UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) SEAN MICHAEL KOVALEVICH, ) ) Plaintiff, ) ) v. ) No. 18-cv-0610 (KBJ) ) BUREAU OF INDIAN AFFAIRS, et al., ) ) Defendants. ) )
MEMORANDUM OPINION
On March 9, 2018, pro se Plaintiff Sean Michael Kovalevich filed the instant
lawsuit to obtain records from the Bureau of Indian Affairs (“the Bureau”) in response
to a document request that he had submitted under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. (See Compl., ECF No.
1, ¶¶ 18, 28.) During the course of the ensuing litigation, the Bureau released 83
responsive documents to Kovalevich, either in full or in part, while justifying its
withholdings on the basis of FOIA Exemptions 6 and 7(C). (See Pl.’s Statement of
Material Facts to Which There Is No Genuine Issue (“Pl.’s Statement of Undisputed
Material Facts”), ECF No. 18, ¶¶ 10–12; Defs.’ Statement of Material Facts to Which
There Is No Genuine Issue (“Defs.’ Statement of Undisputed Material Facts”), ECF No.
16-1, ¶¶ 3–4.) The Bureau now insists that it has fully complied with its obligations
under the FOIA, because it conducted an adequate search for responsive records,
properly redacted or withheld personal information concerning third parties, and
disclosed all non-exempt portions of responsive documents. (See Defs.’ Opp’n to Pl.’s Mot. for Summ. J. & Cross-Mot. for Summ. J. (“Defs.’ Cross-Mot.”), ECF No. 16, at 4–
9.) 1 Kovalevich concedes that the Bureau has complied with its search and disclosure
obligations, but maintains that the agency has violated the FOIA nevertheless, by
attempting to assess search fees after failing to respond to his request in a timely
manner, and also by engaging in a practice of ignoring FOIA requests and disregarding
the statute’s response deadlines. (See Pl.’s Opp’n to Defs.’ Cross-Mot. for Summ. J. &
Reply in Supp. of Pl.’s Mot. (“Pl.’s Combined Reply”), ECF No. 18, at 4–5.)
Kovalevich further argues that he is entitled to attorney’s fees and costs, because his
lawsuit caused the Bureau to release the requested records. (See id. at 6.)
Before this Court at present are Kovalevich’s Motion for Summary Judgment and
the Bureau’s Cross-Motion for Summary Judgment. (See Pl.’s Mot. for Summ. J.
(“Pl.’s Mot.”), ECF No. 12; Defs.’ Cross-Mot.) For the reasons explained fully below,
the Court has concluded that the Bureau has fully (and concededly) discharged its
duties under the FOIA and that Kovalevich has failed to demonstrate his entitlement to
any of his requests for relief. Therefore, the Bureau’s motion must be GRANTED, and
Kovalevich’s motion must be DENIED. A separate Order consistent with this
Memorandum Opinion will follow.
I. BACKGROUND
A. Administrative Proceedings
Kovalevich is a North Dakota state prisoner who is incarcerated in Bismarck,
North Dakota. (See Compl. ¶ 2.) On December 12, 2016, Kovalevich sent a letter to
1 Page numbers herein refer to those that the Court’s electronic case filing system automatically assigns.
2 the Turtle Mountain Law Enforcement Agency’s Office of Justice Services requesting
“all documents and records maintained by the Bureau of Indian Affairs, Belcourt Police
Department concerning [him].” (Defs.’ Statement of Undisputed Material Facts ¶ 2;
Decl. of Sean Kovalevich (“Kovalevich Decl.”), ECF No. 12, ¶ 1; Ex. 1 to Compl., ECF
No. 1-2, at 1.) In his letter, Kovalevich explained that he was “willing to pay
reasonable search and duplication fees[,]” but asked the agency to notify him “ahead of
time” if the estimated fees exceeded $10.00. (Ex. 1 to Compl. at 1.) After 20 workdays
passed without receiving any response, Kovalevich sent another letter to the Bureau on
January 29, 2017, reiterating his request for records pertaining to him. (See Defs.’
Statement of Undisputed Material Facts ¶ 2; Kovalevich Decl. ¶ 2.)
