American Federation of Government Employees, Local 1812 v. Broadcasting Board of Governors

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
AMERICAN FEDERATION OF )
GOVERNMENT EMPLOYEES, )
LOCAL 812, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 09-1191 (ESH)
)
BROADCASTING BOARD OF )
GOVERNORS, )
)
Defendant. )
__________________________________________)

MEMORANDUM OPINION

This matter is before the Court on renewed cross-motions for summary judgment brought

by defendant Broadcasting Board of Governors and plaintiff Verla Wiley, proceeding pro se, on

plaintiffs’ claims under the Freedom of Information Act. The Court previously granted

defendant’s motion in part and denied both plaintiffs’ cross-motions in part but ordered

defendant to file supplementary declarations. See May 18, 2010 Order at 1-2; see also Am. Fed.

of Gov’t Employees, Local 812 v. Broad. Bd. of Gov’rs (“AFGE”), No. 09-CV-1191, 2010 WL

1976747 (D.D.C. May 18, 2010). After defendant filed numerous declarations and renewed its

summary judgment motion, Wiley opposed defendant’s motion and renewed her own summary

judgment motion. Having reviewed the filings by defendant and Wiley, the Court will grant

defendant’s renewed motion except as to the declaration by Carol Durika, and it will deny

Wiley’s renewed cross-motion in all other respects.

First, the additional declaration by Michael Lawrence complies with the Court’s

instruction that defendant file “a declaration stating that it has correctly searched [Lawrence’s]

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email account . . . (including sent mail) for the search terms identified in his [previously

submitted] declaration . . . .” AFGE, 2010 WL 1976747, at *14. (See Def.’s Renewed Mot. for

Summ. J. (“Def.’s 2nd SJ Mot.”), Ex. C.) Lawrence states that his initial email search took place

via remote network access while he was overseas, and that he found no responsive documents at

that time. (Id. ¶ 3.) However, in response to the Court’s May 18 Order, he again searched his

email directly from his office computer on May 25, and this search produced several responsive

documents which have been produced to Wiley in redacted form. (Id. ¶ 4; Def.’s 2nd SJ Mot. at

2 n.2; see id., Ex. M.) This declaration resolves the Court’s prior concern “about ‘the sufficiency

of the agency’s identification or retrieval procedure’ with respect to [his] files.” AFGE, 2010

WL 1976747, at *14 (quoting Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 370 (D.C. Cir.

1980)).

Second, six declarations by Angela Puryear, Timi Kenealy, Maryellen Righi, Donna

Grace, Kataryna Lyson (formerly Kataryna Baldwin), and Paul Kollmer-Dorsey comply with the

Court’s instruction that defendant file declarations stating that it has “searched the paper files of

[agency officials] Baldwin, [Carol] Booker, Grace, Kenealy, [George] Moore, and Righi . . . .”

AFGE, 2010 WL 1976747, at *14. In response to the Court’s May 18 Order, Righi, Grace, and

Lyson searched their own paper files and Puryear searched those of George Moore; responsive

documents were found only among Moore’s paper files.1 (See Def.’s 2nd SJ Mot., Exs. B, E-G.)

In addition, the declarations of Kenealy and Kollmer-Dorsey clarify that the paper files of

Kenealy and Booker had already been reviewed during defendant’s initial search, and no

responsive documents were found. (See id., Exs. D & H.) These six declarations sufficiently

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Some of the responsive documents found in Moore’s files are duplicative of those
previously located and disclosed. (See Def.’s 2nd SJ Mot. at 2 n.1.) Other responsive
documents were not produced because they were issued by another government office. (See id.)
Wiley does not dispute the non-production of these particular documents.

