Ebling v. United States Dep't of Justice

• Decision Date: 11 July 2011
• Docket Number: Civil Action No. 10–00914 (CKK).
• Citation: 796 F.Supp.2d 52
• Court: U.S. District Court — District of Columbia
• Parties: Bernice EBLING, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

796 F.Supp.2d 52

Bernice EBLING, Plaintiff,

v.UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 10–00914 (CKK).

United States District Court, District of Columbia.

July 11, 2011.

Bernice Ebling, Saint Joseph, MO, pro se.

Sean Joseph Vanek, U.S. Department of Justice Executive Office for United States Attorneys, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, District Judge.

Plaintiff Bernice Ebling brings this action against the United States Department of Justice (the “DOJ”) under the Freedom of Information Act (“FOIA”). Presently before the Court is the DOJ's [9] Motion to Dismiss, or Alternatively, for Summary Judgment (“Motion for Summary Judgment”). Upon consideration of the parties' submissions, the relevant authorities, and the record as a whole, the motion will be granted-in-part and denied-in-part.

I. OVERVIEW

waiver (way-ver),n. (17c) 1. The voluntary relinquishment or abandonment—express or implied—of a legal right or advantage.... The party alleged to have waived a right must have had both knowledge of the existing right and the intention of forgoing it.

Black's Law Dictionary 1717 (9th ed.2009).

In late 2009 and early 2010, Ms. Ebling filed a series of FOIA requests with two agencies under the auspices of the DOJ—namely, the Executive Office for United States Attorneys (the “EOUSA”) and the Federal Bureau of Investigation (the “FBI”). From both the EOUSA and the FBI, she sought records concerning the criminal investigation and prosecution of William S. Price, who is alleged to be Ms. Ebling's nephew. From the FBI only, she also sought records concerning the participation of Tami Lynn Price, who is alleged to be Mr. Price's former spouse, in the criminal investigation and prosecution of Mr. Price.

The EOUSA and the FBI refused to process Ms. Ebling's requests for records relating to Mr. Price. As grounds, they cited the terms of Mr. Price's plea agreement, in which he waived his right to use either FOIA or the Privacy Act of 1974 (“PA”) as a means of obtaining records concerning his criminal case. Even though Ms. Ebling was not a party to that agreement, the EOUSA and the FBI claimed that the FOIA/PA waiver in Mr. Price's plea agreement presented an absolute bar to her efforts to obtain records concerning the criminal investigation and prosecution of Mr. Price. Before this Court, the DOJ defends the EOUSA and the FBI's actions on the same basis. In essence, the DOJ maintains that Ms. Ebling's requests are a subterfuge for circumventing the FOIA/PA waiver in Mr. Price's plea agreement.

In contrast, the FBI actually processed Ms. Ebling's requests for records relating to Ms. Price. However, it concluded that the responsive records that were located were all exempt from disclosure. Before this Court, the DOJ defends the FBI's decision on another basis entirely. Here, the DOJ contends that Ms. Ebling failed to exhaust her administrative remedies because she did not file an administrative appeal in accordance with the DOJ's regulations.

The DOJ's Motion for Summary Judgment will be granted-in-part and denied-in-part. With respect to Ms. Ebling's requests for records relating to Mr. Price, the EOUSA and the FBI improperly relied upon the FOIA/PA waiver in Mr. Price's plea agreement as a reason for refusing to process Ms. Ebling's requests. See infra Part VI.A. Ms. Ebling simply is not a party to that agreement and, as a result, it cannot be enforced against her. See id. Ms. Ebling has an independent right to request records under FOIA, and Mr. Price could not, and did not, unilaterally waive that right merely by executing his plea agreement. See id. Therefore, the Court will deny the DOJ's Motion for Summary Judgment with respect to Ms. Ebling's requests relating to Mr. Price.

Meanwhile, the Court agrees with the DOJ that Ms. Ebling has failed to fully exhaust her administrative remedies with respect to her requests relating to Ms. Price. As an initial matter, Ms. Ebling has failed to come forward with enough evidence to create a genuine dispute that she ever filed an administrative appeal. See infra Part IV.B. Moreover, even crediting Ms. Ebling's allegations that she attempted to file an administrative appeal, it is clear that she did not do so in accordance with the DOJ's regulations. See id. Therefore, the Court will grant the DOJ's Motion for Summary Judgment with respect to Ms. Ebling's requests relating to Ms. Price.

II. PRELIMINARY MATTERS

Although styled in the alternative as a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, ¹ the DOJ's motion plainly turns upon the consideration of materials outside the scope of the pleadings. Indeed, in the course of briefing the motion, both parties effectively treat the motion as one for summary judgment. For her part, Ms. Ebling does not suggest that she has been deprived “a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). In fact, in opposition to the DOJ's motion, Ms. Ebling references, and relies heavily upon, materials outside the scope of the pleadings. Accordingly, the Court shall treat the motion solely as one for summary judgment.

