Flete-Garcia v. U.S. Dep't of Justice

FULVIO FLETE-GARCIA, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE,¹ Defendant.

Civil Action No. 19-2382 (RDM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 25, 2021

MEMORANDUM OPINION AND ORDER

In the summer of 2019, Plaintiff Fulvio Flete-Garcia sought to file five Freedom of Information Act ("FOIA") requests with Defendant the Department of Justice, Executive Office for the United States Attorneys ("EOUSA"). Dkt. 1 at 2-3 (Compl.); see also 5 U.S.C. § 552. After EOUSA failed to respond to any of his requests. Plaintiff brought this action. EOUSA now moves to dismiss, or in the alternative, for summary judgment. Dkt. 20. Although Plaintiff has failed to respond to that motion, the Court must nonetheless determine for itself whether the undisputed material facts support granting summary judgment in favor of EOUSA. See Winston & Strawn, LLP v. McLean, 843 F.3d 503, 508-09 (D.C. Cir. 2016).

For the reasons set forth below, the Court will GRANT in part and DENY in part EOUSA's motion.

I. BACKGROUND

A. Factual Background

Plaintiff, a federal prisoner who is proceeding pro se, seeks records related to the court proceedings leading up to his criminal conviction. Because Plaintiff has not responded to EOUSA's motion, let alone offered evidence controverting its factual allegations, the Court relies primarily on EOUSA's statement of undisputed material facts, Dkt. 20-1 (SUMF), and the declaration of Natasha Hudgins, an Attorney-Advisor with the EOUSA component that administers FOIA, Dkt. 25-1 at 1 (Hudgins Decl. ¶ 1). See Fed. R. Civ. P. 56(c)(1) (establishing that "[a] party asserting that a fact cannot be or is genuinely disputed must support th[at] assertion"); Husain v. Barsa, No. 15-708, 2021 WL 663206, at *1 (D.D.C. Feb. 19, 2021) (relying on the defendant's statement of undisputed material facts because the plaintiff had not controverted them in her opposition). The Court, however, also relies on the documents attached to Plaintiff's complaint, the authenticity of which EOUSA does not dispute.

1. Request No. 1

On June 12, 2019, Plaintiff mailed a FOIA request to EOUSA seeking "a complete copy of the discovery related to" the criminal case brought against him by the United States in the U.S. District Court for the District of Massachusetts. Dkt. 1-1 at 2-4 (Compl. Ex. 1). EOUSA acknowledged receipt of this request on June 19, 2019 and assigned it a tracking number. Dkt. 20-1 at 1 (SUMF ¶ 4). On July 18, 2019, EOUSA wrote to Plaintiff, advising him that his request concerned "material previously requested" from EOUSA and that, as a result, EOUSA was treating the request "as a duplicate of" his earlier request (which is not at issue in this litigation). Dkt. 25-1 at 11 (Hudgins Decl. Ex. B). Although the letter also stated (in sometension with that determination) that EOUSA would release "[a]ll non-exempt responsive records . . . as soon as practicable," the letter concluded as follows:

This is the final action on this above-numbered request. If you are not satisfied with [the] response to this request, you may administratively appeal by writing to the Director, Office of Information Policy (OIP), United States Department of Justice, Suite 11050, 1425 New York Avenue, NW, Washington, DC 20530-0001, or you may submit an appeal through OIP's FOIAonline portal by creating an account on the [designated] web site. . . . Your appeal must be postmarked or electronically transmitted within ninety (90) days of the date of my response to your request. . . .

You may contact our FOIA Public Liaison at the telephone number listed above for any further assistance and to discuss any aspect of your request. . . . .

Id. at 12 (Hudgins Decl. Ex. B). Plaintiff never filed an administrative appeal, and the duplicate FOIA request is the subject of litigation in another FOIA lawsuit that Plaintiff is pursuing. Id. at 3 (Hudgins Decl. ¶¶ 9-10).

2. Request Nos. 2, 3, and 5

According to EOUSA, it has no record of Request Nos. 2, 3, and 5, and it thus did not process or respond to any of those requests. The undisputed evidence shows the following:

Request No. 2, a copy of which is attached to Plaintiff's complaint, is dated June 21, 2019.² Dkt. 1-1 at 7-8 (Compl. Ex. 2). That request sought various written, audio, and video records relating to his criminal case before the U.S. District Court for the District of Massachusetts. Id. Also attached to the complaint is a U.S. Postal Service Certified Mail Receipt, showing that Plaintiff mailed this FOIA request to "United States Attorneys' Office, U.S. Department of Justice, 600 E Street, NW, Room 7300, Washington, D.C. 20530" on June 25, 2019. Id. at 10 (Compl. Ex. 2). The Return Receipt, which contains the same item number,reflects that the request was sent to "U.S. Department of Justice, Office of Executive Attorney" at the same address reflected above, and it shows that the mailing was signed for on July 1, 2019. Id. at 11 (Compl. Ex. 2). The surname of the signatory is apparently "Sase" or "Sass." Id.

