                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
HOWARD BLOOMGARDEN,                       )
                                          )
      Plaintiff,                          )
                                          )
             v.                           )                    Civil Action No. 12-0843 (ESH)
                                          )
UNITED STATES DEPARTMENT                  )
OF JUSTICE,                               )
                                          )
      Defendant.                          )
_________________________________________ )


                                  MEMORANDUM OPINION

       Plaintiff Howard Bloomgarden has sued the Department of Justice (“DOJ”) to compel the

production of records by the Executive Office for United States Attorneys (“EOUSA”) under the

Freedom of Information Act (“FOIA”), 5 U.S.C. §§ 552, et seq. (Amend. Compl., Nov. 9, 2012

[ECF No. 11].) The defendant alleges that after a diligent search no responsive records were

found. Defendant now moves for summary judgment (Def.’s Mot. for Summ. J., Sept. 4, 2014

[ECF No. 23] (“Mot.”).) For the reasons stated below, defendant’s motion will be granted.

                                         BACKGROUND

       Plaintiff is currently incarcerated in Los Angeles, California, awaiting trial in a capital

case. (Bloomgarden Decl., Oct. 9, 2013 [ECF No. 26-3], at ¶ 2.) In preparation of his defense,

he has sought to acquire documents from the United States Attorney’s Office for the Eastern

District of New York (“USAO-EDNY”) regarding the termination of former Assistant United

States Attorney (“AUSA”) Raymond Granger. 1 (Pltf.’s Stat. of Pts. & Auth. in Support of His

1
 The EOUSA provides administrative support to the United States Attorney’s Offices, including the
coordination of responses to FOIA requests.
Opp. to Def.’s Mot. for Summ. J., Oct. 9, 2013 [ECF No. 26-2] (“Opp.”), 2.) According to

plaintiff, these documents may contain evidence that while Mr. Granger was an AUSA, he

signed agreements with plaintiff’s former counsel on behalf of California authorities without

their authorization, which could potentially constitute prosecutorial misconduct. (Id.) In

addition, plaintiff believes that AUSA Granger was terminated in part because he made anti-

semitic remarks. As the plaintiff is Jewish, he believes that Granger’s anti-semitic views may

have played a role in the current prosecution against him. (Id.)

       Plaintiff filed two FOIA requests seeking information related to AUSA Granger’s

termination. On January 6, 2012, Clark Arwine (a paralegal working with the plaintiff) sent an

electronic FOIA request (“the First Request”) to the EOUSA seeking “a 35-page termination

letter regarding a former AUSA, Raymond R. Granger, dated approximately October, 1996” and

“seven binders of exhibits that pertain to the letter.” (Mot., Ex. A.) After receiving no response

from the EOUSA, plaintiff filed a complaint on May 24, 2012, in order to compel the production

of these documents. (Compl. [ECF No. 1].) On June 26, 2012, the EOUSA notified plaintiff by

letter that his FOIA request had been received and that it had been split into two requests—one

for case files and the other for personnel records. (Luczynski Decl., Sept. 4, 2013 [ECF No. 23-

2], at ¶¶ 5-7; Mot., Ex. D.)

       Despite this reply, plaintiff filed another FOIA request on July 10, 2012 (“the Second

Request”). (Mot., Ex. F.) In it, he sought the same information as the First Request, as well as

“[a]ll court transcripts and audio/video recordings related to the aforementioned termination of

AUSA Granger, and any records of same that relate to claims of discrimination involving the

Jews by former AUSA Granger.” (Luczynski Decl. at ¶ 10; Mot., Ex. F.) On August 8, 2012, the

EOUSA sent plaintiff a letter stating that a search for records located in the EOUSA’s personnel
                                                 2
department had revealed no responsive documents. 2 (Luczynski Decl. at ¶ 8; Mot., Ex. E.) On

September 24, 2013, the EOUSA informed plaintiff that a similar search of other USAO-EDNY

records also revealed no responsive documents. (Luczynski Decl. at ¶ 6; Mot., Ex. C.)

        On September 25, 2012, defendant claims that it sent plaintiff a letter informing him that

no responsive records had been found regarding his Second Request. 3 (Luczynski Decl. at ¶ 12;

Mot., Ex. H.) The most recent mailing address the EOUSA had on file for plaintiff was the

address of his attorney in his capital case, Mr. James Earley. The EOUSA therefore sent the

letter to plaintiff, care of Mr. Earley, in accordance with its policy of using the most recent

address on file to respond to FOIA requests. (Supp. Luczynski Decl., Nov. 26, 2013 [ECF No.