The Bureau responded to Kovalevich’s letters on February 27, 2017,
acknowledging that it had received his request. (See Ex. 2 to Compl., ECF No. 1-2, at
3.) The Bureau further informed Kovalevich (1) that processing his request would
likely take seven hours and the estimated cost of search and review fees was $215; (2)
that there would be no charge for duplication of records, because his request involved
85 pages and duplication of the first 100 pages is free; and (3) that the Bureau would
not begin processing Kovalevich’s FOIA request until he provided “written assurance”
of his “willingness to pay [the] associated fees[.]” (Id. at 3–4.) The Bureau
additionally warned Kovalevich that if he did not reply within “20 workdays on the fee
issue,” the Bureau would “assume that [he was] no longer interested in this matter and
[would] close the file on [his] request.” (Id. at 4.)
In a letter dated March 2, 2017, Kovalevich notified the Bureau of his intent to
appeal the fee estimate (see Kovalevich Decl. ¶ 4; Answer & Defenses, ECF No. 11,
3 ¶ 11; Ex. 4 to Compl., ECF No. 1-2, at 9), and he submitted a FOIA appeal letter to the
Department of the Interior’s Office of the Solicitor a few days later (see Kovalevich
Decl. ¶ 5; Answer & Defenses ¶ 12; Ex. 3 to Compl., ECF No. 1-2, at 5–8). In his
appeal letter, Kovalevich asserted that the cost estimate was “excessive[,]” and that
there was “no reason that 7 hours would be required to search and review 85 pages” of
records. (Ex. 3 to Compl. at 5–6.) The Bureau responded to Kovalevich’s March 2,
2017 letter on May 25, 2017, informing him that, although its search for responsive
records had begun, the Bureau had decided to close his file because he had “not agreed
to pay” the estimated fee. (Ex. 4 to Compl. at 9–10.)
Kovalevich’s criminal defense attorney then contacted the Bureau about the fee
issue (Kovalevich Decl. ¶ 7; Answer & Defenses ¶ 14), offering to pay the estimated
fees on Kovalevich’s behalf (Ex. 7 to Compl., ECF No. 1-2, at 18). However,
according to Kovalevich, the Bureau rejected his lawyer’s offer and insisted that
Kovalevich needed to “personally file” a new request since his prior request had been
closed. (See id.) Kovalevich renewed his request on August 18, 2017, and he sent a
follow-up letter on September 26, 2017. (See Exs. 5 & 6 to Compl., ECF No. 1-2, at
12–14.) After 75 business days passed without receiving any response to his renewed
request, Kovalevich submitted another “FOIA appeal” letter to the Office of the
Solicitor, stating that he was “appealing the non-response of BIA Belcourt PD which is
a denial of [his] request[,]” and that he was additionally “renewing [his] appeal of the
agency’s fee determination as being excessive and unjustifiable.” (Ex. 7 to Compl. at
19.) Kovalevich did not receive a response to his appeal letter. (Kovalevich Decl.
¶ 11.)
4 B. The Court Proceedings And Subsequent Disclosures
Kovalevich filed the instant legal action against the Bureau on March 9, 2018
(see Compl. at 1), and moved for summary judgment on August 3, 2018 (see Pl.’s Mot.
at 1). 2 In his motion, Kovalevich argues that the “uncontested facts” demonstrate that
the Bureau missed the statutory deadline to respond to his FOIA request, and that “the
[Bureau] quoted [him] a fee . . . totaling $215.00”—even though “an agency may not
assess search fees if it failed to comply with the [FOIA’s] time limit[.]” (Id. at 2.)
Kovalevich’s summary judgment motion further contends that, “to the extent that [the
Bureau] now allege[s] that any or all of the requested documents are exempt from
release[,]” the Court should conduct an in camera review of the withheld records;
“require indexing, justification, and itemization” of the records pursuant to Vaughn v.
Rosen, 484 F.2d 820 (D.C. Cir. 1973); and order the agency to release all non-exempt
records without charge. (Pl.’s Mot. at 3–4.) Kovalevich’s motion also asks the Court
to enjoin the Bureau “from relying on the invalid practices of ignoring FOIA requests
and appeals and of claiming that the . . . twenty workday time limit does not apply until
they respond to the request” (id. at 4), and to award him reasonable attorney’s fees and
costs (id.). The motion additionally requests that the Court “declare the [Bureau’s]
actions to be in violation of the FOIA” (id.); “make a specific finding of fact” that the
agency’s “actions were so flagrant as to be arbitrary and capricious” (id.); and “refer
the matter to Special Counsel for investigation” (id.).
