                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_________________________________
                                              )
COREY LEA,                                    )
                                              )
             Plaintiff,                       )
                                              )
        v.                                    )       Civil Action No. 14-0423 (RBW)
                                              )
EXECUTIVE OFFICE FOR                          )
UNITED STATES ATTORNEYS et al.,               )
                                              )
                                              )
          Defendants.                         )
__________________________________            )


                                 MEMORANDUM OPINION

       The plaintiff, proceeding pro se, brought this action under the Freedom of Information

Act (“FOIA”), 5 U.S.C. § 552 (2012), to compel the release of records from the Executive Office

for United States Attorneys (“EOUSA”) and the United States Department of Agriculture

(“USDA”). See Original Complaint (“Compl.”) at 1-2, 4. Currently pending is the Defendants’

Motion for Summary Judgment, ECF No. 18. Despite the Court’s advisements and warnings, the

plaintiff has not opposed the defendants’ motion. See Sept. 29, 2014 Order, ECF No. 24 (giving

the plaintiff “a final opportunity to address the defendants’ summary judgment motion” by

November 24, 2014); Jun. 24, 2014 Order, ECF No. 19 (“Fox-Neal Order”). For the reasons

explained below, the Court will grant the defendants’ motion in part, deny it in part, and dismiss

the remainder of the case under Fed. R. Civ. P. 41(b). 1




1
   Rule 41(b) authorizes dismissal when “the plaintiff fails to prosecute or to comply with these
rules or a court order[.]”

                                                  1
                                       I. BACKGROUND

        The defendants’ undisputed material facts are as follows. The plaintiff submitted a

request to the EOUSA in May 2010, for what was characterized as “Authorization Documents.”

Declaration of David Luczynski (“Luczynski Decl.”), ECF No. 18-2, ¶¶ 4-5. By letter dated

August 27, 2010, the EOUSA informed the plaintiff that it had processed 372 pages of records

that were being withheld completely under FOIA exemptions 5 and 6. 2 Id. ¶ 8. The letter

further informed the plaintiff that records originating with the USDA’s Farm Service Agency

that “may or may not be responsive to your request” were referred to that agency for processing

and a direct response. Id.

        In response to the plaintiff’s appeal, the Office of Information Policy (“OIP”) remanded

the plaintiff’s request to the EOUSA to conduct a search for additional records in the United

States Attorney’s Office for the Western District of Kentucky. See id. ¶ 9. By letter dated

November 19, 2010, the EOUSA informed the plaintiff that the remanded request was a

duplicate of the previously processed request. Id. ¶ 10. By letter dated May 31, 2011, the OIP

informed the plaintiff, among other things, that the additional search had located no additional

records and “noted that you have not appealed [the November 19, 2010] response.” Luczynski

Decl., Ex. I.

        In May 2010, the USDA’s Farm Service Agency received the plaintiff’s request for

documents pertaining to him. Declaration of Marcinda M. Kester (“Kester Decl.”), ECF No. 18-

3, ¶ 3. “On or about May 18, 2010,” the Farm Service Agency “issued a response . . . indicating

[that] no responsive records were found[.]” Id. ¶ 5; see Compl. Attachment (“May 18, 2010

Letter”). The letter informed the plaintiff about his right to appeal the decision to the Farm

Service Agency Administrator within 45 days. See May 18, 2010 Letter at 2. The Farm Service
2
    The FOIA’s nine exemptions are codified in 5 U.S.C. § 552(b).

                                                 2
Agency has no record of an administrative appeal from the plaintiff. Kester Decl. ¶ 6 (paragraph

number supplied).

                                     I. LEGAL STANDARD

          Under Rule 56 of the Federal Rules of Civil Procedure, “[t]he court shall grant summary

judgment 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). A court reviews an

agency’s response to a FOIA request de novo, 5 U.S.C. § 552(a) (4)(B), and “FOIA cases

typically and appropriately are decided on motions for summary judgment,” ViroPharma Inc. v.

Dep’t of Health & Human Servs., 839 F. Supp. 2d 184, 189 (D.D.C. 2012). The agency “is

entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each

document that falls within the class requested either has been produced . . . or is wholly exempt

from the [FOIA's] inspection requirements.’” Students Against Genocide v. U.S. Dep't of State,

257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir.

1978)).

          “To successfully challenge an agency’s showing that it complied with the FOIA, the

plaintiff must come forward with ‘specific facts’ demonstrating that there is a genuine issue with

respect to whether the agency has improperly withheld extant agency records.” Span v. DOJ,

696 F. Supp. 2d 113, 119 (D.D.C. 2010) (quoting DOJ v. Tax Analysts, 492 U.S. 136, 142

(1989)). On the other hand, “[a] non-moving party's complete failure to come forward with

evidence to demonstrate the existence of a genuine issue of material fact constitutes a reason for

the grant of summary judgment under [Rule 56(e)].” Smith v. United States Dep’t of Justice, 987

F. Supp. 2d 43, 47 (D.D.C. 2013).




                                                  3
       Summary judgment in a FOIA case may be based solely on information provided in an

agency’s supporting affidavits or declarations if they are “relatively detailed and nonconclusory,”

SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotations and

citations omitted), and when they “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 [or] by evidence of agency bad faith,” Military Audit Project v. Casey,

656 F.2d 724, 738 (D.C. Cir. 1981); see Beltranena v. Clinton, 770 F. Supp. 2d 175, 181-82

(D.D.C. 2011).

