Liverman v. Office of the Inspector General , 139 F. App'x 942 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 14, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ROGER LIVERMAN, JR.,
Plaintiff-Appellant,
v. No. 04-4205
(D.C. No. 2:03-CV-619-DB)
THE OFFICE OF THE INSPECTOR (D. Utah)
GENERAL, UNITED STATES
DEPARTMENT OF TREASURY,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before EBEL , McCONNELL , and TYMKOVICH , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Roger Liverman, Jr., appearing pro se, appeals the district court’s
summary judgment dismissal of his complaint alleging that the defendant, the
Office of the Inspector General for the United States Department of the Treasury
(OIG), failed to comply with his Freedom of Information Act (FOIA) request. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Background
Plaintiff has a lengthy history of FOIA litigation. In 1991, plaintiff sought
a reward from the Internal Revenue Service (IRS) for providing information about
the employment practices of his former employer. The IRS denied his request,
and plaintiff later initiated a FOIA complaint in federal court against the IRS,
which was dismissed on summary judgment by the United States District Court
for the District of Columbia. Plaintiff then filed complaints with the OIG
regarding the IRS’ denial of his requested reward, and the OIG’s internal Office
of Oversight conducted an independent investigation and review (the Oversight
Review).
In 1997, plaintiff sought access to all records and information pertaining to
the Oversight Review pursuant to FOIA. Shortly thereafter, he filed a FOIA
complaint in federal court against the OIG’s Office of Oversight. The Office of
Oversight released 605 pages of material to plaintiff, but withheld other
documents. The United States District Court for the District of Utah granted
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summary judgment in favor of the OIG on plaintiff’s FOIA complaint. Plaintiff
then filed another FOIA request for materials, this time with the OIG’s Office of
Disclosure Services, again seeking copies of all documents pertaining to the
Oversight Review. A few months later, he filed another FOIA complaint in
federal court against the OIG. The OIG withheld some documents, but released
46 pages of documents, and plaintiff voluntarily dismissed his FOIA complaint.
At issue in this appeal is a third FOIA request that plaintiff sent to the OIG
in March 2003, again seeking copies of all documents pertaining to the Oversight
Review. The OIG sent plaintiff a preliminary response in June 2003, detailing the
amount of materials it would need to review in order to comply with his request.
The OIG also suggested that plaintiff narrow his records request because he
already possessed much of the material pursuant to his earlier FOIA requests.
Plaintiff did significantly narrow his request. Nevertheless, he filed a third FOIA
complaint in federal court against the OIG a month later. At plaintiff’s behest,
the district court granted a stay of the proceedings to allow the OIG time to
complete the FOIA request. In November 2003, the OIG informed plaintiff that it
had reviewed 8,750 pages and had concluded that only one document was
responsive to plaintiff’s narrowed FOIA request, which it provided to him.
The parties then filed cross-motions for summary judgment. In its motion,
the OIG submitted an affidavit explaining in detail the steps it undertook in its
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search for responsive documents. The magistrate judge issued a report
recommending that the OIG’s motion for summary judgment be granted. She
concluded that the OIG had fully discharged its obligations under FOIA. She
noted the undisputed evidence that the OIG conducted a reasonable and thorough
search of its records over an eight-month period, that the search was reasonably
calculated to uncover all relevant documents, and that the OIG had produced all
of the responsive documents. Further, she determined that the OIG had timely
corresponded with plaintiff in an attempt to meet his FOIA requests. The
magistrate judge also concluded, contrary to plaintiff’s request, that neither an
award of fees under 5 U.S.C. § 552(a)(4)(E), nor a finding of arbitrary and
capricious withholding under 5 U.S.C. § 552 (a)(4)(F), was warranted in this case.
Finally, the magistrate judge recommended the denial of plaintiff’s motions to
stay proceedings, to compel disclosures, for judgment on the pleadings, and for a
hearing. Following a de novo review, the district court adopted the magistrate
judge’s report and recommendation and granted the OIG’s motion for summary
judgment.
Analysis
“We review the district court’s grant of summary judgment de novo.”
Herrick v. Garvey , 298 F.3d 1184, 1189 (10th Cir. 2002) (reviewing summary
judgment in FOIA suit).
