Bеnjamin CUNNINGHAM, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, et al., Defendants.
Civil Action No. 13-188(RMC).
United States District Court, District of Columbia.
Aug. 21, 2013.
As there has been no prejudice to either party by the District‘s initial failure to timely serve Gaines with its motion, Gaines’ motion to quash is denied.
V. CONCLUSION
THEREFORE, it is hereby ORDERED:
- The District‘s Motion to Dismiss is GRANTED;
- Gaines’ Motion for Summary Judgment is DENIED; and
- Gaines’ Motion to Quash is DENIED.
An Order and Judgment consistent with this Memorandum Opinion will be issued.
Nina Bafundo Crimm, U.S. Attorney‘s Office, Washington, DC, for Defendants.
MEMORANDUM OPINION
ROSEMARY M. COLLYER, District Judge.
Benjamin Cunningham complains of alleged violations of the Freedom of Information Act,
I. FACTS
A. Background
Mr. Cunningham is a repeat litigator, which gives the Court the advantage of knowing the origins of his claims. See, e.g., Cunningham v. O‘Neill, Case No. 13-960(RMC), 2013 WL 3753554 (D.D.C. July 17, 2013).1 According to Mr. Cunningham, Deputy Marshals of the United States Marshal Service (USMS) executed a search warrant and entered his New York City residence in 2005. In the process of their search, the Deputy Marshals handcuffed Mr. Cunningham while looking for his fugitive brother. Still handcuffed, Mr. Cunningham fled his home and ran into a bus carrying city transit officer-candidates. Those officers held Mr. Cunningham until the Deputy Marshals retrieved and, ultimately, released him. See Cunningham v. U.S. Congress House Ethics Comm., Civil Case No. 12-1935(RMC) (Compl. [Dkt. 1]).2 Defendants state that no criminal charges were ever filed against any law enforcement officer(s) in connection with these events, Am. Mot. for Summ. J. (Def.‘s Mem.) [Dkt. 24] at 2, a fact Mr.
Mr. Cunningham has brought at least three suits regarding these alleged events in two other jurisdictions. In the Southern District of New York, Mr. Cunningham sued the individual Deputy Marshals and a New York Police Department detective for alleged Fourth and Fifth Amendment violations, and, in a separate suit, he sought a writ of mandamus compelling the Federal Crime Victim Office to provide him crime-victim benefits and counseling, to pay his medical bills related to injuries he sustained on the day his home was searched, and to reimburse him for cash allegedly taken during the 2005 search of his home. The former suit was dismissed in favor of the defendants on summary judgment and the U.S. Court of Appeals for thе Second Circuit dismissed the ensuing appeal as frivolous. See Cunningham v. McCluskey, Civil Action No. 05-10169(DAB), 2011 WL 3478312 (S.D.N.Y. Aug. 8, 2011) (adopting magistrate judge‘s report and recommendation and determining that qualified immunity barred Mr. Cunningham‘s Fourth Amendment claim and the availability of a remedy under the Federal Tort Claims Act (FTCA),
B. Mr. Cunningham‘s FOIA Requests
Mr. Cunningham now has turned to the Freedom of Information Act (FOIA) in an attempt to locate documents to prove his claims. In 2012, Mr. Cunningham filed FOIA Requests Nos. 12-3595, 12-4031, 1206853, and 13-00146. All of these requests pertained either to the 2005 search of his home or the refusal to designate Mr. Cunningham a crime victim.
