Mace v. U.S. E.E.O.C.

Page 1144

37 F.Supp.2d 1144

Perry J. MACE, Plaintiff, v. U.S. EEOC, Defendant.

No. 4:98-CV-973 CAS.

United States District Court, E.D. Missouri, Eastern Division.

February 16, 1999.

Perry J. Mace, St. Louis, MO, plaintiff pro se.

Maria C. Sanchez, Office of U.S. Attorney, St. Louis, MO, Ellen J. Vargyas, Thomas J. Schlageter, Stephanie D. Garner, Washington, DC, for Equal Employment Opportunity Commission, defendant.

MEMORANDUM AND ORDER

SHAW, District Judge.

This matter is before the Court on the Motion to Dismiss or, in the Alternative, for Summary Judgment of defendant United States Equal Employment Opportunity Commission ("EEOC" or "defendant").¹ Plaintiff Perry J. Mace, pro se, opposes the motion and moves for summary judgment on his complaint. Plaintiff also moves for the joinder of the State of Missouri Office of Civil Rights as a defendant. The EEOC opposes plaintiff's motions for summary judgment and for joinder.

I. Background.

Plaintiff filed this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(a)(4)(B) as amended, alleging that the EEOC failed to produce a complete copy of plaintiff's employment discrimination charge file in response to his FOIA request. The EEOC responds that it has produced all but one document of plaintiff's charge file, and that the withheld document is properly exempted from FOIA disclosure under the deliberative process exception for inter-agency memoranda, 5 U.S.C. § 552(b)(5) ("Exemption 5").

The EEOC moves to dismiss the case for lack of subject matter jurisdiction, and in the alternative, moves for summary judgment on the merits of plaintiff's FOIA claim.² For the following reasons, the Court concludes that it has subject matter jurisdiction over this action, and that defendant's alternative motion for summary judgment should be granted.

II. Subject Matter Jurisdiction.

Defendant asserts that because it produced all documents responsive to plaintiff's FOIA request with the exception of one document properly withheld under Exemption 5, the Court lacks subject matter jurisdiction over plaintiff's complaint. In support, defendant cites the Supreme Court's statement that federal jurisdiction in a FOIA case is:

dependent upon a showing that an agency has (1) "improperly"; (2) "withheld"; (3) "agency records." Judicial authority to devise remedies and enjoin agencies can only be invoked, under the jurisdiction grant conferred by [5 U.S.C.] § 552, if the agency has contravened all three components of this obligation.

Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). Defendant has not, however, cited any cases in which complaints similar to plaintiff's were dismissed for lack of subject matter jurisdiction under Kissinger.

A FOIA treatise explains that most courts have not interpreted Kissinger literally, and instead hold that district courts have subject matter jurisdiction over FOIA claims, but are deprived of further jurisdiction to act upon concluding that an agency is entitled to summary judgment. See Office of Information and Privacy, U.S. Dep't of Justice, Freedom of Information Act Guide & Privacy Act Overview at 480-83 (Sept.1998 ed.) ("FOIA Guide"); see, e.g., Sweetland v. Walters, 60 F.3d 852, 855 (D.C.Cir.1995).³

If Kissinger were applied literally, "all FOIA cases resolved in favor of the government would ultimately be dismissed for lack of subject matter jurisdiction, which clearly has not been the case in practice." FOIA Guide at 482. "Summary judgment is the procedural vehicle by which nearly all FOIA cases are resolved." Id. at 548. This is true of reported FOIA cases in the Eighth Circuit. See, e.g., State of Missouri ex rel. Shorr v. United States Army Corps of Engineers, 147 F.3d 708, 710 (8th Cir.1998) ("Shorr") (approving grant of summary judgment to government agency in FOIA case involving deliberative process exception); Miller v. United States Dep't of State, 779 F.2d 1378 (8th Cir.1985) (approving grant of summary judgment to government agency in FOIA case).

The Court concludes that plaintiff's complaint sufficiently alleges a claim under the FOIA to invoke the Court's jurisdiction, and therefore dismissal for lack of subject matter jurisdiction is inappropriate. As discussed below, however, the Court concludes it lacks further jurisdiction to afford plaintiff any relief under FOIA.