2 Kovalevich’s complaint also names as defendants the Bureau’s parent agency (the Department of the Interior), and two of the individual officers who were involved in handling his FOIA request. (See Compl. at 1.) This Court previously dismissed the individual officers as improper defendants. (See Order, ECF No. 5, at 1–2.)
5 After Kovalevich filed his motion for summary judgment, the Bureau filed a
Status Report on August 20, 2018, stating that it had completed the search of its records
in response to Kovalevich’s request and had found “85 potentially responsive
documents consisting of approximately 260 pages.” (Status Report, ECF No. 13, ¶ 2.)
The Status Report also expressed the Bureau’s intention to “process th[e] records and
produce any responsive non-exempt documents to [Kovalevich] no later than September
20, 2018.” (Id. ¶ 3.) The Bureau ultimately produced 83 responsive documents to
Kovalevich on October 2, 2018 (Status Report, ECF No. 14, ¶ 2), and then filed a cross-
motion for summary judgment on November 5, 2018 (see Defs.’ Cross-Mot. at 1).
In its cross-motion, the Bureau argues that it has discharged its duties under the
FOIA, because it has conducted an adequate search of its records and has produced all
non-exempt documents. (See id. at 4.) The Bureau has also attached to its motion the
declaration of Renee Parisien—the Law Enforcement Assistant who processed
Kovalevich’s request (see Decl. of Renee Parisien (“Parisien Decl.”), ECF No. 16-2,
¶¶ 1, 4)—as well as a Vaughn index that describes the 260 pages of responsive records
and sets forth Parisien’s reasons for redacting or withholding records pursuant to
Exemptions 6 and 7(C) of the FOIA (see Vaughn Index, Ex. 1 to Parisien Decl., ECF
No. 16-3, at 1–8).
Notably, in his combined opposition and reply brief, which was filed on
December 13, 2018, Kovalevich asserts that he is “satisfied” with the Bureau’s
document production, and that he “does not dispute any exemptions claimed in [the
Bureau’s Vaughn Index].” (Pl.’s Combined Reply at 4.) As a result, Kovalevich has
withdrawn his request for a court order enjoining the Bureau from withholding
6 documents. (See id.) However, Kovalevich persists in requesting that the Court “order
that no fees may be assessed” (id.), while acknowledging that the Bureau has “not
assessed any fees for the production of [the] records” at issue and that “[n]o search fees
have yet been requested” (id.). Kovalevich further reaffirms his remaining requests for
relief, including his requests that the Court enjoin the Bureau from “relying on . . .
invalid practices” concerning its processing and production of records in response to
FOIA requests (id. at 5), and that the Court award him reasonable attorney’s fees and
costs (id. at 6).
II. DISCUSSION
As explained above, the Bureau has now produced 83 records responsive to
Kovalevich’s FOIA request, and Kovalevich does not dispute the adequacy of the
Bureau’s search or its decision to withhold and redact certain documents pursuant to
FOIA Exemptions 6 and 7(C). (See Pl.’s Combined Reply at 3–4; see also Defs.’
Statement of Undisputed Material Facts ¶¶ 3–4.) Nor does Kovalevich contest the facts
set forth in Parisien’s declaration (see Pl.’s Statement of Undisputed Material Facts
¶¶ 8, 12), which pertain to her search and review of the records responsive to
Kovalevich’s request (see Parisien Decl. ¶¶ 2–6). Accordingly, the Court accepts as
true the unrebutted facts contained in Parisien’s declaration, see Jackson v. Finnegan,
Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 154 (D.C. Cir. 1996); the Court
has analyzed those facts to assess whether either party is entitled to summary judgment.
For the reasons discussed below, the Court has determined that the Bureau is
entitled to summary judgment, because it has conducted a reasonable search for
responsive records, has properly withheld information that is protected by FOIA
7 Exemption 7(C), and has released all reasonably segregable information. The Court
further concludes that it lacks jurisdiction to issue an order concerning the Bureau’s
ability to assess search fees, and that Kovalevich has not demonstrated his entitlement
to any of his other requests for relief.
A. The Bureau Is Entitled To Summary Judgment
1. The Bureau Conducted An Adequate Search For Records
“[T]he touchstone when evaluating the adequacy of an agency’s search for
records in response to a FOIA request is reasonableness, and in particular, whether the
agency made ‘a good faith effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the information requested.’”
