Singh v. United States Postal Service

MOTION for Summary Judgment and Motion for Protective Order and Stay of Discovery

W.D. Wash.June 1, 2017

Motion for Summary Judgment and Motion for A Protective Order and Stay of Discovery - 1 C17-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Honorable John C. Coughenour UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE KEERUT SINGH, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant. CASE NO. 2:17-cv-0233-JCC MOTION FOR SUMMARY JUDGMENT AND MOTION FOR A PROTECTIVE ORDER AND STAY OF DISCOVERY Noted for Consideration: June 23, 2017 COMES NOW Defendant, United States Postal Service, by Annette L. Hayes, United States Attorney for the Western District of Washington, and by Tricia Boerger, Assistant United States Attorneys for that district, and hereby moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment. This Motion is supported by the Declarations of Tricia Boerger, Janine Castorina, Kimberly Mungin and Robert Fullerton. // Case 2:17-cv-00233-JCC Document 22 Filed 06/01/17 Page 1 of 20 Motion for Summary Judgment and Motion for A Protective Order and Stay of Discovery - 2 C17-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Plaintiff seeks documents from the United States Postal Service (“USPS”) pertaining to his own background investigation and personnel file. Pursuant to Plaintiff’s requests under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, the USPS conducted a reasonable search for and produced 46 pages of responsive records. Plaintiff maintains that the USPS failed to conduct a reasonable search or produce additional responsive records that he believes the USPS has in its possession. The USPS maintains that, after conducting a reasonable and diligent search, it has not located or withheld any additional responsive records. Additionally, Plaintiff has attempted to propound three sets of discovery requests on the USPS, for which the USPS seeks a protective order and stay of discovery to allow the Court to first consider this motion for summary judgment and any response from Plaintiff. II. STATEMENT OF FACTS A. Plaintiff’s FOIA Requests Plaintiff submitted three separate FOIA requests to three components of the USPS, including the Office of Inspector General, Postal Inspection Service and the Postal Service. Each component timely responded to Plaintiff’s requests, producing all records located in the search. Plaintiff appealed each response and a separate individual or office within the USPS considered the appeals. Plaintiff has now exhausted all administrative remedies and has received all documents that the USPS located in its search. Case 2:17-cv-00233-JCC Document 22 Filed 06/01/17 Page 2 of 20 Motion for Summary Judgment and Motion for A Protective Order and Stay of Discovery - 3 C17-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Office of Inspector General Request On October 18, 2016, Plaintiff submitted a FOIA request to the Office of Inspector General (“OIG”) requesting his own background check records, application documents, safety records, driving records, employee performance evaluations and any investigations of him conducted by the OIG. Declaration of Robert Fullerton (“Fullerton Decl.”) at ¶ 5. The OIG searched its indices for responsive records stored under Plaintiff’s name. Id. at ¶ 6. The OIG determined that Plaintiff had been a Postal Service employee. Id. OIG is not the custodian of records for and does not control Postal Service personnel and background investigation files. Id. The OIG responded to Plaintiff on November 3, 2016 and explained that background investigations are conducted by the Postal Inspection Service and other records related to employment are maintained by the Postal Service. Fullerton Decl., Exhibit A. The OIG provided the mailing and FOIA email addresses for both the Postal Inspection Service and the Postal Service and advised Plaintiff that his FOIA request must be submitted directly to them. Id. On November 4, 2016, Plaintiff appealed the OIG response. Id. at ¶ 8. By letter dated November 14, 2016, the OIG responded to Plaintiff’s appeal and explained that OIG did not possess the requested records. Fullerton Decl., Exhibit B. 2. Postal Inspection Service Request On November 3, 2016, Plaintiff submitted a FOIA request to the Postal Inspection Service in which he requested all background records