Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________
)
SYLVIA MENIFEE, )
)
Plaintiff, )
) v. ) Civil Action No. 12-252 (RMC) )
U.S. DEPARTMENT OF THE )
INTERIOR, et al. , )
)
Defendants. )
_________________________________ )
OPINION
Sylvia Menifee, an employee of the Department of the Interior, alleges that her supervisor and other Interior employees have intimidated her in the workplace and that her complaints to Interior personnel have fallen on deaf ears. Proceeding pro se , she brings a First Amendment claim, tort claims, and a claim under the Freedom of Information Act. Defendants have moved for summary judgment on Ms. Menifee’s FOIA claim and to dismiss all other claims. For the reasons set forth below, the Court finds that Defendants have complied with the requirements of FOIA and that Ms. Menifee has failed to state a claim as to all other counts in the Amended Complaint. The Court will thus grant both of Defendants’ motions. Because sovereign immunity bars some of Ms. Menifee’s tort claims, the dismissal of those claims will be with prejudice, while the dismissal of the others will be without prejudice.
I. FACTS
Ms. Menifee’s Complaint and Amended Complaint are entirely dеvoid of any factual allegations. However, Ms. Menifee has alluded to the facts underlying her First Amendment and tort claims in various filings. In their motion for summary judgment on Ms. Menifee’s FOIA claim, Defendants have included evidence and a statement of facts that Ms. *2 Menifee has not disputed. The Court reviews the procedural history of the case, synthesizes the facts that form the basis for Ms. Menifee’s First Amendment and tort claims, and then discusses the background of the FOIA claim.
A. Procedural History
Ms. Menifee filed a cursory three-count Complaint on February 15, 2012, alleging that Interior and various individual Interior employees “recklessly made malicious and false statements about the Plaintiff,” “violated [her] 1st Amendment Rights,” and “intentionally withheld [her] request for records under the Freedom of Information Act (FOIA).” Compl. [Dkt. 1] ¶¶ 1–3. The original Complaint named five defendants: Interior, Andrew Jackson, John Ross, Tanya Henderson, and Diane Smith, all Interior employees. The Complaint did not in any provide any factual basis for Ms. Menifee’s claims. That deficiency notwithstanding, Ms. Menifee immediately filed a Motion for Temporary Restraining Order against Mr. Ross. [Dkt. 2].
Defendants opposed Ms. Menifee’s TRO motion, Dkt. 5, and the Court held a hearing on February 24, 2012, at which it denied the TRO motion. Defendants moved to dismiss Ms. Menifee’s First Amendment and tort claims, Dkt. 7, which Ms. Menifee opposed, Dkt. 10. Defendants filed a reply brief, Dkt. 11, and Ms. Menifee, without seeking leave to do so, filed a surreply, Dkt. 12 (“Surreply”). At the same time, Ms. Menifee also filed an Amended Complaint. [Dkt. 13]. The Amended Complaint contains five claims: (1) “[T]he supervisor and other DOI management staff[ ] recklessly and deliberately made malicious and false statements” about her; (2) “Defendant(s) violated [her] 1st Amendment Rights”; (3) “The Defendant intentionally withheld [her] request for records under [FOIA]”; (4) “The Defendant(s) tortuously [sic] caused Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress”; and (5) “Abuse of рrocess by agency law enforcement.” See id. ¶¶ 1–5. As was the *3 original Complaint, the Amended Complaint is devoid of any factual allegations. The Amended Complaint names the original five defendants—Interior, Andrew Jackson, John Ross, Tanya Henderson, and Diane Smith—and adds Steve Hargrave. [1] The Court refers to the Defendants collectively as “Interior.”
Construing Ms. Menifee’s filing of an Amended Complaint as a motion to amend her complaint, Interior responded with an omnibus opposition and memorandum to dismiss (“MTD Mem.”). [Dkt. 14]; see also Errata [Dkt. 15]. Interior separately filed a second motion to dismiss Ms. Menifee’s tort and First Amendment claims (“MTD”). [Dkt. 16]. Ms. Menifee then filed a “Response” in support of her Amended Complaint in which she argued that she should be allowed to amend her Complaint; the Court will refer to that filing as Plaintiff’s Reply. [Dkt. 18] (“Pl. Mot. Amend Reply”).