29-2], at ¶ 4.) However, plaintiff alleges in a sworn declaration that he never received this letter.

(Bloomgarden Decl. at ¶ 8.) Therefore, because in plaintiff’s view the EOUSA had responded to

his First Request but had not yet responded to his Second Request, he amended his complaint on

November 9, 2012, to challenge only that the “EOUSA had not responded to [the July 10, 2012]

request.” (Amend. Compl. at 2.)

        During the pendency of this litigation, the EOUSA extended its search for responsive

records beyond the USAO-EDNY by requesting responsive documents from the National

Personnel Records Center (“NPRC”) where the “Official Personnel Folders” (OPFs) are stored

after an employee leaves the government or is terminated. (See Cook Decl., Sept. 4, 2013 [ECF

No. 23-3], at ¶¶ 2-3.) NPRC was able to locate AUSA Granger’s OPF and provided it to the

EOUSA FOIA office for review. (Id. at ¶ 6.) On June 6, 2013, defendant informed plaintiff by

2
  Because the EOUSA employs a first-in, first-out policy when considering FOIA requests, it replied to
the First Request before replying to the Second Request. (See Mot., Ex. B.)
3
  As defendant explains, it was able to respond quickly to plaintiff’s Second Request because “[b]oth
requests sought information regarding the termination of [AUSA] Granger.” (See Mot. at 8.)
                                                    3
letter that no documents responsive to his request appeared in this file. According to a page-by-

page review by the EOUSA, the 40-50 page OPF did not “contain a termination letter of any

length, and it [did] not contain any binders whatsoever, of exhibits, or otherwise, including

transcripts and recordings.” (Supp. Luczyski Decl. at ¶ 6.) Following the NPRC review, the

EOUSA further expanded its search by forwarding plaintiff’s request to the Merit Systems

Protection Board (“MSPB”) under the theory that “they m[ight] be better equipped to answer

plaintiff’s request.” (Luczyski Decl. at ¶ 13; Mot., Ex. G.) To the Court’s knowledge, the

MSPB has not yet responded to the EOUSA’s request.

                                            ANALYSIS

   I. LEGAL STANDARD

       Summary judgment is appropriate if the pleadings and evidence on file show that there is

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

law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “In a FOIA case, summary

judgment may be granted to the government if ‘the agency proves that it has fully discharged its

obligations under the FOIA, after the underlying facts and the inferences to be drawn from them

are construed in the light most favorable to the FOIA requester.’” Fischer v. Dep’t of Justice,

596 F. Supp. 2d 34, 42 (D.D.C. 2009) (quoting Greenberg v. U.S. Dep’t of Treasury, 10 F. Supp.

2d 3, 11 (D.D.C. 1998)). The requester may challenge such a showing by “set[ting] forth specific

facts showing that there is a genuine issue for trial,” Fed. R. Civ. P. 56(e), that would permit a

reasonable jury to find in his favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir.

1987). Agency declarations “are afforded a presumption of good faith;” and therefore an

adequate affidavit “can be rebutted only ‘with evidence that the agency’s search was not made in

good faith.’” Defenders of Wildlife v. U.S. Dep’t of Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004).
                                                  4
However, “if the sufficiency of the agency’s identification or retrieval procedure is genuinely in

issue, summary judgment is not in order.” Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 370

(D.C. Cir. 1980).

   II. EXHAUSTION REQUIREMENT

       “Exhaustion of administrative remedies is generally required before filing suit in federal

court [under FOIA] 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.” Oglesby v. Dep't of the Army,

920 F.2d 57, 61 (D.C. Cir. 1990); see also Wilbur v. CIA, 355 F.3d 675, 676 (D.C. Cir. 2004).

“The statutory scheme in the FOIA specifically provides for an administrative appeal process

following an agency’s denial of a FOIA request,” and “courts have consistently confirmed that

the FOIA requires exhaustion of this appeal process before an individual may seek relief in the

courts.” Oglesby, 920 F.2d at 61-62 (citing 5 U.S.C. § 552(a)(6)(A)(i), (ii) and cases).

Exhaustion under FOIA is not jurisdictional but “as a jurisprudential doctrine, [the requester’s]

failure to exhaust precludes judicial review” if a merits determination would undermine the

purpose of permitting an agency to review its determinations in the first instance. Hidalgo v. FBI,

344 F.3d 1256, 1258-59 (D.C. Cir. 2003).

       In support of its motion to dismiss, defendant alleges that on September 25, 2012, it sent

a letter to plaintiff responding to his July 10, 2012 FOIA request. (See Lucyzynski Decl. at ¶ 12;

Mot., Ex. H.) In support of its position, defendant provides the Court with a dated copy of the

letter, which it alleges was sent to plaintiff, care of his attorney Mr. Earley. (Mot., Ex. H.)

