Viola v. U.S. Dep't of Justice, Civil Action No. 16-cv-1411 (TSC)

ANTHONY L. VIOLA, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.

Civil Action No. 16-cv-1411 (TSC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

June 11, 2019

MEMORANDUM OPINION ON MOTION TO RECONSIDER¹

Pro se Plaintiff Anthony L. Viola seeks reconsideration of the court's ruling granting in part and denying in part Defendant's Motion for Summary Judgment. See Viola v. U.S. Dep't of Justice, 306 F. Supp. 3d 321 (D.D.C. 2018). For the reasons set forth below, the court will DENY Viola's motion in part and GRANT the motion in part.

I. LEGAL STANDARD

A court may grant a motion to reconsider a non-final order "at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b). "The standard for determining whether or not to grant a motion to reconsider brought under Rule 54(b) is the 'as justice requires' standard. . ., which requires 'determining, within the Court's discretion, whether reconsideration is necessary under the relevant circumstances.'" In Def. of Animals v. Nat'l Insts. of Health, 543 F. Supp. 2d 70, 75 (D.D.C. 2008) (citations omitted). Applying this standard, courts may consider

whether the court "patently" misunderstood the parties, made a decision beyond the adversarial issues presented, made an error in failing to consider controlling decisions or data, or whether a controlling or significant change in the law has occurred. Furthermore, the party moving to reconsider carries the burden of proving that some harm would accompany a denial of the motion to reconsider: "In order for justice to require reconsideration, logically, it must be the case that, some sort of 'injustice' will result if reconsideration is refused. That is, the movant must demonstrate that some harm, legal or at least tangible, would flow from a denial of reconsideration."

Id. at 75-76 (citations omitted).

II. ANALYSIS

A. ADEQUACY OF THE EOUSA'S SEARCH

Viola filed this lawsuit against the Executive Office of the United States Attorney (EOUSA) and the FBI,² pursuant to the Freedom of Information Act (FOIA), seeking records relating to third parties who were prosecuted for public corruption in Cuyahoga County, Ohio. Viola, 306 F. Supp. 3d at 324-26 Because the third parties had not consented to disclosure, the EOUSA refused to release the records to Viola, but instead searched for and released records relating to Viola. Id. at 326. Viola challenged the adequacy of the EOUSA's search, arguing that it had failed to search certain records maintained by a joint state and federal mortgage fraud task force ("MFTF"), which he claimed had documents relating to his 2011 prosecution for mortgage fraud. Id. at 327-28.

The EOUSA asserted that the MFTF was an entity "completely separate and apart from the Defendants" and EOUSA had no duty to search files maintained by other entities. ECF No. 31, Defs. Summ. J. Reply p. 2. In granting summary judgment for the EOUSA on the adequacy of its search, this court found that Viola had not overcome the presumption of good faith accorded the declaration of EOUSA Attorney Advisor David Luczynski that Viola's request was sent to the U.S. Attorney's Office for the Northern District of Ohio, which prosecuted Viola. Viola, 306 F. Supp. 3d at 326-27.³ Luczynski stated that

"there are no other records or systems or locations within the EOUSA in which files pertaining to plaintiff's request were maintained." The Northern District of Ohio office conducted "a systematic search" of the LIONS computer tracking system, which can retrieve "information based on an individual's name," the agency's internal administrative number, and the case number for any district court cases.

Id. at 327 (citations to the record omitted). He further maintained that "'all documents responsive to plaintiff's FOIA request were located' in the Ohio office Criminal Case File System (Justice/USA-007) and 'all of the public records he requested were being released to him.'" Id. (alterations omitted). In light of this evidence, this court held that the EOUSA had met its obligation under FOIA, and that EOUSA was not obligated to search files that it did not maintain. See Viola, 306 F. Supp. 3d at 328-29.

Viola asks the court to reconsider this decision, arguing that he has asserted throughout this litigation that the MFTF is a "federal agency for purposes of the FOIA statute." ECF No. 35, Mot. to Reconsider p. 1. He further argues that the federal government never refuted that argument, thereby conceding the point.