On May 16, 2012, Interior filed a reply brief in support of its second motion to dismiss the tort and First Amendment Claims. Reply Pl. Resp. Defs. Mot. Dismiss [Dkt. 19] (“Def. MTD Reply”). On July 30, 2012, Interior filed an answer to the Amended Complaint. [Dkt. 23]. The following day, the Court by Minute Order construed Ms. Menifee’s Amended Complaint as a motion to amend the complaint and granted the motion. The Court also denied the first motion to dismiss as moot and directed Ms. Menifee to respond to the second motion to dismiss. Ms. Menifee filed a response on August 28, 2012. Pl. Resp. Def. Mot. Dismiss Tort & First Amend. Claims (“Pl. MTD Opp.”) [Dkt. 27].
Separately, the Court set a briefing schedule on Ms. Menifee’s FOIA claim. The defendants moved for summary judgment, Dkt. 28 (“Def. MSJ”); Ms. Menifee filed an opposition, Dkt. 29 (“Pl. MSJ Opp.”); and the defendants filed a reply brief, Dkt. 30 (“Def. MSJ *4 Reply”). At the invitation of the Court, see Dkt. 32, Ms. Menifee filed a supplement to her opposition, Dkt. 35 (“Pl. MSJ Supp. Opp.”).
B. Facts
1. First Amendment and Tort Claims Ms. Menifee identifies herself as an “80% disabled veteran, with 22+ years of government service,” who has worked for Interior since January 3, 2011. Mem. Supp. TRO [Dkt. 2] ¶¶ 1–2. She works in the Office of Valuation Services (OVS), [2] where, at least as of September 2011, she was the Chief of the Business and Administrative Management Divisiоn. [3] Along with “other key members of management,” Ms. Menifee’s direct supervisor, John Ross, is alleged to have subjected her to “unsettling acts of discrimination” that began “[s]hortly after her arrival” at Interior. ¶ 3. During one-on-one meetings between Ms. Menifee and Mr. Ross, Mr. Ross has allegedly “demonstrated intimidating behaviors” that made Ms. Menifee “concerned for her safety.” ¶¶ 4–9. Sometime after “late March” 2011, Ms. Menifee raised concerns about Mr. Ross to higher-level supervisors and “Security,” and even to the Secretary of the Interior, but Mr. Ross’s conduct allegedly continued, including “send[ing] [Ms. Menifee] *5 harassing emails at odd times.” Id. ¶¶ 4, 15–21. Ms. Menifee began experiencing “fear and work related stress” and was sometimes unable to go to work, including around the holiday season of 2011. Id. ¶¶ 16–17. After January 9, 2012, she felt that “[t]he level of harassment” from Mr. Ross became “unbearable.” Id. ¶ 20. Ms. Menifee thus sought a TRO requiring that “all contact” between her and Mr. Ross “cease,” notwithstanding that “[t]he nature of [Ms. Menifee’s] work does not require” direct contact with Mr. Ross. at 5. During the TRO hearing, Ms. Menifee reiterated repeatedly that her primary concerns were that meetings requested by Mr. Ross were “deceptive,” his behavior at such meetings was “aggressive,” and the Interior chain of command had not addressed the issues despite her complaints. Feb. 24, 2012 Hr’g Tr. at 10–12.
In her filings, Ms. Menifee references an “incident on April 2, 2012” in which Mr. Hargrave is alleged to have “deliberately impersonated law enforcement” in a “planned and pre- mediated action.” Pl. Mot. Amend Reply at 2. Ms. Menifee asserts that Mr. Hargrave “was charged by his co-defendants to conducted [sic] an investigation into [her] safety, which he was not authorized to do” and “abused his position and authority over her.” at 2–3. On this occasion, Ms. Menifee allegedly was “denied entry to the Department of Interior building [ ] by a security supervisor accompaniеd by representatives of HR.” Surreply, Ex. 1 (E-mail from David Shapiro [4] ) at 1; see also Surreply at 3 (referring to a “gang of seven (7) insubordinate DOI employees (5 security officials and 2 Human Resources personnel)”). Ms. Menifee asserts that “building security had been given a photography of her” and been “told to call [Mr. Hargrave] if and when she entered the building.” Shapiro E-mail at 1. Interior security contacted Mr. Hargrave when Ms. Menifee attempted to enter, and he denied Ms. Menifee permission to enter *6 the building. Id. When Ms. Menifee “attempted to go through and scan her ID,” Mr. Hargrave “had another male building security guard block her path.” Ms. Menifee felt “utterly humiliated” by this event.
