Van Chase v. Bureau of Indian Affairs

LORRY VAN CHASE, Plaintiff, v. BUREAU OF INDIAN AFFAIRS, et al., Defendants.

Civil Action No. 18-2902 (EGS)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

June 26, 2020

MEMORANDUM OPINION

Lorry Von Chase ("Plaintiff") brings this action under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, against the Bureau of Indian Affairs and the United States Department of the Interior (collectively, "BIA"). This matter is before the Court on Defendants' Motion for Summary Judgment, ECF No. 19, and Plaintiff's motion for an award of fees and costs, ECF No. 22.¹ For the reasons discussed below, the Court GRANTS summary judgment for Defendants and DENIES Plaintiff's motion for fees and costs.

I. BACKGROUND

Plaintiff had been convicted of federal offenses and served a prison sentence imposed by the United States District Court for the District of North Dakota. Defendants' Reply to Counter-Statement of Material Facts as to Which There Is a Genuine Issue (ECF No. 24-1, "SMF") ¶ 1.² He has engaged in post-conviction proceedings in the District of North Dakota and the United States Court of Appeals for the Eighth Circuit. SMF ¶ 2. Plaintiff currently is incarcerated at the North Dakota State Penitentiary, id. ¶ 1, "on a completely different State court conviction," Pl.'s Opp'n Mem. in Opp'n to Def.'s Mot. for Summ. J. and in Support of Pl.'s Cross-Mot. for Summ. J. (ECF No. 21, "Pl.'s Mem.") ¶ 9.

On September 4, 2018, Plaintiff sent a FOIA request to BIA, Office of Justice Services, Turtle Mountain Law Enforcement Agency ("OJS Turtle Mountain"). SMF ¶¶ 1, 3. He sought information about himself in records generated between January 1, 2006, and September 4, 2018. Id. ¶ 3.

Because BIA did not respond to Plaintiff's FOIA request within the 20-day period within which an agency ordinarily must respond, see 5 U.S.C. § 552(a)(6)(A)(i), Plaintiff filed an administrative appeal on October 15, 2018. SMF ¶¶ 4, 15. He did not receive a response to the appeal. See id. ¶ 16.

By letter dated November 8, 2018, BIA acknowledged receipt of Plaintiff's FOIA request which was assigned FOIA control number BIA-2018-02000. See id. ¶¶ 5, 13. BIA furtheradvised that it would take additional time to consult with other agency components, and expected to respond to Plaintiff by November 23, 2018. Id. ¶ 13. It did not, and Plaintiff filed this civil action on December 13, 2018. Id. ¶ 6.

According to BIA, when Plaintiff submitted his FOIA request, there was a post-conviction matter pending before the United States District Court for the District of North Dakota, the ruling in which Plaintiff appealed to the United States Court of Appeals for the Eighth Circuit on May 15, 2019. Defendants' Motion to Stay Proceedings (ECF No. 16, "Mot. to Stay") ¶ 3. The Eighth Circuit dismissed the appeal and issued its mandate on October 2, 2019. Id. ¶ 4. Although BIA purportedly was relying on FOIA Exemption 7(A), see id. ¶ 22, it did not assert the exemption until October 10, 2019, in its motion to stay these proceedings, SMF ¶ 17. Once the post-conviction matters were resolved, BIA represented, it completed the processing of Plaintiff's FOIA request. See Mot. to Stay ¶¶ 12, 22-23. The parties dispute whether the filing of this civil action or the conclusion of post-conviction proceedings prompted BIA to release the records Plaintiff requested. See SMF ¶ 15.

BIA's search yielded 26 pages of responsive records maintained by OJS Turtle Mountain. Id. ¶ 7. On November 15, 2019, id. ¶ 12, BIA released 15 pages in full and 11 pages in part, id. ¶ 9, after having redacted "personal identifying information of victims, witnesses, or criminal investigators" under FOIA Exemption 6 and/or 7(C), id. ¶ 10; see generally Declaration of Renee Parisien (ECF No. 19-2), Ex. A (ECF No. 19-3, "Vaughn Index").

II. DISCUSSION

A. Defendants' Motion for Summary Judgment

1. Summary Judgment Standard

The Court may grant summary judgment to a government agency as the moving party if the agency shows that there is no genuine dispute as to any material fact and if it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). To defeat summary judgment, the non-moving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted). The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is "genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is "material" only if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987).

"Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden 'on the agency to sustain its action' and directs the district courts to 'determine the matter de novo.'" U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)). The Court may grant summary judgment based on information provided in an agency's affidavits or declarations when they are "relatively detailed and non-conclusory," SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation omitted), and "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). Such affidavits or declarations are "accorded a presumption of good faith, which cannot be rebutted by purelyspeculative claims about the existence and discoverability of other documents." SafeCard Servs., 926 F.2d at 1200 (citation and internal quotation marks omitted).

2. Defendants' Search and Reliance on Exemptions 6 and 7(C)

To prevail on summary judgment in a FOIA case, an agency typically must demonstrate that it conducted a search reasonably calculated to locate responsive records, see, e.g., Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999), that any withheld information falls within the claimed exemptions, see, e.g., Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981), and that all reasonably segregable information has been released, see, e.g., Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1027 (D.C. Cir. 1999). Here, "Plaintiff does not dispute that [BIA's] search for records was adequate, or that the FOIA exemptions applied with regard to redactions [were] appropriate." Pl.'s Mem. ¶ 7.

With Plaintiff's concessions, and based on the Court's review of BIA's supporting declaration and Vaughn Index, there remains no material fact in genuine dispute regarding BIA's compliance with FOIA. See Harvey v. Lynch, 123 F. Supp. 3d 3, 7 (D.D.C. 2015) (concluding that "there is nothing of the underlying FOIA dispute left for the Court to adjudicate" where requester concedes that agency produced all the records he seeks and he raises no objections to agency's redactions). Accordingly, the Court grants BIA's summary judgment motion.

B. Plaintiff's Demand for Attorney Fees and Costs

Plaintiff demands an award of attorney fees and costs under 5 U.S.C. § 552(a)(4)(E). See Pl.'s Mem. ¶ 12. "[D]ue to [BIA's] actions of ignoring [his] FOIA request[] and forcing him to file suit in order to obtain release of the records, Plaintiff requests attorney's fees in an amount deemed reasonable . . . to compensate him for the considerable time spent preparing andlitigating this action." Id. In addition, "Plaintiff seeks costs of $350 for the filing fee in this action." Id.

The Court summarily disposes of the demand for attorney fees because, as a pro se litigant, Plaintiff simply is not entitled to recover them. See Benavides v. Bureau of Prisons, 993 F.2d 257, 260 (D.C. Cir. 1993) (concluding that a pro se non-attorney may not recover attorney fees under 5 U.S.C. § 552(a)(4)(E)). However, a pro se plaintiff may be able to recover his litigation costs. See, e.g., Warren v. Colvin, 744 F.3d 841, 845 (2nd Cir. 2014) (remanding case with instruction for district court to award cost of filing fee to pro se plaintiff); Kretchmar v. FBI, 882 F. Supp. 2d 52, 58 (D.D.C. 2012) (citing Benavides, 993 F.2d at 259-60).

A requester is eligible for an award of "other litigation costs reasonably incurred in any case . . . in which [he] has substantially prevailed." 5 U.S.C. § 552(a)(4)(E)(i). A party substantially prevails in one of two ways: by obtaining "a judicial order . . . or . . . a voluntary or unilateral change in position by the agency, if the [plaintiff's] claim is not insubstantial." 5 U.S.C. § 552(a)(4)(E)(ii). Because the Court has denied Plaintiff's cross-motion for summary judgment, Plaintiff is not eligible for an award of costs by having obtained a judicial order. Absent a court order, Plaintiff "must show that prosecution of the action could reasonably be regarded as necessary to obtain the information . . . and that a causal nexus exists between that action and the agency's surrender of the information[.]" Sweatt v. United States Navy, 683 F.2d 420, 423-24 (D.C. Cir. 1982) (per curiam) (citation and internal quotation marks omitted); see Pyramid Lake Paiute Tribe of Indians v. U.S. Dep't of Justice, 750 F.2d 117, 119 (D.C. Cir. 1984).

Plaintiff points to BIA's initial response, or admitted lack of response, to his FOIA request. See Pl.'s Mem. ¶ 12. He argues that BIA voluntary released the records he requestedonly after he filed this civil action. See id. This, Plaintiff contends, "represents a unilateral change in position" by which he substantially prevailed. Id.

BIA responds that, at most, Plaintiff establishes a sequence of events: the release of records occurred after he filed this civil action. See Defs.' Omnibus Response to Pl.'s Opp'n to Def.'s Mot. for Summ. J. and Pl.'s Cross-Mot. for Summ. J. (ECF No. 23, "Defs.' Op...