not produced allegedly exculpatory information about him that he is entitled to "mistakenly conflates the government's statutory obligation to disclose records under the FOIA with its separate constitutional obligation established by Brady v. Maryland. . . . The fact that plaintiff may have received a document during discovery in a criminal proceeding is not material to the issue of whether ATF fulfilled its statutory obligations under the FOIA." Indeed, "Brady does not foreclose the government from asserting FOIA exemptions even as to information that may have been previously disclosed to a defendant in a criminal proceeding."

Wells v. U.S. Dep't of Educ., No. 09-456, 2009 WL 2475434 (M.D. La. Aug. 12, 2009) (Brady, J.) (adopting magistrate's report and recommendation). The FOIA does not create a cause of action for monetary damages.

Feinman v. CIA, No. 08-2188 (D.D.C. Aug. 6, 2009) (Sullivan, J.). Plaintiff lacks standing to bring her motion to amend because before she made her motion, defendant FBI had agreed to process her request without requiring her to provide privacy waivers. Thus, as of the time of her motion, plaintiff had not suffered an injury. The claim that plaintiff will be subjected to FBI's allegedly "illegal policy" of requiring such waivers in the future is mere "'unadorned speculation'" and is not sufficient to give her standing. Furthermore, "Plaintiff's assertion that she wishes to challenge the legality of the policy itself rather than a particular application of that policy does not permit her to simply sidestep the constitutional standing requirement."

Davis v. DOJ, No. 09-0008, 2009 U.S. Dist. LEXIS 69318 (D.D.C. Aug. 7, 2009) (Leon, J.). Plaintiff was advised of his obligation to respond to defendant's Amended Motion for Summary Judgment. As he has not responded, the motion is taken as conceded.

Lardner v. DOJ, No. 08-1398, 2009 WL 2341719 (D.D.C. July 31, 2009) (Kollar-Kotelly, J.). Defendant is not collaterally estopped from asserting Exemption 6 in its attempt to withhold the responsive documents. Plaintiff's prior requests and litigation, though on a similar subject matter, are not identical to the requests that are the subject of the instant litigation. "[T]he circumstances in which the withholdings were made vary substantially between the two matters."

Cochran v. EOUSA, No. 08-1446, 2009 WL 2256186 (D.D.C. July 28, 2009) (Collyer, J.). As plaintiff has failed to oppose defendant's Motion for Summary Judgment, and has in fact informed the court that he agrees with defendant's position, defendant's motion is taken as conceded.

Deininger & Wingfield, P.A. v. IRS, No. 08-00500, 2009 WL 2241569 (E.D. Ark. July 24, 2009) (Holmes, J.). The IRS admitted in its Answer to plaintiffs' Complaint that the requester had made the request on behalf of his firm. Therefore, the firm has standing to make a claim for attorney fees.

Columbia Riverkeeper v. FERC, No. 08-936, 2009 WL 2244196 (D. Or. July 24, 2009) (Hubel, Mag. J.). Because plaintiffs have an adequate remedy for their claims under the FOIA, the court has no subject matter jurisdiction to hear claims under the APA.

Lion Raisins, Inc. v. USDA, No. 08-00358, 2009 U.S. Dist. LEXIS 59635 (E.D. Cal. July 13, 2009) (Wanger, J.). The parties have agreed that, as to two of plaintiff's claims, defendant has responded and the claims are dismissed. As to another, plaintiff has agreed to pay the fees assessed by USDA, thereby mooting this claim. Plaintiff has asserted a further claim for bad faith. As this claim "does not assert a stand alone compensable claim for relief, summary judgment . . . is granted in favor of the USDA."

Booth v. IRS, No. 09-0637, 2009 WL 2031766 (E.D. Cal. July 9, 2009) (O'Neill, J.). "This Court construes [plaintiff's] lack of opposition as his concession that his FOIA request is invalid and fails to trigger FOIA obligations."

Reynolds v. Att'y Gen. of the U.S., No. 09-0434, 2009 WL 1938964 (S.D.N.Y. July 7, 2009) (Stein, J.). Plaintiff has failed to respond to defendant's motion, and his complaint is "based on allegations that are implausible and appear to lack any connection to reality."

White v. Lappin, No. 08-1376, 2009 WL 1921337 (D.D.C. July 2, 2009) (Roberts, J.). Defendant's motion to dismiss is granted as to the records that it has established it has provided to plaintiff. As to the remaining records, defendant is ordered to file a renewed motion, as well as "an opposition or other response to plaintiff's motions for sanctions and for costs."

