Walsh v. Fed. Bureau of Investigation

• Decision Date: 03 July 2013
• Docket Number: Civil Action No. 11–2214 (RWR).
• Citation: 952 F.Supp.2d 71
• Parties: Rory WALSH, Plaintiff, v. FEDERAL BUREAU of INVESTIGATION, et al., Defendants.
• Court: U.S. District Court — District of Columbia

952 F.Supp.2d 71

Rory WALSH, Plaintiff,

v.FEDERAL BUREAU of INVESTIGATION, et al., Defendants.

Civil Action No. 11–2214 (RWR).

United States District Court, District of Columbia.

July 3, 2013.

Rory M. Walsh, York, PA, pro se.

Andrea McBarnette, U.S. Attorney's Office, Civil Division, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, District Judge.

Pro se plaintiff Rory Walsh, on his own behalf and as the natural guardian of minor S.J.W., brought claims under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., against the Federal Bureau of Investigation (“FBI”).¹ The FBI has filed a motion for summary judgment, while Walsh has filed, among other things, a motion for recusal. Because Walsh offers no evidence that recusal is warranted, his motion for recusal will be denied. Because there are no genuine issues in dispute and the FBI is entitled to judgment as a matter of law regarding Walsh's request for surveillance information and one investigating agent's identity, judgment will be entered for the FBI on those portions of Walsh's claim. However, because the FBI has not carried its burden to justify withholding the names of the agents in charge of the Harrisburg Resident Agency, that portion of the FBI's motion will be denied.

BACKGROUND

The background of this case is discussed more fully in Walsh v. F.B.I., 905 F.Supp.2d 80 (D.D.C.2012). Briefly, Walsh is a former Marine Corps officer who believes that a former Marine Commandant has been harassing him and got the FBI to make warrantless entries into his Pennsylvania home between 2005 and 2009. Walsh's complaint asserts that Walsh sent a FOIA request to the FBI seeking records related to his alleged harassment, and that the FBI did not adequately respond to his request. Compl. ¶¶ 22, 25, 27, 58.

In September 2011, the FBI received a letter from a Congressman asking about the status of an attached letter referred to as Walsh's “unanswered FOIA request” which sought “the name and FBI agent number of the Special Agent in Charge of the Harrisburg office,” from November 2006 to the present date. Walsh, 905 F.Supp.2d at 86. The FBI Chief of the Record/Information Dissemination Section (“RIDS”), David Hardy, said in a declaration filed in this case that after receiving Walsh's “unanswered FOIA request,” the FBI sent a letter to Walsh on September 14, 2011 stating “that the Harrisburg Resident Agency falls under the Philadelphia Field Office” and providing Walsh with the office contact information and the name of the Special Agent in Charge of the Philadelphia office, George C. Venizelos. FBI Mot. to Dis. or for Summ. J. [16], Ex. 2 (“First Hardy Decl.”), ¶ 7. Walsh stated in his own declaration that he responded by sending to the FBI's Office of Information Policy (“OIP”) an “appeal” letter dated September 27, 2011, requesting “[t]he name of each FBI agent in charge of the Harrisburg Resident Agency from May 2005 to the present date,” the name of an agent who interviewed Walsh in April 2011, and three more requests related to information about the alleged FBI surveillance and questioning of Walsh. Walsh, 905 F.Supp.2d at 86.

The FBI interpreted the three new requests as requests for “any and all information on Rory M. Walsh.” According to Hardy, the FBI responded to these three new requests by sending to Walsh a letter dated October 12, 2011, stating that “[Walsh's] request did not contain sufficient information to conduct an adequate search of the Central Records System” and seeking additional information from Walsh to assist the FBI in locating the information Walsh sought, including Walsh's full name, address, date of birth, and telephone number.... Hardy states that the letter advised Walsh that the FBI would close his request if it did not receive a response within 30 days, and that he could appeal the FBI's denials within 60 days. ... Hardy claims that the FBI has no record of receiving a response from Walsh ... [but] Walsh disputes that the FBI ever sent such a letter.

Id. (internal citations omitted). The FBI sent Walsh a letter on December 9, 2011, telling him that the names of the agents in charge of the Harrisburg Resident Agency would be withheld under FOIA Exemptions (b)(6) and (b)(7)(C), and telling him that he had 60 days to appeal. Id. Walsh responded that he filed an administrative appeal, but the FBI's OIP was not able to find such an appeal in its system. Id. at 86–87.

The FBI initially filed a motion to dismiss or for summary judgment based on Walsh's purported failure to exhaust his administrative remedies. A November 2012 opinion denied that motion, stating in relevant part:

The FBI argues ... that Walsh failed to properly file an administrative appeal of the FBI's responses to his FOIA request and to exhaust his available administrative remedies. However, the FBI does not provide factual detail to show that its searches for Walsh's responses were reasonably calculated to find his response, nor does the FBI provide any evidence, such as a return receipt, that would resolve the factual dispute about whether it mailed Walsh the October 12 letter. Therefore, the FBI's motion for summary judgment will be denied.

Walsh, 905 F.Supp.2d at 87. The memorandum opinion also denied motions filed by Walsh for partial summary judgment against the FBI, for expeditious treatment of his motion for partial summary judgment against the FBI, for a writ of mandamus, and for default judgment against all defendants.

The FBI has filed a new summary judgment motion, claiming that Walsh's request for surveillance information is now moot because the FBI has conducted a more rigorous search, and has found nothing responsive to Walsh's request for any documents pertaining to warrants or surveillance, and that the names of FBI agents can be withheld under Exemptions 6 and 7(C) of the FOIA. Def.'s Mem. of Law in Supp. of Mot. to Dismiss or for Summ. J. [31] (“Def.'s Second Mem.”) at 1, 6–8. Walsh opposes the FBI's motion, arguing that the FBI's search was not sufficient and that Exemptions 6 and 7(C) do not justify withholding the names of the agents. Pl.'s Opp'n at 9–10, 12–16. Walsh also has filed, among other things, a motion to recuse the undersigned, asserting that the November 2012 opinion demonstrated bias.²

DISCUSSION

I. RECUSAL

Walsh has moved to recuse the undersigned under 28 U.S.C. § 455(a), and 28 U.S.C. § 144. According to Walsh, recusal is warranted because the November 2012 opinion “brought forward [the undersigned's] open animosity and mishandling of [a related case filed by Walsh] ... and [the undersigned] has denied five (5) un-opposed motions, has made no effort to uphold the law, and openly provided advise [sic] to the FBI for their next motion which is not only brazen collusion with the FBI but clearly prohibited.” Pl.'s Ex Parte Mot. for the Recusal of Richard W. Roberts (“Pl.'s Mot.”) at 1–2.

Under 28 U.S.C. § 455(a), any judge “of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Likewise, under 28 U.S.C. § 144, a judge should recuse himself when a party “makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party [.]” 28 U.S.C. § 144. Thus, a judge is disqualified from presiding over any proceeding in which he or she has a personal bias or prejudice concerning a party, or where his or her impartiality might reasonably be questioned. See Ramirez v. U.S. Dept. of Justice, 680 F.Supp.2d 208, 211 (D.D.C.2010).

The substantive standard for recusal based on alleged bias under 28 U.S.C. § 455(a) and 28 U.S.C. § 144 “is largely the same.” Klayman v. Judicial Watch, Inc., 744 F.Supp.2d 264, 275 n. 4 (D.D.C.2010). “To the extent the standard[s] under the sections differ, it is that section 144 requires proof of actual bias whereas section 455(a) requires only the reasonable appearance of bias.” Id. The standard for disqualification “is an objective one: whether a reasonable and informed observer would question the judge's impartiality.” Ramirez, 680 F.Supp.2d at 211 (citing In re Brooks, 383 F.3d 1036, 1043 (D.C.Cir.2004); United States v. Microsoft Corp., 253 F.3d 34, 114 (D.C.Cir.2001)). “There is a presumption against disqualification and the moving party must demonstrate by clear and convincing evidence that disqualification is required by Section 455(a).” Ramirez, 680 F.Supp.2d at 211 (citing Cobell v. Norton, 237 F.Supp.2d 71, 78 (D.D.C.2003)). Judicial rulings “almost never constitute a valid basis for a bias or partiality motion” seeking recusal. Murchison v. Inter–City Mortg. Corp. Profit Sharing & Pension Plans, 503 F.Supp.2d 184, 187 (D.D.C.2007) (citing Liteky v. United States, 510 U.S. 540, 555–56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)); see also Cotton v. Washington Metro. Area Transit Auth., 264 F.Supp.2d 39, 42 (D.D.C.2003) (denying recusal where “claim of bias is predicated entirely upon the [magistrate judge's] rulings with respect to the conduct of discovery in the instant action, and rulings regarding discovery and other issues in three other actions filed by Plaintiffs' counsel”).

Walsh bases his recusal motion upon judicial rulings, and his complaints about the denial of his motions miss the mark. Regardless of whether it was opposed, Walsh's motion for default judgment was improper because it did not provide a basis for the Clerk to calculate an amount certain,³ nor did Walsh first seek entry of default under Rule 55(a). Walsh's remaining motions were mooted by the substance of the opinion.⁴ Finally, while Walsh characterizes the portion of the opinion denying the FBI's motion as “openly providing [advice],” that characterization proves too much, as that description could apply to every opinion that explains an unsuccessful motion's shortcomings. The undersigned...