Separately, Ms. Menifee refers to events that occurred on June 13, 2012, during which “Mr. Hargrave[] had [her] detained for a second time and would not allow her to exit the DOI headquarters building with her personal belongings until he conducted a search of them.” Pl. MTD Opp. at 2. This second incident, аbout which no additional facts are in the record, postdates the filing of the Amended Complaint.
2. FOIA Claim Ms. Menifee submitted two FOIA requests to the Office of the Secretary of the Department of the Interior: one on June 30, 2011, and the other on September 29, 2011. Julka Decl., Def. MSJ Ex. [Dkt. 28-1] ¶ 5.
i. June 30, 2011 Request The June 30, 2011 request sought 24 categories of documents, mostly e-mail correspondence among certain individuals. Specifically, Ms. Menifee requested:
a. All emails between John Ross (john@johnwross.net; JohnRoss@ios.doi.gov) and Tanya Henderson (TanyaEHenderson @nbc.gov) from January 2011 to present.
b. All emails between John Ross(john@johnwross.net; John_Ross@ios.doi.gov) and Dave Damron (DaveDamron @nbc.gov) from January 2011 to present.
c. Email from John Ross to Andrew Jackson on or around May 13 in which Mr. Ross mentions “issues in the DC office is spreading to the field.”
d. Email between John Ross and Eric Alvarez on June 28, 2011.
e. All emails between Tanya Henderson and Dave Damron from January 2011 to present.
f. All emails between Alex Glade and Danielle Dzidzienyo from May 5, 2011 to present regarding relocation.
g. All emails between Alex Glade and John Ross from May 5, 2011 to present regarding relocation.
h. All emails between Alex Glade and Yolanda Jamison from May 5, 2011 to present regarding relocation.
i. Email(s) from Danielle Dzidzienyo to John Ross on or about May 12, 2011 regarding the relocation of Alex Glade; email subject line: “Email and other documentation relating to relocation of Alex Glade.”
j. Email(s) from Yolanda Jamison to John Ross on or about May 12, 2011 regarding the relocation of Alex Glade; email subject line: “Email and other documentation relating to relocation of Alex Glade.”
k. All emails between Danielle Dzidzienyo and Tanya Henderson from February 2011 to present.
l. All emails from Danielle Dzidzienyo (DanielleDzidzienyo @ios.doi.gov) to Yolanda Jamison (YolandaJamison@nbc.gov; JamisоnYolanda@yahoo.com and yjamison@ufl.edu) from January 3, 2011 to present.
m. All emails from Danielle Dzidzienyo to John Ross (JohnRoss@ios.doi.gov) from April 2011 to present.
n. All emails between Danielle Dzidzienyo to Eric Alvarez from January 2011 to present.
o. All emails from Yolanda Jamison (Yolanda Jamison@nbc.gov; JamisonYoIanda@yahoo.com; and yjamison@ufl.edu) to Danielle Dzidzienyo (Danielle Dzidzienyo@ios.doi.gov) from January 3, 2011 to present.
p. All emails from Yolanda Jamison (Yolanda Jamison@nbc.gov) to Yolanda Jamison (JamisonYolanda@yahoo.com; and yjamison@ufl.edu) from January 3, 2011 to present.
q. All emails from Yolanda Jamison (Yolanda Jamison@nbc.gov) to Robert Davidoff (Robert L Davidoff@nbc.gov) from January 3, 2011 to present.
r. June 10, 2011 email from Yolanda Jamison (YolandaJamison@nbc.gov) to Michael Jurach regarding limited inquiry.
s. All emails from Yolanda Jamison (Yolanda Jamison@nbc.gov) to Ricardo Wiley-Pitts from February 2011 to June 17, 2011.
t. All emails betwеen Yolanda Jamison (YolandaJamison @nbc.gov) and Todd Stedeford from February 2011 to June 17, 2011.
u. All emails between Yolanda Jamison and Tanya Henderson from February 2011 to June 17, 2011.
v. All emails between Yolanda Jamison and John Ross from April 2011 to June 17, 2011.
w. All emails between Yolanda Jamison and Eric Alvarez from January 2011 to June 17, 2011.
x. Copy of the investigative report for [Office of Valuation Services (OVS)] “Limited Inquiry” completed in June 2011.
Julka Decl. ¶ 7.