Muckrock, LLC v. CIA, 300 F. Supp. 3d 108, 125 (D.D.C. 2018) (quoting Oglesby v.
U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)); see also Physicians for Hum.
Rts. v. U.S. Dep’t of Def., 675 F. Supp. 2d 149, 164 (D.D.C. 2009) (noting that, “as long
as [the reasonableness] standard is met, a court need not quibble over every perceived
inadequacy in an agency’s response, however slight”). Kovalevich does not contest the
adequacy of the search that the Bureau ultimately conducted in response to his FOIA
request, and based upon the uncontested first-hand account in Parisien’s declaration, the
Court is satisfied that the Bureau’s search was reasonably calculated to locate all
responsive records.
In particular, in her declaration, Parisien identifies the categories of records that
the Turtle Mountain Law Enforcement Agency maintained, which range from law
enforcement case files and call logs to payroll records and personnel files. (Parisien
Decl. ¶ 2.) Parisien then describes the categories of records that she searched—
including case files, call logs, FOIA requests, and record disposition files—and she
8 explains that the remaining categories “were not searched because those files were not
reasonably expected to contain the records requested.” (Id. ¶ 4.) Parisien also avers
that she “spent approximately 7 hours searching through several databases, including
IMARS for police reports, Criminal Investigation Division files, and the records storage
room[,]” and located a total of 260 pages of responsive documents. (Id. ¶¶ 4–5.)
In this Court’s view, Parisien’s declaration provides sufficient detail to conclude
that the search was reasonable and conducted in good faith; thus, the Court finds that
the Bureau is entitled to summary judgment with respect to the adequacy of its search
for responsive records. See, e.g., Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321,
326 (D.C. Cir. 1999) (“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.” (internal quotation marks and citation omitted)).
2. The Bureau’s Withholdings Were Proper
According to Parisien, after locating the universe of responsive records, she then
redacted “[c]ertain personal identifying information [concerning] the victim, witnesses,
or criminal investigators” prior to the production, pursuant to FOIA Exemptions 6 and
7(C). (Parisien Decl. ¶¶ 5–6.) Under Exemption 6 of the FOIA, an agency may
withhold “personnel and medical files and similar files” if their disclosure would
“constitute a clearly unwarranted invasion of personal privacy[.]” 5 U.S.C. § 552(b)(6);
see also N.Y. Times Co. v. Nat’l Aeronautics & Space Admin., 920 F.2d 1002, 1006
(D.C. Cir. 1990) (explaining that “the threshold for application of Exemption 6 is
crossed if the information merely applies to a particular individual” (internal quotation
marks and citation omitted)). Meanwhile, Exemption 7(C) permits the withholding of
“records or information compiled for law enforcement purposes . . . to the extent that
9 the production of such law enforcement records or information . . . could reasonably be
expected to constitute an unwarranted invasion of personal privacy[.]” 5 U.S.C.
§ 552(b)(7)(C). Thus, both exemptions protect personal privacy interests, but
Exemption 7(C) is “somewhat broader” than Exemption 6, as the latter authorizes only
the withholding of information that would constitute a “clearly unwarranted invasion of
personal privacy.” Roth v. U.S. Dep’t of Just., 642 F.3d 1161, 1173 (D.C. Cir. 2011)
(emphasis added) (internal quotation marks and citation omitted). Consequently, when
the information that an agency withholds was “‘compiled for law enforcement
purposes,’ [thereby] implicating Exemption 7(C),” a court need not “consider
Exemption 6 separately because all information that would fall within the scope of
Exemption 6 would also be immune from disclosure under Exemption 7(C).” Id.