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The standard governing a grant of summary judgment in favor of an
agency that claims it has fully discharged its FOIA disclosure
obligations is well established. . . . [T]he agency must show,
viewing the facts in the light most favorable to the requester, that
there is no genuine issue of material fact. To meet this burden, the
agency must demonstrate that it has conducted a search reasonably
calculated to uncover all relevant documents. . . . The adequacy of
the search, in turn, is judged by a standard of reasonableness and
depends . . . upon the facts of each case. In demonstrating the
adequacy of the search, the agency may rely upon reasonably
detailed, nonconclusory affidavits submitted in good faith.
Steinberg v. United States Dep’t of Justice , 23 F.3d 548, 551 (D.C. Cir. 1994)
(quotations omitted)
On appeal, plaintiff first makes the bald, unsupported claim that the district
court ignored the law and the issues raised in his complaint because he was
proceeding pro se. Plaintiff does not explain how he believes the district court
ignored the law, and his perfunctory claim fails to frame and develop an issue
sufficient to invoke appellate review. See Murrell v. Shalala , 43 F.3d 1388, 1389
n.2 (10th Cir. 1994). Plaintiff contends the district court should not have
dismissed his complaint for failure to state a claim, but he misunderstands the
district court’s ruling. The district court did not dismiss plaintiff’s complaint for
failure to state a claim, which is governed by Federal Rule of Civil Procedure
12(b)(6), but granted summary judgment under Federal Rule of Civil Procedure
54(b). In this regard, the OIG properly supported its motion for summary
judgment with a detailed and nonconclusory affidavit indicating that it had
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conducted a search reasonably calculated to uncover all relevant documents.
Plaintiff offered no evidence to the contrary, and he raises no genuine issue of
material fact with regard to the adequacy of the search for information conducted
by the OIG in response to his request. Thus, the district court properly granted
summary judgment in favor of the OIG.
Plaintiff next contends that the OIG has a pattern and practice of not
responding to his FOIA requests in a timely manner and that the district court
erroneously rejected this claim and erred in denying his request for an injunction
on any future violations. See Mayock v. Nelson , 938 F.2d 1006, 1008 (9th Cir.
1991) (holding that party may bring a claim for a pattern and practice of
unreasonable delay in responding to FOIA requests); 5 U.S.C. § 552(a)(6)(A)(i)
(requiring an agency to respond to a FOIA request within twenty working days).
Based on our de novo review of the record, we conclude there is no pattern
of unreasonable delay in the OIG’s responses to plaintiff’s FOIA requests in this
case. The OIG sent a response to plaintiff within twenty days of the receipt of his
FOIA request. Though the response was initially sent to an incorrect address, the
OIG immediately resent the response to plaintiff’s correct address, and it
continued thereafter to correspond with plaintiff throughout its search process.
Plaintiff complains about delay in his earlier FOIA requests, but there was no
finding of delay in the first FOIA action against the OIG, and plaintiff voluntarily
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dismissed his second FOIA complaint. Thus, the district court did not err in
finding no merit to this claim.
Finally, plaintiff contends the district court improperly denied his motion to
compel discovery. Plaintiff filed a motion generally seeking the name of all
persons likely to have discoverable information relevant to his FOIA complaint.
The district court denied this motion after concluding that the OIG was entitled to
summary judgment based on the detailed, nonconclusory and undisputed affidavit
it had submitted.
“Affidavits submitted by an agency are accorded a presumption of good
faith; accordingly, discovery relating to the agency’s search and the exemptions it
claims for withholding records generally is unnecessary if the agency’s
submissions are adequate on their face.” Carney v. United States Dep’t of
Justice , 19 F.3d 807, 812 (2d Cir. 1994) (quotation omitted). “When this is the
case, the district court may forgo discovery and award summary judgment on the
basis of affidavits.” Id. (quotation and citation omitted). “In order to justify
discovery once the agency has satisfied its burden, the plaintiff must make a
showing of bad faith on the part of the agency sufficient to impugn the agency’s
affidavits or declarations, or provide some tangible evidence that an exemption
claimed by the agency should not apply or summary judgment is otherwise
inappropriate.” Id. (citation omitted). Plaintiff did not make any such showing,
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and we find no abuse of the district court’s discretion in denying plaintiff’s
motion to compel discovery. See id. at 813 (applying abuse of discretion standard
to application for discovery in FOIA case).
The judgment of the district court is AFFIRMED. Plaintiff’s Motion to
Address Bias is DENIED.
Entered for the Court
David M. Ebel
Circuit Judge
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