On July 5, 2011, the Office of the Secretary forwarded the request to the National Business Center and OVS for processing. Id. ¶ 8. The Office of the Secretary released 1576 pages to Ms. Menifee in their entirety in nine batches in June and July 2012. ¶¶ 13–21. On September 28, 2012, the Office of the Secretary released 965 pages with partial withholdings pursuant to FOIA Exemptions 5 and 6. ¶ 22.
ii. September 29, 2011 Request In the September 29, 2011 request, Ms. Menifee requested the following: a. All emails between John Ross and Tamara Lukjanczuk from May 2011 to present.
b. All emails between John Ross and Diane Smith (BOEMRE) from August 2011 to present.
c. All emails between John Ross and Maggie Torres from August 2011 to present.
d. Copy of John Ross’s outlook calendar from August 8, 2011 to present.
e. All emails between Andrew Jackson and Diane Smith (BOEMRE) from September 2011 to present.
Julka Decl. ¶ 24.
The Office of the Secretary forwarded the request to the National Business Center and to the individuals named in the request for a search for responsive records. ¶ 25. On April 2, 2012, the Office of the Secretary released 913 pages to Ms. Menifee with partial withholdings pursuant to Exemptions 5 and 6. ¶ 27.
II. LEGAL STANDARDS
A. Rule 12(b)(1)
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to
dismiss a complaint, or any portion thereof, for lack of subject-matter jurisdiction. Fed. R. Civ.
P. 12(b)(1). 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
,
To determine whether it has jurisdiction over the claim, a court may consider
materials outside the pleadings.
Settles v. U.S. Parole Comm’n
,
B. Rule 12(b)(6)
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
challenges the adequacy of a cоmplaint on its face, testing whether a plaintiff has properly stated
a claim. Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(1). A
complaint must be sufficient “to give a defendant fair notice of what the . . . claim is and the
grounds upon which it rests.”
Bell Atl. Corp. v. Twombly
,
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) (internal quotation marks and citation omitted). To survive a
*11
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a
claim for relief that is “plausible on its face.”
Twombly
,
A court must treat the complaint’s factual allеgations as true, “even if doubtful in
fact.”
Twombly
,
C. Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must
be granted when “the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
Anderson v. Liberty
Lobby, Inc.
,
FOIA cases are typically and appropriately decided on motions for summary
judgment.
Miscavige v. IRS
,
III. ANALYSIS
The Court addresses Interior’s motion to dismiss before turning to the motion for summary judgment on Ms. Menifee’s FOIA claim. [5]
A. Motion to Dismiss First Amendment and Tort Claims Against all six defendants, Ms. Menifee alleges defamation (Count I), violation of her First Amendment rights (Count II), intentional infliction of emotional distress and negligent *13 infliction of emotional distress (Count IV), and abuse of process (Count V). Interior raises two arguments: first, Ms. Menifee has failed to state a claim on which relief can be granted, and second, sovereign immunity bars the tort claims. MTD Mem. at 6.
1. Failure to State a Claim As to Ms. Menifee’s First Amendment claim, Interior argues that Ms. Menifee “fails to describe what First Amendment rights are implicated or how Defendants interfered with the conduct of those rights.” MTD Mem. at 7. Interior contends that “[Ms. Menifee] has not identified any speech or how her workplace relationship with Defendants addressed a matter of public concern.” Id. at 7 n.6. As to Ms. Menifee’s tort claims, Interior asserts that the Amended Complaint contains only “[l]abels and conclusion[s]” with “[n]o further explanation.” at 8. Even looking beyond the face of the Amended Complaint to Ms. Menifee’s Surreply and other filings, Interior argues, dismissal is required because “[Ms. Menifee’s] description of the event that she was ‘denied entry into the Department of the Interior building where she worked’ and that she was ‘unlawfully detained’ does not state a claim.” at 8 n.8. The extent of Ms. Menifee’s argument in response to both arguments is that she has “provided the facts as required by the FRCP.” Pl. Mot. Amend Reply at 3; see also Pl. MTD Opp. at 3 (“[T]he Pro Sе Plaintiff strongly believes that she has and met all requirements of the court and the Federal Rules of Civil Procedure . . . .”).
The Court concludes that Ms. Menifee has failed to state a claim for a violation of
her First Amendment rights or for defamation, intentional infliction of emotional distress,
negligent infliction of emotional distress, or abuse of process. Neither the Complaint nor the
Amended Complaint contains any facts on which such claims might be based. The Amended
Complaint consists of nothing more than “labels[,] conclusions, and a formulaic recitation of the
elements of [the] cause[s] of action.”
Twombly
,
Even scouring the record to cobble together factual allegations from all of Ms.
Menifee’s pro se filings is insufficient to save the Amended Complaint. Ms. Menifee only
makes reference to “unsettling acts of discrimination,” Mem. Supp. TRO ¶ 3, “unbearable”
harassment,
id.
