Cunningham v. United States Department of Justice

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

BENJAMIN CUNNINGHAM, )

)

Plaintiff, )

)

v. ) Civil Action No. 13-188 (RMC)

)

U.S. DEPARTMENT OF JUSTICE, et al., )

)

Defendants. )

)

MEMORANDUM OPINION

Benjamin Cunningham complains of alleged violations of the Freedom of

Information Act, 5 U.S.C. § 552 et seq., and misconduct by federal officers during a 2005 search

of his home in New York. Mr. Cunningham appears pro se. He recently has filed a slew of

motions, see Dkt. Nos. 16, 19, 20, 26, 27, 32, 34, 36, 37, 38, 39, 40, 41, 42, and 44, that seek to

obtain summary judgment, compel various Defendants and other non-parties to produce records

or affidavits, and sanction certain Defendants for perceived wrongdoing. For the reasons

discussed below, the Court will dismiss this case and deny the motions as moot.

I. FACTS

A. Background

Mr. Cunningham is a repeat litigator, which gives the Court the advantage of

knowing the origins of his claims. See, e.g., Cunningham v. O’Neill, Case No. 13-960(RMC),

2013 WL 3753554 (D.D.C. July 17, 2013). 1 According to Mr. Cunningham, Deputy Marshals of

the United States Marshal Service (USMS) executed a search warrant and entered his New York

1

In O’Neill, Mr. Cunningham filed a FOIA suit against ten individual federal officials, several of

whom also are named in the instant lawsuit. Because FOIA covers only agencies in the

executive branch of government, 5 U.S.C. § 552(f)(1), the case was dismissed for failure to state

a claim. See O’Neill, 2013 WL 3753554, at *2.

1

City residence in 2005. In the process of their search, the Deputy Marshals handcuffed Mr.

Cunningham while looking for his fugitive brother. Still handcuffed, Mr. Cunningham fled his

home and ran into a bus carrying city transit officer-candidates. Those officers held Mr.

Cunningham until the Deputy Marshals retrieved and, ultimately, released him. See

Cunningham v. U.S. Congress House Ethics Comm., Civil Case No. 12-1935(RMC) (Compl.

[Dkt. 1]). 2 Defendants state that no criminal charges were ever filed against any law

enforcement officer(s) in connection with these events, Am. Mot. for Summ. J. (Def.’s Mem.)

[Dkt. 24] at 2, a fact Mr. Cunningham does not contest. Mr. Cunningham’s subsequent efforts to

be designated a crime victim under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771,

proved unsuccessful. Pl.’s Mot. to Compel, Ex. 1 [Dkt. 7-1] at 27. 3

Mr. Cunningham has brought at least three suits regarding these alleged events in

two other jurisdictions. In the Southern District of New York, Mr. Cunningham sued the

individual Deputy Marshals and a New York Police Department detective for alleged Fourth and

Fifth Amendment violations, and, in a separate suit, he sought a writ of mandamus compelling

the Federal Crime Victim Office to provide him crime-victim benefits and counseling, to pay his

medical bills related to injuries he sustained on the day his home was searched, and to reimburse

him for cash allegedly taken during the 2005 search of his home. The former suit was dismissed

in favor of the defendants on summary judgment and the U.S. Court of Appeals for the Second

Circuit dismissed the ensuing appeal as frivolous. See Cunningham v. McCluskey, Civil Action

2

In U.S. Congress House Ethics Comm., Mr. Cunningham sued U.S. Representative José

Serrano and the U.S. House of Representatives Committee on Ethics. The case was dismissed

because congressional members and committees are immune from suit for official duties under

the Speech or Debate Clause of the U.S. Constitution. See Civil Case No. 12-1935(RMC)

(D.D.C. Feb. 14, 2013) (Order [Dkt. 5] at 2-3); U.S. Const. art. I, § 6.

3

For ease of reference, page numbers cited here relating to Mr. Cunningham’s pleadings come

from the pagination inserted by the electronic case-filing system.

2

No. 05-10169(DAB), 2011 WL 3478312 (S.D.N.Y. Aug. 8, 2011) (adopting magistrate judge’s

report and recommendation and determining that qualified immunity barred Mr. Cunningham’s

Fourth Amendment claim and the availability of a remedy under the Federal Tort Claims Act

(FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq., rendered his Fifth Amendment due process claim

non-cognizable), appeal dismissed, Civil Action No. 11-3597 (2d Cir. Feb. 14, 2012) (mandate),

cert. denied, 133 S. Ct. 124 (Oct. 1, 2012). The latter suit was dismissed as well. See

Cunningham v. Gillis, Civil Action No. 09-cv-1768 (S.D.N.Y. Feb. 25, 2009) (Order [Dkt. 3])

(finding no factual or legal basis for requiring the Federal Crime Victim Office to extend crime

victim benefits to Mr. Cunningham). Before the U.S. Court of Federal Claims, Mr. Cunningham

filed a breach of contract action, claiming that, among others, the magistrate judge and district

court judge in McCluskey had improperly handled the case and conspired against him. The

Court of Federal Claims dismissed the case for lack of jurisdiction, and the Federal Circuit

affirmed. Cunningham v. United States, Civil Action No. 11-330C, 2011 WL 5825147 (Fed. Cl.

Nov. 16, 2011), aff’d, 479 F. App’x 974 (Fed. Cir. 2012).

B. Mr. Cunningham’s FOIA Requests

Mr. Cunningham now has turned to the Freedom of Information Act (FOIA) in an

attempt to locate documents to prove his claims. In 2012, Mr. Cunningham filed FOIA Requests

Nos. 12-3595, 12-4031, 1206853, and 13-00146. All of these requests pertained either to the

2005 search of his home or the refusal to designate Mr. Cunningham a crime victim.