The court is unable to identify this argument in Viola's briefs on the motion for summary judgment. Instead, Viola argued that the government

cannot limit its search to only one record system if there are others that are likely to turn up the information requested . . . . The government was required to search the joint federal-state task force for responsive records because it is well settled that if an agency has reason to know that certain places may contain responsive documents, it is obligated under FOIA to search.

ECF No. 25, Pls. Summ. J. Opp'n at pp. 1-2 (citation and quotations omitted). Viola's argument in opposition to the summary judgment motion did not proffer the theory that the task force constituted a federal agency for purposes of FOIA. Because Viola did not raise the argument, the government could not have disputed it or conceded it. On the other hand, courts must interpret pro se pleadings liberally. Doing so here, one could argue that Viola may have intended to convey such an argument but failed to properly articulate it, and thus, "justice requires" that the court consider Viola's argument. See In Def. of Animals, 543 F. Supp. 2d at 75.

Under FOIA, an "agency . . . includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." 5 U.S.C. § 552(f)(1). Viola argues that the MFTF falls within FOIA's definition of an agency because an FBI Agent exercised "extensive and virtually day-to-day supervision" of the MFTF, which included "dozens" of federal employees from the FBI, Postal Inspector's Office and the United States Attorney's office. Mot. to Reconsider p. 2. He also argues that the task force was an agency because it was federally funded and issued federal search warrants, under which evidence was obtained and brought to the task force location. Id. pp. 1-2.

Viola's evidence, however, contradicts his argument. Viola submitted an affidavit from Arvin Clar, of the Ohio Bureau of Criminal Investigations, who was at various times Director and Assistant Director of the MFTF, and who also participated in the investigation of Viola's fraud charges. ECF No. 40, Pls. Mot. for Reconsideration Reply, Ex. B, Clar Aff. ¶ 2. Clar explained that certain "cooperating" federal entities shared information with the MFTF, but they were not "signatory participating members" to the Memorandum of Understanding ("MOU") establishing the task force. Id. ¶¶ 3-5.⁴ While the county prosecutor secured federal grant money to hire employee investigators for the county prosecutor's office, the state of Ohio "exclusively" provided funding for the MFTF; no federal agencies provided funding. Id. ¶¶ 7, 9-11, 13.⁵ Furthermore, the MFTF "possessed its own secured evidence room or location under the supervision of the Task Force director for the purpose of securing and maintaining" evidence, and no federal agency "had any right of authority or control over the activities of" the task force. Id. ¶¶ 6, 10. Given this evidence, the court finds that Viola has not established that the MFTF was an agency for purposes of FOIA.⁶

In his motion to reconsider, Viola cites cases that—although factually distinguishable—describe circumstances under which disclosure may be required even where records are held by a non-agency. In Forsham v. Harris, 445 U.S. 169, 181 (1980), the Supreme Court explained that "records of a nonagency certainly could become records of an agency." In Gilmore v. U.S. Dep't of Energy, 4 F. Supp. 2d 912, 917 (N.D. Cal. 1998), the court explained:

Two requirements must be satisfied for materials to qualify as "agency records." United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144 (1989) ("Tax Analysts I"). First, an agency must either create or obtain the materials. Id. Second, the agency must be in control of the requested materials at the time the FOIA request is made. Id. at 145. "By control we mean that the materials must have come into the agency's possession in the legitimate conduct of its official duties." Id. . . . . The relevant issue is whether a FOIA agency has created or obtained the material sought, not whether the organization from which the documents originated is itself covered by the FOIA. Id. at 146.

When determining "whether an agency exercises sufficient control over requested documents to render them agency records," the Circuit has "employed a four-factor analysis," which involves considering:

(1) the intent of the document's creator to retain or relinquish control over the records; (2) the ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or relied upon the document; and (4) the degree to which the document was integrated into the agency's record system or files.

United We Stand Am., Inc. v. IRS, 359 F.3d 595, 599 (D.C. Cir. 2004) (citation omitted); see Consumer Fed'n of Am. v. Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006) (noting that the court's totality of the circumstances test seeks to vindicate Congress' purpose "to open agency action to the light of public scrutiny"). "The burden is on the agency to demonstrate that the materials sought are not agency records or have not been improperly withheld. Placing the burden of...