¶ 20, an “unauthorized” “investigation into [her] safety,” Pl. Mot. Amend Reply
2–3, and an “abuse[]” of “position and authority,”
id.
, without any facts to demonstrate what she
means and what Interior needs to answer. As currently formulated, Ms. Menifee’s allegations
are insufficient to state a claim for a violation of her First Amendment rights,
see Thompson v.
District of Columbia
,
Ms. Menifee has thus failed to state a claim as to Counts I, II, IV, and V, and her Amended Complaint must be dismissed as to those counts.
2. Sovereign Immunity
Assuming
arguendo
that Ms. Menifee stated a claim, her Amended Complaint
must nonetheless be dismissed as to her defamation, intentional and negligent infliction of
emotional distress, and abuse of process claims due to sovereign immunity. It is “axiomatic that
the United States may not be sued without its consent and that the existence of consent is a
prerequisite for jurisdiction.”
United States v. Mitchell
,
The exclusive remedy for torts committed by Government employees in the scope
of their employment is a suit against the Government itself under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680. In other words, the FTCA works as a limited
waiver of sovereign immunity.
Sloan v. Dep’t of Housing and Urban Dev.
,
Interior argues that sovereign immunity bars Ms. Menifee’s claims against
Interior and all of the individual defendants, who wеre employees of Interior. MTD Mem. at 9–
13. The Court agrees. Ms. Menifee has not alleged that the United States has waived sovereign
immunity. Although the FTCA operates as a limited waiver of sovereign immunity in some
circumstances, Ms. Menifee has not alleged that she complied with the FTCA’s prerequisites for
waiver. By sworn declaration, Interior confirms that Ms. Menifee never filed any administrative
claim. Decl. Charles B. Wallace, Mem. MTD Ex. 2 [Dkt. 15-2]. Furthermore, all of the named
employee defendants—Andrew Jackson, John Ross, Tanya Henderson, Diane Smith, and Steve
Hargrave—were acting within their official capacities during the events alleged by Ms. Menifee,
as confirmed by the Amended Complaint. Interior has filed certifications establishing that each
individual defendant was acting within the scope of his or her employment at the time of the
allegations.
See
Cert. Rudolph Contreras, TRO Opp. Ex. 1 [Dkt. 5-1] (as to Messrs. Jackson and
Ross and Ms. Henderson and Smith), MTD Opp. Ex. 1 [Dkt. 15-1] (as to Mr. Hargrave). Other
than the bald declaration in her briefs that she exhausted her remedies,
e.g.
, Surreply at 2 (stating
that “all remedies were exhausted”), Ms. Menifee provides no facts or evidence in support. Her
statement alone is insufficient in light of Interior’s evidence.
See Kowal v. MCI Commc’ns
Corp.
,
Even with exhaustion of administrative remedies, Ms. Menifee’s claims of
defamation and abuse of process would fail because the FTCA does not waive sovereign
immunity for those particular torts.
See
28 U.S.C. § 2680(h) (exempting from the FTCA “[a]ny
claim arising out of,”
inter alia
, “false imprisonment, false arrest, malicious prosecution, abuse
of process, libel, [and] slander”);
see also Sottile v. United States
,
Moreover, a claim of abuse of process against Mr. Hargrave would not be covered
by the FTCA’s waiver of sovereign immunity because he is а “Supervisory Security Officer” at
Interior whose duties are,
inter alia
, “interpreting and implementing DOI security policies,
procedures, principles, and techniques.” Decl. Steven T. Hargrave, Def. MTD Ex. 3 [Dkt. 15-3]
¶¶ 1–2. Mr. Hargrave’s position does not authorize him to conduct searches, seize evidence, or
*18
make arrests,
id.
¶ 3, meaning that he is not an “investigative or law enforcement officer” as
defined within the relevant provision of the FTCA.
See
28 U.S.C. § 2680(h) (“For the purpose
of this subsection, ‘investigative or law enforcement officer’ means any officer of the United
States who is empowered by law to execute searches, to seize evidence, or to make arrests for
violations of Federal law.”). Ms. Menifee’s response on this point—that “Mr. Hargrave[,] who
is not law enforcement, was charged by his co-defendants to conducted [sic] an investigation into
the Plaintiff’s safety, which he was not authorized to do[,] and provided unverified/unsworn
testimony [at the TRO hearing], which demonstrates his lack of qualifications,” Pl. Mot. Amend
Reply at 2–3—is nonresponsive to the requirement imposed by 28 U.S.C. § 2680(h) and, at any
rate, does not satisfy the legal standard.
