Richard Allen SMITH, Jr., Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE et al., Defendants.
Civ. Action No. 11-0997(ABJ)
United States District Court, District of Columbia.
October 17, 2013
For these reasons, the Court holds that Maggio failed to timely file his suit in court and all claims in Maggio‘s Amended Complaint are dismissed with prejudice. As such, Maggio‘s requested relief is denied, and defendant‘s motion to dismiss is granted.
A separate Order consistent with this Memorandum Opinion shall issue this date.
ORDER
Upon consideration of defendant‘s motion to dismiss, defendant‘s motion for summary judgment, the opposition and reply thereto, and the record herein, it is hereby
ORDERED for the reasons stated in an accompanying Memorandum Opinion, that defendant‘s motion to dismiss is GRANTED. Plaintiff‘s sex discrimination and retaliation claims are untimely and time-barred as he failed to keep the EEOC apprised of his current address, as required under
IT IS SO ORDERED.
Sean Joseph Vanek, United States Department Of Justice, Washington, DC, for Defendants.
MEMORANDUM OPINION
AMY BERMAN JACKSON United States District Judge
On May 31, 2011, plaintiff filed this action against the United States Department of Justice and several DOJ components under the Freedom of Information Act (“FOIA“),
Plaintiff should be advised that on a motion for summary judgment, “any factual assertion in the movant‘s affidavits will be accepted as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion.” . . . Thus, parties such as plaintiff, who are on the opposing side of a motion for summary judgment must rebut the moving party‘s affidavits with evidence, such as other affidavits or sworn statements; mere statements that the moving party‘s affidavits are inaccurate or incorrect are not sufficient.
Id.
Plaintiff did not file any opposition to the pending motions, and on February 3, 2012, several weeks after the oppositions were due, the Court granted the motions, including the motion for summary judgment filed by the DEA, as conceded. See Memorandum Opinion and Order [Dkt. #22 and 23]. Ten days later, plaintiff filed a motion for enlargement of time by which to file his opposition, requesting an additional 60 days. [Dkt. #24]. The Court construed the motion to be a motion seeking relief under
On January 3, 2013, the United States Court of Appeals for the District of Columbia Circuit vacated this Court‘s judgment and remanded the case for consideration of “the effect of the 2010 amendments to Federal Rule of Civil Procedure 56 and ‘state on the record the reasons for granting or denying the [summary judgment] motion.‘” Order, No. 12-5078 (D.C. Cir. Jan. 3, 2013) (quoting
A. Summary Judgment in a FOIA Case
Rule 56 provides that summary judgment shall be granted “if 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.”
In a FOIA case, the Court may grant summary judgment based on the information provided in affidavits or declarations when they 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 [or] by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or 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 Servs., Inc. v. Sec. & Exch. Comm‘n, 926 F.2d 1197, 1200 (D.C. Cir. 1991), quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981).
B. The Relationship between Rule 56 and the Local Rules
In Grimes v. District of Columbia, 923 F. Supp. 2d 196 (D.D.C. 2013), another court in this District considered the question posed by the Court of Appeals in the remand in this case, and it examined the relationship between the amendments to the Federal Rule and the Local Rule that permits a court to treat a summary judgment motion as conceded. The Court stated:
The 2010 Amendments to Federal Rule of Civil Procedure 56 (“Rule 56“) and the accompanying Advisory Committee Notes do not prohibit this Court from granting summary judgment where, as here, the nonmovant fails to demonstrate a genuine dispute as to any material fact. Indeed, Rule 56(a) provides that summary judgment “shall [be] grant[ed]” where “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) (emphasis added). Rule 56(c) permits the movant to demonstrate “the absence of a genuine dispute” by showing “that [the nonmovant] cannot produce admissible evidence to support” the presence of a genuine dispute.Fed. R. Civ. P. 56(c)(1)(B) . Rule 56(c) additionally requires the nonmovant to demonstrate the presence of a genuine dispute by “citing to particular parts of materials in the record.”Fed. R. Civ. P. 56(c)(1)(A) . Where, as here, the nonmovant has “fail[ed] to properly support [the movant‘s] assertion of fact . . . as required by Rule 56(c),” Rule 56(e) permits this Court to “consider the fact undisputed for purposes of the motion.”Fed. R. Civ. P. 56(e)(2) . The Advisory Committee Notes state that Rule 56(e)(2) “authorizes the court to consider a fact undisputed for purposes of the motion when response or reply requirements are not satisfied.”Fed. R. Civ. P. 56(e) advisory committee notes (2010 Amendment). The Advisory Committee Notes further state that “[t]his approach reflects the ‘deemed admitted’ provisions in many local rules.” Id. Here, Local Civil Rule 7(b), which concerns motions generally, and Local Civil Rule 7(h), which concerns motions for summary judgment, can be construed and applied consistently with Rule 56(e).
