                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA


                                                    )
ROGER WALDNER,                                      )
                                                    )
                     Plaintiff                      )
                                                    )
              v.                                    ) Civil No. 1:13-CV-00032 (RCL)
                                                    )
UNITED STATES DEPARTMENT OF                         )
JUSTICE,                                            )
                                                    )
                     Defendant.                     )
                                                    )


                                 MEMORANDUM OPINION

       Before the Court is the government’s motion to dismiss, or alternatively, the

government’s motion for summary judgment on plaintiff Roger Waldner’s compliant brought

pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Waldner filed a complaint

alleging that the Department of Justice (DOJ) failed to comply with his FOIA requests and

requested the Court enjoin the government to comply with its obligation under FOIA, or enter a

declaratory judgment that the government at no time had the documents requested by Waldner.

For the reasons stated below, the government’s motion to dismiss will be DENIED, but the

government’s motion for summary judgment will be GRANTED.

I.     BACKGROUND

       On June 27, 2011, Waldner filed a FOIA request with the DOJ, seeking the production of

three types of documents regarding Solace Transfer Corporation, an Illinois corporation. One

day later, Waldner filed an additional FOIA request with the DOJ, seeking the production of

seven types of documents related to Nationwide Cartage Company, an Iowa corporation. All of


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the requested documents related to a criminal case where Waldner accepted a plea agreement,

and were aimed at obtaining documents allegedly alluded to during those negotiations.

       In response to Waldner’s FOIA requests, the Executive Office of the U.S. Attorneys

(EOUSA) issued a letter of acknowledgement of Waldner’s June 28, 2011 request on August 17,

2011. Similarly, EOUSA issued a letter of acknowledgement for the June 27, 2011 request on

August 19, 2011. EOUSA then sent both of Waldner’s requests to the U.S. Attorneys’ Office

(USAO) in the Northern District of Iowa for processing on August 26, 2011 and August 31,

2011. Employees at the USAO conducted searches for the requested documents on September 1,

2011, September 15, 2011, and January 19, 2012. Additionally, email requests were sent to all

permanent employees in the office, detailed searches of various databases were conducted, and

manual files searches occurred.

       In the meantime, Waldner sent a letter to the Office of Information Policy (OIP) dated

September 4, 2011 requesting an expedited appeal of his FOIA requests for the alleged failure of

EOUSA to respond to his requests. Waldner alleged that the lack of response constituted a

constructive denial by the DOJ.

       On September 26, 201, EOUSA provided Waldner with all documents responsive to his

June 27, 2011 request. Then, nearly a year later, on September 24, 2012, Waldner received the

documents in response to his June 28, 2011 request. Upon receiving the documents from

EOUSA, Waldner—believing administrative appeal to be futile, his remedies to be exhausted,

and the produced documents to be unresponsive—filed a pro se complaint on January 7, 2013.




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II.      DISCUSSION

      A. Motion to Dismiss for Failure to Exhaust Administrative Remedies

         Under 5 U.S.C. § 552(a)(4)(B), when a FOIA requester properly exhausts his

administrative remedies, he may file a civil action challenging the agency’s response to his

request. 5 U.S.C. § 552(a)(4)(B). “‘Exhaustion of administrative remedies is generally required

before filing in federal court so that the agency has an opportunity to exercise its discretion and

expertise on the matter and to make a factual record to support its decision.’” Hildalgo v. FBI,

344 F.3d 1256, 1258 (D.C. Cir. 2003) (quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 61

(D.C Cir. 1990)).

         Under the principle of constructive exhaustion, “[a]ny person making a request to any

agency for records under [5 U.S.C. §§ 552(a)(1)–(3)] shall be deemed to have exhausted his

administrative remedies with respect to such request if the agency fails to comply with the

applicable time limit provisions of this paragraph.” 5 U.S.C. § 552(a)(6)(C)(i). The applicable

time limits are found in 5 U.S.C. § 552(a)(6)(A)(i), and they require the agency to make a

determination “within 20 days . . . after the receipt of any [FOIA] request whether to comply

with such request” and “immediately notify the person making such request of such

determination and the reasons therefor, and of the right of such person to appeal to the head of

the agency any adverse determination.” Id.; see also Oglesby, 920 F.2d at 65.

         While “[c]onstructive exhaustion is not intended to supplant the agency’s authority under

the FOIA with premature judicial oversight,” here, the government’s lack of a response within

the 20 days required under the statute, means that judicial oversight is not premature. Citizens

for Responsibility & Ethics in Wash. v. FEC, 839 F. Supp. 2d 17, 24 (D.D.C. 2011).

“Constructive exhaustion in the FOIA is a privilege granted only to individuals whose requests



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for records have essentially been ignored by the agency, and it is a privilege reserved for a

situation in which agency neglect has resulted in a ‘fail[ure] to comply with the applicable time

limit provisions of’ 5 U.S.C. § 552(a)(6).” Nat’l Sec. Counselors v. C.I.A., __ F. Supp. 2d __,

2013 WL 1141768, *14 (D.D.C. Mar. 20, 2013).

       Had the government sent its response letters to Waldner’s June 27, 2011 and June 28,

2011 requests prior to August 17, 2011 and August 19, 2011—within 20 days after the receipt of

the requests—the government would have foreclosed constructive exhaustion and triggered the

requirement that Waldner file an administrative appeal before proceeding to federal court. That

did not happen here, and as such, the Court considers Waldner to have constructively exhausted

administrative remedies under FOIA. Defendant’s motion to dismiss is denied.

