Free Reply to Response to Motion - District Court of Colorado - Colorado

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01264-LTB-PAC MARY M. HULL, Plaintiff, v. UNITED STATES DEPARTMENT OF LABOR, Defendant.

DEFENDANT'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT WITH RESPECT TO CERTAIN ELECTRONIC DOCUMENTS AND SERVICE CONTRACTS, AND OPPOSITION TO PETITION FOR IN CAMERA REVIEW

Defendant, the United States Department of Labor ("DOL" or the "Department"), hereby replies to plaintiff Mary M. Hull's "Response in Opposition re [31] Defendant's January 31, 2006 Motion for Summary Judgment and Petition for In Camera Review" (hereafter, "Response"). Plaintiff does not contest defendant's assertion in its "Motion for Summary Judgment with Respect to Certain Electronic Documents and Service Contracts" (hereafter, "Motion") that certain responsive documents have been properly withheld from release under Exemptions 5 and 7(C) of the Freedom of Information Act ("FOIA"). Instead, plaintiff argues only that nine documents which defendant has

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asserted are not responsive to her FOIA request should be turned over. But these nine documents are no longer at issue. Defendant is turning over to plaintiff the majority of those nine documents in full, and plaintiff has indicated that she does not contest defendant's determination to withhold the remaining few documents on the grounds that they are exempt from release under Exemption 5 because they are attorney-client communications. Consequently, no issues in defendant's Motion remain for the Court's consideration. Plaintiff's petition for in camera review is moot, and defendant's Motion should be granted. I. STATEMENT OF FACTS

Defendant asserted in its Motion that it should be granted summary judgment with respect to certain electronic documents maintained on Investigator John Mayers' computer which are responsive to plaintiff's FOIA request. See Motion at 6-8.1 Defendant argued that these documents are exempt from release under FOIA Exemption 5. Id. Defendant also asserted in its Motion that the motion should be granted with respect to two minor redactions to service contracts that have otherwise been provided in full to plaintiff. Id. at 9-10. Defendant argued that these two redactions are proper under

The electronic documents being withheld under Exemption 5 are as follows: (1) nine quarterly case summaries, (2) "Weekly Report Topics"; (3) four drafts of the Tolling Agreement; (4) portions of the "Analysis of Appendix M"; and (5) the Senior Investigator's August 14, 2001 Memorandum to the File. See Motion at Miller 2d Supp. Dec. at ¶ 5. 2

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FOIA Exemption 7(C). Id. Plaintiff does not challenge in her Response these assertions. Nowhere in her Response does she address defendant's contention that the responsive documents are being properly withheld under the FOIA. Nor does she address defendant's reliance on Exemption 5 or Exemption 7(C) to withhold these documents. Rather, she argues that defendant should turn over to her nine additional electronic documents, located on Investigator Mayers' computer, which defendant has asserted in its Motion are not responsive to plaintiff's FOIA request. See Response at 1-3. But defendant has now determined to release to plaintiff six of the nine "nonresponsive" documents in full.2 Defendant has also determined to release a seventh document in full, but for the last paragraph which will be redacted pursuant to FOIA Exemption 5 because it constitutes an attorney-client communication and therefore is exempt from release under the attorney-client privilege. As for the eighth and ninth documents, those documents are, in fact, the same document. The document is an attorney-client communication and therefore also exempt from release under Exemption 5 under the attorney-client privilege.