1. FOIA Request No. 12-3595
On July 26, 2012, Mr. Cunningham sent a FOIA request to the Department of Justice‘s (DOJ) Executive Office for U.S. Attorneys (EOUSA) asking for a copy of its “written decision ... concerning [Mr. Cunningham‘s] pro-se filed Misconduct Complaint” against Assistant U.S. Attorney (AUSA) Peter M. Skinner, who defended USMS in McCluskey. See Defs.’ Ex. 9 (Luczynski Decl.) [Dkt. 21-9] ¶ 4; Luczynski Decl., Ex. A [Dkt. 21-10]. EOUSA designated the request as FOIA Request No. 12-3595 and directed the U.S. Attorney‘s Office for the Southern District of New York (USAO-SDNY) to perform a search for responsive reсords. Luczynski
2. FOIA Request No. 12-4031
On August 10, 2012, Mr. Cunningham sent a complaint to the FBI. Luczynski Decl. ¶ 6. It stated that Marie O‘Rourke of the Federal Crime Victims Ombudsman Office, AUSA Kennedy, and FBI Special Agent (SA) Kristina Norris had “refused to provide their written decision concerning [Mr. Cunningham‘s] federal crime victim status.” Luczynski Decl., Ex. C [Dkt. 21-10]. The FBI treated the letter as a FOIA request and forwarded it to EOUSA on September 26, 2012. On that date, Mr. Cunningham asked EOUSA to expedite the request. Luczynski Decl. ¶¶ 6-7; Luczynski Decl., Ex. D [Dkt. 21-10]. Two weeks later, EOUSA assigned number 12-4031 to Mr. Cunningham‘s August 10, 2012, complaint letter (FOIA Request No. 12-4031) and informed Mr. Cunningham that it would not expedite his request but instead process it in the order it was received. Luczynski Decl. ¶ 8; Luczynski Decl., Ex. E [Dkt. 21-10].
On October 16, 2012, EOUSA directed USAO-SDNY to perform a search for records responsive to FOIA Request 12-4031. Smith Decl. ¶ 4; Smith Decl., Ex. A [Dkt. 21-12]. Because USAO-SDNY recently had performed a search in connection with FOIA Request No. 12-3595, USAO-SDNY asked only AUSA Kennedy and its Victim Witness Coordinator to search for records concerning Mr. Cunningham and his status as a federal crime victim. Neither AUSA Kennedy nor the Victim Witness Coordinator located any responsive records. Smith Decl. ¶ 7. EOUSA subsequently informed Mr. Cunningham on November 8, 2012, that its search pertaining to FOIA Request No. 12-4031 had not revealed any responsive records. Luczynski Decl. ¶ 9; Luczynski Decl., Ex. F [Dkt. 21-10].
Mr. Cunningham appealed this response to the Office of Information Policy (OIP), which oversees agency compliance with FOIA. On December 21, 2012, OIP af-
3. FOIA Request No. 1206853
On December 5, 2012, Mr. Cunningham wrote again to the FBI, this time asking for a copy of his “Federal Crime Victim Status Written Decision.” Defs.’ Ex. 13 (Hardy Decl.) [Dkt. 21-13] ¶ 5; Hardy Decl., Ex. A [Dkt. 21-14]. The FBI designated this request FOIA Request No. 1206853 on January 29, 2013. The FBI searched the indices of its Central Records System (CRS) for responsive records and coordinated additional searches by the Office for Victim Assistance (OVA) and SA Norris. Hardy Decl. ¶¶ 6, 17-20; Hardy Decl., Ex. B [Dkt. 21-14]. CRS is the FBI‘s electronic repository for information compiled for law enforcement purposes as well as administrative, applicant, criminal, personnel, and other files. Hardy Decl. ¶ 11. It is accessed via General Indices and an Automated Case Support System (ACS), which consists of Investigative Case Management, Electronic Case File, and a Universal Index, by searching for the subject. Id. ¶¶ 11-15.
On February 1, 2013, the FBI informed Mr. Cunningham that it had not located any records responsive to FOIA Request No. 1206853. Hardy Decl. ¶ 7; Hardy Decl., Ex. C [Dkt. 21-14]. Mr. Cunningham appealed to OIP on February 6, 2013, but OIP closed the case after Mr. Cunningham filed the instant suit. See
4. FOIA Request No. 13-00146
Mr. Cunningham‘s last FOIA request before this Court was sent to the DOJ‘s Office of Justice Programs (OJP) on January 23, 2013. He requested “all documents [concerning his status as a federal crime victim] and a copy of [his] Federal Crime Victim Status Written Decision.” Defs.’ Ex. 15 (Lee Decl.) [Dkt. 21-15] ¶ 3; Lee Decl., Ex. A [Dkt. 21-16]. OJP assigned number 13-00146 (FOIA Request No. 13-00146) to Mr. Cunningham‘s January 23 request and directed the Office for Victims of Crime (OVC) to conduct a search for responsive records. Lee Decl. ¶¶ 3, 5. Ultimately, both OJP and OVC conducted searches that located 50 pages of responsive material. Lee Decl. ¶¶ 5-8. On March 1, 2013, OJP produced the 50 pages in full to Mr. Cunningham. Id. ¶ 9; Lee Decl., Ex. F [Dkt. 21-21]. OJP realized on May 30, 2013, that it had omitted two responsive documents, consisting of three pages, from its March 1, 2013 production to Mr. Cunningham. It produced these pages in full on June 3, 2013. Lee Decl. ¶ 10, Lee Decl., Ex. G [Dkt. 21-22].