III. FACTUAL BACKGROUND

William S. Price was indicted in the United States District Court for the Western District of Missouri on June 28, 2006, charged with five counts relating to the possession and production of child pornography. See Indictment, United States v. Price, Criminal Action No. 5:06–cr–06012–NKL–1 (W.D. Mo. June 28, 2006), ECF No. [5]. On March 22, 2007, after reaching a plea agreement, Mr. Price pleaded guilty to one count of production of child pornography and one count of receipt of child pornography. See J. in a Criminal Case, United States v. Price, Criminal Action No. 5:06–cr–06012–NKL–1 (W.D.Mo. Oct. 9, 2008), ECF No. [94]. On October 8, 2008, he was sentenced to a total term of imprisonment of 600 months, to be followed by lifetime supervised release. Id. at 2. Subsequently, the sentence and the judgment were affirmed by the United States Court of Appeals for the Eighth Circuit. See United States v. Price, 326 Fed.Appx. 985 (8th Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 294, 175 L.Ed.2d 196 (2009). Recently, Mr. Price's petition for post-conviction relief was denied by the district court. See Price v. United States, Civil Action No. 5:10–cv–06120–NKL, 2011 WL 1357498 (W.D.Mo. Apr. 11, 2011). Mr. Price's appeal of that decision remains pending.

A. Mr. Price's Plea Agreement

Of particular relevance to this action, Mr. Price's guilty plea in his criminal case was secured through a formal plea agreement. See Pl.'s Stmt. of Genuine Issues, Pursuant to Local Rule 7(h) (“Pl.'s Stmt.”), ECF No. [10], Ex. D (Plea Agreement (“Plea Agmt.”)).² The parties to that agreement are described as follows:

The Parties. The parties to this agreement are the United States Attorney's Office for the Western District of Missouri ... and the defendant, William S. Price (“the defendant”), represented by John Gromowsky, Criminal Justice Act appointed counsel.

The defendant understands and agrees that this plea agreement is only between him and the United States Attorney for the Western District of Missouri, and it does not bind any other federal, state, or local prosecution authority or any other government agency, unless otherwise specified in this agreement.

Id. ¶ 1. Consistent with this description, the agreement was signed by only three individuals—an Assistant United States Attorney, Mr. Price, and Mr. Price's attorney. Id. at 20.

For purposes of this FOIA action, the operative provision of the plea agreement provides:

Waiver of FOIA Request. The defendant waives all of his rights, whether asserted directly or by a representative, to request or receive from any department or agency of the United States any records pertaining to the investigation or prosecution of this case including, without limitation, any records that may be sought under the Freedom of Information Act, 5 U.S.C. § 552, or the Privacy Act of 1974, 5 U.S.C. § 552a.

Pl.'s Stmt. Ex. D (Plea Agmt.), ¶ 16. It is this FOIA/PA waiver that the EOUSA and the FBI later relied upon in denying Ms. Ebling's FOIA requests relating to Mr. Price.

B. Request No. 1: Ms. Ebling's Request to the EOUSA for Records Relating to Mr. Price (Administrative Control No. 09–4676)

By letter dated December 31, 2009, Ms. Ebling submitted a FOIA request to the EOUSA seeking records concerning Mr. Price (“Request No. 1”). See Pl.'s Stmt. Ex. B (Ltr. from B. Ebling to the EOUSA dated Dec. 31, 2009); see also Decl. of John F. Boseker (“Boseker Decl.”), ECF No. [9–4], ¶ 6.³ In the letter, Ms. Price requests the following records regarding Mr. Price:

1. printouts of the search screen displays encountered while performing a search of the Legal Information Office Network System (LIONS), as well as the indices and the records responsive to the search;

2. printouts of the search screen displays encountered while performing a search of the Tracking Assistance for the Legal Office Network (TALON), as well as the indices and the records responsive to the search;

3. printouts of the search screen displays and indices encountered while performing a search of any other database searched in response to this request;

4. any and all records of communication, regardless of form or format, involving AUSA Cynthia Phillips/Cordes, Special Agent Kurt Lipanovich, or any other person in which the subject is mentioned or referred;

5. any and all records at the Kansas City United States Attorney's Office (USAO) or any other USAO, whether or not such records have been uploaded to EOUSA, including search screen displays and indices encountered while performing the search for responsive records.

Pl.'s Stmt. Ex. B (Ltr. from B. Ebling to the EOUSA dated Dec. 31, 2009), at 1. Attached to Ms. Ebling's letter was a Certification of Identity and...