Marino v. Dep't of Justice, Civil Action No. 12–865 (RMC)

• Citation: 993 F.Supp.2d 14
• Decision Date: 19 June 2014
• Docket Number: Civil Action No. 12–865 (RMC)
• Parties: Vincent Michael Marino, Plaintiff, v. Department of Justice, et al., Defendants.
• Court: U.S. District Court — District of Columbia

993 F.Supp.2d 14

Vincent Michael Marino, Plaintiff,

v.Department of Justice, et al., Defendants.

Civil Action No. 12–865 (RMC)

United States District Court, District of Columbia.

Signed June 19, 2014

Vincent Michael Marino, Welch, WV, pro se.

Rhonda Lisa Campbell, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, United States District Judge

Vincent M. Marino currently is incarcerated in federal prison on racketeering and drug-related convictions. He maintains his innocence, claiming that assorted mobsters, aided and abetted by rogue federal agents and prosecutors, pinned false charges on him. Last year, Mr. Marino brought yet another pro se action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, Privacy Act, id. § 552a, and Sunshine Act, id. § 552b.¹See Compl. [Dkt. 1] at 1–3. This time he sues eight agencies of the Department of Justice,² claiming that Defendants erred in failing to release the following records: (1) sealed records from United States v. Salemme, 91 F.Supp.2d 141 (D.Mass.1999), rev'd in part,United States v. Flemmi, 225 F.3d 78 (1st Cir.2000), a criminal matter not involving Mr. Marino; the verdict forms from Mr. Marino's criminal case; four FBI tapes from 1989 concerning an attempted murder; and records that generally relate to Mr. Marino by name or one of his aliases. SeeMarino v. Dep't of Justice, Civ. No. 12–865, 993 F.Supp.2d 1, 8, 2013 WL 5979753, at *5 (D.D.C. Nov. 12, 2013). Mr. Marino contends that these records will not only prove his theories of government misconduct, but also, will exonerate him. See Compl. at 3 (explaining that the requested records will show his “actual innocence” as well as “egregious governmental misconduct”).

At issue in this phase of the litigation is whether Mr. Marino must pay certain fees associated with his records request. Mr. Marino contends that he should receive a fee waiver because the records he requests will benefit the public's interest in how its government operates. At the same time, he concedes that the information he seeks already exists in the public domain. Moreover, Mr. Marino fails to provide sufficient information concerning how he will disseminate the records that he requests. Because these deficiencies are fatal to Mr. Marino's fee waiver request, the Court will deny Mr. Marino's motion.

I. FACTS

In March 2013, Defendants moved to dismiss Mr. Marino's suit, or in the alternative, for summary judgment. The Court sua sponte dismissed with prejudice Mr. Marino's Sunshine Act claim, Marino, 993 F.Supp.2d at 11, 2013 WL 5979753, at *8, but denied without prejudice Defendants' motion, id. at 11–14, *8–9. The Court explained that Defendants neither had addressed adequately Mr. Marino's Privacy Act claims nor had established that the searches conducted in response to Mr. Marino's FOIA claims were adequate and reasonable. Id. at 11, *8.

As relevant here, the Court faulted Defendants for their handling of the search fees that Mr. Marino owed in connection with his records request to EOUSA and USAO–MA. The Court observed that USAO–MA had conducted searches for responsive records, but had refused to complete its review until Mr. Marino paid $8,960.00 in search fees. Defendants claimed that Mr. Marino was ineligible for a fee waiver, but Mr. Marino was not seeking such a waiver. Instead, Mr. Marino had asked EOUSA to cap his search fees at $1,000.00. EOUSA and USAO–MA ignored this request. Further, there was no indication in the record that Mr. Marino could not have made a $1,000.00 advance payment or that he would have sought a fee waiver in this amount. Id. at 13, *9. Accordingly, the Court found that Defendants had not established that EOUSA and USAO–MA had conducted an adequate or reasonable search for responsive records. Id.

Defendants filed a motion for renewed dispositive briefing, which the Court granted. Shortly thereafter, Mr. Marino filed a Motion for Fee Waiver, Dkt. 29. He asked the Court to order Defendants to “correct” the “[v]erdict [s]heet” from his “jury trial” and waive $5,796.00 in search fees.³Id. at 14–15. The Court directed Defendants to treat Mr. Marino's Motion as a request made directly to them. See Dec. 30, 2013 Minute Order.

On February 10, 2014, Mr. Marino filed a Motion to Compel, Dkt. 30, and a Motion Requesting Copy of Docket Sheet, Dkt. 31. Mr. Marino asked the Court to direct Defendants to respond to his fee waiver request, Mot. to Compel at 1, and renewed his request for a “correct[ion] [of] the ... [i]naccurate [r]ecord [s]” from his trial in the District of Massachusetts, Mot. Requesting Copy of Docket Sheet at 2. The Court granted the Motion to Compel and ordered Defendants to respond no later than March 5, 2014. See Feb. 12, 2014 Minute Order. However, the Court granted Mr. Marino's Motion Requesting Copy of Docket Sheet only in part. It directed the Deputy Clerk to mail a copy of the docket sheet in this case to Mr. Marino and denied without prejudice his request for a correction of the records from his jury trial. See Feb. 12, 2014 Minute Order.