A copy of Request No. 3 is also attached to the complaint, and that request is dated June 24, 2019. Id. at 13-14 (Compl. Ex. 3). This request sought the following materials:

(1) All orders that reflect the [c]ommencement, [t]ermination, and any extensions of the [g]rand [j]ury[] that heard evidence in this matter;

(2) Transcripts of the instructions and charges given to any [g]rand [j]ury that heard evidence in this matter;

(3) All [g]rand [j]ury voting records from all [g]rand [juries] that heard evidence in this matter; and[]

(4) All [g]rand [j]ury attendance records including names, times, and dates, of all [g]rand [j]urors that heard evidence in this matter.

Id. at 13 (Compl. Ex. 3). Plaintiff also requested "a copy of the applicable rules and regulations of EOUSA, "as provided for the FOIA/[Privacy Act]." Id. As with Request No. 2, the Certified Mail Receipt shows that the request was sent on June 25, 2019. Id. at 16 (Compl. Ex. 3). But, unlike Request No. 2, this receipt shows that the request was sent to "EOUSA—Dept. of Justice, 175 N Street, NE, Washington, D.C. 20530." Id. The Return Receipt uses this same address, but adds a reference to the "3CON BLDG." Id. at 17 (Compl. Ex. 3). That receipt shows that the request was signed for on July 1, 2019 by the same individual who signed for Request No. 2, and, indeed, the signature appears to be a stamp that was used in both cases. Id.

Finally, a copy of Request No. 5 is also attached to the complaint. Id. at 25 (Compl. Ex. 5). This request is nearly identical to Request No. 3, but it seeks records relating to a superseding indictment against Plaintiff, with a different indictment number: 15-cr-10381. Id. As with Request No. 3, the request itself (as opposed to the envelop or receipts) includes thefollowing address: "Executive Office for United States Attorneys, Department of Justice, 175 N Street, NE, Room 5400, 3 CON BLDG, Washington, D.C. 20530." Id. Plaintiff has not provided the Court with a copy of his Certified Mail Receipt, but the Return Receipt refers to "EOUSA—Dept. of Justice, 175 N Street, NE, 3 CON BLDG, Washington, D.C. 20530." Id. at 26 (Compl. Ex. 5). The receipt bears the same signature as that used to acknowledge receipt of Requests Nos. 2 and 3, and it shows that the item was received on July 2, 2019. Id.

According to the Hudgins declaration, "EOUSA does not have a record of receiving these three FOIA requests." Dkt. 25-1 at 4 (Hudgins Decl. ¶ 14). Hudgins further explains that members of the pubic may submit FOIA requests to EOUSA either online or by mailing their requests "to EOUSA [at] 175 N Street, NE, Suite 5400, Washington, D.C. 20530-0001." Id. (Hudgins Decl. ¶ 16). "All mail to EOUSA goes through two screening locations before being distributed to the proper office," and "[c]ertified mail is signed for outside of the EOUSA FOIA office." Id. at 5 (Hudgins Decl. ¶ 18). EOUSA's mail logs, which "track[] all incoming mail received in the FOIA/PA office," contain no reference to Request Nos. 2, 3 or 5. Id. (Hudgins Decl. ¶¶ 19-20).

3. Request No. 4

Request No. 4 sought the same grand jury materials and regulations as Request Nos. 3 and 5, but for the "[o]riginal [i]ndictment" associated with "indictment [number] 15-cr-10381." Dkt. 1-1 at 19 (Compl. Ex. 4). It was mailed to the same address as Request Nos. 3 and 5, and it was signed for by the same individual. Id. at 19-23 (Compl. Ex. 4). It arrived, however, the day before Request No. 5 arrived, compare id. at 23 (Compl. Ex. 4) with id. at 26 (Compl. Ex. 5), and, mysteriously, it—unlike Requests No. 3 and 5—was received by EOUSA's FOIA office and was processed. Dkt. 25-1 at 3-4 (Hudgins Decl. ¶ 11).

In late July 2019,³ EOUSA sent Plaintiff a final response to the request, asserting that "any records responsive to [his] request for grand jury material are exempt pursuant to[] 5 U.S.C. § 552(b)(3), which concerns matters specifically exempted from release by statute (in this instance, Rule 6(e) of the Federal Rules of Criminal Procedure, which pertains to the secrecy of grand jury proceedings)." Id. at 16 (Hudgins Decl. Ex. D). EOUSA further noted that the grand jury orders related to Plaintiff's case were sealed by the court. Id. Even though EOUSA asserted that this letter represented the "final action" with respect to Plaintiff's request and provided the same instructions for administrative appeal previously described, the letter also said that the "EOUSA [was] conducting a search for all other records requested." Id. It is not clear if EOUSA was referring to the copy of "applicable rules and regulations" that Plaintiff sought or if it was referring to other pending FOIA requests from Plaintiff, or if the sentence was accidentally included. In any event, EOUSA offers no evidence that it released any records in response to Request No. 4.

Plaintiff filed an administrative appeal, and in a letter dated December 12, 2019, the Office of Information Policy ("OIP") ...