Hill v. United States Department of Justice

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DAVID E. HILL, ) ) Plaintiff, ) ) v. ) Civil Action No. 11-0273 (BAH) ) UNITED STATES DEPARTMENT ) OF JUSTICE, ) ) Defendant. )

MEMORANDUM OPINION

In this matter brought pro se under the Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552, the defendant U.S. Department of Justice has complied with the order to release

responsive records to the plaintiff David E. Hill, pursuant to the Court’s adoption of Magistrate

Judge Alan Kay’s Report and Recommendation (“R&R”). See Mem. and Order of February 6,

2012, ECF No. 31. Specifically, the defendant released in its entirety the grand jury information,

which Magistrate Judge Kay had identified as responsive to Plaintiff’s FOIA request but which

had been improperly withheld under FOIA exemption 3. 1 The defendant now renews its motion

for summary judgment. Def.’s Renewed Mot. for Summ. J., ECF No. 33.

The plaintiff simultaneously opposes the defendant’s renewed summary judgment

motion, Pl.’s Mot. in Opp’n to Def.’s Renewed Mot. for Summ. J., ECF No. 35, and moves

pursuant to Rule 56(d) of the Federal Rules of Civil Procedure for a continuance to conduct

1 Judge Kay found that Defendant wrongly applied FOIA exemption 3 to Plaintiff’s “second, third and fourth requests . . . for three dates regarding the grand jury” and his first request for “the name of the district court judge who summoned the grand jury in Hill’s criminal case.” Report and Recommendation at 8, 9. 1 discovery on the defendant’s search for responsive records. See Mot. for Continuance, ECF No.

36, at 4 & n.1 (requesting “an order directing defendants to respond to interrogatories, and allow

deposition of defendants”) (noting “The Grand Jury Specialist”). Since Rule 56(d) presupposes

that “a nonmovant” lacks sufficient facts “to justify its opposition” to a summary judgment

motion, the plaintiff’s substantive opposition to the renewed summary judgment motion negates

the basis for granting a continuance under Rule 56(d).

In any event, the adequacy of the defendant’s search is a moot issue. The plaintiff did not

file an objection to Magistrate Judge Kay’s R&R and therefore has waived any argument against

the characterization of the FOIA request as seeking “five [specific] pieces of information

regarding the grand jury proceedings in his [criminal] case.” R&R at 1; see id. at 8-9 (discussing

each requested item); see also id. at 9-10 (advising the parties about filing written objections

within 14 days); Elec. Transaction Sys. Corp. v. Prodigy Partners Ltd., No. 08-1610, 2009 WL

3273920, at *1 (D.D.C. Oct. 9, 2009) (deeming “all objections [to R&R] waived” where none

was received) (citations omitted). Since it is undisputed that defendant located and released the

very information identified in the R&R as improperly withheld, see Def.’s Ex. A, ECF No. 33-4,

the Court has no further role to perform in this case. See Perry v. Block, 684 F.2d 121, 125

(D.C. Cir. 1982) (“[H]owever fitful or delayed the release of information under the FOIA may

be, once all requested records are surrendered, federal courts have no further statutory function to

perform.”); accord Boyd v. Criminal Div. of U.S. Dept. of Justice, 475 F.3d 381, 388 (D.C. Cir.

2007) (“[B]ecause the report was located in the work file and subsequently disclosed, the issue is

moot for purposes of this FOIA action.”) (citing Perry).

For the foregoing reasons, the Court, finding that the defendant has satisfied its disclosure

obligation under the FOIA, will grant the defendant’s renewed motion for summary judgment,

2 deny the plaintiff’s motion for a continuance to conduct discovery, and enter judgment

accordingly. A separate final order accompanies this Memorandum Opinion.

/s/ Beryl A. Howell________ UNITED STATES DISTRICT JUDGE DATE: November 2, 2012