1. FOIA Request No. 12-3595

On July 26, 2012, Mr. Cunningham sent a FOIA request to the Department of

Justice’s (DOJ) Executive Office for U.S. Attorneys (EOUSA) asking for a copy of its “written

decision . . . concerning [Mr. Cunningham’s] pro-se filed Misconduct Complaint” against

3

Assistant U.S. Attorney (AUSA) Peter M. Skinner, who defended USMS in McCluskey. See

Defs.’ Ex. 9 (Luczynski Decl.) [Dkt. 21-9] ¶ 4; Luczynski Decl., Ex. A [Dkt. 21-10]. EOUSA

designated the request as FOIA Request No. 12-3595 and directed the U.S. Attorney’s Office for

the Southern District of New York (USAO-SDNY) to perform a search for responsive records.

Luczynski Decl. ¶ 5; Defs.’ Ex. 11 (Smith Decl.) [Dkt. 21-11] ¶ 5. USAO-SDNY searched the

Legal Information Office Network System (LIONS), which indicates whether a case is open or

closed and whom to contact concerning the identification of responsive records, and the Public

Access to Court Electronic Records (PACER), which provides additional case information.

Smith Decl. ¶¶ 2, 5. USAO-SDNY then sent an email to AUSA David Kennedy, Chief of the

Civil Rights Unit at USAO-SDNY, requesting all records pertaining to Mr. Cunningham. On

October 1, 2012, USAO-SDNY reviewed, compiled and sent responsive records to EOUSA. Id.

¶¶ 5-6. On October 24, 2012, EOUSA released to Mr. Cunningham 33 pages in full and

withheld four pages under FOIA Exemption (b)(5). 4 Luczynski Decl. ¶ 5. EOUSA also notified

Mr. Cunningham that its review had located potentially responsive records that originated from

USMS, the DOJ Office of Inspector General (OIG), the Department of Health and Human

Services (HHS), and the Federal Bureau of Investigation (FBI). It stated that the additional

records had been referred to these entities, which would respond directly to Mr. Cunningham.

Id.; Luczynski Decl., Ex. B [Dkt. 21-10]. 5

4

Mr. Cunningham does not challenge this application of the exemption.

5

Mr. Cunningham does not challenge the responses of DOJ OIG, HHS, or the FBI to FOIA

Request No. 12-3595. With respect to USMS, it appears that the Amended Complaint has

attempted to sue eleven individuals––Defendants O’Neill, Gillis, Turman, O’Rourke, Kennedy,

Bober, Ricigliano, Does, Norris, Sand, an unnamed confidential informant, and Serrano––for

alleged deficiencies in the records production by USMS. See infra p. 7-9.

4

2. FOIA Request No. 12-4031

On August 10, 2012, Mr. Cunningham sent a complaint to the FBI. Luczynski

Decl. ¶ 6. It stated that Marie O’Rourke of the Federal Crime Victims Ombudsman Office,

AUSA Kennedy, and FBI Special Agent (SA) Kristina Norris had “refused to provide their

written decision concerning [Mr. Cunningham’s] federal crime victim status.” Luczynski Decl.,

Ex. C [Dkt. 21-10]. The FBI treated the letter as a FOIA request and forwarded it to EOUSA on

September 26, 2012. On that date, Mr. Cunningham asked EOUSA to expedite the request.

Luczynski Decl. ¶¶ 6-7; Luczynski Decl., Ex. D [Dkt. 21-10]. Two weeks later, EOUSA

assigned number 12-4031 to Mr. Cunningham’s August 10, 2012, complaint letter (FOIA

Request No. 12-4031) and informed Mr. Cunningham that it would not expedite his request but

instead process it in the order it was received. Luczynski Decl. ¶ 8; Luczynski Decl., Ex. E [Dkt.

21-10].

On October 16, 2012, EOUSA directed USAO-SDNY to perform a search for

records responsive to FOIA Request 12-4031. Smith Decl. ¶ 4; Smith Decl., Ex. A [Dkt. 21-

12]. Because USAO-SDNY recently had performed a search in connection with FOIA Request

No. 12-3595, USAO-SDNY asked only AUSA Kennedy and its Victim Witness Coordinator to

search for records concerning Mr. Cunningham and his status as a federal crime victim. Neither

AUSA Kennedy nor the Victim Witness Coordinator located any responsive records. Smith

Decl. ¶ 7. EOUSA subsequently informed Mr. Cunningham on November 8, 2012, that its

search pertaining to FOIA Request No. 12-4031 had not revealed any responsive records.

Luczynski Decl. ¶ 9; Luczynski Decl., Ex. F [Dkt. 21-10].

Mr. Cunningham appealed this response to the Office of Information Policy

(OIP), which oversees agency compliance with FOIA. On December 21, 2012, OIP affirmed

5

EOUSA’s handling and conclusion on FOIA Request No. 12-4031. Luczynski Decl. ¶¶ 10-12.

It again told Mr. Cunningham that EOUSA “could not locate records responsive to his request”

and concluded that EOUSA’s search was “adequate” and “reasonable.” Luczynski Decl., Ex. I

[Dkt. 21-10].

3. FOIA Request No. 1206853

On December 5, 2012, Mr. Cunningham wrote again to the FBI, this time asking

for a copy of his “Federal Crime Victim Status Written Decision.” Defs.’ Ex. 13 (Hardy Decl.)

[Dkt. 21-13] ¶ 5; Hardy Decl., Ex. A [Dkt. 21-14]. The FBI designated this request FOIA

Request No. 1206853 on January 29, 2013. The FBI searched the indices of its Central Records

System (CRS) for responsive records and coordinated additional searches by the Office for

Victim Assistance (OVA) and SA Norris. Hardy Decl. ¶¶ 6, 17-20; Hardy Decl., Ex. B [Dkt. 21-

14]. CRS is the FBI’s electronic repository for information compiled for law enforcement

purposes as well as administrative, applicant, criminal, personnel, and other files. Hardy Decl.

¶ 11. It is accessed via General Indices and an Automated Case Support System (ACS), which

consists of Investigative Case Management, Electronic Case File, and a Universal Index, by

searching for the subject. Id. ¶¶ 11-15.