According to defendant, the letter was sent to Mr. Earley in accordance with the EOUSA’s

policy of sending FOIA replies to the most recent address on file. The Court does not question

the veracity of defendant’s claim that “[a] letter is only signed and dated when it is ready to be
                                                  5
sent out [and t]he date on the face of the letter is EOUSA’s method of identifying documents

already sent, and it is the exact date when the documents leave EOUSA’s office.” (Supp.

Luczynski Decl. at ¶ 5.) However, the central question at issue here is not the date on which the

defendant mailed the letter, but rather the date on which plaintiff received it, if ever. See Jones v.

U.S. Dep’t of Justice, 576 F. Supp. 2d 64, 67 (D.D.C. 2008) (“The existence of a letter, of

course, does not establish . . . [that it was] actually received by the intended recipient.”)

       If plaintiff did receive this letter prior to filing his amended complaint on November 9,

2012, the Court would have no choice but to dismiss the case for failure to exhaust available

administrative remedies. However, “if [defendant] did not receive a response [to his FOIA

request within the statutory period], then by operation of statute, he constructively exhausted his

administrative requirements.” Id. (citing 5 U.S.C. § 552(a)(6)(C)(i)) (emphasis added)). Just as

in Jones, the plaintiff in this case filed both a complaint and a declaration (under the penalty of

perjury) stating that he never received a response from defendant. Therefore, because “[i]t

cannot be said that the evidence ‘is so one-sided that one party must prevail as a matter of law,’”

a disputed issue of material fact exists and the Court will not grant defendant’s motion for

summary judgment on exhaustion grounds. See id. (citing Liberty Lobby, 477 U.S. at 252).

   III. THE ADEQUACY OF THE SEARCH

       As to the merits, defendant argues that it conducted an adequate search for responsive

records and that it therefore is entitled to summary judgment. The Court agrees. “An agency

fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was

‘reasonably calculated to uncover all relevant documents.’” Valencia-Lucena v. U.S. Coast

Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542

(D.C. Cir. 1990)). Under this standard, the relevant question “is not whether there might exist
                                                   6
any other documents possibly responsive to the request, but rather whether the search for those

documents was adequate” under the particular circumstances of the case. Weisberg, 745 F.2d at

1485 (emphasis in original).

       In order to meet this burden, the agency need not “set forth with meticulous

documentation the details of an epic search for the requested records.” Perry v. Block, 684 F.2d

121, 127 (D.C. Cir. 1982). However, it must provide a “reasonably detailed affidavit, setting

forth the search terms and the type of search performed, and averring that all files likely to

contain responsive materials . . . were searched.” Oglesby, 920 F.2d at 68. These affidavits are

“accorded a presumption of good faith.” SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200

(D.C. Cir. 1991). However, if “the record leaves substantial doubt as to the sufficiency of the

search summary judgment for the agency is not proper.” Truitt, 897 F.2d at 542.

       Defendant provides five such sworn declarations from three government employees

detailing their search for responsive documents. These declarations are sufficiently detailed and

non-conclusory. See Weisberg, 705 F.2d at 1351. The Court therefore must presume that they

were submitted in good faith. SafeCard, 926 F.2d at 1200. Plaintiff nevertheless challenges the

adequacy of the search as described in these declarations on the grounds that (1) the scope was

not sufficiently broad and (2) it failed to identify responsive documents that plaintiff knows exist

(or, at the very least, should exist). (See Opp. at 5-7.)

       First, regarding the scope of the search, plaintiff argues that the EOUSA impermissibly

limited its inquiry by only “speaking with . . . human resource officer[s]” and abandoning the

search of the USAO-EDNY litigation databases prematurely. (Id. at 6.) In response, defendant

argues that the EOUSA conducted a targeted search for personnel documents that was reasonable

in light of the narrow nature of plaintiff’s request that focused exclusively on the termination of
                                                   7
AUSA Granger in 1996. (See Mot. at 8; Henriquez Decl., Sept. 4, 2013 [ECF No. 23-4], at ¶ 7.)

Moreover, as defendant notes, the USAO-EDNY was justified in its decision not to complete the

search of its litigation databases because “it was determined that the records Plaintiff sought—

relating to personnel action—would not be contained in criminal case files.” 4 (See Def.’s Reply

to Pltf.’s Opp. to Def.’s Mot. for Summ. J. (“Reply”), Nov. 26, 2013 [ECF No. 29], 5; Supp.