   B. Motion for Summary Judgment as Defendant’s Search Was Reasonable

       Having concluded that Waldner satisfied the constructive exhaustion privilege and was

free to file suit in federal court, the Court now turns to the government’s motion for summary

judgment. Summary judgment is appropriate when the pleadings and evidence demonstrate that

“there is no genuine issue of material fact and that the moving party is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see generally Washington Post Co. v. U.S.

Dep’t of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989).              All justifiable

inferences are to be drawn in favor of the non-moving party, as the moving party has the burden

of demonstrating the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 248;

Anderson, 477 U.S. at 255. “The non-moving party’s opposition must consist of more than mere

unsupported allegations or denials, and must be supported by affidavits, declarations or other




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competent evidence setting forth specific facts showing that there is a genuine issue for trial.”

MDB Communications, Inc. v. Hartford Cas. Ins. Co., 479 F. Supp. 2d 136, 140 (D.D.C. 2007).

       FOIA requires that an agency undertake a search “reasonably calculated to uncover all

relevant documents.” Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983).

“[R]easonably calculated” means “a good faith effort to conduct a search for the requested

records, using methods which can be reasonably expected to produce the information requested.”

Students Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 838 (D.C. Cir. 2001) (internal

citations omitted).

       “To merit summary judgment on the adequacy of a search, an ‘agency must demonstrate

beyond material doubt that its search was reasonably calculated to uncover all relevant

documents.’” Id. (quoting Nation Magazine v. U.S. Customs Service, 71 F.3d 885, 890 (D.C.

Cir. 1995)). Adequacy and reasonableness turn not on the yield of the search, but on the

“appropriateness of the methods used to carry out the search.” Iturralde v. Comptroller of

Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (internal citation omitted).

       Here, DOJ demonstrated through affidavits that its search met this standard. Debra Nash

at the USAO in the Northern District of Iowa coordinated the searches for both of Waldner’s

requests. She submitted an affidavit explaining that in regards to Waldner’s June 28, 2011

request, she sent out an email to all permanent employees in the office, including all staff of the

Civil and Criminal Divisions, inquiring about documents that anyone in the office might have to

respond to the request. She appointed a Paralegal Specialist, Maureen Oviatt, to conduct a

search for responsive documents on the office IPRO database—a program used to scan and store

documents obtained during discovery—using key search terms. Further, Oviatt conducted a

manual search of document files for Waldner’s case.



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       In regards to Waldner’s June 27, 2011 request, Nash again contacted Paralegal Specialist

Oviatt and Assistant U.S. Attorney C.J. Williams, as they were the employees who worked on

Waldner’s criminal case. Nash sent Williams and Oviatt the request and asked if anyone other

than the two of them might have responsive documents. Additionally, Nash searched the office

case tracking database, Legal Information Network Systems or “LIONS,” to determine if anyone

else might possess responsive documents. When Williams and Oviatt responded to Nash with

responsive documents, Nash asked Oviatt to complete the search process for Waldner’s June 27,

2011 request. Oviatt agreed, and searched the IPRO system to look for responsive documents

using key, identified search terms. Oviatt again manually searched the case files for Waldner’s

case and retrieved all responsive documents. All responsive documents for the June 27 and June

28, 2011 requests were sent to EOUSA, and eventually sent to Waldner.

       A requester’s “mere speculation that as yet uncovered documents may exist does not

undermine the finding that the agency conducted a reasonable search for them.” Steinberg v.

U.S. Dep’t of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994). Diligence in the search preserves the

integrity of the search and allows for a grant of summary judgment. See Twist v. Gonzales, 171

F. App’x 855, 855 (D.C. Cir. 2005); Burnes v. C.I.A., CIV. A. 05-242 (GK), 2005 WL 3275895,

at *2 (D.D.C. Sept. 14, 2005).

       After assessing the adequacy of the searches, the Court holds that the government

demonstrated that it used appropriate methods and diligence in searching for Waldner’s

requested documents. In fact, Waldner even conceded that the government conducted its search

using appropriate methods and in a manner reasonably calculated to produce the information he

requested. Pl.’s Mot. & Opp’n 5, ECF No. 8. This ends the inquiry. Whether Waldner believed

the government had more documents or the exact documents he requested based on



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conversations leading to his plea agreement is not the standard by which to determine whether

the government has satisfied its FOIA obligations.           This Court believes—and Waldner

concedes—that the government met the requisite standard in responding to Waldner’s FOIA

requests.

       Further, the government is entitled to a rebuttable presumption of good faith in

conducting the search. The plaintiff bears the burden of demonstrating that the defendant acted

in bad faith by failing to produce documents the plaintiff believes once existed, or that the search

was inadequate. See generally Wilson v. DEA, 414 F. Supp. 2d 5, 12 (D.D.C. 2006). Waldner

has not sufficiently rebutted that presumption by merely putting forth unsupported allegations

that the government should have found a document. As this court has stated, “an agency failure

to find a particular document does not undermine the determination that the search was

adequate.” Burnes, 2005 WL 3275895, at *2.

       For these reasons, the Court holds that the government met the standard of conducting an

adequate search pursuant to Waldner’s FOIA requests, and Waldner failed to rebut the

presumption of good faith in the government’s efforts. As such, Waldner’s requested relief is

denied, and defendant’s motion for summary is granted.

       A separate Order consistent with this Memorandum Opinion shall issue this date.




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