In the instant case, Parisien avers (and Kovalevich does not dispute) that all of
the responsive documents “were part of criminal investigation case files concerning”
Kovalevich, and that they were “compiled for law enforcement purposes, pursuant to
the Indian Law Enforcement Reform Act . . . and Indian Country Law Enforcement
regulations contained in 25 C.F.R. part 12.” (Parisien Decl. ¶ 5.) Therefore, the Court
will address the withholdings only in the context of what Exemption 7(C) permits. That
evaluation requires the Court to “balance the public interest in disclosure against the
privacy interest the exemption is intended to protect.” Moore v. Bush, 601 F. Supp. 2d
6, 14 (D.D.C. 2009). And with respect to the personal privacy interests of individuals
referenced in law enforcement documents, the D.C. Circuit has “long recognized” that
the “mention of an individual’s name in a law enforcement file will engender comment
and speculation and carries a stigmatizing connotation.” Roth, 642 F.3d at 1174
10 (internal quotation marks and citations omitted). For that reason, it is well established
that the “targets of law-enforcement investigations” as well as the “witnesses,
informants, and . . . investigating agents have a substantial interest in ensuring that their
relationship to the investigations remains secret.” Id. (internal quotation marks and
citations omitted); accord Nation Mag. v. U.S. Customs Serv., 71 F.3d 885, 896 (D.C.
Cir. 1995) (citing “a long line of FOIA cases holding that disclosure of the identities of
private citizens mentioned in law enforcement files constitutes an unwarranted invasion
of privacy and is thus exempt under 7(C)”).
Here, Parisien’s declaration states that “[c]ertain personal identifying
information that may invade the privacy interest of the victim, witnesses, or criminal
investigators [involved in Kovalevich’s case], was withheld” (Parisien Decl. ¶ 6), and
the accompanying Vaughn index confirms that various documents responsive to
Kovalevich’s request contained individuals’ names, photos, and phone numbers (see
Vaughn Index at 1–5). Consistent with the precedents of this jurisdiction, this Court
agrees with the Bureau that releasing such personal identifying information could
“reasonably be expected to constitute an unwarranted invasion of personal privacy,” 5
U.S.C. § 552(b)(7)(C), and Kovalevich has not identified any public interest in
disclosure of this information, let alone challenged the Bureau’s redactions (see Pl.’s
Combined Reply at 4). Accordingly, the Court finds that the Bureau properly withheld
third-party information under FOIA Exemption 7(C).
3. The Bureau’s Production Satisfied The FOIA’s Segregability Requirement
The FOIA mandates that “non-exempt portions of a document must be disclosed
unless they are inextricably intertwined with exempt portions.” Mead Data Cent., Inc.
11 v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977); see also 5 U.S.C.
§ 552(b). “Agencies are entitled to a presumption that they complied with the
obligation to disclose reasonably segregable material[,]” and “[i]f the requester
successfully rebuts this presumption, the burden lies with the government to
demonstrate that no segregable, nonexempt portions were withheld.” Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). With respect to the instant
production, the Bureau has withheld in full only two pages—consisting of photos and
an agent’s investigative notes—on the ground that they contain personal information
protected under FOIA Exemptions 6 and 7(C). (See Vaughn Index at 1, 3.) The Bureau
then released the remaining responsive records to Kovalevich either in part or in full,
and the Vaughn Index specifies the documents that were redacted to protect personal
information of third parties. (See id. at 1–8; see also Defs.’ Statement of Undisputed
Material Facts ¶¶ 3–4; Pl.’s Statement of Undisputed Material Facts ¶¶ 10–12.)
In light of the agency’s Vaughn Index, and the fact that Kovalevich has not made
any effort to rebut the presumption of compliance afforded to the agency’s segregation
of materials, this Court finds that the Bureau has satisfied its duty to release all
reasonably segregable, non-exempt information. As a result, the Court concludes that
the Bureau is entitled to summary judgment with respect to Kovalevich’s basic FOIA
claims.
B. Kovalevich Is Not Entitled To Summary Judgment With Respect To His Residual Requests
Kovalevich concedes that he is satisfied with the Bureau’s production of records
and does not contest any of the Bureau’s redactions or withholdings, but he still
challenges the Bureau’s response to his FOIA request in two respects, which the Court
12 construes as legal claims with respect to which Kovalevich has requested summary
judgment. First, Kovalevich maintains that the Bureau missed the statutory deadlines to
respond to his FOIA request and his administrative appeals, and, as a result, Kovalevich
asks the Court to enter an order forbidding the Bureau from assessing any search fees in
connection with his request. (See Pl.’s Combined Reply at 4.) Second, Kovalevich
asserts that the Bureau has engaged in “invalid practices of ignoring FOIA requests and
appeals and of claiming that [the FOIA’s response deadline] does not apply until [it]
respond[s] to the request.” (Id. at 5.) 3 In order to obtain summary judgment on either
of these claims, Kovalevich must demonstrate that “the pleadings, materials on file, and
affidavits ‘show that there is no genuine issue as to any material fact and that [he] is
entitled to a judgment as a matter of law.’” Rodriguez v. Dep’t of Def., 236 F. Supp. 3d
26, 35 (D.D.C. 2017) (quoting Fed. R. Civ. P. 56(a)). Under this standard, “[a] fact is
‘material’ if it is capable of affecting the substantive outcome of the litigation[,]” and a
“dispute is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Am. Ctr. for L. & Just. v. U.S. Dep’t of State, 289 F. Supp.