See Iqbal
,
3. Conclusion For the foregoing reasons, the Court will grant Interior’s motion to dismiss Ms. Menifee’s First Amendment and tort claims, alleged in Counts I, II, IV, and V. The dismissal will be with prejudice as to Counts I and V, the claims of defamation and abuse of process, because sovereign immunity is not waived as to those torts. The dismissal is without prejudice as to the First Amendment claim (Count II) and the intentional and negligent infliction of emotional distress claim (Count IV).
B. FOIA Claim
Interior has moved for summary judgment on Count III, Ms. Menifee’s claim that “[t]he Defendant intentionally withheld [her] request for records under [FOIA].” Interior argues that: (1) it has conducted an adequate and reasonable search, Def. MSJ Mem. 4–5; (2) it has *19 “released all responsive, non-exempt records in response to [Ms. Menifee’s] FOIA request,” id. at 5–6; (3) its withholdings pursuant to Exemption 5 were proper, id. at 6–14; (4) its withholdings pursuant to Exemption 6 were proper, id. at 14–19; and (5) it produced all reasonably segregable, non-exempt information, id. at 20–21.
In her opposition to Interior’s motion for summary judgment, Ms. Menifee argues that Interior “unlawfully withheld numerous records from the Plaintiff without just cause and merit, alleging and asserting false exemption claims (Exemption 5 and Exemption 6) to circumvent discovery.” Pl. MSJ Opp. [Dkt. 29] at 2. She avers that there is no “way to determine what records were withheld” and that “incriminating emails were withheld from [her] to protect the Defendants against [her] civil law suit.” Id. She further argues that “due to the oversight of Defendant Andrew Jackson, thе agency still refused to release emails [ ] to protect[ ] his interest.” Ms. Menifee relies heavily on three memoranda—one from President Barack Obama, one from Attorney General Eric Holder, and one from Secretary of the Interior Kenneth Salazar—that all reflect the Obama administration’s policy that FOIA “should be administered with a clear presumption . . . [that] openness prevails.” See Pl. MSJ Supp. Op., Exs. 1–3 (policy memoranda).
Ms. Menifee asserts that Interior’s invocation of FOIA exemptions is
“contradictory of the directives of the President, the Attorney General, and the Secretary [of] DOI” and is merely a “ploy by the agency for [its] noncompliance.” at 4. Ms. Menifee contends that Exemption 5 cannot apply here because she requested “emails,” not “memorandums or letters.” Pl. MSJ Opp. at 2. She also argues that an “[a]ttorney client privilege claim in this case is erroneous and did not apply” because “the emails requested did not involve conversations between DOI attorneys and staff.” Pl. MSJ Supp. Opp. at 4. Interior’s *20 claim of attorney-client privilege under Exemption 6 fails, Ms. Menifee contends, because the e- mails she requests “consist of email communications between non-Office of the Solicitor attorneys.” Ms. Menifee also argues that Interior cannot invoke Exemption 6 because the documents she requested “did not involve conduct of the [Office of the Solicitor]” and “the privacy interest in this matter was that of [her].” Pl. MSJ Supp. Opp. at 5. [7]
The Court has reviewed the evidence submitted by Interior and concludes that
Interior has met its FOIA obligations. First, its search was reasonable. 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
,
Second, in response to Ms. Menifee’s two requests, Interior produced a total of
1576 pages in their entirety and 1878 pages with partial withholdings pursuant to Exemptions 5
and 6. Julka Decl. ¶¶ 13–22, 25, 27. Before turning to the specific exemptions, the Court finds
unavailing any reliance on Presidеnt Obama’s January 21, 2009 FOIA policy memorandum and
the other memoranda issued by government officials pursuant to the President’s memorandum.
President Obama’s memorandum specifically stated that it did “not create any right or benefit,
substantive or procedural, enforceable at law or in equity by any party against the United States,
its departments, agencies, or entities, its officers, employees, or agents, or any other person.”
Presidential Memorandum, 74 Fed. Reg. 4683, 4683–84 (Jan. 21, 2009). The President’s
memorandum and the others cited by Ms. Menifee merely established policy; they did not, and
could not, change the legal requirements of FOIA as adopted by Congress.