obtained before and during his employment. Declaration of Kimberly Mungin (“Mungin Decl.”), Exhibit A. The Case 2:17-cv-00233-JCC Document 22 Filed 06/01/17 Page 3 of 20 Motion for Summary Judgment and Motion for A Protective Order and Stay of Discovery - 4 C17-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 following day, Plaintiff indicated that he was a former City Carrier Assistant 1 (“CCA1”) for the Postal Service. Mungin Decl. at ¶ 6. The Postal Inspection Service did not conduct background investigations of CCA1s at the time Plaintiff sought employment with the Postal Service and therefore, the Postal Inspection Service would not be the custodian of records responsive to Plaintiff’s request. Id. Nonetheless, the Postal Inspection Service conducted a search of its Inspection Service Integrated Information System, which contains records related to investigations by name, social security number, case number, address, physical characteristics, and employment and payroll information maintained by the Postal Inspection Service. Id. at ¶ 7. On November 16, 2016, the Postal Inspection Service conducted a search of this database by Plaintiff’s name and date of birth. Id. at ¶ 8. The search did not result in any responsive records. Id. at ¶ 9. By letter dated November 17, 2016, the Postal Inspection Service notified Plaintiff that it did not find records of any background investigation conducted by the Postal Inspection Service. Mungin Decl., Exhibit B. Plaintiff appealed the Postal Inspection Service’s response. Mungin Decl., Exhibit C. On January 12, 2017, the Federal Compliance Section of the USPS, which handles all Postal Inspection Service and Postal Service FOIA appeals, affirmed the initial decision, indicating that it did not have any background investigation records related to Plaintiff and advised that the Postal Inspection Service did not conduct a background investigation of Plaintiff. Mungin Decl., Exhibit D. // // Case 2:17-cv-00233-JCC Document 22 Filed 06/01/17 Page 4 of 20 Motion for Summary Judgment and Motion for A Protective Order and Stay of Discovery - 5 C17-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Postal Service Request On December 3, 2016, Plaintiff submitted a FOIA/Privacy Act request to the Postal Service, requesting essentially the same documents he sought from the OIG. Declaration of Janine Castorina (“Castorina Decl.”), Exhibit A. The Postal Service determined that the Seattle District was most likely to have responsive records since Plaintiff was employed in that District. Castorina Decl. at ¶ 6. The records custodian for the Seattle District conducted a search of documents maintained by the Human Resources Shared Service Center, which includes documents maintained in an employee’s Official Personnel File or eOPF. Id. at ¶ 7. The District also conducted a search of the District-level Human Resources Department and Labor Relations Office for responsive documents. Id. On December 13, 2016, the Postal Service responded to Plaintiff’s request and provided copies of 43 pages of responsive records. Castorina Decl., Exhibit B. Plaintiff filed an appeal of the Postal Service’s response. Castorina Decl., Exhibit D. After an investigation, the Office of Federal Compliance for the USPS determined that, although appropriate electronic records were searched in the initial response, some documents may have been maintained by the local Post Office where Plaintiff was employed. Id. at ¶ 11. On February 7, 2017, the Office of Federal Compliance notified Plaintiff that the matter had been remanded for an additional search for responsive records. Castorina Decl., Exhibit E. In a letter dated March 13, 2017, the Postal Service responded to the remand by providing three additional documents maintained by the Mill Creek Post Office to Plaintiff. Id. at ¶ 12 and Exhibit F. Case 2:17-cv-00233-JCC Document 22 Filed 06/01/17 Page 5 of 20 Motion for Summary Judgment and Motion for A Protective Order and Stay of Discovery - 6 C17-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In addition to the searches conducted during the initial response and remand, the Postal Service’s Chief Privacy and Records Management Officer requested that the Postal Service Human Resource Manager at Headquarters conduct an investigation in an effort to locate and produce any additional responsive documents not previously provided