On February 1, 2013, the FBI informed Mr. Cunningham that it had not located

any records responsive to FOIA Request No. 1206853. Hardy Decl. ¶ 7; Hardy Decl., Ex. C

[Dkt. 21-14]. Mr. Cunningham appealed to OIP on February 6, 2013, but OIP closed the case

after Mr. Cunningham filed the instant suit. See 28 C.F.R. § 16.9(a)(3). See also Hardy Decl. ¶¶

8-9; Hardy Decl., Ex. D [Dkt. 21-14]; Hardy Decl. Ex., E [Dkt. 21-14]; Hardy Decl., Ex. F [Dkt.

21-14].

6

4. FOIA Request No. 13-00146

Mr. Cunningham’s last FOIA request before this Court was sent to the DOJ’s

Office of Justice Programs (OJP) on January 23, 2013. He requested “all documents [concerning

his status as a federal crime victim] and a copy of [his] Federal Crime Victim Status Written

Decision.” Defs.’ Ex. 15 (Lee Decl.) [Dkt. 21-15] ¶ 3; Lee Decl., Ex. A [Dkt. 21-16]. OJP

assigned number 13-00146 (FOIA Request No. 13-00146) to Mr. Cunningham’s January 23

request and directed the Office for Victims of Crime (OVC) to conduct a search for responsive

records. Lee Decl. ¶¶ 3, 5. Ultimately, both OJP and OVC conducted searches that located 50

pages of responsive material. Lee Decl. ¶¶ 5-8. On March 1, 2013, OJP produced the 50 pages

in full to Mr. Cunningham. Id. ¶ 9; Lee Decl., Ex. F [Dkt. 21-21]. OJP realized on May 30,

2013, that it had omitted two responsive documents, consisting of three pages, from its March 1,

2013 production to Mr. Cunningham. It produced these pages in full on June 3, 2013. Lee Decl.

¶ 10, Lee Decl., Ex. G [Dkt. 21-22].

C. The Instant Litigation

Mr. Cunningham seeks to compel the release of records concerning the decision

to deny him federal crime victim status. Compl. [Dkt. 1] at 14. In his initial Complaint filed on

February 12, 2013, Mr. Cunningham named Representative Serrano, DOJ, the FBI and EOUSA. 6

Id. at 1-2. He claimed that Representative Serrano and employees of DOJ, the FBI, and EOUSA

“[w]illfully CONCEAL[ED]” records relating to his request for federal crime victim status. Id.

at 4.

6

Mr. Cunningham named USAO-SDNY, not EOUSA, but the Court has substituted EOUSA

because it is the executive office for all of the Offices of the U.S. Attorneys and is the proper

defendant.

7

On March 20, 2013, Mr. Cunningham filed an Amended Complaint, seeking $5

million in damages. 7 See Civil Cover Sheet [Dkt. 1-2] at 2. Renewing his FOIA request for

documents pertaining to the denial of his federal crime victim status, he named eleven

individuals as co-Defendants: (1) Sean R. O’Neill, Chief of the Administrative Appeals Staff at

OIP; (2) John W. Gillis, former Director of OVC; 8 (3) Kathryn Turman, Program Director of

OVA; 9 (4) Marie A. O’Rourke; (5) AUSA Kennedy; (6) AUSA David V. Bober; 10 (7) Deputy

U.S. Marshal Nicholas Ricigliano; (8) SA Norris; (9) Judge Leonard B. Sand of the U.S. District

Court for the Southern District of New York; (10) an unnamed “Reliable Confidential

Informant” to USMS; and (11) Congressman Serrano. Am. Compl. [Dkt. 6] at 1-3. After Mr.

Cunningham filed suit, the FBI conducted a customary second search, in accordance with its

policy. Def.’s Mem. at 12-13. The only differences between the searches were that in the

second search the FBI searched both main files and cross-references and spelled the entire word

“crime.” Hardly Decl. ¶ 19 & n.2. Mr. Cunningham alleges that Deputy Marshal Ricigliano

illegally searched his home and seized his person, and the individual Defendants violated his

7

Although the interposition of an amended pleading ordinarily nullifies the original pleading, see

6 Charles Allen Wright et al., Federal Practice and Procedure § 1476 (3d ed. 2013), because Mr.

Cunningham is pro se and in the interest of justice and judicial economy, the Court will consider

claims in the original Complaint and in the Amended Complaint. See Sieverding v. Dep’t of

Justice, 693 F. Supp. 2d 93, 101 n.2 (D.D.C. 2010) (addressing claims made in pro se plaintiffs’

original and amended complaints in light of the court’s “obligation to construe pro se filings

liberally” (quoting Toolasprashad v. Bur. of Prisons, 286 F.3d 576, 583 (D.C. Cir. 2002),

denying mot. to amend 910 F. Supp. 2d 149 (D.D.C. 2012)).

8

While Mr. Cunningham’s Amended Complaint names John W. Gills as a Defendant, the Court

agrees with Defendants that he likely meant to name John W. Gillis, who held the relevant job

title. See Def.’s Mem. at 2 n.6.

9

Defendants state that Mr. Cunningham erroneously identifies Ms. Turman as an employee of

OVC. Id. at 2 n.7.

10

Defendants state that AUSA Bober works for the U.S. Attorney for the District of New Jersey.

Id. at 3 n.9.

8

rights under the First, Fifth, and Fourteenth Amendments to the U.S. Constitution, as well as his

statutory rights under CRVA, by “willfully” destroying documents concerning his federal crime

victim status. Am. Compl. at 14, 34. He also demands the production of responsive records

maintained by USMS from the individual Defendants. Id. at 9.

Mr. Cunningham moved for summary judgment on May 17, 2013. See Pl.’s Mot.

for Summ. J. [Dkt. 16]. Defendants opposed on May 29, 2013, see Defs.’ Opp’n [Dkt. 17], and

cross-moved for summary judgment and dismissal of the litigation on June 12, 2013. See Defs.’

