Jarvis v. U.S. Department of Housing and Urban Development

• Court: District Court, District of Columbia
• Decided: September 30, 2022
• Docket: Civil Action No. 2021-0088
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DEREK JARVIS,

Plaintiff, v. No. 1:21-cv-00088-ZMF U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,

Defendant.

MEMORANDUM OPINION

Plaintiff Derek N. Jarvis brings this action against the United States Department of Housing

and Urban Development (“HUD”) under the Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552. This matter is before the court on Defendant’s Motion for Summary Judgment. See Def.’s

Mot. Summ. J. (“Def.’s Mot.”), ECF No. 21. For the reasons below, the Court GRANTS

Defendant’s motion.

I. BACKGROUND

A. Jarvis’s 2018 FOIA Request

On June 4, 2018, HUD received a FOIA request from Jarvis (“2018 FOIA Request”). See

Decl. of Deborah Snowden (“Snowden Decl.”), Ex. to Def.’s Mot. ¶ 7, ECF No. 21–3. The 2018

FOIA Request sought records maintained by HUD pertaining to Derek Jarvis and his mother,

Shirley Pittman. See id. Jarvis subsequently clarified the scope of his request as seeking records

of any Fair Housing investigations into Grady Management in 2007 and 2009; Burnt Mills

Crossing in 2013; or RIMSI Corporation in 2016. See id. ¶ 8. He also sought all communications

between specific HUD employees and certain organizations and individuals. See id. On March 1,

1 2019, HUD provided an interim response to Jarvis, producing 98 pages of unredacted, responsive

documents. See id. ¶ 15. Plaintiff subsequently narrowed his request to all information involving

a HUD investigation into Grady Management at the Montgomery Paint Branch property—where

Mr. Jarvis previously lived—and all investigative files related to Grady Management that arose

from complaints filed with HUD by Jarvis and Pittman between 2007 and 2009. See id. ¶ 9. Jarvis

specifically sought records of an investigation conducted by HUD’s District of Columbia field

office. See Pl.’s Opp’n to Def.’s Mot. To Dismiss (“Pl.’s Opp’n”) 2, ECF No. 22.

Following these clarifications, HUD conducted a “due diligence” search of its records. See

Snowden Decl. ¶ 10. In accordance with HUD procedure, HUD contacted the applicable region

and field offices. See id. ¶ 11. These offices were Region III and the Philadelphia, Baltimore, and

District of Columbia field offices. See id. The Region III office then searched “all locations

reasonably likely to contain responsive records.” Id. ¶ 12. The review “showed that no complaint

was filed . . . with the District of Columbia [Fair Housing and Equal Opportunity] field office,”

that HUD “referred the case to the [Maryland Commission on Civil Rights],” and that HUD did

not “undertake a separate investigation.” Decl. of Rachel Leith (“Leith Decl.”), Ex. to Def.’s Mot.

¶¶ 19–21, ECF No. 21–2. As part of its processing of the 2018 FOIA Request, HUD discovered

that Jarvis had made similar FOIA requests for this information in 2008 and 2012 which were both

“granted in full.” Snowden Decl. ¶ 13.

B. HUD’s Response to 2018 FOIA Request

On April 12, 2021, HUD issued its final determination letter which granted Jarvis’s 2018

FOIA Request and produced an additional 56 pages of responsive material, including reports

generated by HUD’s Enforcement Management System and Office of Fair Housing and Equal

Opportunity (FHEO). See Snowden Decl. ¶ 16. HUD produced these documents after conducting

2 an automated search of any fair housing discrimination complaints involving Jarvis or his mother

in the relevant time frame. See Leith Decl. ¶¶ 20–21. The records indicated that HUD referred

the 2007 complaints against Grady Management to the Maryland Commission for Civil Rights

(“MCCR”) and closed the 2009 complaint after Jarvis failed to establish HUD’s jurisdiction. See

id. ¶¶ 21–25. The MCCR “investigated the complaint and determined that there was no reasonable

cause to believe that a discriminatory housing practice had occurred.” Id. ¶ 22.

On January 8, 2021, Jarvis sued HUD arguing that HUD “improperly withheld the records

sought regarding the Grady Management investigation in 2007.” Pl.’s Opp’n 5. Specifically, he

claims that an investigator in the District of Columbia field office, Mr. Johnson, was “investigating

Grady Management’s retaliatory letter’s [sic] and emails” sent to Jarvis and his mother. Id. Jarvis

claims HUD’s motivation for withholding documents related to Mr. Johnson’s investigation is

because HUD “conspired with Grady Management in the retaliatory act(s) against [Jarvis].” Id. at

7.