to Plaintiff. Id. at ¶ 13. Joseph R. Bruce conducted the investigation. Id. Mr. Bruce has access to all human resource records and databases throughout the Postal Service. Id. Mr. Bruce was given copies of all documents already provided to Plaintiff. Id. Mr. Bruce conducted a thorough search of all Postal Service databases in an effort to locate additional documents. Mr. Bruce searched databases that contain records identified by Postal Service System of Records (“SOR”), 100.000, which contains employee, former employee, and family member information, such as name, social security number, Employee Identification Number, date of birth, duty location, and pay location. Id. at ¶ 14. The system also contains the eOPF, as well as personnel actions, such as letters of warning, notice of removal, health benefit elections, tax withholdings, non-bargaining unit employee discipline, grievance, and appeals records, job bidding records, and biographical summaries. Id. Mr. Bruce did not find any additional records in his search of the appropriate databases. Id. Mr. Bruce also searched databases that contain records identified by the Postal Service SOR 100.100, which contains applicant records, pre-employment investigation information such as criminal, employment, military, and driving records, drug screening and medical assessment results and Special Agency Check with Inquiries (SACI) records, Case 2:17-cv-00233-JCC Document 22 Filed 06/01/17 Page 6 of 20 Motion for Summary Judgment and Motion for A Protective Order and Stay of Discovery - 7 C17-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 tests results, interview documentation, and sustainability screening. Id. at ¶ 15. Mr. Bruce did not find any additional records in his search of the appropriate databases. Id. Mr. Bruce searched databases that contain records identified by SOR 100.200, which contains any records of postal assignments, work contact information, finance number, duty location, pay location and records related to individual performance evaluation, reports about supervisors and managers who are responsible for a work location, employee recognition and safe driver awards. Id. at ¶ 16. Mr. Bruce did not find any additional records in his search of the appropriate databases. Id. Mr. Bruce further searched databases that contain records identified by SOR 100.300, which contains employee development and training information, including records related to career development, work history, assessments, skills bank participation, training, examinations and evaluations of training. Id. at ¶ 17. Mr. Bruce did not find any additional records in his search of the appropriate databases. Id. Finally, Mr. Bruce searched databases that contain records identified by SOR 100.400, which contains records related to payroll, deductions, compensation, benefits, uniforms, proposals and decisions related to monetary awards, injury compensation and claims for personal property loss or damage. Id. at ¶ 18. Mr. Bruce did not find any additional records in his search of the appropriate databases. Id. Mr. Bruce also confirmed that the Postal Service does not gather or retain documentation of employment references. Id. at ¶ 21. He also noted that driving records in Washington State have been difficult to obtain from state officials and did not find any Case 2:17-cv-00233-JCC Document 22 Filed 06/01/17 Page 7 of 20 Motion for Summary Judgment and Motion for A Protective Order and Stay of Discovery - 8 C17-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 such records relating to Plaintiff. Id. at ¶ 22. After conducting a search of all databases where responsive records would be expected to be found, Mr. Bruce did not identify any responsive records that had not been previously provided to Plaintiff. Id. at ¶ 19. On February 14, 2017, Plaintiff filed a Complaint in this matter asserting that the USPS failed to provide access to his records and failed to conduct a reasonable and timely search for responsive records. Dkt. No. 1. Plaintiff has requested an order requiring the USPS to provide all background check and personnel file records, as well as $1600.00 compensation for harm caused and court fees. Id. The USPS filed an answer denying that it had any additional responsive documents to Plaintiff’s FOIA requests. Dkt. No. 13. B. Plaintiff’s Discovery Requests Plaintiff has attempted to