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address the Court’s prior concern that defendant’s initial declarations stated only that it had

searched the “electronic files” of Baldwin, Booker, Grace, Kenealy, Moore, and Righi. AFGE,

2010 WL 1976747, at *14.

Third, declarations by Royster Martin, Piero Ciancio, and Mark Filipek satisfy the

Court’s instruction that defendant file declarations stating that it has “searched the records of the

Building Security Council (or those of its members) for documents responsive to the FOIA

request.” AFGE, 2010 WL 1976747, at *14. These three declarants searched the records of the

Department of Homeland Security’s Federal Protective Service pertaining to defendant’s

building, as well as the computer and paper files of defendant’s last Safety Officer, who retired

in 2008. (See Def.’s 2nd SJ Mot., Exs. I-K.) No responsive documents were found related to the

Building Security Council or the decision to restrict unescorted retiree access to defendant’s

building. (See id.) These three declarations sufficiently address the Court’s earlier concern that

“there [was] no evidence that those records were ever searched” during defendant’s initial

search. AFGE, 2010 WL 1976747, at *14.

Fourth, the Court originally denied summary judgment with respect to the email of

former agency official George Moore because no signature appeared on the December 11, 2009

declaration submitted by Carol Durika, an agency information technology specialist, about the

unavailability of Moore’s email. See AFGE, 2010 WL 1976747, at *8, *14. The Court

concluded that “Durika’s declaration, if signed, would be sufficient to establish that Moore’s

email was not available for review.” Id. Defendant has now submitted a signed version of

Durika’s declaration. However, Wiley requests that defendant certify the signature on the

document because the signed declaration continues to state that the declaration was executed on

December 11, 2009, and yet it is formatted and paginated differently from the unsigned version

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that accompanied defendant’s original motion for summary judgment. (See Wiley’s Request for

Certification of Carol Durika Decl. at 1-2.) Wiley correctly contends that “[i]f the declaration

was retyped (using the exact language) for Durika’s signature” in response to the Court’s prior

ruling, “the date upon which the declaration was executed should be the official date shown on

the newly submitted declaration.” (Id. at 2.) Defendant’s motion for summary judgment is

therefore denied as to the adequacy of its search of Moore’s email.

Wiley also raises a number of other issues in response to defendant’s submissions.

However, many of these issues are not properly before the Court. The Court’s prior order

granted defendant’s motion in all respects except for the four issues discussed above, each of

which pertained only to the adequacy of the agency’s search. See May 18, 2010 Order at 1-2.

Thus, Wiley cannot repeat arguments on issues that have already been resolved in defendant’s

favor, such as the propriety of its invocation of certain FOIA exemptions. (See Wiley’s

Renewed Mot. for Summ. J. at 15-19.) Moreover, to the extent that her renewed motion for

summary judgment is also a motion for “reconsideration” of the Court’s prior ruling (see id. at

4), Wiley has failed to meet her burden under both the standard for reconsideration of final

orders and the standard for reconsideration of interlocutory orders. See Fed. R. Civ. P. 60(b)

(permitting motions for relief from “[f]inal” judgments and orders on grounds of (1) mistake or

excusable neglect, (2) newly discovered evidence, (3) fraud, (4) void judgment, (5) satisfied or

invalid judgment, or (6) other reasons “justif[ying] relief”); Sieverding v. Am. Bar Ass’n, 466 F.

Supp. 2d 224, 227 (D.D.C. 2006) (discussing Rule 60(b) standard); see also Rogers v. Mabus,

699 F. Supp. 2d 73, 76 (D.D.C. 2010) (discussing “as justice requires” standard for

reconsideration of interlocutory decision).

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 CONCLUSION

For the foregoing reasons, defendant’s renewed motion for summary judgment is granted

in all respects except for the adequacy of its search of George Moore’s email; the parties’ cross-

motions motion are held in abeyance as to this issue, but Wiley’s renewed motion for summary

judgment is denied in all other respects. On or before August 30, 2010, defendant must file

either (1) a representation by counsel that the signed version of Carol Durika’s declaration was in

fact executed on the date listed on the document, December 11, 2009, or (2) a declaration signed

by Durika that lists the actual date of the signing of the document. Upon such a filing, the Court

shall enter summary judgment on behalf of defendant.

/s/
ELLEN SEGAL HUVELLE
United States District Judge

DATE: August 19, 2010

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