III. Standard of Review.

The Court now turns to defendant's motion for summary judgment. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In ruling on a motion for summary judgment, the court is required to view the facts in the light most favorable to the non-moving party and must give that party the benefit of all reasonable inferences to be drawn from the underlying facts. Agri-Stor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir.1987). The moving party bears the burden of showing both the absence of a genuine issue of material fact and his entitlement to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Fed.R.Civ.P. 56(c).

Once the moving party has met its burden, the non-moving party may not rest on the allegations of his pleadings but must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e). Anderson, 477 U.S. at 257, 106 S.Ct. 2505; City of Mt. Pleasant v. Associated Elec. Coop., Inc., 838 F.2d 268, 273-74 (8th Cir. 1988). Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

IV. Facts.

With the foregoing standard in mind, the Court finds the following facts for purposes of the instant motion.⁴

On March 14, 1996, plaintiff filed a request under the FOIA with the EEOC's St. Louis District Office for a complete copy of his discrimination charge file, No 280950286. On April 10, 1996, the EEOC St. Louis District Office responded to plaintiff's FOIA request by disclosing 182 pages of the 183 pages of documents in its investigative file. The EEOC withheld a one-page memorandum entitled Recommendation for Dismissal/Closure (the "Recommendation"), on the basis that it was exempt from disclosure under the inter-agency deliberative process exception to FOIA, i.e., Exemption 5.

On May 8, 1996, plaintiff appealed the partial denial of his FOIA request to the EEOC's Office of Legal Counsel. On May 23, 1996, EEOC Assistant Legal Counsel Robert G. Johnson denied plaintiff's appeal on the basis that the Recommendation, as a pre-decisional inter-agency memorandum, was properly withheld under FOIA's Exemption 5. (See Letter from Johnson to Mace of 4/10/96 at 1; Attachment 2 to Decl. of Robert G. Johnson.) The Johnson letter asserts that the Recommendation constituted information prepared prior to the agency's decision, for the purpose of assisting the agency decisionmaker. (Id.)

The Recommendation is a one-page inter-office memorandum from the EEOC Investigator assigned to plaintiff's EEOC charge addressed to the EEOC District Director. (See Johnson Decl. at ¶¶ 6-7.) The Recommendation consists of a recitation of selected facts, a brief analysis of plaintiff's allegations of discrimination in view of the evidence, and the EEOC Investigator's recommendation as to dismissal or closure of plaintiff's charge. (Id.)

The Recommendation was approved by the EEOC's St. Louis Enforcement Manager with the concurrence of the District Director. Plaintiff was subsequently issued a Dismissal and Notice of Rights on charge No. 280950286, which informed plaintiff of the EEOC District Director's determination and the reasons for the determination. (Id. ¶ 7.) The Recommendation was not incorporated into or referenced in the Dismissal and Notice of Rights, and was not disclosed to the public. (Id.)

The EEOC does not possess any other documents related to plaintiff's EEOC charge. (Johnson Decl. ¶ 8.)

On August 8, 1996, plaintiff filed Mace v. EEOC, Case No. 4:96-CV-1136 CAS (E.D.Mo.), alleging that the EEOC failed to disclose his entire discrimination charge file. In November 1997, plaintiff voluntarily dismissed that action without prejudice. On August 10, 1998, plaintiff filed the instant action, which is virtually identical to the former action.

V. Discussion.

The EEOC moves for summary judgment, asserting that it has produced all requested records, except for one document which is exempt from disclosure. Plaintiff responds that the EEOC has withheld additional documents, offering as evidence the fact that the EEOC sought a protective order in his prior lawsuit to avoid being required to answer plaintiff's interrogatories.⁵ Plaintiff also makes the conclusory assertion that the Missouri Office for Civil Rights "supplied information" to the EEOC which has not been produced in response to plaintiff's FOIA request.

The Eighth Circuit has explained the burden placed on the government in seeking summary judgment in a FOIA action:

Summary judgment is available to the defendant in a FOIA case when the agency proves that it has fully discharged its obligations under FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester. In order to discharge...