                                         II. ANALYSIS

1. The EOUSA’s Response

       The EOUSA has properly justified withholding responsive records in their entirety under

FOIA exemption 5 as attorney work product and deliberative process material. See Luczynski

Decl. ¶¶ 16-20, 25 and Ex. J. (Vaughn Index); Memorandum of Points and Authorities in

Support of Defendants’ Motion for Summary Judgment, ECF No. 18-1, at 6-8; cf. Judicial

Watch, Inc. v. Dep’t of Justice, 432 F.3d 366, 371 (D.C. Cir. 2005) (“If a document is fully

protected as [attorney] work product, then segregability is not required.”); Citizens For

Responsibility & Ethics in Wash. v. Nat’l Archives & Records Admin., 583 F. Supp. 2d 146, 156-

58 (D.D.C. 2008) (discussing deliberative process privilege and attorney work product doctrine).

The plaintiff has not come forward with any contrary evidence. Therefore, the Court will grant

summary judgment to the EOUSA on its processing of responsive records.

       The Court’s review with regard to the EOUSA’s referral of records compels a different

result. The referral of records to the originating agency does not automatically relieve the



                                                 4
EOUSA of its disclosure responsibility. This is because agencies are “obligated to account for

the responsive materials located in their records, even if the decision to release or withhold

information is left to the component where those records originated[.]” Fowlkes v. Bureau of

Alcohol, Tobacco, Firearms & Explosives, ___ F. Supp. 3d ___, ___, 2014 WL 4536909, at *3,

n.2 (D.D.C. Sept. 15, 2014). The EOUSA’s declarant has not addressed the outcome of the

referral, and “a referral of records could constitute an improper withholding if the ‘net effect [of

the referral procedure] is significantly to impair the requester's ability to obtain the records or

significantly to increase the amount of time he must wait to obtain them.’” Plunkett v. Dep’t of

Justice, 924 F. Supp. 2d 289, 305 (D.D.C. 2013) (quoting Peralta v. U.S. Attorney’s Office, 136

F.3d 169, 175 (D.C. Cir. 1998)) (other citation omitted) (alteration in original). The Court has no

information to assess the propriety of the EOUSA’s referral and, thus, must deny summary

judgment on this aspect of the FOIA claim.

2. The USDA’s Response

       The plaintiff has not come forward with any evidence to rebut the USDA’s evidence that

he failed to exhaust his administrative remedies, see Kester Decl. ¶ 6, notwithstanding the

advisements that were provided in the no-records response attached to the complaint. Although

in this circuit, failure to exhaust administrative remedies is treated as a jurisprudential, not a

jurisdictional, bar to judicial review, the FOIA’s administrative scheme favors dismissal of an

unexhausted claim, see Calhoun v. Dep’t of Justice, 693 F. Supp. 2d 89, 91 (D.D.C. 2010) (citing

Wilbur v. CIA, 355 F.3d 675, 676 (D.C. Cir. 2004); Hidalgo v. FBI, 344 F.3d 1256, 1259 (D.C.

Cir. 2003)). Hence, the Court will grant summary judgment to the USDA on this ground alone. 3

3
    The defendants also seek summary judgment on the adequacy of the USDA’s search but the
supporting declaration lacks any details about the search to support summary judgment. See
Kester Decl. ¶ 4 (averring only that “I initiated a search for any requested documents pursuant to
                                                                                  (continued . . . )

                                                   5
                                       III. CONCLUSION

       For the foregoing reasons, the Court will grant the defendants’ uncontested motion for

summary judgment in part and deny it in part; in all other respects, the case will be dismissed. 4



                                              _______s/______________
                                              Reggie B. Walton
DATE: March 26, 2015                          United States District Judge




( . . . continued)
[the plaintiff’s] FOIA request . . . .” Kester Decl. ¶ 4; cf. Cooper v. U.S. Dep’t of Justice, 890 F.
Supp. 2d 55, 61 (D.D.C. 2012) (“To demonstrate the adequacy of its search at the summary
judgment stage, the agency may rely upon reasonably detailed, nonconclusory affidavits
submitted in good faith, . . . setting forth the search terms and the type of search performed, and
averring that all files likely to contain responsive materials . . . were searched . . . . At
minimum, the agency affidavits must describe . . . what records were searched, by whom, and
through what process.”) (quoting Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-14
(D.C. Cir. 2003); Steinberg v. DOJ, 23 F.3d 548, 552 (D.C. Cir. 1994)) (internal quotation marks
omitted).
4
    A separate Order accompanies this Memorandum Opinion.

                                                  6
