Free Motion for Summary Judgment - District Court of Colorado - Colorado

Case 1:04-cv-01264-LTB-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01264-LTB-OES MARY M. HULL, Plaintiff, vs. UNITED STATES DEPARTMENT OF LABOR, Defendant. ______________________________________________________________________________ PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ For the following reasons Plaintiff MARY M. HULL (HULL), through her counsel, hereby moves for a summary judgment order requiring Defendant Department of Labor (DOL) to produce to HULL those documents this Court ruled are not covered by Exemption 4 of the Freedom of Information Act, 29 U.S.C. § 552(b)(4) (FOIA), and HULL seeks an order requiring the DOL to produce other papers for which the DOL does not claim a FOIA Exemption: Brief Background. On December 2, 2005, this Court denied the DOL's request for dismissal of this action. This Court ruled, inter alia, that certain documents the DOL withheld from HULL on the basis of an alleged FOIA Exemption 4 are not, in fact, subject to FOIA Exemption 4. There are other documents no longer subject to any FOIA exemption, including some belatedly found papers the DOL represented were going to be processed and, then, turned over to HULL. [See DOL's representations in its August 18, 2005 filed memorandum brief ­ Docket No. 27 at p. 5] Alas, none of those documents were ever tendered to HULL or her counsel. Accordingly, HULL seeks a summary judgment order requiring the DOL to deliver those documents to her.
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In the December 2, 2005 Order, this Court ruled there would be an in camera inspection of certain other documents.

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HULL continues to protest that a citizen should not have to commence and persist with federal court litigation in order to shake-up a federal agency and get compliance with FOIA. But, the DOL's on-going game of cat and mouse requires HULL to forge ahead with this "tug of war" litigation. In support of her motion for a summary judgment, pursuant to Fed.R.Civ.Proc. Rule 56, HULL incorporates this Court's findings of fact and conclusions of law set forth in the December 2, 2005 Order. HULL also incorporates her Affidavit filed on July 29, 2005 [See attachment to Docket No. 24]. I. A. ARGUMENT

The DOL Should Be Ordered to Product to HULL Qwest Pension Plan Service Contracts Which Do Not Fit Within FOIA Exemption 4.

Summary judgment is appropriate when the record discloses no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. F.R.Civ.P. Rule 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48, 106 S. Ct. 2505 (1986). The DOL continues to refuse to give HULL 125 pages of Qwest's `service contracts' with Towers Perrin, Watson Wyatt and Banker's Trust, which documents directly pertain to operation and management of the Qwest Pension Plan. In its effort to dismiss this case, the DOL contended the documents were protected by FOIA Exemption 4, but this Court ruled otherwise. FOIA Exemption 4, (5 U.S.C. § 552(b)(4)), exempts from disclosure "trade secrets and commercial or financial information obtained from a person and privileged or confidential." This Court ruled the DOL has not met its burden of proving the `service contracts' fall within FOIA Exemption 4 and it is not necessary to conduct an in camera inspection of those papers. HULL is a participant in the Qwest Pension Plan and she contends the `service contracts' are "other instruments under which the plan is established or operated" within the meaning of ERISA Section 104(b)4), 29 U.S.C. § 1024(b)(4). Phelps v. Qwest Employee Benefits -2-

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Committee, Civil Action No. 04-cv-02042-LTB-OES (D. Colo. December 2, 2005 Order) (holding that the meaning of "instruments under which [a] pension plan is managed or operated" found in ERISA § 104(b)(4) encompasses investment guidelines/polices that set out rights, duties or obligations and confine a plan's operations). Further support for HULL's position that the `service contracts' are documents that should have been disclosed to her is found within the Department of Labor's Advisory Opinion 97-11A (April 10, 1997): "if a [Third Party Contract], or any part of the contract, establishes or amends the plan in question, establishes a claims procedure, specifies procedures, formulas, methodologies, or schedules to be applied in determining or calculating a participant's or beneficiary's benefit entitlement, or does any of the other things described in sections 402(b) and 402(c) of ERISA, it would have to be furnished in accordance with the terms of section 104(b)(4)." See Exhibit 1 filed herewith. 2 The DOL should follow its own advice. In any event, this Court has determined it is not necessary to examine the `service contracts.' Accordingly, HULL requests the Court order the DOL to produce to HULL the 125 pages of `service contracts', document Bates Nos. 860-935 and 951-999.

B.