Henriquez Decl., Nov. 26, 2013 [ECF No. 29-3], at ¶ 2.) Under FOIA, defendant is not required

to search “every record system.” See Oglesby, 920 F.2d at 68. It is only required to search

locations where responsive documents are likely to be found. Id. Based on the sworn

declarations, which must be afforded a presumption of good faith, the Court finds that defendant

did just that by engaging in a targeted search for personnel documents relating to former AUSA

Granger.

        In addition, the adequacy of the search’s scope is further supported by the fact that

defendant expanded its search for responsive documents outside of the USAO-EDNY and the

EOUSA, even though it was under no legal obligation to do so. See 28 C.F.R. § 16.4 & 16.1(b).

Specifically, the EOUSA forwarded plaintiff’s FOIA request to the NPRC where OPFs are

stored when government employees leave their employment with the United States government.

(See Cook Decl. at ¶¶ 2-3.) Though the NPRC was unable to locate the particular documents

that plaintiff hoped it would find, it was able to locate Granger’s personnel file, which further

demonstrates the adequacy of the scope of defendant’s search and rebuts any conclusory




4
  Dorla Henriquez of the USAO-EDNY explains in one of her declarations that she began searching
litigation files based on the reference to court transcripts in the Second Request. However she determined
that “criminal case files would not contain any exhibits to a termination letter or any court transcripts or
audio or visual recordings related to the termination of Ray Granger.” (Supp. Henriquez at ¶ 2.)
                                                     8
allegations made by plaintiff that the defendant failed to act in good faith in its attempt to locate

responsive documents. (See Supp. Luczyski Decl. at ¶ 6.)

       Second, insofar as plaintiff argues that the search was inadequate because it failed to find

documents that existed (or at least should have existed) at some prior time, he has misunderstood

the relevant legal inquiry. When analyzing the adequacy of a FOIA search, a court must focus

on the means, not the ends. In this vein, the Court of Appeals has held, “[m]ere speculation that

as yet uncovered documents may exist does not undermine the finding that the agency conducted

a reasonable search for them.” SafeCard Servs., 926 F.2d at 1201. Even though, as plaintiff

argues, it may “strain[] credulity that a proposed termination letter would not be in the personnel

file of the individual it was sent to,” such speculation does not constitute a sufficient basis on

which to deny defendant’s summary judgment motion. (See Opp. at 7.) Similarly, though

plaintiff is able to present evidence that responsive documents may once have existed within the

DOJ, such as a so-called “Ray Granger litigation file,” the fact that these documents were not

found as part of defendant’s FOIA search does not render the agency’s search inadequate. (See

id.) To the contrary, such documents—if the DOJ still had access to them after more than fifteen

years—would have almost certainly been found during the course of defendant’s multiple

searches, especially the search of the NPRC. “The fact that responsive documents once existed

does not mean that they remain in the [agency’s] custody today or that the [agency] had a duty

under FOIA to retain the records.” Wilbur, 355 F.3d at 678 (citing Yeager v. Drug Enforcement

Admin., 678 F.2d 315, 321 (D.C. Cir. 1982)).

       Ultimately, based on the sworn declarations provided by the defendant, the Court has

“little difficulty concluding that the [agency] made a ‘good faith effort to conduct a search for the

requested records, using methods which can be reasonably expected to product the information
                                                  9
requested.’” Schoenman v. FBI, 575 F. Supp. 2d 136, 151 (D.D.C. 2008) (quoting Oglesby, 920

F.2d at 68.) These affidavits “describe in . . . detail what records were searched, by whom, and

through what process.” Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994).

They demonstrate that defendant engaged in an adequately broad search in light of plaintiff’s

narrow request for documents concerning the termination of an employee more than fifteen years

ago. Because plaintiff “has not offered [sufficient] evidence that would raise ‘substantial doubt’

as to the adequacy” of these searches, the Court will grant defendant’s motion for summary

judgment. See Williams v. Dep’t of Justice, 171 Fed. Appx. 857, 857 (D.C. Cir. 2005) (citing

Valencia-Lucena, 180 F.3d at 326).


                                        CONCLUSION

       Accordingly, and for the reasons stated above, the motion for summary judgment will be

GRANTED. A separate order accompanies this Memorandum Opinion.




                                                                 /s/
                                                     ELLEN SEGAL HUVELLE
                                                     United States District Judge

Date: January 22, 2014




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