II. LEGAL STANDARD

The “vast majority” of FOIA cases can be decided on summary judgment. See Brayton v.

Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment is granted

when there is no genuine issue of material fact and the movant is entitled to judgment as a matter

of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In

determining whether a genuine issue of fact exists, the court must view all facts in the light most

favorable to the non–moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). Under

FOIA, all underlying facts and inferences are analyzed in the light most favorable to the FOIA

requester; as such, only after an agency proves that it has fully discharged its FOIA obligations is

3 summary judgment appropriate. See Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing

Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1382 (8th Cir. 1985).

The court conducts a de novo review of the record when considering a motion for summary

judgment in a FOIA case. See 5 U.S.C. § 552(a)(4)(B). The court may award summary judgment

solely based on information provided by the agency in an affidavit or declaration. See Military

Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). An agency’s affidavit or declaration

must be “relatively detailed and non–conclusory.” SafeCard Serv., Inc. v. SEC, 926 F.2d 1197,

1200 (D.C. Cir. 1991) (citations omitted). The Agency’s statement is accorded a presumption of

good faith, which cannot be rebutted by “purely speculative claims about the existence and

discoverability of other documents.” Id. (citing Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770,

771 (D.C. Cir. 1981) (per curiam)).

The nonmoving party must provide more than mere unsupported allegations, and a genuine

issue for trial must be supported by affidavits, declarations, or other competent evidence. See Fed.

R. Civ. P. 56(c). In the context of summary judgment, pro se pleadings are “held to less stringent

standards than formal pleadings drafted by lawyers” and are “to be liberally construed.” Erickson

v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106

(1976)). However, a pro se plaintiff is not excused from his burden of proof. See Willis v. Fed.

Bureau of Investigation, No. 17–cv–1959, 2019 WL 2138036, at *5 (D.D.C. May 16, 2019)

(granting summary judgment when pro se plaintiff failed to dispute that the FBI conducted a

reasonable and adequate search for responsive records). Indeed, a pro se party cannot avoid

summary judgment without demonstrating a material dispute of fact. See Greer v. Bd. of Educ. of

the City of Chicago, 267 F.3d 723, 727 (7th Cir. 2001) (upholding the grant of summary judgment

where pro se Plaintiff failed to dispute material facts).

4 III. ANALYSIS

A. HUD’s Response to the 2018 FOIA Request

An agency is entitled to summary judgment in a FOIA case if it has “conducted ‘a search

reasonably calculated to uncover all relevant documents, and, if challenged, [] demonstrate[s]

beyond material doubt that the search was reasonable.’” Williams v. Fanning, 63 F. Supp. 3d 88,

93 (D.D.C. 2014) (citing Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). An agency’s

search is adequate if it was “reasonably calculated to uncover all relevant documents.” Valencia–

Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (citing Truitt, 897 F.2d at 542).

The “defending agency must [also] prove that each [responsive] document . . . has been produced”

or is exempt from disclosure. Weisberg v. Dep’t of Just., 627 F.2d 365, 368 (D.C. Cir. 1980)

(quoting Nat’l Cable Television Ass’n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)).

HUD met its burden by searching for and producing the relevant records Jarvis requested.

See generally Def.’s Mot. HUD established this via their detailed declarations from Rachel Leith,

the Enforcement Branch Chief for Region III in the FHEO, and Deborah R. Snowden, Deputy

Chief FOIA Officer in the Office of the Executive Secretariat. See generally Leith Decl.; Snowden

Decl. Specifically, Snowden sufficiently explained HUD’s procedures for processing FOIA

requests:

All FOIA requests received by HUD, regardless to whom they are originally addressed, are immediately routed to the FOIA Branch for intake and processing. When a FOIA request is received by HUD, it is entered into the FOIA Management System (“FMS”) and assigned a FOIA control number. The request is then analyzed and assigned to a Government Information Specialist to process. Once a request has been assigned a FOIA control number, it can be tracked through FMS at all stages of processing, including after the request has been closed.

Snowden Decl. ¶ 6.

5 There is no indication that HUD treated the 2018 FOIA Request differently. Upon receipt

of the 2018 FOIA Request, HUD “entere[ed] the FOIA request into FMS . . . [and] contact[ed] the

region in which the requested information arose.” Id. ¶ 11. Then, HUD conducted “an electronic

search inquiry using Derek Jarvis, Shirley Pittman and Grady Management, Inc. as search terms.”

Leith Decl. ¶ 17. The search revealed three responsive complaints/inquiries. See id. ¶ 18. HUD

generated reports for these three hits and produced them to Jarvis. See Snowden Decl. ¶ 16.