The DOL Should Be Ordered to Produce to HULL Computer Disks and Seventeen Other Alleged Belatedly Found Documents For Which No FOIA Exemption Has Been Claimed.

The DOL asserts no FOIA Exemption and gives no explanation for not releasing to HULL eleven computer disks that are listed in the DOL's Vaughn Index. (See HULL Affidavit ¶ 17). Since there is no applicable FOIA Exemption, the DOL should be ordered to produce those computer disks to HULL. Furthermore, the DOL represented in its August 18, 2005
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Admittedly, Advisory Opinions and DOL interpretive bulletins do not rise to the level of a regulation and do not have the effect of law. A court is not required to give effect to an administrative interpretation. See Batterson v. Francis, 432 U.S. 416, 425 n.9 (1977) (citing General Electric Co. v. Gilbert, 429 U.S. 125, 141-145 (1976); Morton v. Ruiz, 415 U.S. 199, 231-37 (1974)). However, the DOL position as stated in an Advisory Opinion and Interpretative Bulletin is entitled to some deference because Congress specifically authorized the Secretary of Labor to interpret and enforce ERISA. Hermann v. Nations Bank Trust Co., 126 F.3d 1354, 1363 (11th Cir. 1997); Anweiler v. American Electric Power Service Corp., 3 F.3d 986, 993 (7th Cir. 1993).

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memorandum brief [See Docket No. 27, at page 5] that the agency was soon going to process and turn over to HULL "seventeen documents [that] had not been printed out for inclusion in the investigative file." The DOL represented those papers were discovered in the DOL's file on August 13, 2005. The DOL submitted an affidavit by DOL Senior Investigator John Mayer stating he found the seventeen documents on his computer hard drive on August 13, 2005. [See Docket No. 27, John Mayers Declaration at ¶¶ 8-9]. To date, none of computer disks and seventeen documents have been tendered to HULL or her counsel and no FOIA Exemption has been claimed by the DOL. The DOL has given no explanation for doing nothing since August 13, more than four months. It is time for this tug of war or game of cat and mouse to end.

II.

CONCLUSION

For the aforesaid reasons and those reasons set forth in this Court's December 2, 2005 Order and HULL's Rule 56(f) Affidavit previously submitted, [See attachment to Docket No. 24], this Court should Order the DOL to produce to HULL the following documents: A. Those documents this Court ruled are not covered by FOIA Exemption 4, U.S.C.

§ 552(a)(4)(B): Bates Nos. 860-935 and 951-999 (documents identified as Qwest's "service contracts with Towers Perrin, Watson Wyatt and Bankers Trust concerning the operation and management of the Qwest Pension Plan."); B. The eleven computer disks that are listed in the DOL's Vaughn Index and for

which the DOL does not claim any FOIA Exemption; and C. Those documents the DOL represented in its August 18, 2005 memorandum brief

[See Docket No. 27, at page 5] as "seventeen documents [that] had not been printed out for inclusion in the investigative file." HULL also requests such other relief as this Court deems appropriate, including the -4-

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establishment of a firm deadline requiring the DOL to deliver to this Court those documents this Court states in the December 2, 2005 Order are subject to an in camera inspection. 3 DATED this 21st day of December, 2005. s/ Curtis L. Kennedy Curtis L. Kennedy 8405 East Princeton Avenue Denver, CO 80237-1741 Telephone: 303-770-0440 Facsimile: 303-843-0360 e-mail [email protected] Attorney for Plaintiff: Mary M. Hull CERTIFICATE OF SERVICE I hereby certify that on the 21st day of December, 2005, a true and correct copy of the above and foregoing document was filed with the Clerk of the Court using the CM/ECF system. I also certified that on this 21st day of December, 2005, a true and correct copy of the above and foregoing document was delivered to Defendant's counsel of record via email as follows: Michael C. Johnson, Esq. Assistant United States Attorney UNITED STATES ATTORNEY'S OFFICE 1225 17th Street, 7th Floor Denver, CO 80202 Tele: 303-454-0134 Fax: 303-454-0404 E-mail: [email protected] Also, copy of the same was delivered via email to Plaintiff Mary M. Hull. Mimi Hull 678 Clarkson St. Denver, CO 80218-2302 E-mail: [email protected] s/ Curtis L. Kennedy Curtis L. Kennedy

This Court ruled that those documents identified by name on pages 11-13 of the DOL's Reply in Support of Defendant's July 11, 2005 Motion for Summary Judgment and Response to Plaintiff's Petition for In Camera Review shall be submitted to the Court for in camera review. -5-

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