C. The Instant Litigation
Mr. Cunningham seeks to compel the release of records concerning the decision to deny him federal crime victim status. Compl. [Dkt. 1] at 14. In his initial Complaint filed on February 12, 2013, Mr. Cunningham named Representative Serrano, DOJ, the FBI and EOUSA.6 Id. at 1-2. He claimed that Representative Serrano and employees of DOJ, the FBI, and EOUSA “[w]illfully CONCEAL[ED]” rec-
On March 20, 2013, Mr. Cunningham filed an Amended Complaint, seeking $5 million in damages.7 See Civil Cover Sheet [Dkt. 1-2] at 2. Renewing his FOIA request for documents pertaining to the denial of his federal crime victim status, he named eleven individuals as co-Defendants: (1) Sean R. O‘Neill, Chief of the Administrative Appeals Staff at OIP; (2) John W. Gillis, former Director of OVC;8 (3) Kathryn Turman, Program Director of OVA;9 (4) Marie A. O‘Rourke; (5) AUSA Kennedy; (6) AUSA David V. Bober;10 (7) Deputy U.S. Marshal Nicholas Ricigliano; (8) SA Norris; (9) Judge Leonard B. Sand of the U.S. District Court for the Southern District of New York; (10) an unnamed “Reliable Confidential Informant” to USMS; and (11) Congressman Serrano. Am. Compl. [Dkt. 6] at 1-3. After Mr. Cunningham filеd suit, the FBI conducted a customary second search, in accordance with its policy. Def.‘s Mem. at 12-13. The only differences between the searches were that in the second search the FBI searched both main files and cross-references and spelled the entire word “crime.” Hardy Decl. ¶ 19 & n. 2. Mr. Cunningham alleges that Deputy Marshal Ricigliano illegally searched his home and seized his person, and the individual Defendants violated his rights under the First, Fifth, and Fourteenth Amendments to the U.S. Constitution, as well as his statutory rights under CVRA, by “willfully” destroying documents concerning his federal crime victim status. Am. Compl. at 14, 34. He also demands the production of responsive records maintained by USMS from the individual Defendants. Id. at 9.
Mr. Cunningham moved for summary judgment on May 17, 2013. See Pl.‘s Mot. for Summ. J. [Dkt. 16]. Defendants opposed on May 29, 2013, see Defs.’ Opp‘n [Dkt. 17], and cross-mоved for summary judgment and dismissal of the litigation on June 12, 2013. See Defs.’ Mot. for Summ. J. [Dkt. 21]. The Court entered a Fox-Neal Order on June 14, 2013.11 See Order [Dkt. 23]; see also Neal v. Kelly, 963 F.2d 453 (D.C.Cir.1992); Fox v. Strickland, 837 F.2d 507 (D.C.Cir.1988). Pursuant to the June 14 Order, Mr. Cunningham filed his Opposition to Defendants’ Motion for Summary Judgment on July 11, 2013. See Pl.‘s Opp‘n [Dkt. 28].
A. FOIA
FOIA requires federal agencies to release government records to the public upon request, subject to nine listed exceptions. See
A defending agency in a FOIA case must show that its search for responsive records was adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt information. See Sanders v. Obama, 729 F.Supp.2d 148, 154 (D.D.C.2010), aff‘d, Sanders v. Dep‘t of Justice, Civ. No. 10-5273, 2011 WL 1769099 (D.C.Cir. Apr. 21, 2011). The adequacy of a search is measured by a standard of reasonableness and depends on the individual circumstances of each case. Truitt v. Dep‘t of State, 897 F.2d 540, 542 (D.C.Cir.1990). The question is not whether other responsive records may exist, but whethеr the search itself was adequate. Steinberg v. Dep‘t of Justice, 23 F.3d 548, 551 (D.C.Cir.1994).