This Court agrees with that analysis. A non-moving party‘s complete failure to come forward with evidence to demonstrate the existence of a genuine issue of material fact constitutes a “reason” for the grant of summary judgment under the amended rule.
Moreover, in this case, the record contains sufficient grounds for the entry of judgment in the defendants’ favor. Summary judgment was sought on the defendants’ processing of plaintiff‘s separate FOIA requests for DEA records and ATF records.
1. DEA Records
In support of its summary judgment motion, DEA proffered the declaration of William C. Little, Jr. [Dkt. # 20-4] to explain that agency component‘s handling of plaintiff‘s FOIA request. On November 16, 2009, plaintiff requested from DEA “any and all” information “that relates to me. More specifically, I request any information . . . related to the investigation and prosecution of me by West Virginia State and Federal law enforcement agencies for narcotics and firearms offenses.” Little Decl., Ex. A. Following a search of its files containing “criminal investigative records,” id. ¶¶ 22-23, 28, DEA located responsive pages. Id. ¶ 28.
On April 1, 2010, DEA released 34 pages to plaintiff in whole or in part, withheld 35 pages, and referred 32 pages to other agency components. Id. ¶¶ 15-18, 29 & Ex. D. DEA informed plaintiff that it was withholding information under FOIA exemptions 2, 7(C), 7(D) and 7(F) set out at
DEA‘s unrefuted declaration shows that a reasonably adequate search for respon
2. ATF Records
In support of its summary judgment motion, ATF proffered the declaration of Averill P. Graham [Dkt. # 17-7] to explain that agency component‘s handling of plaintiff‘s FOIA request also dated November 16, 2009, that sought the same information plaintiff had requested from DEA. Plaintiff stated that the investigation by “West Virginia State and Federal law enforcement agencies for narcotics and firearms offenses” had occurred between January 1, 1995 and January 1, 2002. Graham Decl., Ex. A. On January 29, 2010, ATF informed plaintiff that “despite a diligent search,” it was unable to locate his investigative file, which “was believed to [have been] inadvertently destroyed.” Graham Decl. ¶ 9. However, ATF “print[ed] 13 pages from a computer system of investigative records and provided them to [plaintiff],” with redactions made pursuant to FOIA exemptions 3, 5, 7(C) and 7(E). Id. In this litigation, ATF invoked exemption 6 “as an added authority for the redaction of the names of third party individuals. . . .” Id., n.1.
ATF‘s unrefuted declaration shows that a reasonably adequate and good-faith search for responsive records was conducted and that “the only responsive records still existing” were produced. Graham Decl. ¶¶ 14-21. In addition, ATF has provided a reasonable explanation of why plaintiff‘s investigative file might have been destroyed “in error.” Id. ¶ 19. Plaintiff has come forward with no evidence to rebut the assertions in the declaration and accompanying Vaughn index that ATF properly withheld information under FOIA exemptions 3, 5, 6, 7(C) and 7(E) and that all reasonably segregable information was released to plaintiff. See id. ¶¶ 23-47. Hence, the Court concludes that ATF, having satisfied its disclosure obligations, is also entitled to judgment as a matter of law.
For the foregoing reasons, the Court finds on the unrefuted factual record that DEA and ATF are entitled to judgment as a matter of law. A separate judgment accompanies this Memorandum Opinion.
AMY BERMAN JACKSON
United States District Judge
Simone GREGGS, Plaintiff, v. AUTISM SPEAKS, Defendant.
Civil Action No.: 13-cv-1001 (RC)
United States District Court, District of Columbia.
October 22, 2013