propound Requests for Admission on the USPS on three occasions. On March 30, 2017, Plaintiff filed a Motion to Compel and attached Requests for Admission. Dkt. No. 14. Plaintiff did not separately serve the requests on the USPS, other than as an attachment to his motion. Boerger Decl. at ¶ 2. By Order dated May 11, 2017, the Court denied Plaintiff’s Motion to Compel for three reasons: (1) Plaintiff’s motion is premature and procedurally inappropriate; (2) discovery is rare and limited in FOIA cases; and (3) the requests are unrelated to his claims. Dkt. No. 19. On May 1, 2017, Plaintiff emailed a duplicate set of Requests for Admission to government counsel, indicating that it was “the second service as the first was completed on March 30, 2017.” Boerger Decl., Exhibit A. On May 15, 2017, Plaintiff emailed a new set of Requests for Admission to government counsel. Boerger Decl., Exhibit B. Plaintiff’s Case 2:17-cv-00233-JCC Document 22 Filed 06/01/17 Page 8 of 20 Motion for Summary Judgment and Motion for A Protective Order and Stay of Discovery - 9 C17-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 requests seek to have the USPS admit that it “collects, maintains, and stores” certain records, including among other things, background investigations, applications, driving/safety records, performance records and separation records about all USPS employees. Id. III. ARGUMENT AND AUTHORITY A. Freedom of Information Act The ultimate issue in a FOIA action is whether the government has: (1) improperly; (2) withheld; (3) agency records. Kissinger v. Reporters Com’tee for Freedom of the Press, 445 U.S. 136, 150 (1980). This is a question of law for the Court, rather than a question of fact for a trier of fact and thus, “[s]ummary judgment is the procedural vehicle by which nearly all FOIA cases are resolved.” Shannahan v. I.R.S., 637 F.Supp.2d 902, 912 (W.D. Wa. 2009)(quoting Los Angeles Times Commc’ns, LLC v. Dept. of the Army, 442 F.Supp.2d 880, 893 (C.D. Cal. 2006). Unlike a typical summary judgment analysis, in a FOIA case the facts are rarely in dispute, thus the Court need not determine whether there is a genuine issue of material fact. Id. Instead, courts follow a two-step inquiry. Id. First, courts must evaluate whether the agency has conducted a search that is “reasonably calculated to uncover all relevant documents.” Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985). The agency bears the burden of showing that it has conducted a search reasonably calculated to uncover all relevant documents. Weisberg v. U.S. Dept. of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983). In meeting this burden, an agency must show that it has conducted a diligent search for the requested documents in places where Case 2:17-cv-00233-JCC Document 22 Filed 06/01/17 Page 9 of 20 Motion for Summary Judgment and Motion for A Protective Order and Stay of Discovery - 10 C17-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 they might be expected to be found. Chamberlain v. U.S. Dept. of Justice, 957 F. Supp. 292, 294 (D.D.C. 1997), aff’d, 124 F.3d 1309 (D.C. Cir. 1997)(internal citations omitted). The government may rely upon “reasonably detailed” and “non-conclusory” affidavits to show that it has conducted a reasonable search. Id. at 1351 (citations omitted). “[A]ffidavits describing agency search procedures are sufficient for purposes of summary judgment only if they are relatively detailed in their description of the files searched and the search procedures, and if they are nonconclusory and not impugned by evidence of bad faith.” Zemansky, 767 F.2d at 573. Such affidavits may be made by any individual supervising an agency’s search. Carney v. Dept. of Justice, 19 F.3d 807, 814 (2d Cir. 1994). On summary judgment, “[t]he issue is not whether any further documents might conceivably exist, but rather whether the government’s search for responsive documents was adequate.” Weisberg, 705 F.2d at 1351; quoting Perry v. Block, 684 F.2d 121, 128 (D.C. Cir.1982)(emphasis in original). “It is well established that ‘[a]gency affidavits enjoy a presumption of good faith that withstands purely speculative claims about the existence and discoverability of other documents.’” Chamberlain, 957 F. Supp. at 294. Second, if the agency satisfies this burden, then the court must determine whether the agency has proven that information it did