Viola v. United States Dep't of Justice

1

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

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

United States District Court, District of Columbia

March 31, 2022

MEMORANDUM OPINION

TANYA S. CHUTKAN, UNITED STATES DISTRICT JUDGE

Before the court in this Freedom of Information Act (FOIA) lawsuit are the following pleadings:

• Defendants' Supplemental Motion for Summary Judgment, ECF No. 55 and Plaintiff's Opposition, ECF No 59;

• Plaintiff's Motion to Vacate, ECF No. 60 and Plaintiff's Affidavit in Support of Motion to Vacate, ECF No. 61;

• Plaintiff's Motion for Judgment, ECF No. 63;

• Plaintiff's Civil Statement, ECF No. 64; and

• Plaintiff's Motion to take Judicial Notice, ECF No 67.

Upon review of the pleadings and for the reasons set forth below the court will DENY Plaintiff's motions and GRANT Defendants' Supplemental Motion for Summary Judgment.

I. BACKGROUND

Pro se Plaintiff Anthony L. Viola originally sought third-party records from the Executive Office of the United States Attorney (EOUSA) and the FBI, both of which are components of the United States Justice Department (DOJ). The court granted DOJ's motion for summary judgment in part, Viola v. DOJ, 306 F.Supp.3d 321, 323 (D.D.C. 2018) (“Viola I”), and later granted Plaintiff's Motion to reconsider in part, Viola v. DOJ, No. 16-cv-1411 (TSC), 2019 WL 2437692 (D.D.C. June 11, 2019) (“Viola II”). DOJ now moves for summary judgment on one of the two issues remaining post Viola II. Plaintiff moves the court to vacate prior orders, enter judgment in his favor and appoint him counsel.

In 2011, an Ohio federal jury found Plaintiff guilty of conspiracy to commit mortgage fraud. United States v. Lesniak, 8-cr-506 (N.D. Ohio), ECF Nos. 54, 245. Plaintiff brought numerous unsuccessful challenges to his conviction, some of which involved claims that the United States District Court Judge (hereinafter “sentencing judge”), who presided over Plaintiff's federal criminal trial and sentenced him, turned a blind eye to alleged prosecutorial misconduct and ineffective assistance of counsel. Viola I, 306 F.Supp.3d at 323. Plaintiff appears to believe that the sentencing judge was trying to protect himself from potential embarrassment and/or prosecution because of his purported connection to United States v. Calabrese, 11-cr-437 (N.D. Ohio), a public corruption criminal prosecution that involved numerous Cuyahoga County, Ohio defendants. Viola I, 306 F.Supp.3d at 323-24. Part of the discovery turned over by the government in Calabrese contained telephone calls between the sentencing judge and some of the targeted public officials. Id. at 324. But the judge assigned to Calabrese found that none of the calls revealed wrongdoing or criminal activity on the part of Plaintiff's sentencing judge. Id.

Unconvinced, Plaintiff filed FOIA requests seeking records from the EOUSA regarding the sentencing judge. Plaintiff also sought records regarding Paul Tomko, an FBI “expert” and “informant, ” whom Plaintiff alleges reviewed key documents in Plaintiff's mortgage fraud case and who was later allegedly imprisoned for mortgage fraud. Id. at 325.

II. ANALYSIS

A. EOUSA

Plaintiff requested all records that “reference” the sentencing judge, as well as oral recordings and transcripts of the judge's conversations with targeted public officials James Dimora and Frank Russo. Id. at 326. The EOUSA withheld the records pursuant to the Privacy Act, 5 U.S.C. § 552a, because they concerned third parties and Plaintiff had not submitted: (1) consent from the third parties, (2) proof that they were deceased, or (3) evidence that the public interest in disclosure outweighed the third parties' privacy interests. Viola I, 306 F.Supp.3d at 326.

The EOUSA also withheld the records because they were exempt pursuant to FOIA Exemption (b)(6), which allows an agency to withhold “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, ” as well as Exemption (b)(7)(C), which allows an agency to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Viola I, 306 F.Supp.3d at 326; 5 U.S.C. § 552(b)(6), (b)(7)C).