Mot. for Summ. J. [Dkt. 21]. The Court entered a Fox-Neal Order on June 14, 2013. 11 See

Order [Dkt. 23]; see also Neal v. Kelly, 963 F.2d 453 (D.C. Cir. 1992); Fox v. Strickland, 837

F.2d 507 (D.C. Cir. 1988). Pursuant to the June 14 Order, Mr. Cunningham filed his Opposition

to Defendants’ Motion for Summary Judgment on July 11, 2013. See Pl.’s Opp’n [Dkt. 28].

II. LEGAL STANDARDS

A. FOIA

FOIA requires federal agencies to release government records to the public upon

request, subject to nine listed exceptions. See 5 U.S.C. § 552(b); Wolf v. CIA, 473 F.3d 370, 374

(D.C. Cir. 2007). A plaintiff complaining that an agency failed to comply with FOIA must show

that an agency has (1) improperly (2) withheld (3) agency records. Dep’t of Justice v. Tax

Analysts, 492 U.S. 136, 142 (1989); United We Stand Am., Inc. v. IRS, 359 F.3d 595, 598 (D.C.

Cir. 2004). FOIA authorizes suit only against federal agencies, and the only remedy it provides

for the improper withholding of records is injunctive relief. Kissinger v. Reporters Comm. for

Freedom of the Press, 445 U.S. 136, 150 (1980); see also 5 U.S.C. §§ 552(a)(4)(B), 552(f)(1).

11

On June 14, 2013, Defendants filed an amended Memorandum of Law in connection with their

Motion to Dismiss and Motion for Summary Judgment. The Court did not issue another Fox-

Neal Order because it determined that the differences between Defendants’ original and amended

Memoranda were the result of scrivener’s error.

9

That means that FOIA is remedied by ordering the production of agency records without money

damages. See, e.g., Kennecott Utah Copper Corp. v. Dep’t of the Interior, 88 F.3d 1191, 1203

(D.C. Cir. 1996) (finding FOIA only calls for releasing records to a complainant, not publishing

the records in the Federal Register). Once requested records are produced, there is no longer a

case or controversy, and the FOIA action becomes moot. See Armstrong v. Exec. Office of the

President, 97 F.3d 575, 582 (D.C. Cir. 1996).

A defending agency in a FOIA case must show that its search for responsive

records was adequate, that any exemptions claimed actually apply, and that any reasonably

segregable non-exempt parts of records have been disclosed after redaction of exempt

information. See Sanders v. Obama, 729 F. Supp. 2d 148, 154 (D.D.C. 2010), aff’d, Sanders v.

Dep’t of Justice, Civ. No. 10-5273, 2011 WL 1769099 (D.C. Cir. Apr. 21, 2011). The adequacy

of a search is measured by a standard of reasonableness and depends on the individual

circumstances of each case. Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990). The

question is not whether other responsive records may exist, but whether the search itself was

adequate. Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994).

Thus, to rebut a challenge to the adequacy of a search, the agency need only show

that “the search was reasonably calculated to discover the requested documents, not whether it

actually uncovered every document extant.” SafeCard Servs. Inc. v. SEC, 926 F.2d 1197, 1201

(D.C. Cir. 1991) (citing Meeropol v. Meese, 790 F.2d 942, 950-51 (D.C. Cir. 1986)). Agencies

are not required to search every record system, but agencies must conduct a good faith,

reasonable search of those systems of records likely to possess the requested records. Oglesby v.

Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990), overruled in part on other grounds, 79 F.3d

1172 (D.C. Cir. 1996).

10

An agency may prove the reasonableness of its search by a declaration by

responsible agency officials, so long as the declaration(s) is reasonably detailed and not

controverted by contrary evidence or evidence of bad faith. Military Audit Project, 656 F.2d at

738. An agency affidavit can demonstrate reasonableness by “setting forth the search terms and

the type of search performed, and averring that all files likely to contain responsive materials (if

such records exist) were searched.” Valencia-Lucena v. Coast Guard, 180 F.3d 321, 326 (D.C.

Cir. 1999). An agency’s declarations are accorded “a presumption of good faith, which cannot

be rebutted by purely speculative claims about the existence and discoverability of other

documents.” SafeCard, 926 F.2d at 1200 (internal citation and quotation marks omitted); see

also id. at 1201 (“Mere speculation that as yet uncovered documents may exist does not

undermine the finding that the agency conducted a reasonable search for them.”). An affiant

who is in charge of coordinating an agency’s document search efforts in response to a plaintiff=s

FOIA request is the most appropriate person to provide a comprehensive affidavit in FOIA

litigation. Id. at 1201. Declarations that contain hearsay in recounting searches for documents

are generally acceptable. Kay v. FCC, 976 F. Supp. 23, 34 n.29 (D.D.C. 1997), aff’d, 172 F.3d

919 (D.C. Cir. 1998) (Table). Once an agency has provided adequate affidavits, the burden

shifts back to the plaintiff to demonstrate a lack of a good faith search. See Maynard v. CIA, 986

F.2d 547, 560 (1st Cir. 1993). If a review of the record raises substantial doubt as to the

reasonableness of the search, especially in light of “well-defined requests and positive

indications of overlooked materials,” then summary judgment may be inappropriate. Founding

Church of Scientology v. NSA, 610 F.2d 824, 837 (D.C. Cir. 1979).

FOIA “was not intended to reduce government agencies to full-time investigators

on behalf of requesters.” Judicial Watch, Inc. v. Export-Import Bank, 108 F. Supp. 2d 19, 27

11

(D.D.C. 2000) (quoting Am. Fed’n of Gov’t Emps. v. Dep’t of Commerce, 907 F.2d 203, 209

(D.C. Cir. 1990)). As such, agencies are not required to “organize documents to facilitate FOIA

responses.” Goulding v. IRS, Civ. No. 97-C-5628, 1998 WL 325202, at *5 (N.D. Ill. June 8,

1998) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 162); see also Blakey v. Dep’t of

Justice, 549 F. Supp. 362, 366-67 (D.D.C. 1982) (“FOIA was not intended to compel agencies to

become ad hoc investigators for requesters whose requests are not compatible with their own

information retrieval systems.”), aff’d, 720 F.2d 215 (D.C. Cir. 1983) (Table). In addition, FOIA

does not require agencies to create or retain documents. Moore v. Bush, 601 F. Supp. 2d 6, 15

(D.D.C. 2009). Further, an agency is not required to undertake a search that is so broad as to be

unduly burdensome. Nation Magazine v. Customs Serv., 71 F.3d 885, 891 (D.C. Cir. 1995).