not disclose falls within one of the nine FOIA exemptions. This second step is not applicable in this case, as the USPS has not withheld documents or asserted that any documents are subject to a FOIA exemption. // // Case 2:17-cv-00233-JCC Document 22 Filed 06/01/17 Page 10 of 20 Motion for Summary Judgment and Motion for A Protective Order and Stay of Discovery - 11 C17-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Privacy Act The Privacy Act, 5 U.S.C. § 552a, was enacted to protect the privacy of individuals by regulating the collection, maintenance, use, and dissemination of personal information by federal agencies. Rouse v. U.S. Dept. of State, 567 F.3d 408, 413 (9th Cir. 2009). There are two types of actionable claims under the Privacy Act: “accuracy” claims and “access” claims. Id. at 413-414. The accuracy provisions of the Privacy Act, 5 U.S.C. §§ 552a(e)(5) and (e)(6), require federal agencies to maintain and disseminate records used in making a determination about an individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual. Id. at 414. The Privacy Act provides civil remedies for violation of the accuracy provisions. See 5 U.S.C. § 552a(g)(1)(C). The access provision, 5 U.S.C. § 552a(d)(1), requires federal agencies to provide an individual access to his or her records upon request. However, the Privacy Act provides access only to records maintained in a “system of records,” which is defined as “a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.” 5 U.S.C. § 552a(a)(5). This limitation protects federal agencies from the burden of searching through all agency records for the mere mention of an individual. Bettersworth v. F.D.I.C., 248 F.3d 386, 391 (5th Cir. 2001). A violation of the access provision may also be enforced by civil action. 5 U.S.C. § 552a(g)(1)(B). In an access claim action, the Court is authorized to enjoin the agency from withholding records and order the production of any agency records improperly withheld. Case 2:17-cv-00233-JCC Document 22 Filed 06/01/17 Page 11 of 20 Motion for Summary Judgment and Motion for A Protective Order and Stay of Discovery - 12 C17-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 U.S.C. § 552a(g)(3)(A). The Court may also award reasonable attorney fees and litigation costs reasonable incurred to a plaintiff who substantially prevails in the action. 5 U.S.C. § 552a(g)(3)(B). Monetary damages are only permitted in actions maintained under 5 U.S.C. § 552a(g)(1)(C) or (g)(1)(D), in which the Court determines that the agency acted in an intentionally or willful manner, and where a specific “adverse determination” or “adverse effect” is alleged in the complaint. See e.g. Doe v. Chao, 540 U.S. 614, 620-623 (2004). C. The USPS Conducted a Reasonable Search to Uncover All Relevant Documents and Produced All Responsive Records Plaintiff has asserted that the USPS has unlawfully and purposely withheld responsive documents to his FOIA and PA requests. Dkt. No. 1 at pp. 1-2. He has asked the Court to order the USPS to provide all background check and personnel file records being withheld within 10 business days and for $1600.00 in compensation for unspecified harm caused to him. Id. at p. 6. 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. Grand Central Partnership v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999) (emphasis added) (quoting SafeCard Services, Inc. v. S.E.C., 926 F.2d 1197, 1201 (D.C. Cir. 1991)). “The fact that a document once existed does not mean that it now exists; nor does the fact that an agency created a document necessarily imply that the agency has retained it.” Miller v. U.S. Department of State, 779 F.2d 1378, 1385 (8th Cir. 1985). The Case 2:17-cv-00233-JCC Document 22 Filed 06/01/17 Page 12 of 20 Motion for Summary Judgment and Motion for A Protective Order and Stay of Discovery - 13 C17-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 failure of an agency “to turn up a particular document, or mere speculation that yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search for the requested record.” Wilbur v. CIA, 315 F.3d 675, 678 (D.C. Cir. 2004). In the absence of “countervailing evidence” or “substantial doubt,” agency affidavits or declarations describing a reasonable and adequate search are sufficient to demonstrate an agency’s compliance with FOIA. Valencia-Lucena v. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). The USPS has conducted several searches reasonably calculated to uncover all responsive documents to Plaintiff’s FOIA/PA requests. The OIG conducted a search, determined that Plaintiff was a former Postal Service employee, and then provided a response to Plaintiff’s FOIA request within 20 days to explain that background investigations are conducted by the Postal Inspection Service and other records related to employment are maintained by the Postal Service. Fullerton Decl. at ¶ 6. Plaintiff appealed that determination and within 10 days the OIG responded, confirming that it did not have custody or control of any responsive records and provided contact information for the Postal Inspection Service and Postal Service’s FOIA offices. Id. at ¶ 8. Plaintiff made a FOIA request to the Postal Inspection Service on the same date that the OIG notified him that it did not have responsive records, November 3, 2016. Mungin Decl. at ¶ 5. The Postal Inspection Service determined that it did not conduct background investigations for CCA1s in the time when Plaintiff was seeking employment. Id. at ¶ 6. Nonetheless, the Postal Inspection Service conducted a search of its Inspection Service Case 2:17-cv-00233-JCC Document 22 Filed 06/01/17 Page 13 of 20 Motion for Summary Judgment and Motion for A Protective Order and Stay of Discovery - 14 C17-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Integrated Information System where records related to background investigations would be located and confirmed that Plaintiff had not been the subject of a background investigation conducted by the Postal Inspection Service. Id. at ¶¶ 7-9. Plaintiff was notified of the results of the Postal Inspection Service’s search within 14 days. Id. at ¶ 10. In a letter dated December 1, 2016, Plaintiff appealed the Postal Inspection Service’s determination and on January 12, 2017, Federal Compliance notified Plaintiff that the initial decision was affirmed. Id. at ¶ 12. Two days after appealing the Postal Inspection Service’s initial response, Plaintiff submitted a FOIA and PA request to the Postal Service. Castorina Decl. at ¶ 6. The Postal Service referred the request to the Seattle District, where Plaintiff was employed, as the most likely location for responsive records. Id. The Seattle District conducted a thorough search of documents maintained by its Human Resources Shared Service Center, including Plaintiff’s entire eOPF or personnel file, as well as the Human Resources Department and Labor Relations Office. Id. at ¶ 7. The Postal Service responded to Plaintiff’s request within 10 days by providing 43 pages of responsive records found in its search. Id. at ¶ 8. Plaintiff’s request for records was granted in full meaning no documents were intentionally withheld or deemed exempt from disclosure. Id. at ¶ 9. Plaintiff appealed the Postal Service’s response in a letter dated December 26, 2016. Id. at ¶ 10. The Office of Federal Compliance determined, after an investigation, that additional records may be maintained by the Mill Creek Post Office where Plaintiff was employed and remanded the matter for Case 2:17-cv-00233-JCC Document 22 Filed 06/01/17 Page 14 of 20 Motion for Summary Judgment and Motion for A Protective Order and Stay of Discovery - 15 C17-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 an additional search. Id. at ¶ 11. In a letter dated March 13, 2017, three additional documents were produced to Plaintiff as responsive to his request. Id. at ¶ 12. Despite this thorough search, in light of Plaintiff’s insistence that additional records existed, the Postal Service undertook an additional investigation by its Human Resource Manager at Headquarters who has access to USPS Human Resources databases where responsive records may be found. Castorina Decl. at ¶ 13. Mr. Bruce’s search confirmed that no additional responsive records were found in the Postal Service’s records. Id. at ¶ 19. The three declarations submitted in support of this motion demonstrate that the USPS conducted thorough and reasonable searches of its databases where responsive records would be expected to be found and produced all identifiable records. Further, Plaintiff appealed each initial response and each was reviewed by a different individual or department within the USPS. The OIG and Postal Inspection Service affirmed the initial response, whereas