3d 81, 85–86 (D.D.C. 2018). Additionally, although Kovalevich is proceeding pro se in
this matter, and thus the Court must construe his pleadings “liberally[,]” Erickson v.
3 In his complaint, Kovalevich appears to assert these claims under both the FOIA and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. (See Compl. ¶¶ 22–27.) Kovalevich has not pursued his APA claim in any of his briefing, however, and the Court does not have jurisdiction to review his claims under the APA in any event. The APA “only authorizes judicial review when the agency action is final and there is no adequate remedy[,]” and, in this case, the FOIA provides an adequate remedy for each of Kovalevich’s claims. Inst. for Pol’y Stud. v. CIA, 885 F. Supp. 2d 120, 153–54 (D.D.C. 2012) (holding that plaintiff’s claim under the APA regarding the agency’s alleged violation of the FOIA was unreviewable, because the FOIA provided an adequate remedy for plaintiff’s claim); see also Nat’l Sec. Couns. v. CIA, 898 F. Supp. 2d 233, 264–66 (D.D.C. 2012) (holding that the court lacked subject matter jurisdiction to review plaintiff’s claims under the APA regarding the agency’s alleged policies or practices “in connection with the processing of the plaintiff’s FOIA requests[,]” because the FOIA offered an adequate remedy for such claims (internal quotation marks and citation omitted)). This Court will therefore evaluate Kovalevich’s claims only under the FOIA.
13 Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal quotation marks and citation
omitted), Kovalevich must still abide by the Federal Rules of Civil Procedure, Sturdza
v. United Arab Emirates, 658 F. Supp. 2d 135, 137 (D.D.C. 2009), which means he
must identify record evidence that establishes each element of his claims for relief,
Grimes v. District of Columbia, 794 F.3d 83, 94 (D.C. Cir. 2015).
Applying these standards here, the Court concludes that summary judgment is
not warranted on either of Kovalevich’s claims.
1. The Bureau Has Produced The Requested Records Without Assessing Search Fees; Therefore, This Court Lacks Jurisdiction To Issue An Order Concerning Any Such Assessment
Starting with Kovalevich’s claim regarding the agency’s assessment of search
fees, it is well established that federal courts lack the power to “decide questions that
cannot affect the rights of litigants in the case before them.” Better Gov’t Ass’n v.
Dep’t of State, 780 F.2d 86, 90–91 (D.C. Cir. 1986) (internal quotation marks and
citation omitted). Thus, when “an intervening circumstance deprives the plaintiff of a
personal stake in the outcome of the lawsuit, at any point during litigation, the [claim]
can no longer proceed and must be [denied] as moot.” Cause of Action Inst. v. U.S.
Dep’t of Just., 282 F. Supp. 3d 66, 77 (D.D.C. 2017) (internal quotation marks and
citation omitted).
So it is here. At the time Kovalevich filed the instant lawsuit, the Bureau had
not yet produced any responsive records, but it had expressed an intent to assess search
fees for Kovalevich’s request. (See Ex. 2 to Compl. at 3–4; Compl. ¶¶ 9, 18.) Then,
during the pendency of the litigation, the Bureau released the responsive documents to
Kovalevich—and it did so free of charge. (See Pl.’s Combined Reply at 4.)
Kovalevich’s challenges to the Bureau’s previously stated intent to assess fees became
14 moot once the agency produced the responsive records “without seeking payment from
him[.]” Hall v. CIA, 437 F.3d 94, 99 (D.C. Cir. 2006) (holding that a plaintiff’s
challenge to a denial of a fee waiver became moot when the agency released the
responsive documents “without seeking payment”). And because the “rule against
deciding moot cases forbids federal courts from rendering advisory opinions[,]” id., this
Court has no basis to even consider whether the Bureau’s initial determination
regarding search fees was unlawful, see Schoenman v. FBI, 573 F. Supp. 2d 119, 136
(D.D.C. 2008).