Defendants filed a timely response to Mr. Marino's Motion to Compel, submitting a declaration from Tricia Francis, an EOUSA Attorney–Advisor charged with responding to FOIA requests. See EOUSA Notice [Dkt. 32], Francis Decl. [Dkt. 32–1]. Ms. Francis averred that EOUSA had calculated that it would take approximately 207 hours to conduct a search for the records that Mr. Marino had requested, computed a fee estimate of $5,796.00 based on the agency's normal search fee of $28.00 per hour, and mailed this fee estimate to Mr. Marino in December 2013. Francis Decl. ¶¶ 5–7; see also Notice of Exhibits [Dkt. 37], Fee Letter to Mr. Marino [Dkt. 37–1] at 1–3. Ms. Francis adds that upon learning of Mr. Marino's Motion for a Fee Waiver, EOUSA evaluated his request and deemed Mr. Marino ineligible for a fee waiver. Francis Decl. ¶ 8. EOUSA notified Mr. Marino of its decision on January 16, 2014, id., explaining that Mr. Marino had not sufficiently established that his FOIA request was in the public interest, see Notice of Exhibits, Jan. 16, 2013 Letter to Mr. Marino [Dkt. 37–1] at 4–5. EOUSA informed Mr. Marino that he could either notify EOUSA of the amount he was willing to pay or administratively appeal the denial of his waiver request. Francis Decl. ¶ 8; see also Jan. 16, 2013 Letter to Mr. Marino at 5.

Mr. Marino opted to appeal EOUSA's fee waiver denial. OIP received the appeal, but declined to act. See Resp. to Show Cause [Dkt. 38], Ex. 1 [Dkt. 38–1] (OIP Letter to Mr. Marino). On April 3, 2014, OIP informed Mr. Marino that it was closing his appeal pursuant to 28 C.F.R. § 16.9(a)(3) because his waiver request was part of the litigation he had brought before this Court. Id. at 1. Section 16.9(a)(3) provides that “[a]n appeal ordinarily will not be acted on if the request becomes a matter of FOIA litigation.” 28 C.F.R. § 16.9(a)(3).

On March 21, 2014, Mr. Marino filed a Reply, Dkt. 33, and Supplemental Reply, Dkt. 34, to EOUSA's Notice and Francis Declaration. The Court then entered an Order explaining that EOUSA's Notice would be construed as an opposition to Mr. Marino's Motion to Compel, and Mr. Marino's Reply and Supplemental Reply would “complete the record on [Mr. Marino's] eligibility for a fee waiver.” Mar. 26, 2014 Minute Order. The Court vacated the existing schedule for summary judgment briefing pending the Court's determination of Mr. Marino's eligibility for a fee waiver.⁴ Accordingly, the issue of Mr. Marino's eligibility for a fee waiver is now ripe.

II. ANALYSIS

A. Exhaustion of Administrative Remedies

At the outset, the Court finds that Mr. Marino has exhausted his administrative remedies in connection with his request for a fee waiver. It is well-established that a party must first exhaust his administrative remedies before bringing an action under FOIA. Stebbins v. Nationwide Mut. Ins. Co., 757 F.2d 364, 366 (D.C.Cir.1985) (citing Hedley v. United States, 594 F.2d 1043, 1044 (5th Cir.1979)); see alsoOglesby v. U.S. Dep't of Army, 920 F.2d 57, 61–62 (D.C.Cir.1990). This principle also applies to waiver of search fees. As the D.C. Circuit has explained, “[e]xhaustion does not occur until the required fees are paid or an appeal is taken from the refusal to waive fees.” Oglesby, 920 F.2d at 66 (citing Nat'l Treasury Emps. Union v. Griffin, 811 F.2d 644, 648 (D.C.Cir.1987); Irons v. FBI, 571 F.Supp. 1241, 1243 (D.Mass.1983); Crooker v. U.S. Secret Serv., 577 F.Supp. 1218, 1219 (D.D.C.1983)). Here, Mr. Marino appealed EOUSA's fee waiver denial to OIP, which closed the matter in light of the ongoing litigation. See OIP Letter to Mr. Marino at 1 (citing 28 C.F.R. § 16.9(a)(3)). Consequently, there is no barrier to this Court addressing Mr. Marino's eligibility for a fee waiver.

B. Requested Fee Waiver

FOIA requesters generally cannot obtain judicial review of their FOIA claims until they either pay any fees associated with their records request or establish their entitlement to a fee waiver. SeeOglesby, 920 F.2d at 66; Smith v. Fed. Bureau of Prisons, 517 F.Supp.2d 451, 455 (D.D.C.2007). Both fee schedules and fee waivers are governed by 5 U.S.C. § 552(a)(4)(A). Under that provision, agencies are “empower[ed] ... to ‘promulgateregulations ... specifying the schedule of fees applicable to the processing of [FOIA] requests ... and establishing procedures and guidelines for determining when such fees should be waived or reduced.’ ” Research Air, Inc. v. Kempthorne, 589 F.Supp.2d 1, 8–9 (D.D.C.2008) (alterations in original) (quoting 5 U.S.C. § 552(a)(4)(A)(i)). The statute also directs agencies to waive fees for processing a FOIA request when “[1] disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and [2] is not primarily in the commercial interest of the...