Calhoun v. DEA, No. 08-01059 (N.D. Ohio June 25, 2009) (Limbert, Mag. J.). Plaintiff's motion to supplement his complaint is denied. "Plaintiff admits that his supplemental complaint contains many challenges to Defendant's motion for summary judgment." As such, "the Court agrees with Defendant that to allow Plaintiff to supplement his complaint at this juncture, that is, after a motion for summary judgment has been filed, is prejudicial to Defendant." The court will grant plaintiff's request to rule on all outstanding motions, to rely upon the parties' prior arguments, and also to consider plaintiff's request "under the new policy directives issued by the Obama Administration." The court further grants plaintiff's motion to submit his own signed affidavit.

Natural Res. Def. Council v. EPA, No. 08-1429, 2009 WL 1767570 (D.D.C. June 23, 2009) (Friedman, J.). The court agrees with plaintiff's objection to EPA's proposed litigation schedule, including the creation of a "Withholding List" that would not meet the requirements of a Vaughn index, as well as EPA's proposed requirement that plaintiff identify which documents allegedly containing confidential business information it seeks disclosure of. "Although it is prefereable for FOIA litigants to work out a production schedule among themselves, plaintiff is under no obligation to agree to a schedule other than what would typically be legally required." EPA has also not sufficiently justified its request for "a prolonged summary judgment briefing schedule."

CareToLive v. FDA, No. 08-005, 2009 WL 1794489 (S.D. Ohio June 23, 2009) (Frost, J.). Plaintiff's motion for discovery is denied. Plaintiff's submissions are insufficient for the purposes of Federal Rule of Civil Procedure 56(f). The affidavit was not signed under penalty of perjury, and "utterly fails to set forth facts sufficient to support a Rule 56(f) motion." Furthermore, the "unfounded assertions [in plaintiff's motion] are not enough to defeat Defendant's Motion for Summary Judgment." Plaintiff's unsupported claims that additional documents "must" exist "fall woefully short of showing bad faith and, indeed, are completely at odds with the evidence before this Court."

Rodriguez v. Providence Police Dep't, No. 08-003, 2009 WL 2059038 (D.R.I. June 23, 2009) (Magistrate's Report and Recommendation) (Hagopian, Mag. J.). Defendant has not provided any relevant information pertaining to its processing of one of plaintiff's two FOIA requests. As a result, defendant "has failed to satisfy its burden to establish either a lack of subject matter jurisdiction or that it is entitled to judgment as a matter of law." Defendant will be allowed to submit a new brief which addresses this request.

Sliney v. BOP, No. 07-1425, 2009 WL 1703234 (D.D.C. June 18, 2009) (Friedman, J.). BOP has demonstrated that it has released to plaintiff a tape of his portion of several phone conversations, "[plaintiff's] bare assertion[s]" to the contrary notwithstanding.

Curran v. Holder, No. 08-1559, 2009 WL 1687566 (D.D.C. June 17, 2009) (Friedman, J.). Plaintiff has not challenged defendant's claim that she has failed to show that she would suffer irreparable harm absent a preliminary injunction ordering release of documents requested by plaintiff.

Ith v. U.S. Forest Serv., No. 08-0235, 2009 WL 1664495 (D. Alaska June 12, 2009) (Sedwick, J.). Defendant is ordered to produce an affidavit that describes the search and certifies that all records responsive to plaintiff's request have either been produced or accounted for in a Vaughn index and states that it is submitted in good faith.

Carvajal v. DEA, No. 06-2265, 2009 WL 1619209 (D.D.C. June 10, 2009) (Urbina, J.). Plaintiff has failed to oppose defendants' motion for summary judgment, thus defendants' motion will be treated as conceded.

Mitchell v. DOJ, No. 08-1980, 2009 WL 1537890 (D.D.C. June 1, 2009) (Bates, J.). Plaintiff has failed to respond to defendants' Motion for Summary Judgment, thus the court will take defendants' motion as conceded.

Moore v. FBI, No. 06-697, 2009 WL 1351404 (W.D. Wis. May 13, 2009) (Crabb, J.). The court will not consider the FBI's actions with regard to plaintiff's other requests. As to one of these requests, plaintiff did not raise the issue in his complaint, so it is not properly before the court. As to another, the request was not even made until after plaintiff had filed the instant suit, thus, it is also not properly before the court. Moreover, plaintiff has not exhausted his administrative remedies as to this request.