Defendant notes by way of its release of these "non-responsive" documents that defendant is not conceding that the documents are in fact responsive to plaintiff's FOIA request. Nor is defendant conceding that the Department of Labor's regulation governing the cut-off date for searching for responsive documents, namely, 29 C.F.R. § 70.20(f), is not applicable here or is otherwise not controlling. 3

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Plaintiff's counsel has stated to defendant's counsel that plaintiff does not contest defendant's assertion of the attorney client privilege with respect to the seventh, eighth and ninth documents. Furthermore, plaintiff's counsel stated to defendant's counsel that the only issue remaining to be resolved in this case is whether plaintiff is entitled to attorney's fees and costs. II. A. ARGUMENT

Plaintiff Has Failed to Contest Defendant's Argument that Certain Documents are Being Properly Withheld in Whole or in Part, and Defendant Has Shown that Its Summary Judgment Motion Should be Granted as to Those Documents Plaintiff does not address in her Response defendant's argument that certain

documents are properly being withheld in whole or in part under FOIA Exemptions 5 and 7(C). Indeed, she ignores these arguments in her Response brief. In short, plaintiff has failed to respond to this aspect of defendant's Motion. A party's failure to file a response to a summary judgment motion is not, by itself, a sufficient basis on which to enter judgment against the party. As the Tenth Circuit stated in Reed v. Bennett, 312 F.3d 1190, 1195 (10 th Cir. 2002), the District Court must make the additional determination that judgment for the moving party is "appropriate" under Rule 56. Id. Summary judgment is appropriate only if (1) the moving party demonstrates that no genuine issue of material fact exists and (2) that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). But "[b]y failing to file a response 4

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. . . the nonmoving party waives the right to respond or to controvert the facts asserted in the summary judgment motion." Reed, 312 F.3d at 1195 (emphasis added). Thus, pursuant to Reed, if a party fails to file an opposition to a motion for summary judgment, the movant may be deemed to have satisfied the first half of Rule 56(c)'s test. That is, all of the facts asserted in the moving party's motion for summary judgment must be considered uncontroverted when those facts are properly supported. Id., ("The court should accept as true all material facts asserted and properly supported in the summary judgment motion."). In such circumstances, the only remaining question for the District Court under Rule 56(c) is whether the moving party is entitled to judgment as a matter of law. This Court's task at this juncture of the case is therefore simple. Plaintiff has not asserted any opposition to defendant's argument that certain documents are exempt from release under FOIA Exemptions 5 and 7(C). And defendant has amply supported, by way of the Miller 2d Supplemental Declaration and the Plick Declaration attached as exhibits to defendant's Motion, the facts asserted in defendants' Motion. Those facts must therefore be considered uncontroverted, and those uncontroverted facts clearly show that defendant is entitled to judgment as a matter of law with respect to the documents withheld under Exemptions 5 and 7©.

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B.

Plaintiff's Assertion that Nine Documents Should be Released to Her is Moot Plaintiff's only substantive argument in her Response is that defendant should turn

over to her nine electronic documents, located on Investigator Mayers' computer, which defendant has asserted in its Motion are not responsive to plaintiff's FOIA request. See Response at 1-3. Defendant submits that these nine documents are not responsive to plaintiff's FOIA request and therefore are not subject to release because they were generated after the date of plaintiff's FOIA request to defendant. The Department of Labor's procedures for responding to FOIA requests are set forth in 29 C.F.R. Part 70. Those regulations include 29 C.F.R. § 70.20(f), entitled "Date for determining responsive records." Section 70.20(f) provides as follows: In determining records responsive to a request, a component will include only those records existing as of the date of its receipt of the request as that date is determined in accordance with paragraph (c).

Plaintiff's FOIA request is dated March 3, 2004, see Response at 1, and defendant has indicated that March 4, 2004 is the cut-off date for the search for documents responsive to plaintiff's request. See Motion at Miller 2d Supp. Dec., ¶ 4. An agency's use of a search cut-off date will be upheld where it is reasonable. Blazy v. Tenet, 979 F.Supp. 10, 17 (D.D.C. 1997) (citing McGehee v. Central Intelligence Agency, 697 F.2d 1095, 1102-1104 (D.C. Cir.), vacated in part on other grounds, 711 F.2d 1076 (D.C. Cir. 1983)). As the D.C. Circuit noted in McGehee, it would be 6