See Lewis v. Dep’t of
Justice
,
The Court reviews each claimed exemption in turn. Under Exemption 5, an
agency need not produce “inter-agency or intra-agency memorandums or letters which would not
be available by law to a party other than an agency in litigation with the agency[.]” 5 U.S.C.
§ 552(b)(5). Exemption 5 еncompasses all documents “normally privileged in the civil
discovery context[,]” including attorney work product and attorney-client communications.
NLRB v. Sears, Roebuck & Co.
,
Pursuant to Exemption 5, Interior hаs withheld: (1) policy document drafts; (2) legal advice to Interior personnel; (3) internal communications related to other litigation; and (4) conference call numbers and passwords. The policy document drafts are internal Interior documents that reflect discussions amongst superiors and subordinates about an “overhaul” of OVS, the office in which Ms. Menifee worked. Julka Decl. ¶¶ 29–30. Under personnel legal advice, Interior has withheld “confidential communications between [Office of the Solicitor (SOL)] attorneys, confidential communications between [SOL] attorneys and OVS employees[, and] a confidential communication within OVS encompassing opinions provided by *23 SOL based on confidential, client-supplied facts.” Id. ¶ 31. The communications dealt with “particular issues associated with several Equal Employment Opportunity (EEO) claims.” Id. ¶ 32. The “other litigation” category includes documents similar to those withheld as “personnel legal advice” but pertaining tо “appraisal litigation” instead of EEO matters. ¶¶ 34–37. Finally, Interior withheld private conference-call pass codes and telephone numbers that it purchased “as an ordinary commercial buyer.” ¶¶ 38–39.
The categories of information withheld by Interior under Exemption 5 fit within
that exemption as interpreted by the courts, either as work product or under the deliberative
process privilege.
[8]
Contrary to Ms. Menifee’s argument, she is not entitled to the e-mails she
seeks just because the FOIA statute protects from disclosure only “memorandums and letters.”
E-mails are often today’s equivalent of what would have been memorandums in another decade.
Where all or some of the information contained in a document—whether e-mail, letter,
memorandum or otherwise—is protected by Exemption 5 and the sworn declaration submitted
by an agency supports that classification, as Interior has done with the Julkа Declaration, the
agency need not release the document or can redact exempt portions.
See, e.g.
,
Coastal States
Gas Corp. v. Dep’t of Energy
,
Exemption 6 permits an agency to withhold from disclosure “personnel and
medical files and similar files” if their disclosure would “constitute a clearly unwarrantеd
invasion of personal privacy.” 5 U.S.C. § 552(b)(6). To support a withholding under Exemption
6, an individual’s privacy rights are balanced against the public’s interest in disclosure.
See Dep’t
of the Air Force v. Rose
,
Interior has withheld the following categories of information under Exemption 6:
(1) e-mail addresses, (2) personnel matters, (3) personal health, (4) personal health of third
parties, and (5) days that employees take leave. Julka Decl. ¶¶ 40–44. The e-mail addresses at
issue include employees’ personal e-mail addresses.
Id.
¶ 40. Under personnel matters, Interior
has withheld information employees shared with supervisors regarding “personnel grievances.”
Id.
¶ 41. Interior withheld “[e]xtremely detailed health-related information about a single SOL
employee . . . from one document.” ¶ 42. It further withheld “[t]he names of relatives of an
SOL employee, the name and familial status of a relative of an individual writing to a SOL
employee, the nature of [the] familial relationship between an individual unrelated to the
Department and another SOL employee, and the identity and time and means of death of a
recently[ ]deceased individual who was related to an SOL employee.” ¶ 43. Finally, Interior
*25
has withheld information as to employees’ “personal appointments and personal reasons for
taking leave.” ¶ 44. The Court concludes that the Julka Declaration supports Interior’s
decision to withhold the specified information pursuant to Exemption 6.
See U.S. Dep’t of State
v. Wash. Post Co.
,
Further, Ms. Menifee offers unsupported assertions that Interior is withholding e-
mails to protect Mr. Jackson and that Interior “withheld information simply because [it] could do
so.” Pl. MSJ Supp. Opp. at 5. She has proffered no facts to contradict Interior’s assertion that
the redacted information falls outside the scope of her requests. The privacy interests at stake are
not Ms. Menifee’s but those of the other Interior employees, and the public interest against
which those privacy interests are balanced is not Ms. Menifee’s individual matters but the
general public interest in knowing what the government is up to.
See Nat’l Archives & Records
Admin. v. Favish
,
Finally, the Court must separately examine any issues of segregability, even
where the claimed exemption is not contested, to ensure compliance with the FOIA.