“[I]t is the requester’s responsibility to frame requests with sufficient particularity . . . .” Judicial

Watch, 108 F. Supp. 2d at 27 (quoting Assassination Archives and Research Ctr. v. CIA, 720 F.

Supp. 217, 219 (D.D.C. 1989)). An agency’s search must be evaluated in light of the request

made. The agency is “not obliged to look beyond the four corners of the request for leads to the

location of responsive documents.” Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 389 (D.C. Cir.

1996).

B. Motion to Dismiss

The individual Defendants assert two bases for dismissing Mr. Cunningham’s suit

against them. First, individual Defendants contend that Mr. Cunningham has failed to state a

claim under FOIA because that statute applies only to covered federal agencies. Second,

Defendants assert that Mr. Cunningham’s alleged constitutional and statutory deprivations fail

without regard to whether he is suing the individual Defendants in their official or personal

capacities. As to the former dismissal argument, individual Defendants reason that the Court

12

lacks subject matter jurisdiction, and as to the latter, individual Defendants argue that Mr.

Cunningham fails to state a claim.

1. Failure to State a Claim

The individual Defendants argue that Mr. Cunningham has failed to state a claim

as to them under FOIA, the First, Fifth, and Fourteenth Amendments, and CVRA. A motion to

dismiss for failure to state a claim under Rule 12(b)(6) challenges the adequacy of a complaint

on its face. Even though pro se complaints are construed liberally, see Haines v. Kerner, 404

U.S. 519, 520 (1972); United States v. Byfield, 391 F.3d 277, 281 (D.C. Cir. 2004), the complaint

must still be sufficient to “give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation and internal

quotation marks omitted).

While a complaint does not need detailed factual allegations, a plaintiff’s

obligation to provide the grounds of his entitlement to relief “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. To

survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim

for relief that is “plausible on its face.” Id. at 570. A court must treat the complaint’s factual

allegations as true, “even if doubtful in fact.” Id. at 555. Yet, a court need not accept as true

legal conclusions set forth in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In

deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint,

documents attached to the complaint as exhibits or incorporated by reference, and matters about

which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059

(D.C. Cir. 2007).

13

2. Lack of Subject Matter Jurisdiction

The individual Defendants also assert that the Court lacks jurisdiction because

Mr. Cunningham’s claims cannot be brought against the individual Defendants in their official

capacities. Just as liberally-construed pro se complaints must satisfy Rule 12(b)(6), such

pleadings must also state a basis for subject matter jurisdiction. “[B]ecause subject-matter

jurisdiction is ‘an Art. 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 Ireland, Ltd. v. Compagnie des Bauxites de

Guinee, 456 U.S. 694, 702 (1982)).

Pursuant to Rule 12(b)(1), a defendant may move to dismiss a complaint, or any

portion thereof, for lack of subject-matter jurisdiction. When reviewing a motion to dismiss for

lack of jurisdiction under Rule 12(b)(1), a court must review the complaint liberally, granting the

“‘plaintiff the benefit of all inferences that can be derived from the facts alleged.’” Barr v.

Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004) (quoting Kowal v. MCI Commc’ns Corp., 16 F.3d

1271, 1276 (D.C. Cir. 1994)). Nevertheless, the party asserting subject matter jurisdiction has

the burden of demonstrating that such jurisdiction exists. Khadr v. United States, 529 F.3d 1112,

1115 (D.C. Cir. 2008); see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)

(noting that federal courts are courts of limited jurisdiction and “[i]t is to be presumed that a

cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon

the party asserting jurisdiction.” (internal citations omitted)). Furthermore, the court may

consider materials outside the pleadings, Settles v. Parole Comm’n, 429 F.3d 1098, 1107 (D.C.

Cir. 2005), and it “need not accept factual inferences drawn by plaintiffs if those inferences are

14

not supported by facts alleged in the complaint, nor must the Court accept plaintiffs’ legal

conclusions,” Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006).

C. Motion for Summary Judgment

The claims against the federal agencies (DOJ, EOUSA, and the FBI) are limited

to alleged violations of FOIA. The agency Defendants contend that there is no genuine dispute

as to any material fact and that they are entitled to summary judgment as a matter of law. See

Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary

judgment is properly granted against a party who “after adequate time for discovery and upon

motion . . . fails to make a showing sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, a court must

draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s

evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more

than “[t]he mere existence of a scintilla of evidence” in support of its position. Id. at 252.

FOIA cases are typically and appropriately decided on motions for summary

judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F.

Supp. 477, 481 n.13 (D.D.C. 1980), aff’d, Rushford v. Smith, 656 F.2d 900 (D.C. Cir. 1981). In

a FOIA case, a court may award summary judgment solely on the basis of information provided

by the department or agency in affidavits or declarations when the affidavits or declarations

describe “the documents and the justifications for nondisclosure with reasonably specific detail,

demonstrate that the information withheld logically falls within the claimed exemption, and are

not controverted by either contrary evidence in the record nor by evidence of agency bad faith.”

Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen,

15

484 F.2d 820, 826–28 (D.C. Cir. 1973) (requiring agencies to prepare an itemized index

correlating each withheld document, or portion thereof, with a specific FOIA exemption and the

relevant part of the agency’s nondisclosure justification). An agency must demonstrate that

“each document that falls within the class requested either has been produced, is unidentifiable,

or is wholly [or partially] exempt” from FOIA’s requirements. Goland v. CIA, 607 F.2d 339,

352 (D.C. Cir. 1978) (internal quotation marks and citation omitted).