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"extremely difficult" for an agency to convince the court that it may "reasonably" use any cut-off date "without so informing the requester." McGehee, 697 F.2d at 1101, 1105. But here, plaintiff was placed on notice of the cut-off date applicable to defendant's search for documents. The cut-off date was in the regulation itself, 29 C.F.R. § 70.20(f). Plaintiff was on notice that the cut-off date was the Department of Labor's date of receipt of her request. The cut-off date here was reasonable. Nevertheless, defendant has now determined to release to plaintiff six of the nine "non-responsive" documents in full. Defendant has also determined to release a seventh document in full, but for the last paragraph which will be redacted pursuant to FOIA Exemption 5 because it constitutes an attorney-client communication and therefore is exempt from release under the attorney-client privilege. As for the eighth and ninth documents, those documents are, in fact, the same document. The document is an attorney-client communication and therefore also exempt from release under Exemption 5 under the attorney-client privilege. Plaintiff's counsel has stated to defendant's counsel that plaintiff does not contest defendant's assertion of the attorney client privilege with respect to the seventh, eighth and ninth documents. Furthermore, plaintiff's counsel has stated to defendant's counsel that the only issue remaining to be resolved in this case is whether plaintiff is entitled to attorney's fees and costs.

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Consequently, plaintiff's assertion in her Response that nine documents should be released to her is moot. Federal courts are "not empowered to decide moot questions or abstract propositions." North Carolina v. Rice, 404 U.S. 244, 246 (1971); see also Southern Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10 th Cir. 1997). Thus, once an actual, ongoing controversy ceases to exist the case becomes moot and the court lacks jurisdiction to hear the case. See United States v. Seminole Nation of Oklahoma, 321 F.3d 939, 943 (10 th Cir. 2002). "Constitutional mootness exists when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Schutz v. Thorne, 415 F.3d 1128, 1138 (10 th Cir. 2005) (citing County of Los Angeles et al. v. Davis, 440 U.S. 625, 631 (1979)) (internal quotations omitted). Plaintiff's request for release of the nine documents is moot because defendant is turning over to plaintiff all of the documents but for two copies of the same document and one paragraph from another document. Plaintiff has indicated that she will not challenge defendant's withholding of the two copies of the one document and a paragraph from another document. No actual, ongoing controversy exists regarding the nine documents. C. Plaintiff's Request for In Camera Review is Also Moot Finally, plaintiff argues at page 3 of her Response that the Court should conduct in camera review "of the papers discussed in the DOL's latest motion." But plaintiff does not challenge the withholding of any of these documents. Her request for in camera

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review is therefore moot. In camera review is typically ordered as a matter of discretion only in exceptional cases. As the Supreme Court explained in NLRB v. Robbins Tire and Rubber Co., 437 U.S. 214, 224 (1978), the in camera review provision "is designed to be invoked when the issue before the District Court could not be otherwise resolved." Such review "should not be resorted to as a matter of course...." Animal Legal Defense Fund, Inc. v. Department of the Air Force, 44 F.Supp. 2d 295, 304 (D.D.C. 1999) (quoting Quinon v. FBI, 86 F.3d 1222, 1228 (D.C. Cir. 1996). But here the issues before the Court have been resolved. This is not the type of exceptional case meriting in camera review. Plaintiff's request for in camera review should be denied on the grounds that it is also moot. /// ///

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III.

CONCLUSION

For the foregoing reasons, those in its moving papers, and any which may be presented at a hearing in this matter, defendant's "Motion for Summary Judgment with Respect to Certain Electronic Documents and Service Contracts" should be granted. Dated: This 22nd day of February, 2006. Respectfully submitted, WILLIAM J. LEONE United States Attorney s/ Michael C. Johnson Michael C. Johnson Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0134 FAX: (303) 454-0408 E-mail: [email protected] Counsel for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of February, 2006, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will forward the document to the following CM/ECF participant at the following e-mail address: Curtis L. Kennedy [email protected]

s/ Michael C. Johnson Michael C. Johnson Attorney for Defendant United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0134 FAX: (303) 454-0408 E-mail: [email protected]

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