the Postal Service’s response was remanded and resulted in the production of three additional documents. The Postal Service went even farther and conducted a subsequent investigation to ensure all responsive records had been produced. The Postal Service has confirmed that no additional documents have been found in all of the databases where responsive records would be expected to be found. Thus, the USPS has conducted a reasonable and adequate search for responsive records. Summary judgment in favor of the USPS is appropriate. // Case 2:17-cv-00233-JCC Document 22 Filed 06/01/17 Page 15 of 20 Motion for Summary Judgment and Motion for A Protective Order and Stay of Discovery - 16 C17-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. MOTION FOR PROTECTIVE ORDER AND STAY OF DISCOVERY As a general rule, discovery is not a part of FOIA cases and courts have disallowed discovery entirely, or permitted it only on a limited basis. Lane v. Dept. of Interior, 523 F.3d 1128, 1134 (9th Cir. 2008); see also Schiller v. INS, 205 F.Supp.2d 648, 653-54 (W.D. Tex. 2002) (Typically, discovery is not part of a FOIA case, but when permitted it is to be “sparingly granted”); Katzman v. Freeh, 926 F. Supp. 316, 319 (E.D.N.Y 1996) (“[D]iscovery in a FOIA action is extremely limited….”). In the rare instances when discovery is allowed by a district court in a FOIA case, that discovery is generally limited to information related to the adequacy of the agency’s search for responsive documents. See, e.g., Heily v. United States Dep’t of Commerce 69 F. App. 171, 174 (4th Cir. 2003) (explaining that when discovery is permitted, generally it is “limited to the scope of the agency’s search and its indexing and classification procedures.”); Pub. Citizen Health Research Group v. F.D.A., 997 F. Supp. 56, 72 (D.D.C. 1998) (holding that discovery is limited to “investigating the scope of the agency search for responsive documents, the agency’s indexing procedures, and the like.”), aff’d in part, rev’d in part & remanded on other grounds, 185 F.3d 898 (D.C. Cir. 1999). To qualify for an exception to the limited scope of discovery outlined above, the plaintiff in a FOIA case “must make a showing of bad faith on the part of the agency sufficient to impugn the agency’s affidavits or declarations.” Carney v. U.S. Dept. of Justice, 19 F.3d 807, 812 (2d Cir. 1994); see also Judicial Watch, Inc. v. Export Import Bank, 108 F.Supp.2d 19, 25 (D.D.C. 2000) (allowing discovery “under the rigorous Case 2:17-cv-00233-JCC Document 22 Filed 06/01/17 Page 16 of 20 Motion for Summary Judgment and Motion for A Protective Order and Stay of Discovery - 17 C17-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 supervision of a Magistrate Judge” concerning alleged illegal destruction and removal of records subsequent to a plaintiff’s FOIA request). Moreover, affidavits submitted by an agency are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims. Safecard Services, Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991). On March 30, 2017, Plaintiff attached numerous Requests for Admission to his Motion to Compel. Dkt. No. 14. Plaintiff did not separately serve these requests on the government. Boerger Decl. at ¶ 2. On May 1, 2017, Plaintiff emailed the same set of Requests for Admission to government counsel, asserting that it was a second service as the first was served on March 30, 2017. Boerger Decl. at ¶ 3. On May 15, 2017, Plaintiff emailed a new set of Requests for Admission to government counsel. Boerger Decl., Exhibit B. Plaintiffs new requests do not relate to the agency’s search for responsive documents to his FOIA request, but rather asks the USPS to admit that it collects, maintains and stores certain records related to all USPS employees. Id. First, Plaintiff’s discovery requests have not been properly served on the government in accordance with Fed. R. Civ. P. 5(b)(2), as the parties have not consented in writing to electronic service. Boerger Decl. at ¶¶ 2-4. Second, Plaintiff’s discovery requests are still premature, as the government has only now filed affidavits in support of its motion for summary judgment, so Plaintiff’s requests are not related to the agency’s search for responsive documents to his FOIA request. To qualify for an exception to the limited scope of discovery in a FOIA case, Plaintiff must first make a showing of bad faith on the part