Bloche v. DOD, No. 07-2050, 2009 WL 1330388 (D.D.C. May 13, 2009) (Facciola, Mag. J.). Plaintiffs move to amend their complaint under Federal Rule of Civil Procedure 15(a)(2) to account for FOIA requests they resubmitted to the CIA after this litigation was underway. However, their motion is more properly considered under Rule 15(d). The court finds that granting plaintiffs' motion would cause undue delay. "[A]lthough supplementation of the complaint would not create any undue surprise for defendants . . ., the parties are close to final resolution of the case. . . ." Thus, "[i]t is hard to understand what possible purpose would be served by permitting plaintiffs to supplement their complaint" to include additional FOIA requests. "[T]he only practical consequence of the denial of this motion to supplement would be to save plaintiffs the filing fee of the new suit. That is hardly enough reason to preclude this case from coming to its prompt conclusion . . . ."

County of Santa Cruz v. Ctrs. for Medicare and Medicaid Servs., No. 07-2889, 2009 WL 1313219 (N.D. Cal. May 12, 2009) (Chesney, J.). Defendant's motion for a stay of discovery is granted. In FOIA cases, it is routine for discovery to be delayed until after motions for summary judgment. Though the court has previously denied part of defendant's initial motion for summary judgment, that ruling gave defendant the opportunity to file a renewed motion. "Under such circumstances, the Court's denial of [Centers for Medicare and Medicaid Services'] prior motion, without more, is insufficient to justify discovery at this time."

Wright v. FBI, No. 02-915, 2009 WL 1287423 (D.D.C. May 6, 2009) (Kessler, J.). The government cannot rely on FOIA exemptions to justify its attempt to censor the private publishing of its employees, regardless of whether the material in question falls within the confines of a FOIA exemption.

Ctr. for Biological Diversity v. OMB, No. 07-04997, 2009 WL 1246690 (N.D. Cal. May 5, 2009) (Patel, J.). OMB's allegedly arbitrary and capricious decisions about which documents to release and which to withhold do not give plaintiff a right to relief under the APA. "[T]he APA only applies if an adequate remedy is not available elsewhere. FOIA provides an adequate remedy for the complaint [plaintiff] alleges here." A ruling that these decisions by OMB constitute an APA violation "would discourage OMB from ever reexamining previously-withheld documents." Finally, though the fuel standards established by OMB have been held to be arbitrary and capricious, OMB's actions do not constitute serious enough misconduct to apply the governmental misconduct exception as a bar to any withholding of documents by OMB.

Harrison v. BOP, No. 07-1543, 2009 WL 1163909 (D.D.C. May 1, 2009) (Friedman, J.). As to another of plaintiff's requests, BOP has failed to provide sufficient justification for its use of exemptions. BOP will be permitted to file a renewed motion on this issue. The court declines plaintiff's request for in camera review of the withheld documents.

Moore v. FBI, No. 06-697, 2009 U.S. Dist. LEXIS 37484 (W.D. Wis. May 1, 2009) (Crabb, J.). Plaintiff's motion to compel discovery is denied, both because it concerns records that "are at issue in this [litigation]," and because "[e]ven if they were, plaintiff would not be allowed to circumvent the Freedom of Information Act's exemptions simply by filing a lawsuit under the Act and obtaining exempted materials through discovery."

Browder v. Fairchild, No. 08-P15, 2009 WL 1158669 (W.D. Ky. Apr. 28, 2009) (Heyburn, J.). Plaintiff has been provided with all of the documents he sought in his original complaint. As to additional documents that plaintiff now seeks, "[t]he Court will not enlarge this action to encompass documents that were not properly part of Plaintiff's original complaint."

Courts of Special Jurisdiction Decisions

Sioux Honey Assoc. v. United States, No. 09-00141, 2010 WL 3377449 (Ct. Int'l Trade Aug. 27, 2010) (Stanceu, J.). The court dismisses plaintiff's claim that CBP's "cancellations of [certain shipper] bonds and charges against bonds were unlawful because [the agency] failed to satisfy the requirement in the [FOIA] that an agency publish in the Federal Register, for the guidance of the public, its rules of procedure and substantive rules of general applicability." The court finds that "the assumed existence of such unpublished procedures is not a basis on which any bond or charge cancellations could be held to be invalid" and that "nothing in the [FOIA] states or suggests [such a] conclusion."