Thus, to rebut a challenge to the adequacy of a search, the agency need only show that “the search was reasonably calculated to discover the requested documents, not whether it actually uncovered every document extant.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C.Cir.1991) (citing Meeropol v. Meese, 790 F.2d 942, 950-51 (D.C.Cir.1986)). Agencies are not required to search every record system, but agencies must conduct a good faith, reasonable search of those systems of records likely to possess the requested records. Oglesby v. Dep‘t of Army, 920 F.2d 57, 68 (D.C.Cir.1990), overruled in part on other grounds, 79 F.3d 1172 (D.C.Cir.1996).
An agency may prove the reasonableness of its search by a declaration by responsible agency officials, so long as the declaration(s) is reasonably detailed and not controverted by contrary evidenсe or evidence of bad faith. Military Audit Project, 656 F.2d at 738. An agency affidavit can demonstrate reasonableness by “setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.” Valencia-Lucena v. Coast Guard, 180 F.3d 321, 326 (D.C.Cir.1999). An agency‘s declarations are accorded “a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” SafeCard, 926 F.2d at 1200 (internal citation and quotation marks omitted); see also id. at 1201 (“Mere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search for them.“). An affiant who is in charge of coordinating an agency‘s document search efforts in response to a plaintiff‘s FOIA request is the most appropriate person to provide a comprehensive affidavit in FOIA litigation. Id. at 1201. Declarations that contain hearsay in recounting searches for documents are generally acceptable. Kay v. FCC, 976 F.Supp. 23, 34 n. 29 (D.D.C.1997), aff‘d, 172 F.3d 919 (D.C.Cir.1998) (Table). Once an agency has provided adequate affidavits, the burden shifts back to the plaintiff to demonstrate a lack of a good faith search. See Maynard v. CIA, 986 F.2d 547, 560 (1st Cir.1993). If a review of the record raises substantial doubt as to the reasonableness of the search, especially in light of “well-defined requests and positive indications of overlooked materials,” then summary judgment may be inappropriate. Founding Church of Scientology v. NSA, 610 F.2d 824, 837 (D.C.Cir.1979).
FOIA “was not intended to reduce government agencies to full-time investigators on behalf of requesters.” Judicial Watch, Inc. v. Export-Import Bank, 108 F.Supp.2d 19, 27 (D.D.C.2000) (quoting Am. Fed‘n of Gov‘t Emps. v. Dep‘t of Commerce, 907 F.2d 203, 209 (D.C.Cir.1990)). As such, agencies are not required to “organize documents to facilitate FOIA responses.” Goulding v. IRS, Civ. No. 97-C-5628, 1998 WL 325202, at *5 (N.D.Ill. June 8, 1998) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 162, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975)); see also Blakey v. Dep‘t of Justice, 549 F.Supp. 362, 366-67 (D.D.C.1982) (“FOIA was not intended to compel agencies to become ad hoc investigators for requesters whose requests are not compatible with their own information retrieval systems.“), aff‘d, 720 F.2d 215 (D.C.Cir.1983) (Table). In addition, FOIA does not require agencies to create or retain documents. Moore v. Bush, 601 F.Supp.2d 6, 15 (D.D.C.2009). Further, an agency is not required to undertake a search that is so broad as to be unduly burdensome. Nation Magazine v. Customs Serv., 71 F.3d 885, 891 (D.C.Cir.1995). “[I]t is the requester‘s responsibility to frame requests with sufficient particularity ....” Judicial Watch, 108 F.Supp.2d at 27 (quoting Assassination Archives and Research Ctr. v. CIA, 720 F.Supp. 217, 219 (D.D.C.1989)). An agency‘s search must be evaluated in light of the request made. The agency is “not obliged to lоok beyond the four corners of the request for leads to the location of responsive documents.” Kowalczyk v. Dep‘t of Justice, 73 F.3d 386, 389 (D.C.Cir.1996).
B. Motion to Dismiss
The individual Defendants assert two bases for dismissing Mr. Cunningham‘s suit against them. First, individual Defendants contend that Mr. Cunningham has failed to state a claim under FOIA because that statute applies only to covered federal agencies. Second, Defendants assert that Mr. Cunningham‘s alleged constitutional and statutory deprivations fail without regard to whether he is suing the individual Defendants in their official or personal capacities. As to the former dismissal argument, individual Defendants reason that the Court lacks subject matter jurisdiction, and as to the latter, individual Defendants argue that Mr. Cunningham fails to state a claim.
