Earle v. U.S. Dep't of Justice

• Decision Date: 10 November 2016
• Docket Number: Civil Action No. 16-0629 (ABJ)
• Citation: 217 F.Supp.3d 117
• Parties: Vernon Norman EARLE, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

217 F.Supp.3d 117

Vernon Norman EARLE, Plaintiff,

v.UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.

Civil Action No. 16-0629 (ABJ)

United States District Court, District of Columbia.

Signed November 10, 2016

Vernon Norman Earle, Bruceton Mills, WV, pro se.

Christopher Charles Hair, Michael Benjamin Posner, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiff Vernon Earle brought this action against defendants, the United States Department of Justice ("DOJ") and the United States Attorney for the District of Columbia, under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq. Compl. [Dkt. # 1] at l.¹ Plaintiff seeks to compel defendants to produce "the Grand Jury's Tax Number for District of Columbia criminal felony Case Number# F.4396-85, concerning any indictment issued for that case." Id. Defendants have moved to dismiss the case for lack of subject matter jurisdiction or in the alternative, for summary judgment, on the ground that grand jury tax numbers have never existed. Defs.' Mot. to Dismiss or Alternatively for Summ. J. [Dkt. # 10] ("Defs.' Mot.") at 1; Attach. 3 to Defs.' Mot., Defs.' Mem. of P. & A. in Supp. of Defs.' Mot. [Dkt. # 10-3] ("Defs.' Mem.") at 1. According to defendants, since grand jury tax numbers do not exist, there was no need to conduct a futile search to find them. Defs.' Mem. at 1.

Under these circumstances, there is case law that would support the dismissal of the action on the basis that this Court lacks jurisdiction. But in the event the Court is required to assess the adequacy and/or the futility of the search based on the evidentiary record, the Court will enter judgment in favor of defendants because there is no genuine dispute of material fact concerning the existence of the records and the lack of any obligation to search for them.

BACKGROUND

The facts are not in dispute. Plaintiff was convicted of several crimes during the 1980s. Compl. at 1-2. He was also charged in the Superior Court for the District of Columbia in felony case number F.4396-85. Id. at 2. The charge was dismissed during the grand jury phase of the investigation on or around April 10, 1986. Attach. 2 to Defs.' Mot., Decl. of David Luczynski [Dkt. # 10-2] ("Luczynski Decl.") ¶ 9. By letter dated July 2, 2015, plaintiff sent a FOIA request to the Tax Division of the DOJ asking for the tax number of the grand jury from that case. Ex. 1 to Compl; Luczynski Decl. ¶ 4.

On August 4, 2015, the Executive Office of the United States Attorneys ("EOUSA") responded on the DOJ's behalf, explaining that "[g]rand jury material is exempt from mandatory release" because it is "specifically exempted from disclosure by statute." Ex. 2 to Compl.; Luczynski Decl. ¶ 5. Plaintiff filed an appeal with the DOJ's Office of Information Policy ("OIP"). Ex. 3 to Compl.; Luczynski Decl. ¶ 6. OIP affirmed the EOUSA's determination, but instead of relying on the statutory disclosure prohibition exemption, it stated that the "EOUSA does not maintain any information concerning the type of records ... described in [Earle's] request letter." Ex. 4 to Compl.; Luczynski Decl. ¶ 8. Additionally, OIP explained that it "has never found any indication that this type of record has ever existed within any component of the Department of Justice." Ex. 4 to Compl.; Luczynski Decl. ¶ 8.

Plaintiff seeks review of OIP's decision. See Compl. at 2-4. Defendants take the position that the Court lacks jurisdiction to review a FOIA request for material that does not exist since the statute would not apply in that circumstance and, in the alternative, they argue that judgment should be entered in favor of defendants since they have complied with their FOIA obligations. Defs.' Mem. at 1. In support of their motion, defendants rely upon the declaration of David Luczynski, an attorney in the EOUSA, who coordinated the DOJ's response to plaintiff's FOIA request. See Luczynski Decl. ¶ 3.

Mr. Luczynski searched for plaintiff's first and last name using the District of Columbia's court cases online webpage. Id. ¶ 9. He found felony case # F-4396-85, but the online system did not contain a tax ID number. Id. Mr. Luczynski states, based on his experience as an Attorney Advisor with the EOUSA, that "there are no ‘tax numbers' associated with grand juries in D.C. Superior Court." Id.

Mr. Luczynski also contacted Christina Troiani, an Attorney-Advisor of the DOJ's Office of Information Policy. Id. Her responsibilities include reviewing, verifying, and adjudicating FOIA requestors' appeals, id. and she adjudicated plaintiff's appeal. See Ex. 4 to Compl. at 2. Ms. Troiani informed Mr. Luczynski that, to her knowledge, "there is no record system anywhere within DOJ in which responsive records would be located" because grand jury tax numbers do not exist. Luczynski Decl. ¶ 9.

Mr. Luczynski also contacted Richard Tischner, who is the Chief of the Superior Court Division at the United States Attorney's Office for the District of Columbia. Id. The United States Attorney for the District of Columbia prosecutes federal offenses, as well as most of the local crimes within the District, and the Superior Court Division handles those prosecutions. Id. Mr. Tischner has worked in that office since October 1985, a time period that includes the period when felony case # F-4396-85 was dismissed. Id. According to Mr. Tischner, grand juries in D.C. Superior Court "do not – and never have had – tax numbers." Id.

Based on his interviews with Mr. Tischner and Ms. Troiani, his search using the District of Columbia's webpage, and his own experience as an Attorney Advisor with the EOUSA, Mr. Luczynski concluded that "the requested information does not exist," so "there is no record system in which responsive records are likely to be located." Id.

Plaintiff filed a timely opposition to defendants' motion, and in it, he asserts that he was told by a jailhouse lawyer that all indictments must be filed with the Tax Division of the DOJ and be given a tax number to be valid. Aff. in Supp., Ex. 1 to Pl.'s Mot. of Opp. to Defs.' Mot. with P. & A. in Supp. [Dkt. # 12] ("Pl.'s Aff.") at 1.

STANDARD OF REVIEW

I. Subject Matter Jurisdiction

Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; Shekoyan v. Sibley Int'l Corp. , 217 F.Supp.2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ; see also Gen. Motors Corp. v. Envtl. Prot. Agency , 363 F.3d 442, 448 (D.C. Cir. 2004) ("As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction."). "[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as well as a statutory requirement ... no action of the parties can confer subject-matter jurisdiction upon a federal court.’ " Akinseye v. District of Columbia , 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).

When considering a motion to dismiss for lack of jurisdiction, the court "is not limited to the allegations of the complaint." Hohri v. United States , 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds , 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, "a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics , 104 F.Supp.2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat'l Acad. of Scis. , 974 F.2d 192, 197 (D.C. Cir. 1992) ; see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin. , 402 F.3d 1249, 1253 (D.C. Cir. 2005).

II. Summary Judgment

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2505 ; Laningham v. U.S. Navy , 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party's motion, the court must "view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the summary judgment motion.’ " Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (alterations omitted), quoting United States v. Diebold, Inc. , 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam).

"FOIA cases are typically and appropriately decided on motions for summary judgment." Moore v. Bush , 601 F.Supp.2d 6, 12 (D.D.C. 2009). In the FOIA context, "the sufficiency of the agency's identification or retrieval procedure" must...