The EOUSA instead searched its LIONS records database using various forms of Plaintiff's name, as well as other search terms from his FOIA request. Viola I, 306 F.Supp.3d at 326-29. Because Plaintiff had been prosecuted by the U.S. Attorney's Office for Northern District of Ohio, the agency searched its computer tracking system for the records maintained by that office. Id. at 326-27. According to an EOUSA declarant, each U.S. Attorney's Office “maintains the case files for criminal matters prosecuted by that office” and there were “no other records or systems or locations within the EOUSA in which . . . files pertaining to plaintiff's request were maintained.” Id.

Plaintiff challenged the search as inadequate, disputing that responsive files were confined to the U.S. Attorney's Office for the Northern District of Ohio. Id. at 327. He argued that because the FBI and other federal agencies had joined forces with Ohio state law enforcement officials to form the Mortgage Fraud Task Force (MFTF), whose work led to his prosecution, the FBI was required to “search the joint federal-state task force” records. Id. at 327-28.

This court rejected Plaintiff's argument because he had not overcome the presumption accorded the EOUSA's declaration that any relevant MFTF records maintained by DOJ would be found in the agency's database. Id. at 328-29. Instead, Plaintiff offered “purely speculative claims about the existence and discoverability of other documents” which did not undermine the EOUSA's assertions. Id. at 329; see SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991) (“Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.”) (cleaned up and citation omitted). And even if the EOUSA had transferred documents to the MFTF as Plaintiff alleged, this court agreed with the EOUSA that it had no duty to search files it did not maintain. Viola I, 306 F.Supp.3d at 329; see Dipietro v. Exec. Off. for U.S. Att'ys, 357 F.Supp.2d 177, 182 (D.D.C. 2004) (citation omitted) (“No agency is obligated to produce records that it does not maintain.”); Weisberg v. DOJ, 705 F.2d 1344, 1363 (D.C. Cir. 1983) (“[E]ven if an agency creates a document, FOIA requires disclosure only of records ‘for which agencies have chosen to retain possession or control.'”) (internal alterations omitted) (citing Kissinger v. Reporters Committee, 445 U.S. 136 (1980)).

Plaintiff filed a motion to reconsider, contending that the court had not considered an argument he claimed to have raised in his briefs-namely that the MFTF constituted a federal agency for FOIA purposes. Viola II, 2019 WL 2437692, at * 2. The cases Plaintiff cited in support of this argument, however, stood for a slightly different proposition: that under some circumstances, disclosure may be required even where records are held by a non-agency, if the agency either created or obtained the records, and was in control of the records at the time of the FOIA request. Id. at *3 (citing U.S. Dep't of Just. v. Tax Analysts, 492 U.S. 136, 144 (1989)).

Here, there was no evidence that these criteria were met. The DOJ declaration explained that there were no records systems outside its Ohio LIONS database where files pertaining to the mortgage fraud prosecution were maintained. Viola I, 306 F.Supp.3d. at 326-27; Viola II, 2019 WL 2437692, at *1-2. And Plaintiff's own evidence was inconsistent with his position, and actually supported the agency's declarant. Viola II, 2019 WL 2437692, at *2-3. Plaintiff submitted an affidavit from Arvin Clar, a former MFTF Director and Assistant Director, who explained that certain “cooperating” federal entities shared information with the MFTF, but those entities were not “signatory participating members” to the Memorandum of Understanding establishing the task force. Id. at *2. Moreover, no federal agencies provided funding for the investigation, and 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. In light of this evidence, the court denied Plaintiff's motion to reconsider the adequacy of EOUSA's search.

Notwithstanding the court's two prior decisions on the issue, Plaintiff raises the same argument again in his opposition to DOJ's Supplemental Summary Judgment Motion, ECF No. 59, Pls. Opp. to Supp. Mot. at 1, 4, as well as in his Motion to Vacate, ECF No. 60 at 1, 4-6, and in his “Additional Documents in Support of Pending Pleadings, ” ECF No. 64 at 1. He again asks this court to reconsider its ruling, claiming to have discovered “new evidence.”

Pursuant to “Rule 54(b) of the Federal Rules of Civil Procedure the district court may revise its own interlocutory orders ‘at any time before the entry of judgment adjudicating all the claims and all the parties' rights and liabilities.'” Davis v. Joseph J. Magnolia, Inc., 893 F.Supp.2d 165, 168 (D.D.C. 2012). But Rule 54 relief is “discretionary” and “should not be granted unless the movant presents either newly discovered evidence or errors of law or fact which need correction.” Id. (quoting Nat'l Trust for Hist. Pres. V. U.S. Dep't...