Borda v. Executive Office for the United States Attorney

125 F. Supp. 3d 196, 2015 U.S. Dist. LEXIS 114403, 2015 WL 5118359
CourtDistrict Court, District of Columbia
DecidedAugust 28, 2015
DocketCivil Action No. 14-229-RDM
StatusPublished
Cited by6 cases

This text of 125 F. Supp. 3d 196 (Borda v. Executive Office for the United States Attorney) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Borda v. Executive Office for the United States Attorney, 125 F. Supp. 3d 196, 2015 U.S. Dist. LEXIS 114403, 2015 WL 5118359 (D.D.C. 2015).

Opinion

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

This matter is before the Court on Defendant’s motion for summary judgment (Dkt.10) and Plaintiffs motion for leave to amend (Dkt.20). For the reasons stated herein, Defendant’s motion is DENIED and Plaintiffs motion is GRANTED.

I. BACKGROUND

Plaintiff, who is a prisoner proceeding pro se, filed this suit under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, in 2014. His initial complaint sought to compel the Executive Office for United States Attorneys (“EOUSA”) to produce documents in response to three FOIA requests. Dkt. 1. The requests — dated, respectively, November 4, November 5, and November ‘20, 2013 — all seek information related to grand jury proceedings in eases before this Court, such as the date the grand jury convened and the name of the judge who summoned the grand jury. Id. ¶¶ 6-11. Plaintiffs complaint alleged that he had not received responses to any of these requests.

On February 6, 2015, EOUSA filed the pending motion for summary judgment. The Court subsequently issued an order directing Plaintiff to respond to the summary judgment motion by March 13, 2015 and advising him that failure to respond could result in the motion being “treated as conceded.” Dkt. 11 (citing Neal v. Kelly, 963 F.2d 453, 456-57 (D.C.Cir.1992)). On Plaintiffs motion, the Court subsequently extended the deadline to file his opposition to the summary judgment motion to May 18, 2015. April 17, 2015, Minute Order. Rather than oppose the summary judgment motion, Plaintiff submitted a proposed amended complaint on May 18, 2015. Because the Court concluded that Plaintiff was not, at that time, entitled to amend as of right, see Fed. R. Civ. P. 15(a)(1), it directed Plaintiff to submit a motion for leave to amend. May 21, 2015 Minute Order. Plaintiff filed such a motion well within the deadline imposed by the Court. See Dkt. 20. However, to date he has still not filed an opposition to EOU-SA’s motion for summary judgment. EOUSA has not filed an opposition to Plaintiffs motion for leave to amend.

II. LEGAL STANDARDS

The Freedom of Information Act is premised on the 'notion that an informed citizenry is “vital to the functioning of a democratic society, needed to check against corruption and to hold the gover[198]*198nors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). It embodies a “general philosophy of full, agency disclosure.” United States Dep’t of Defense v. FLRA, 510 U.S. 487, 494, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994). To promote government transparency, FOIA thus requires federal agencies to produce agency records to any person who requests them, unless the request is procedurally defective or the information requested falls within one of nine enumerated exemptions to the rule. 5 U.S.C. § 552(a)(3), (b).

FOIA cases are typically resolved on motions for summary judgment, which require that the moving party demonstrate that there are no genuine issues of material fact and he or she is entitled to judgment as a matter of law. See Celotex Corp v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Beltranena v. U.S. Dep’t of State, 821 F.Supp.2d 167, 175 (D.D.C.2011) (noting that FOIA cases are “frequently decided” on motions for summary judgment). To meet its burden, the government must generally submit “relatively detailed and non-conclusory” affidavits or declarations-establishing the adequacy of its search for responsive documents, SafeCard Servs. Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991), and an index of the information, if any, withheld, See Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C.Cir.1973); Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C.Cir.1998) (explaining that to carry its burden, agency that declines to produce a requested document “must submit a Vaughn index to explain why it has withheld information”). Affidavits provided by an agency are “accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” Safecard Servs., 926 F.2d at 1200 (quotation marks omitted). The standards used to evaluate FOIA claims on summary judgment also apply to suits under the Privacy Act. See Chambers v. U.S. Dep’t of Interior, 568 F.3d 998, 1003 (D.C.Cir.2009).

Under Federal Rule of Civil Procedure 15, “the grant or denial of an opportunity to amend is within the discretion of the District Court," but “leave to amend ‘shall be freely given when justice so requires.’” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (quoting Fed. R. Civ. P. 15).

III. DISCUSSION

A. Defendant’s Motion for Summary Judgment

Because Plaintiff has not filed an opposition to Defendant’s motion for summary judgment, the Court may treat that motion as conceded. See FDIC v. Bender, 127 F.3d 58, 67 (D.C.Cir.1997); Local Civ. R. 7(b). Whether to do so is a matter for the Court’s discretion. Bender, 127 F.2d at 67.

Here, there may be reasons to afford Plaintiff another opportunity to file an opposition to Defendant’s motion. Had Plaintiff been entitled to amend his complaint as of right when he sought to, his amended complaint would have mooted the summary judgment motion, obviating the need to respond. See Barnes v. District of Columbia, 42 F.Supp.3d 111, 117 (D.D.C.2014) (“[w]hen a plaintiff files an amended complaint as of right ... the .amended complaint becomes the operative pleading ... and any pending motion to dismiss becomes moot”) (citations omitted).

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Bluebook (online)
125 F. Supp. 3d 196, 2015 U.S. Dist. LEXIS 114403, 2015 WL 5118359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borda-v-executive-office-for-the-united-states-attorney-dcd-2015.