1. Failure to State a Claim
The individual Defendants argue that Mr. Cunningham has failed to stаte a claim
While a complaint does not need detailed factual allegations, a plaintiff‘s obligation to provide the grounds of his entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim for relief that is “plausible on its face.” Id. at 570, 127 S.Ct. 1955. A court must treat the complaint‘s factual allegations as true, “even if doubtful in fact.” Id. at 555, 127 S.Ct. 1955. Yet, a court need not accept as true legal conclusions set forth in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C.Cir.2007).
2. Lack of Subject Matter Jurisdiction
The individual Defendants also assert that the Court lacks jurisdiction because Mr. Cunningham‘s claims cannot be brought against the individual Defendants in their official capacities. Just as liberally-construed pro se complaints must satisfy Rule 12(b)(6), such pleadings must also state a basis for subject matter jurisdiction. “[B]ecause subject-matter jurisdiction is ‘an Art. III as well as a statutory requirement ... no action of the parties can confer subject-matter jurisdiction upon a federal court.‘” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir.2003) (quoting Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)).
Pursuant to Rule 12(b)(1), a defendant may move to dismiss a complaint, or any portion thereof, for lack of subject-matter jurisdiction. When reviewing a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), a court must review the complaint liberally, granting the “‘plaintiff the benefit of all inferences that can be derived from the facts alleged.‘” Barr v. Clinton, 370 F.3d 1196, 1199 (D.C.Cir.2004) (quoting Kowal v. MCI Commc‘ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994)). Nevertheless, the party asserting subject matter jurisdiction has the burden of demonstrating that such jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C.Cir.2008); see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (noting that federal courts are courts оf limited jurisdiction and “[i]t is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” (internal citations omitted)). Furthermore, the court may consider materials outside the pleadings, Settles v. Parole Comm‘n, 429 F.3d 1098, 1107 (D.C.Cir.2005), and it “need not accept factual inferences drawn by plaintiffs if those
C. Motion for Summary Judgment
The claims against the federal agencies (DOJ, EOUSA, and the FBI) are limited to alleged violations of FOIA. The agency Defendants contend that there is no genuine dispute as to any material fact and that they are entitled to summary judgment as a matter of law. See
FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir.1993); Rushford v. Civiletti, 485 F.Supp. 477, 481 n. 13 (D.D.C.1980), aff‘d, Rushford v. Smith, 656 F.2d 900 (D.C.Cir.1981). In a FOIA case, a court may award summary judgment solely on the basis of information provided by the deрartment or agency in affidavits or declarations when the affidavits or declarations describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir.1973) (requiring agencies to prepare an itemized index correlating each withheld document, or portion thereof, with a specific FOIA exemption and the relevant part of the agency‘s nondisclosure justification). An agency must demonstrate that “each document that falls within the class requested either has been produced, is unidеntifiable, or is wholly [or partially] exempt” from FOIA‘s requirements. Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978) (internal quotation marks and citation omitted).
III. ANALYSIS
A. FOIA Claims Against Individually-Named Defendants
Mr. Cunningham‘s FOIA suit against the individual Defendants cannot possibly prevail.12 FOIA relief may only
be obtained from covered federal agencies. See
B. Constitutional and Statutory Claims Against Individually-Named Defendants
Mr. Cunningham alleges that the individual Defendants acted in contravention of certain constitutional and statutory provisions. It is unclear whether Mr. Cunningham intends to name the individual Defendants in their official or personal capacities. In light of the Court‘s obligation to construe Mr. Cunningham‘s pleadings liberally, see Haines, 404 U.S. at 520; Byfield, 391 F.3d at 281, it will assume that he intended to sue them in both capacities. Nonetheless, for the reasons discussed below, summary judgment on such claims must be granted to the individual Defendants.