of the agency sufficient to impugn the agency’s affidavits. Carney, 108 Case 2:17-cv-00233-JCC Document 22 Filed 06/01/17 Page 17 of 20 Motion for Summary Judgment and Motion for A Protective Order and Stay of Discovery - 18 C17-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F.Supp.2d at 25. Conclusory allegations that other records exist is insufficient to show bad faith on the part of the agency. Plaintiff has not, indeed could not, yet meet this burden since the agency has not described its search efforts until now. Plaintiff should not be permitted to circumvent the scope of FOIA and pursue general information about the USPS that is unrelated to his FOIA request. Forsham v. Harris, 445 U.S. 169, 185 (1990). The USPS respectfully requests that the Court issue a protective order with respect to Plaintiff’s discovery requests and stay further discovery until the Court can consider the USPS’s motion for summary judgment. V. CONCLUSION As explained above, the government respectfully submits that it has fulfilled its FOIA obligations with respect to Plaintiff’s request and asks that the Court grant summary judgment in Defendant’s favor. The USPS additionally requests that the Court grant its motion for a protective order with respect to Plaintiff’s previous discovery requests and stay further discovery. DATED this 1st day of June, 2017. Respectfully submitted, ANNETTE L. HAYES United States Attorney s/ Tricia Boerger TRICIA BOERGER, WSBA No. 38581 Assistant United States Attorneys Western District of Washington United States Attorney’s Office 700 Stewart Street, Suite 5220 Case 2:17-cv-00233-JCC Document 22 Filed 06/01/17 Page 18 of 20 Motion for Summary Judgment and Motion for A Protective Order and Stay of Discovery - 19 C17-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Seattle, Washington 98101-1271 Phone: 206-553-7970 Email: tricia.boerger@usdoj.gov Case 2:17-cv-00233-JCC Document 22 Filed 06/01/17 Page 19 of 20 Motion for Summary Judgment and Motion for A Protective Order and Stay of Discovery - 20 C17-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE The undersigned hereby certifies that she is an employee in the Office of the United States Attorney for the Western District of Washington and is a person of such age and discretion as to be competent to serve papers; It is further certified that on June 1, 2017, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following CM/ECF participant(s): Keerut Singh keerut@comcast.net I further certify that on June 1, 2017, I mailed by United States Postal Service said pleading to the following non-CM/ECF participant(s)/CM/ECF participant(s), addressed as follows: -0- Dated this 1st day of June, 2017. s/ Julene Delo JULENE DELO, Paralegal United States Attorney’s Office 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 Phone: 206-553-7970 Fax: 206-553-4067 Email: julene.delo@usdoj.gov Case 2:17-cv-00233-JCC Document 22 Filed 06/01/17 Page 20 of 20 [[PROPOSED] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 2:17-cv-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Honorable John C. Coughenour UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE KEERUT SINGH, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant. CASE NO. 2:17-cv-0233-JCC [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This matter comes before the Court on Defendant, United States Postal Service’s Motion for Summary Judgment. The Court, has reviewed the pleadings and record in this case, and is otherwise fully advised. Therefore, it is hereby ORDERED that Defendant’s motion is GRANTED. Plaintiff’s Complaint is dismissed with prejudice and judgment shall be entered in favor of Defendant. DATED this ________ day of __________________, 2017. _______________________________ JOHN C. COUGHENOUR United States District Judge Case 2:17-cv-00233-JCC Document 22-1 Filed 06/01/17 Page 1 of 2 [[PROPOSED] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 2:17-cv-0233-JCC UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Presented By: ANNETTE L. HAYES United States Attorney s/ Tricia Boerger TRICIA BOERGER, WSBA #38581 Assistant United States Attorney Western District of Washington United States Attorney’s Office 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 Phone: 206-553-7970 Email: tricia.boerger@usdoj.gov Case 2:17-cv-00233-JCC Document 22-1 Filed 06/01/17 Page 2 of 2