Trans-
Pacific Policing Agreement v. U.S. Customs Serv.
,
Because Interior has demonstrated that it has met its FOIA obligations and Ms. Menifee has adduced no credible argument or facts to the contrary, the Court will grant Interior’s motion fоr summary judgment.
IV. CONCLUSION
For the reasons set forth above, the Court will grant Interior’s motion to dismiss and motion for summary judgment. Judgment will be entered in favor of Defendants on Ms. Menifee’s FOIA claim.
Counts I and V, the claims of defamation and abuse of process will be dismissed with prejudice. Count II, the First Amendment claim, and Count IV, the intentional and *27 negligent infliction of emotional distress claim, will be dismissed without prejudice. A memorializing Order accompanies this Opinion.
DATE: March 21, 2013
/s/ ROSEMARY M. COLLYER United States District Judge
Notes
[1] Interior has notified the Court that the correct spelling, used in this Opinion, is “Hargrave,” not “Hargraves” as alleged in the Amended Complaint.
[2] According to Interior’s website, OVS “is responsible for all real estate valuation functions of the Bureau of Land Management, Bureau of Reclamation, National Park Service, and U.S. Fish and Wildlife Service, including management, oversight, and valuation policy for [Interior].” Office of Valuation Services, U.S. Dep’t of the Interior, http://www.doi.gov/pmb/ovs/index.cfm (last accessed March 21, 2013).
[3] In its opposition to Ms. Menifee’s motion for a TRO, Interior provided the Court with documentation refuting Ms. Menifee’s factual allegations, including a twenty-one-page investigative report into Ms. Menifee’s allegations of a “hostile, discriminatory and violent work environment” prepared by Mr. Hargrave, see TRO Opp, Ex. 2 [Dkt. 5-2] (Hargrave Report), and a declaration from Diane Smith, see id. Ex. 4 [Dkt. 5-4]. The Court refers to Interior’s documentation only to the extent that doing so helps the Court construe Ms. Menifee’s Amended Complaint. For example, Ms. Menifee’s title as of September 2011 appears on an e-mail sent by Ms. Menifee that is attached as an exhibit to the Smith Declaration. As required on a motion to dismiss, the Court otherwise disregards Interior’s documentation and accepts Ms. Menifee’s allegations as true.
[4] Ms. Menifee was represented by counsel David Shapiro during her EEO proceedings. Mr. Shapiro has not entered an appearance in this case.
[5] The Court has federal question jurisdiction over Ms. Menifee’s FOIA claim and First Amendment claim, see 28 U.S.C. § 1331, and supplemental jurisdiction over her common law claims, see 28 U.S.C. § 1367. Venue is proper in this Court under 28 U.S.C. § 1391(b).
[6] To the extent that Ms. Menifee’s allegations might fit under the rubric of employment discrimination—e.g., a claim of hostile work environment or retaliation for complaining about Mr. Ross—Ms. Menifee stated at the TRO hearing that she had filed an Equal Employment Opportunity complaint raising such claims and she is pursuing it separately. Feb. 24, 2012 Hr’g Tr. at 9–10. The Court lacks jurisdiction over such claims until administrative remedies are exhausted. Similarly, to the extent that Ms. Menifee may seek to allege a Whistleblower Protection Act claim, e.g. 5 U.S.C. § 2302(b)(8), it would also require exhaustion of administrative remedies, and there is no evidence here that Ms. Menifee filed any such administrative claim.
[7] Ms. Menifеe further contends that Interior “is in contempt and should be fined, penalized, and judgment . . . ruled in favor of the Plaintiff” because Interior has “demonstrate[d] a lack of regard to Federal laws and regulations and the authority of the Court.” Pl. MSJ Opp. at 3; see also Pl. MSJ Supp. Opp. at 2 (arguing that “[a]fter being granted three extensions of time to respond, the agency deliberately failed to respond to the Court[’]s order to provide records by July 30, 2012”). The Court rejects these arguments, which depend on Ms. Menifee’s erroneous belief that the Court’s grant of extensions of time to file an answer to the Amended Complaint, e.g. , Minute Order dated July 5, 2012, demonstrates a violation of Interior’s FOIA obligations.
[8] Interior redacted “conference call numbers and passwords,” which are not covered by Exemption 5’s work-product and deliberative-process privileges. However, Ms. Menifee acknowledges that she “was not interest[ed] in obtaining conference call numbers and passwords.” Pl. Supp. MSJ Opp. at 4.