1. Individual Defendants Named in Their Official Capacities
It is a bedrock principle of American law that, as sovereign, the United States is immune from suit unless Congress has exprеssly waived that immunity. See, e.g., Block v. North Dakota ex rel. Bd. of Univ. & School Lands, 461 U.S. 273, 287, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983) (“The basic rule of federal sovereign immunity is that the United States cannot be sued at all without the consent of Congress.“). The United States’ exemption from suit is expressed in jurisdictional terms—that is, federal courts lack subject matter jurisdiction over suits against the United States in the absence of a waiver. See, e.g., Jackson v. Bush, 448 F.Supp.2d 198, 200 (D.D.C.2006) (“[A] plaintiff must overcome the defense of sovereign immunity in order to establish the jurisdiction necessary to survive a Rule 12(b)(1) motion to dismiss.“). Waivers of sovereign immunity are strictly construed, and any doubt or ambiguity is resolved in favor of immunity. Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (“A waiver of the Federal Government‘s sovereign immunity must be unequivocally expressed in statutory text, and will not be implied. Moreover, a waiver of the Government‘s sovereign immunity will be strictly construed, in terms of its scope, in favor of thе sovereign.” (internal citations omitted)). Claims against federal employees in their official capacities are deemed to be claims against the United States. See Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). To the extent that Mr. Cunningham has sued the individual Defendants in their official capacities, he has failed to state a valid waiver of sovereign immunity. As a result, the Court has no subject mat-
2. Individual Defendants Named in Their Individual Capacities
Mr. Cunningham argues that the individual Defendants violated his rights under CVRA and the U.S. Constitution. The Court will address the statutory claim first.
No judicial relief may be had under CVRA because that statute does not allow a private party to sue for enforcement. CVRA expressly disallows a suit for damages against the federal government or its officials, see
Mr. Cunningham‘s allegations that individual Defendants violated his First, Fifth, and Fourteenth Amendment rights also are unsound. Although not articulated as such, Mr. Cunningham‘s claims are covered by Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).13 Bivens allowed persоnal lawsuits for money damages against federal officials who violate known constitutional rights. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001); see also Thompson v. Pope, 397 F.Supp.2d 28, 32 (D.D.C.2005). Mr. Cunningham claims that the individual Defendants’ failures to produce records concerning his crime victim status
The scope of Bivens is narrowly construed. See Malesko, 534 U.S. at 68 (Supreme Court consistently has “refused to extend Bivens liability to any new context or new category of defendants“). There is no Bivens remedy available where a statute provides a “comprehensive system to administer public rights.” Spagnola v. Mathis, 859 F.2d 223, 228 (D.C.Cir.1988) (en banc) (per curiam); see also Bush v. Lucas, 462 U.S. 367, 367, 373, 389-90, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (Bivens remedies are inappropriate when Congress has itself created a remedy or “declar[ed] that existing statutes provide the exclusive mode of redress“). FOIA presents such a statutory sсheme. Johnson v. Exec. Office for Att‘ys, 310 F.3d 771, 777 (D.C.Cir.2002). Therefore, Bivens does not admit any damages remedy for an alleged violation of FOIA by the individual Defendants.
C. FOIA Claims Against Defendant Agencies
Finally, Mr. Cunningham complains that DOJ, EOUSA, and the FBI have violated FOIA by performing inadequate searches for records that respond to his FOIA Request Nos. 12-4031, 1206853, and 13-00146.
1. Scope of the Searches
EOUSA has shown that it conducted a reasonable search in response to FOIA Request No. 12-4031, calculated to discover the requested documents.15 SafeCard, 926 F.2d at 1201; Meeropol, 790 F.2d at 950-51. At the direction of EOUSA, USAO-SDNY searched for responsive records on October 16, 2012, via LIONS
EOUSA‘s search for additional responsive records was adequate and reasonable for the particular circumstances of this case. Truitt, 897 F.2d at 542. EOUSA was not required to search every record system. Oglesby, 920 F.2d at 68. Mr. Cunningham‘s bald assertions that EOUSA performed an inadequate search, Pl.‘s Mot. in Support of Summ. J. and Opp‘n to Defs.’ Mot. for Summ. J. or Mot. to Dismiss (Pl.‘s MSJ and Opp‘n) [Dkt. 28] at 2-3, are insufficient to overcome the presumption of good faith that EOUSA has established through its declarations. SafeCard, 926 F.2d at 1200-01.