III. ANALYSIS

A. FOIA Claims Against Individually-Named Defendants

Mr. Cunningham’s FOIA suit against the individual Defendants cannot possibly

prevail. 12 FOIA relief may only be obtained from covered federal agencies. See 5 U.S.C.

§ 552(a)(4)(B) (granting courts “jurisdiction to enjoin [an] agency from withholding agency

records”). An “agency” is “any executive department, military department, Government

corporation, Government controlled corporation, or other establishment in the executive branch

of the Government (including the Executive Office of the President), or any independent

regulatory agency.” Id. § 552(f)(1); see also id. § 105 (defining “Executive agency” as “an

Executive department, a Government corporation, and an independent establishment”). Thus, in

FOIA cases, individual federal employees are not proper parties; only agencies in the executive

branch of the Government. Id. § 552(f)(1); see also Martinez v. Bureau of Prisons, 444 F.3d

12

Defendants argue that the Court lacks personal jurisdiction over Defendants AUSA Bober,

AUSA Kennedy, SA Norris, Deputy Marshal Ricigliano, and Judge Sand, who all work and

reside in the New York area. Def.’s Mem. at 18-21. The Court agrees that the District of

Columbia’s long-arm statute is inapplicable to these Defendants and that they lack the requisite

minimum contacts to warrant the Court’s exercise of personal jurisdiction over them. See Int’l

Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); World Wide Minerals, Ltd. v. Republic of

Kazakhstan, 296 F.3d 1154, 1168 (D.C. Cir. 2002); D.C. Code § 13-423(a). In addition, the

Court lacks personal jurisdiction over the “Reliable Confidential Informant,” who is otherwise

unidentified but apparently prompted the search of Mr. Cunningham’s home in New York. All

claims against these Defendants will be dismissed without prejudice.

16

620, 624 (D.C. Cir. 2006). Summary judgment in favor of the remaining individual Defendants

must be granted on Mr. Cunningham’s FOIA claims against them.

B. Constitutional and Statutory Claims Against Individually-Named Defendants

Mr. Cunningham alleges that the individual Defendants acted in contravention of

certain constitutional and statutory provisions. It is unclear whether Mr. Cunningham intends to

name the individual Defendants in their official or personal capacities. In light of the Court’s

obligation to construe Mr. Cunningham’s pleadings liberally, see Haines, 404 U.S. at 520;

Byfield, 391 F.3d at 281, it will assume that he intended to sue them in both capacities.

Nonetheless, for the reasons discussed below, summary judgment on such claims must be

granted to the individual Defendants.

1. Individual Defendants Named in Their Official Capacities

It is a bedrock principle of American law that, as sovereign, the United States is

immune from suit unless Congress has expressly waived that immunity. See, e.g., Block v. North

Dakota ex. rel. Bd. of Univ. & School Lands, 461 U.S. 273, 287 (1983) (“The basic rule of

federal sovereign immunity is that the United States cannot be sued at all without the consent of

Congress.”). The United States’ exemption from suit is expressed in jurisdictional terms––that

is, federal courts lack subject matter jurisdiction over suits against the United States in the

absence of a waiver. See, e.g., Jackson v. Bush, 448 F. Supp. 2d 198, 200 (D.D.C. 2006) (“[A]

plaintiff must overcome the defense of sovereign immunity in order to establish the jurisdiction

necessary to survive a Rule 12(b)(1) motion to dismiss.”). Waivers of sovereign immunity are

strictly construed, and any doubt or ambiguity is resolved in favor of immunity. Lane v. Pena,

518 U.S. 187, 192 (1996) (“A waiver of the Federal Government’s sovereign immunity must be

unequivocally expressed in statutory text, and will not be implied. Moreover, a waiver of the

17

Government’s sovereign immunity will be strictly construed, in terms of its scope, in favor of the

sovereign.” (internal citations omitted)). Claims against federal employees in their official

capacities are deemed to be claims against the United States. See Kentucky v. Graham, 473 U.S.

159, 165-66 (1985). To the extent that Mr. Cunningham has sued the individual Defendants in

their official capacities, he has failed to state a valid waiver of sovereign immunity. As a result,

the Court has no subject matter jurisdiction and will dismiss his claims for damages against the

individual Defendants.

2. Individual Defendants Named in Their Individual Capacities

Mr. Cunningham argues that the individual Defendants violated his rights under

CVRA and the U.S. Constitution. The Court will address the statutory claim first.

No judicial relief may be had under CVRA because that statute does not allow a

private party to sue for enforcement. CVRA expressly disallows a suit for damages against the

federal government or its officials, see 18 U.S.C. § 3771(d)(6), and Mr. Cunningham has failed

to carry his “heavy burden” of demonstrating the requisite congressional intent necessary to

establish an implied private right of action, see Samuels v. District of Columbia, 770 F.2d 184,

194 (D.C. Cir. 1985). Moreover, before the statute is available for recompense, the victim of a

crime must establish that an official charging instrument was issued, or a conviction was

obtained, against the perpetrator of the crime. Compare Searcy v. Paletz, Civil Action No. 7:07-

1389, 2007 WL 1875802, at *5 (D.S.C. June 27, 2007) (“[T]he CVRA does not grant victims

any rights against individuals who have not been convicted of a crime.” (citation and internal

quotation marks omitted)), with United States v. Turner, 367 F. Supp. 2d 319, 326 (E.D.N.Y.

2005) (interpreting the definition of “victim” in CVRA to include “any person who would be

considered a ‘crime victim’ if the government were to establish the truth of the factual

18

allegations in its charging instrument.”). Here, none of the individual Defendants has been

criminally charged or convicted for acts or omissions associated with the alleged concealment or

destruction of records relating to Mr. Cunningham’s FOIA requests for records concerning his

status as a federal crime victim, which is the gravamen of this action. (Again, the specifics of the

search and Mr. Cunningham’s alleged injuries already have been litigated in New York.)

Accordingly, the Court will dismiss Mr. Cunningham’s CVRA allegations for failure to state a

claim.

Mr. Cunningham’s allegations that individual Defendants violated his First, Fifth,

and Fourteenth Amendment rights also are unsound. Although not articulated as such, Mr.