Additionally, HUD “searched for hard copy investigative case files and documents related to

[Jarvis’s] complaints and inquiry between 2007 and 2009” but did not find any. Leith Decl. ¶ 24.

“When a plaintiff questions the adequacy of the search an agency made in order to satisfy

its FOIA request, the factual question it raises is whether the search was reasonably calculated to

discover the requested documents, not whether it actually uncovered every document extant.”

SafeCard Servs., Inc., 926 F.2d at 1201 (citing Meeropol v. Meese, 790 F.2d 942, 950–51 (D.C.

Cir. 1986)). Because HUD “describes how . . . [they] searched . . . all record systems likely to

contain responsive records” and produced all such records, their search is adequate. Pinson v. U.S.

Dep’t of Just., No. 12-cv-1872, 2017 WL 6887041, at *9 (D.D.C. Aug. 31, 2017); see Snowden

Decl. ¶¶ 16–17. Jarvis has failed to “support [] the allegation that the [HUD’s] search procedures

were inadequate[.]” SafeCard Servs., 926 F.2d at 1202.

B. HUD’s Retention Policy

Jarvis makes unfounded allegations that HUD failed to produce the investigations of

Mr. Johnson or Mr. Bodell and the hard–copy documents associated with Jarvis’s complaints

because of a conspiracy to retaliate against Jarvis. See Pl.’s Opp’n at 7. For example, Jarvis insists

that HUD “failed to provide records dating back to 2009 . . . regarding records and documents

from the investigation that involved HUD investigator Johnson . . . who had been involved in

6 investigations involving Grady Management in February 2007.” Pl.’s Supplemental Opp’n to

Def.’s Mot. To Dismiss (“Pl.’s Supplemental Opp’n”) 1, ECF No. 26.

Yet Jarvis has not submitted competent evidence that allows for an inference of conspiracy

between HUD and Grady Management or that such missing records even exist. See Pl.’s Opp’n

at 7; Pl.’s Supplemental Opp’n at 2. This is dispositive. See Willis, 2019 WL 2138036, at *1

(granting defendant’s summary judgment motion where pro se plaintiff failed to support her

allegations that defendant was withholding responsive records). Jarvis’ “[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 (citing Weisberg v. Department

of Justice, 745 F.2d 1476, 1486–87 (D.C. Cir. 1984)).

Moreover, it does not appear that any such conspiracy exists. First, HUD searched for and

produced all responsive documents. See Leith Decl. ¶ 17, ¶ 24. No record exists of any

investigations by Mr. Johnson or Mr. Bodell. See Leith Decl. ¶ 19. Jarvis counters that he and his

mother met with Mr. Johnson and Mr. Bodell. See Decl. of Jarvis, Ex. to Pl.’s Supplemental

Opp’n, ¶¶ 3–6, ECF No. 26–1. However, this does not demonstrate that Mr. Johnson or Mr. Bodell

initiated an investigation or retained any documents.

Second, HUD destroyed any other hard-copy files that may have existed in accordance

with HUD’s retention policy. See id. ¶¶ 24–30. An agency is permitted to destroy material in

accordance with a neutral record retention policy. See Pinson v. Dep’t of Just., 236 F. Supp. 3d

338, 356 n.24 (D.D.C. 2017). Indeed, FOIA does not require “agencies to create or retain

documents; it only obligates them to provide access to those which it in fact has created and

retained.” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980).

7 The FHEO’s retention period for Jarvis’s complaint was five years.1 See Leith Decl. ¶¶ 27–30.

Thus, HUD appropriately destroyed the hard–copy documents—to the extent there were any—in

2013. See id. HUD “committed no error” by “destroying documents [five years] prior to” Jarvis’s

2018 FOIA Request. See Pinson, 236 F. Supp. 3d at 356 n.24.

IV. CONCLUSION

Because Jarvis’s pleadings are “lacking in detail and conclusory,” he has failed to carry his

burden. See SafeCard Servs., 926 F.2d at 1200. Thus, summary judgment is appropriate. See id.

(granting summary judgment where the government presented a declaration that was “sufficiently

detailed and non-conclusory” in response to plaintiff’s unsupported and speculative allegations of

bad faith).

Zia M. Faruqui 2022.09.30 16:36:51 -04'00' ___________________________________ ZIA M. FARUQUI UNITED STATES MAGISTRATE JUDGE

1 The retention policy for one of his 2007 complaints and his 2009 inquiry was one year. The retention policy for the other 2007 complaint was five years. See Leith Decl. ¶¶ 27–29.