The Court also finds that the FBI, through its affidavits demonstrating its multiple search efforts of the relevant databases, has shown that the seаrches it conducted in response to FOIA Request No. 1206853 were reasonably calculated to discover the requested documents, SafeCard, 926 F.2d at 1201; Meeropol, 790 F.2d at 950-51. Before answering FOIA Request No. 1206853, the FBI searched CRS for the terms: Benjamin Cunningham; Cunningham, Benjamin; Cunningham, B.; Federal Crim. Victim Status Written Decision; Federal Crim. Victim Status Written; Federal Crim. Victim Status; and Federal Crim. Victim. Hardy Decl. ¶ 17. The FBI did not find any documents as a result of these searches. Id. After Mr. Cunningham filed suit, the FBI conducted a second records search. The only differences between the first and second searches were that the FBI searched both main files and cross-references and spelled the entire word “crime” for the second search. Id. ¶ 19 & n. 2. Again, no records were located. Id. ¶ 19.
Mr. Cunningham again asserts conclusory claims concerning the inadequacy of the FBI‘s searches. Without further explanation, he alleges that “Defendants’ FOIA searches were NOT sufficiently adequate under FOIA law thru [sic] the 5th & 14th Amendments under the principles of the United States Constitution” and that “Defendants have willfully REFUSED to provide FOIA records,” including “Federal Crime Victim Intake/Interview Legal Documents” and “Federal Crime Victim Written Decision Legal Documents.” Pl.‘s MSJ and Opp‘n at 2-3. But conclusory claims without an evidentiary basis do not carry a FOIA plaintiff‘s burden of showing that an agency‘s search was not in good faith. Maynard, 986 F.2d at 560.
Further, Mr. Cunningham claims that SA Norris engaged in criminal conduct by failing to enter her notes from a 2008 interview with Mr. Cunningham into FBI‘s database of official agency records. Pl‘s MSJ and Opp‘n at 8; 24-33. Putting aside the fact that this claim appears to be outside the allegatiоns made in either the Complaint or Amended Complaint, the Court observes that SA Norris‘s notes were personal, only to be used to refresh SA Norris‘s memory if necessary, and FBI agents have some degree of discretion as to what notes might be indexed in CRS. Hardy Decl. ¶¶ 16, 20. Because no charges or charging documents were ever filed in relation to the 2005 search of Mr.
Finally, with respect to FOIA Request No. 13-00146, the Court finds that OJP‘s searches for records response to that FOIA request were adequate and reasonable. OJP directed OVC to search its records for responsive documents. The OVC program manager searched for the term “Cunningham” in the following storage locations: G: drive, an electronic system for maintaining shared documents; H: drive, an electronic system accessible only to OVC staff and where staff store their personal documents and files; and “Chron files,” a paper system consisting of office correspondence ordered chronologically or by date of action. These searches resulted in locating a draft letter from former OVC Director (and current Defendant) Gillis to Mr. Cunningham dated 2008. Lee Decl. ¶ 6. Thus prompted, OJP searched its Executive Secretariat Correspondence Tracking System for the term “Benjamin Cunningham,” and located the control number assigned to Mr. Cunningham‘s 2008 inquiry. OJP then manually retrieved the response letter from former OVC Director Gillis, Mr. Cunningham‘s incoming letter, and the attachments from the 2008 paper files. Id. ¶ 7. No other responsive records were located. Id. ¶ 8. These were all produced.
The Court finds that OJP has demonstrated that it made searches reasonably calculated to discover documents responsive to FOIA Request No. 13-00146. SafeCard, 926 F.2d at 1201; Meeropol, 790 F.2d at 950-51. Moreover, the systems of records OJP searched were likely to possess the requested information. Oglesby, 920 F.2d at 68. Here too, Mr. Cunningham cannot avail himself of bare assertions that the OJP‘s searches were insufficient. See Pl.‘s MSJ and Opp‘n at 2-3. Such speculative claims cannot overcome the presumption of good faith that agency‘s enjoy upon submitting an adequate declaration. SafeCard, 926 F.2d at 1200.
2. Segregability
If a record contains information that is exempt from disclosure, any reasonably segregable information must be released after redacting the exempt portions, unless the non-exempt portions are inextricably intertwined with exempt portions.
IV. CONCLUSION
While the Court is mindful of its duty to construe pro se plaintiffs’ complaints liberally, see Haines, 404 U.S. at 520; Byfield, 391 F.3d at 281, for the reasons discussed above, the Court will grant Defendants’ Motion [Dkt. 24] and close this case. A separate Order accompanies this Memorandum Opinion.