To the extent that Kovalevich seeks an order declaring that the Bureau is not
permitted to charge him any search fees in the future, the Court also lacks jurisdiction
to proceed, on the ground that Kovalevich does not have standing to pursue that request.
In order to invoke this Court’s jurisdiction to obtain such an order, Kovalevich must
demonstrate, inter alia, that he will suffer the “invasion of a legally protected interest
which is (a) concrete and particularized[,] and (b) actual or imminent, not conjectural or
hypothetical[.]” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation
marks and citations omitted). Kovalevich has not provided this Court with any reason
to believe that the Bureau will assess search fees in connection with the FOIA request
that it has already processed (indeed, the agency has apparently made no attempt to
charge Kovalevich since it produced the responsive records in October of 2018) and,
therefore, Kovalevich has failed to establish any concrete, imminent injury that would
give him standing to pursue his requested relief. See, e.g., Clapper v. Amnesty Int’l
USA, 568 U.S. 398, 409 (2013) (“[W]e have repeatedly reiterated that threatened injury
must be certainly impending to constitute injury in fact, and that [a]llegations
15 of possible future injury are not sufficient.” (internal quotation marks and citation
omitted)).
Consequently, the Court must deny Kovalevich’s summary judgment motion with
respect to his claim concerning the alleged assessment of search fees.
2. Kovalevich Has Not Demonstrated That The Agency Has A Policy Or Practice Of Ignoring FOIA Requests And Disregarding The Statute’s Response Deadlines
The Court also finds that Kovalevich is not entitled to summary judgment
regarding his claim that the Bureau has a policy or practice of violating the FOIA. In
this jurisdiction, FOIA requesters may “bring, in conjunction with [a] specific
information request, ‘a claim that an agency policy or practice will impair the party’s
lawful access to information in the future.’” Am. Ctr. for L. & Just. v. U.S. Dep’t of
State, 249 F. Supp. 3d 275, 281 (D.D.C. 2017) (emphasis omitted) (quoting Newport
Aeronautical Sales v. Dep’t of Air Force, 684 F.3d 160, 164 (D.C. Cir. 2012)). Any
such “policy or practice” claim can be based upon “informal agency conduct resulting
in long delays in making requested non-exempt records available[.]” Jud. Watch, Inc.
v. U.S. Dep’t of Homeland Sec., 895 F.3d 770, 777–78 (D.C. Cir. 2018). And to
succeed on such a claim, a plaintiff must demonstrate, at the very least, that the
agency’s delay is due to a policy or practice, and not “isolated mistakes by agency
officials[.]” Am. Ctr. for L. & Just. v. FBI, 470 F. Supp. 3d 1, 6 (D.D.C. 2020) (internal
quotation marks and citation omitted).
Here, Kovalevich asserts that the “undisputed facts show that [the Bureau] did
not produce the requested records until October 2018, nearly two years after [his]
original FOIA request, and only after a Complaint was filed . . . in this Court.” (Pl.’s
Combined Reply at 5.) Kovalevich further emphasizes that the Department of the
16 Interior has not responded to his appeals, despite having received his appeal letters.
(Id.) These facts may well demonstrate the agency’s failure to respond to Kovalevich
in a timely manner, but the Court concludes that they do not—on their own—establish
an underlying policy or practice “to delay requests.” Am. Ctr. for L. & Just., 289 F.
Supp. 3d at 87 (internal quotation marks and citation omitted); see also id. (noting that
“[d]elay alone, even repeated delay, is not the type of illegal policy or practice that is
actionable” under the FOIA (internal quotation marks and citation omitted)).
In the absence of any evidence indicating that the Bureau has adopted a formal or
informal policy of delaying responses to FOIA requests, the Court lacks any factual
basis to enter summary judgment in Kovalevich’s favor. Therefore, the Court denies
Kovalevich’s motion for summary judgment with respect to this claim as well.
3. Kovalevich’s Other Requests For Relief Cannot Be Granted For Various Reasons
Kovalevich’s summary judgment motion also argues that the Court should
“explicitly declare the Agency’s actions to be in violation of the FOIA[,]” and that the
Bureau’s “arbitrary and capricious” actions merit referral to the Special Counsel for
investigation. (Pl.’s Mot. at 4; Pl.’s Combined Reply at 5.) Given the cursory nature of
these arguments, the Court has not construed them as legal claims. But even if it had,
the Court finds that Kovalevich has not come close to demonstrating his entitlement to
either of these requests for relief for three reasons.