Cunningham’s claims are covered by Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U.S. 388 (1971). 13 Bivens allowed personal lawsuits for money damages

against federal officials who violate known constitutional rights. Corr. Servs. Corp. v. Malesko,

534 U.S. 61, 66 (2001); see also Thompson v. Pope, 397 F. Supp. 2d 28, 32 (D.D.C. 2005). Mr.

Cunningham claims that the individual Defendants’ failures to produce records concerning his

13

To the extent that the complaints attempted to raise a claim under the FTCA, 28 U.S.C.

§§ 1346(b), 2671 et seq., the Court finds that it lacks subject matter jurisdiction over such a

claim. Pursuant to FTCA, district courts have jurisdiction over torts allegedly committed by

federal employees. Sloan v. Dep’t of Housing & Urban Dev., 236 F.3d 756, 759 (D.C. Cir.

2001). However, the statute requires initial presentation of any claim to the agency and bars a

lawsuit until the administrative process is exhausted. McNeil v. United States, 508 U.S. 106, 113

(1993). The exhaustion requirement is jurisdictional, which means that a court cannot accept a

lawsuit under FTCA until and unless the plaintiff first has attempted a resolution through the

agency itself. Id.; 28 U.S.C. § 2675(a). Neither the Complaint nor the Amended Complaint

alleges the necessary facts to demonstrate that Mr. Cunningham presented his claim to any of the

agencies.

19

crime victim status in response to his FOIA requests constituted a constitutional deprivation for

which he can recover money damages. 14

The scope of Bivens is narrowly construed. See Malesko, 534 U.S. at 68

(Supreme Court consistently has “refused to extend Bivens liability to any new context or new

category of defendants”). There is no Bivens remedy available where a statute provides a

“comprehensive system to administer public rights.” Spangola v. Mathis, 859 F.2d 223, 228

(D.C. Cir. 1988) (en banc) (per curiam); see also Bush v. Lucas, 462 U.S. 367, 373, 389-90

(1983) (Bivens remedies are inappropriate when Congress has itself created a remedy or

“declar[ed] that existing statutes provide the exclusive mode of redress”). FOIA presents such a

statutory scheme. Johnson v. Exec. Office for Att’ys, 310 F.3d 771, 777 (D.C. Cir. 2002).

Therefore, Bivens does not admit any damages remedy for an alleged violation of FOIA by the

individual Defendants.

14

Inasmuch as Mr. Cunningham’s Bivens allegations are premised on the 2005 search of his

home or the denial of federal crime victim status to him, rather than FOIA, the Court finds that

he already has litigated those claims and cannot do so again. Mr. Cunningham received a final

judgment on the merits denying relief on such claims in the Southern District of New York. See

supra pp. 1-3. The doctrine of res judicata, or claim preclusion, prevents the court from hearing

“repetitious suits involving the same cause of action once a court of competent jurisdiction has

entered a final judgment on the merits.” United States v. Tohono O’Odham Nation, 131 S.Ct.

1723, 1730 (2011) (citation and internal quotation marks omitted). Res judicata prevents the

relitigation of claims that were actually litigated in a prior suit and those that could have been

litigated but were not. Allen v. McCurry, 449 U.S. 90, 94 (1980); see Drake v. FAA, 291 F.3d

59, 66 (D.C. Cir. 2002) (explaining that res judicata bars the relitigation of “issues that were or

could have been raised in [the prior] action.”) (emphasis in original) (quoting Allen, 449 U.S. at

94). The res judicata analysis is unaffected by the fact that not all of the individual Defendants

in this case were named in Mr. Cunningham’s prior lawsuits. See Sunshine Anthracite Coal Co.

v. Adkins, 310 U.S. 381, 402 (1940) (explaining that “parties nominally different may be, in legal

effect, the same” (quoting Chicago, Rock Island & Pac. Ry. Co. v. Schendel, 270 U.S. 611, 620

(1926)). The Court finds that because the newly named parties are government officials, they are

in privity with the parties to the former litigation. Id. at 402-03 (“[A] judgment in a suit between

a party and a representative of the United States is res judicata in relitigation of the same issue

between that party and another officer of the government.”).

20

C. FOIA Claims Against Defendant Agencies

Finally, Mr. Cunningham complains that DOJ, EOUSA, and the FBI have

violated FOIA by performing inadequate searches for records that respond to his FOIA Request

Nos. 12-4031, 1206853, and 13-00146.

1. Scope of the Searches

EOUSA has shown that it conducted a reasonable search in response to FOIA

Request No. 12-4031, calculated to discover the requested documents. 15 SafeCard, 926 F.2d at

1201; Meeropol, 790 F.2d at 950-51. At the direction of EOUSA, USAO-SDNY searched for

responsive records on October 16, 2012, via LIONS and PACER. A search of these databases

was not the end of the inquiry by USAO-SDNY but instead the starting point for locating

relevant records. Because only one month earlier USAO-SDNY had searched LIONS and

PACER in connection with records concerning Mr. Cunningham’s FOIA Request No. 12-3595,

USAO-SDNY did not repeat that exercise for FOIA Request No. 12-4031. Rather, USAO-

SDNY asked AUSA Kennedy and its Victim Witness Coordinator to search their files for

records that might be responsive to FOIA Request No. 12-4031. Neither of these individuals

located any responsive records.

EOUSA’s search for additional responsive records was adequate and reasonable

for the particular circumstances of this case. Truitt, 897 F.2d at 542. EOUSA was not required

to search every record system. Oglesby, 920 F.2d at 68. Mr. Cunningham’s bald assertions that

EOUSA performed an inadequate search, Pl.’s Mot. in Support of Summ J. and Opp’n to Defs.’

15

The Court further notes that Mr. Cunningham’s complaint against EOUSA relating to FOIA

Request No. 12-4031 is partially mooted. EOUSA has provided Mr. Cunningham with written

decisions concerning his federal crime victim status. See Compl., Ex. 1 [Dkt. 1-1]; Mot. to

Compel, Ex. 1 [Dk. 7-1]. This disclosure moots the controversy as to these particular records.

Armstrong, 97 F.3d at 582.

21

Mot. for Summ. J. or Mot. to Dismiss (Pl.’s MSJ and Opp’n) [Dkt. 28] at 2-3, are insufficient to

overcome the presumption of good faith that EOUSA has established through its declarations.

SafeCard, 926 F.2d at 1200-01.

The Court also finds that the FBI, through its affidavits demonstrating its multiple

search efforts of the relevant databases, has shown that the searches it conducted in response to

FOIA Request No. 1206853 were reasonably calculated to discover the requested documents,

SafeCard, 926 F.2d at 1201; Meeropol, 790 F.2d at 950-51. Before answering FOIA Request

No. 1206853, the FBI searched CRS for the terms: Benjamin Cunningham; Cunningham,

Benjamin; Cunningham, B.; Federal Crim Victim Status Written Decision; Federal Crim Victim

Status Written; Federal Crim Victim Status; and Federal Crim Victim. Hardy Decl. ¶ 17. The

FBI did not find any documents as a result of these searches. Id. After Mr. Cunningham filed

suit, the FBI conducted a second records search. The only differences between the first and

second searches were that the FBI searched both main files and cross-references and spelled the

entire word “crime” for the second search. Id. ¶ 19 & n.2. Again, no records were located. Id.

¶ 19.

Mr. Cunningham again asserts conclusory claims concerning the inadequacy of

the FBI’s searches. Without further explanation, he alleges that “Defendants’ FOIA searches

were NOT sufficiently adequate under FOIA law thru [sic] the 5th & 14th Amendments under the

principles of the United States Constitution” and that “Defendants have willfully REFUSED to

provide FOIA records,” including “Federal Crime Victim Intake/Interview Legal Documents”

and “Federal Crime Victim Written Decision Legal Documents.” Pl.’s MSJ and Opp’n at 2-3.

But conclusory claims without an evidentiary basis do not carry a FOIA plaintiff’s burden of

showing that an agency’s search was not in good faith. Maynard, 986 F.2d at 560.

22

Further, Mr. Cunningham claims that SA Norris engaged in criminal conduct by

failing to enter her notes from a 2008 interview with Mr. Cunningham into FBI’s database of

official agency records. Pl’s MSJ and Opp’n at 8; 24-33. Putting aside the fact that this claim

appears to be outside the allegations made in either the Complaint or Amended Complaint, the

Court observes that SA Norris’s notes were personal, only to be used to refresh SA Norris’s

memory if necessary, and FBI agents have some degree of discretion as to what notes might be

indexed in CRS. Hardy Decl. ¶¶ 16, 20. Because no charges or charging documents were ever

filed in relation to the 2005 search of Mr. Cunningham’s residence, the Court finds that the notes

were unofficial and the lack of indexing in CRS does not indicate a FOIA violation. Only

agency records must be produced in response to a FOIA request. See Fortson v. Harvey, 407 F.

Supp. 2d 13, 16 (D.D.C. 2005) (determining that, for purposes of FOIA, an Army investigator’s

notes did not constitute agency records because they “were for personal convenience”), appeal

dismissed, Civil Action Nos. 05-5192, 05-5193, 2005 WL 3789167 (D.C. Cir. Sept. 1, 2005); 5

U.S.C. § 552(f)(2)(A).

Finally, with respect to FOIA Request No. 13-00146, the Court finds that OJP’s

searches for records response to that FOIA request were adequate and reasonable. OJP directed

OVC to search its records for responsive documents. The OVC program manager searched for

the term “Cunningham” in the following storage locations: G: drive, an electronic system for

maintaining shared documents; H: drive, an electronic system accessible only to OVC staff and

where staff store their personal documents and files; and “Chron files,” a paper system consisting

of office correspondence ordered chronologically or by date of action. These searches resulted

in locating a draft letter from former OVC Director (and current Defendant) Gillis to Mr.

Cunningham dated 2008. Lee Decl. ¶ 6. Thus prompted, OJP searched its Executive Secretariat

23

Correspondence Tracking System for the term “Benjamin Cunningham,” and located the control

number assigned to Mr. Cunningham’s 2008 inquiry. OJP then manually retrieved the response

letter from former OVC Director Gillis, Mr. Cunningham’s incoming letter, and the attachments

from the 2008 paper files. Id. ¶ 7. No other responsive records were located. Id. ¶ 8. These

were all produced.

The Court finds that OJP has demonstrated that it made searches reasonably

calculated to discover documents responsive to FOIA Request No. 13-00146. SafeCard, 926

F.2d at 1201; Meeropol, 790 F.2d at 950-51. Moreover, the systems of records OJP searched

were likely to possess the requested information. Oglesby, 920 F.2d at 68. Here too, Mr.

Cunningham cannot avail himself of bare assertions that the OJP’s searches were insufficient.

See Pl.’s MSJ and Opp’n at 2-3. Such speculative claims cannot overcome the presumption of

good faith that agency’s enjoy upon submitting an adequate declaration. SafeCard, 926 F.2d at

1200.

2. Segregability

If a record contains information that is exempt from disclosure, any reasonably

segregable information must be released after redacting the exempt portions, unless the non-

exempt portions are inextricably intertwined with exempt portions. 5 U.S.C. § 552(b); see

Trans-Pac. Policing Agreement v. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999).

Because EOUSA, FBI, and OJP produced in full all of the responsive documents that their

searches located, the Court thus finds that no segregable information has been withheld.

IV. CONCLUSION

While the Court is mindful of its duty to construe pro se plaintiffs’ complaints

liberally, see Haines, 404 U.S. at 520; Byfield, 391 F.3d at 281, for the reasons discussed above,

24

the Court will grant Defendants’ Motion [Dkt. 24] and close this case. A separate Order

accompanies this Memorandum Opinion.

/s/

ROSEMARY M. COLLYER

Date: August 21, 2013 United States District Judge

25