First, to the extent that Kovalevich is seeking a declaratory judgment regarding
the Bureau’s intended assessment of fees or its failure to timely disclose responsive
records, those issues are now moot given that the agency has released records without
charging Kovalevich any fees. See Hall, 437 F.3d at 99; see also Bayala v. U.S. Dep’t
17 of Homeland Sec., 827 F.3d 31, 35 (D.C. Cir. 2016). Kovalevich’s argument that the
Bureau acted in an arbitrary and capricious manner—specifically, when it “attempted to
assign search fees” and “ignored” Kovalevich’s FOIA request and appeals (Pl.’s
Combined Reply at 5)—is also moot in light of the agency’s release of records at no
cost. See, e.g., 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.”).
Second, if Kovalevich is seeking a declaratory judgment in connection with his
claim that the Bureau has engaged in an “invalid practice[]” (Pl.’s Combined Reply at
5), that claim fails for the reasons explained in Part II.B.2, supra. In short, Kovalevich
has not provided any evidence that the Bureau has a policy or practice of ignoring
FOIA requests and disregarding the statute’s response deadlines. See Am. Ctr. for L. &
Just., 289 F. Supp. 3d at 87.
Third, and finally, with respect to Kovalevich’s request for a Special Counsel
investigation, it is not at all clear that private litigants have a cause of action under the
FOIA to seek such an investigation, and, in any event, none of the statutory predicates
for a Special Counsel investigation are present in this case. See 5 U.S.C.
§ 552(a)(4)(F)(i) (describing the circumstances necessary to trigger a Special Counsel
investigation under the FOIA).
C. Attorney’s Fees Are Not Available Because Kovalevich Is Proceeding Pro Se, And Kovalevich Has Not Presented His Argument For Litigation Costs Adequately
Lastly, in addition to making the claims previously discussed, Kovalevich’s
motion for summary judgment also requests an award of attorney’s fees and costs. (See
Pl.’s Mot. at 4; Pl.’s Combined Reply at 6.) To recover such an award, Kovalevich
18 must demonstrate that he substantially prevailed in the litigation, and that he is entitled
to attorney’s fees and costs. See Kretchmar v. FBI, 882 F. Supp. 2d 52, 58 (D.D.C.
2012).
The Court must deny Kovalevich’s request for attorney’s fees and costs at this
point in the litigation. First of all, as a “pro se non-attorney[,]” Kovalevich is ineligible
to receive attorney’s fees under the FOIA. Benavides v. Bureau of Prisons, 993 F.2d
257, 260 (D.C. Cir. 1993). It is true that pro se litigants may recover litigation costs in
appropriate circumstances, see, e.g., Kretchmar, 882 F. Supp. 2d at 58, but Kovalevich
has not briefed his eligibility or entitlement to litigation costs adequately, see id. at 58–
59 (explaining the factors that must be met in order to award litigation costs under the
FOIA). Additionally, requests for litigation costs must typically “be styled as a
motion” that sets forth detailed arguments for why the plaintiff believes such costs are
warranted. Gerhard v. Fed. Bureau of Prisons, 258 F. Supp. 3d 159, 164 (D.D.C.
2017).
Accordingly, the Court will deny Kovalevich’s request for attorney’s fees and
costs (which is raised in the context of his summary judgment brief), but it does so
without prejudice, and the Court will permit Kovalevich to renew his request for costs
in a post-judgment motion, should he choose to do so.
III. CONCLUSION
For the foregoing reasons, and as set forth in the Order that accompanies this
Memorandum Opinion, the Court concludes that the Bureau has discharged its duties
under the FOIA, and that the Bureau’s motion for summary judgment must be
GRANTED as a result. The Court has also determined that Kovalevich has failed to
19 demonstrate his entitlement to judgment as a matter of law in any respect, and that,
therefore, his motion for summary judgment must be DENIED. Consequently, the
Clerk will be directed to close this case, but if Kovalevich wishes to reassert his request
for litigation costs, he may file a post-judgment motion that directly addresses the D.C.
Circuit’s standards for awarding costs under the FOIA.
DATE: June 14, 2021 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge