Menifee v. U.S. Department of the Interior , 931 F. Supp. 2d 149 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
SYLVIA MENIFEE, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-252 (RMC)
)
U.S. DEPARTMENT OF THE )
INTERIOR, et al., )
)
Defendants. )
_________________________________ )
OPINION
Sylvia Menifee, an employee of the Department of the Interior, alleges that her
supervisor and other Interior employees have intimidated her in the workplace and that her
complaints to Interior personnel have fallen on deaf ears. Proceeding pro se, she brings a First
Amendment claim, tort claims, and a claim under the Freedom of Information Act. Defendants
have moved for summary judgment on Ms. Menifee’s FOIA claim and to dismiss all other
claims. For the reasons set forth below, the Court finds that Defendants have complied with the
requirements of FOIA and that Ms. Menifee has failed to state a claim as to all other counts in
the Amended Complaint. The Court will thus grant both of Defendants’ motions. Because
sovereign immunity bars some of Ms. Menifee’s tort claims, the dismissal of those claims will be
with prejudice, while the dismissal of the others will be without prejudice.
I. FACTS
Ms. Menifee’s Complaint and Amended Complaint are entirely devoid of any
factual allegations. However, Ms. Menifee has alluded to the facts underlying her First
Amendment and tort claims in various filings. In their motion for summary judgment on Ms.
Menifee’s FOIA claim, Defendants have included evidence and a statement of facts that Ms.
1
Menifee has not disputed. The Court reviews the procedural history of the case, synthesizes the
facts that form the basis for Ms. Menifee’s First Amendment and tort claims, and then discusses
the background of the FOIA claim.
A. Procedural History
Ms. Menifee filed a cursory three-count Complaint on February 15, 2012, alleging
that Interior and various individual Interior employees “recklessly made malicious and false
statements about the Plaintiff,” “violated [her] 1st Amendment Rights,” and “intentionally
withheld [her] request for records under the Freedom of Information Act (FOIA).” Compl. [Dkt.
1] ¶¶ 1–3. The original Complaint named five defendants: Interior, Andrew Jackson, John Ross,
Tanya Henderson, and Diane Smith, all Interior employees. The Complaint did not in any
provide any factual basis for Ms. Menifee’s claims. That deficiency notwithstanding, Ms.
Menifee immediately filed a Motion for Temporary Restraining Order against Mr. Ross. [Dkt.
2].
Defendants opposed Ms. Menifee’s TRO motion, Dkt. 5, and the Court held a
hearing on February 24, 2012, at which it denied the TRO motion. Defendants moved to dismiss
Ms. Menifee’s First Amendment and tort claims, Dkt. 7, which Ms. Menifee opposed, Dkt. 10.
Defendants filed a reply brief, Dkt. 11, and Ms. Menifee, without seeking leave to do so, filed a
surreply, Dkt. 12 (“Surreply”). At the same time, Ms. Menifee also filed an Amended
Complaint. [Dkt. 13]. The Amended Complaint contains five claims: (1) “[T]he supervisor and
other DOI management staff[ ] recklessly and deliberately made malicious and false statements”
about her; (2) “Defendant(s) violated [her] 1st Amendment Rights”; (3) “The Defendant
intentionally withheld [her] request for records under [FOIA]”; (4) “The Defendant(s) tortuously
[sic] caused Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional
Distress”; and (5) “Abuse of process by agency law enforcement.” See id. ¶¶ 1–5. As was the
2
original Complaint, the Amended Complaint is devoid of any factual allegations. The Amended
Complaint names the original five defendants—Interior, Andrew Jackson, John Ross, Tanya
Henderson, and Diane Smith—and adds Steve Hargrave. 1 The Court refers to the Defendants
collectively as “Interior.”
Construing Ms. Menifee’s filing of an Amended Complaint as a motion to amend
her complaint, Interior responded with an omnibus opposition and memorandum to dismiss
(“MTD Mem.”). [Dkt. 14]; see also Errata [Dkt. 15]. Interior separately filed a second motion
to dismiss Ms. Menifee’s tort and First Amendment claims (“MTD”). [Dkt. 16]. Ms. Menifee
then filed a “Response” in support of her Amended Complaint in which she argued that she
should be allowed to amend her Complaint; the Court will refer to that filing as Plaintiff’s Reply.
[Dkt. 18] (“Pl. Mot. Amend Reply”).
On May 16, 2012, Interior filed a reply brief in support of its second motion to
dismiss the tort and First Amendment Claims. Reply Pl. Resp. Defs. Mot. Dismiss [Dkt. 19]
(“Def. MTD Reply”). On July 30, 2012, Interior filed an answer to the Amended Complaint.
[Dkt. 23]. The following day, the Court by Minute Order construed Ms. Menifee’s Amended
Complaint as a motion to amend the complaint and granted the motion. The Court also denied
the first motion to dismiss as moot and directed Ms. Menifee to respond to the second motion to
dismiss. Ms. Menifee filed a response on August 28, 2012. Pl. Resp. Def. Mot. Dismiss Tort &
First Amend. Claims (“Pl. MTD Opp.”) [Dkt. 27].
Separately, the Court set a briefing schedule on Ms. Menifee’s FOIA claim. The
defendants moved for summary judgment, Dkt. 28 (“Def. MSJ”); Ms. Menifee filed an
opposition, Dkt. 29 (“Pl. MSJ Opp.”); and the defendants filed a reply brief, Dkt. 30 (“Def. MSJ
1
Interior has notified the Court that the correct spelling, used in this Opinion, is “Hargrave,” not
“Hargraves” as alleged in the Amended Complaint.
3
Reply”). At the invitation of the Court, see Dkt. 32, Ms. Menifee filed a supplement to her
opposition, Dkt. 35 (“Pl. MSJ Supp. Opp.”).
B. Facts
1. First Amendment and Tort Claims
Ms. Menifee identifies herself as an “80% disabled veteran, with 22+ years of
government service,” who has worked for Interior since January 3, 2011. Mem. Supp. TRO
[Dkt. 2] ¶¶ 1–2. She works in the Office of Valuation Services (OVS), 2 where, at least as of
September 2011, she was the Chief of the Business and Administrative Management Division. 3
Along with “other key members of management,” Ms. Menifee’s direct supervisor, John Ross, is
alleged to have subjected her to “unsettling acts of discrimination” that began “[s]hortly after her
arrival” at Interior. Id. ¶ 3. During one-on-one meetings between Ms. Menifee and Mr. Ross,
Mr. Ross has allegedly “demonstrated intimidating behaviors” that made Ms. Menifee
“concerned for her safety.” Id. ¶¶ 4–9. Sometime after “late March” 2011, Ms. Menifee raised
concerns about Mr. Ross to higher-level supervisors and “Security,” and even to the Secretary of
the Interior, but Mr. Ross’s conduct allegedly continued, including “send[ing] [Ms. Menifee]
2
According to Interior’s website, OVS “is responsible for all real estate valuation functions of
the Bureau of Land Management, Bureau of Reclamation, National Park Service, and U.S. Fish
and Wildlife Service, including management, oversight, and valuation policy for [Interior].”
Office of Valuation Services, U.S. Dep’t of the Interior, http://www.doi.gov/pmb/ovs/index.cfm
(last accessed March 21, 2013).
3
In its opposition to Ms. Menifee’s motion for a TRO, Interior provided the Court with
documentation refuting Ms. Menifee’s factual allegations, including a twenty-one-page
investigative report into Ms. Menifee’s allegations of a “hostile, discriminatory and violent work
environment” prepared by Mr. Hargrave, see TRO Opp, Ex. 2 [Dkt. 5-2] (Hargrave Report), and
a declaration from Diane Smith, see id. Ex. 4 [Dkt. 5-4]. The Court refers to Interior’s
documentation only to the extent that doing so helps the Court construe Ms. Menifee’s Amended
Complaint. For example, Ms. Menifee’s title as of September 2011 appears on an e-mail sent by
Ms. Menifee that is attached as an exhibit to the Smith Declaration. As required on a motion to
dismiss, the Court otherwise disregards Interior’s documentation and accepts Ms. Menifee’s
allegations as true.
4
harassing emails at odd times.” Id. ¶¶ 4, 15–21. Ms. Menifee began experiencing “fear and
work related stress” and was sometimes unable to go to work, including around the holiday
season of 2011. Id. ¶¶ 16–17. After January 9, 2012, she felt that “[t]he level of harassment”
from Mr. Ross became “unbearable.” Id. ¶ 20. Ms. Menifee thus sought a TRO requiring that
“all contact” between her and Mr. Ross “cease,” notwithstanding that “[t]he nature of [Ms.
Menifee’s] work does not require” direct contact with Mr. Ross. Id. at 5. During the TRO
hearing, Ms. Menifee reiterated repeatedly that her primary concerns were that meetings
requested by Mr. Ross were “deceptive,” his behavior at such meetings was “aggressive,” and
the Interior chain of command had not addressed the issues despite her complaints. Feb. 24,
2012 Hr’g Tr. at 10–12.
In her filings, Ms. Menifee references an “incident on April 2, 2012” in which Mr.
Hargrave is alleged to have “deliberately impersonated law enforcement” in a “planned and pre-
mediated action.” Pl. Mot. Amend Reply at 2. Ms. Menifee asserts that Mr. Hargrave “was
charged by his co-defendants to conducted [sic] an investigation into [her] safety, which he was
not authorized to do” and “abused his position and authority over her.” Id. at 2–3. On this
occasion, Ms. Menifee allegedly was “denied entry to the Department of Interior building [ ] by a
security supervisor accompanied by representatives of HR.” Surreply, Ex. 1 (E-mail from David
Shapiro 4) at 1; see also Surreply at 3 (referring to a “gang of seven (7) insubordinate DOI
employees (5 security officials and 2 Human Resources personnel)”). Ms. Menifee asserts that
“building security had been given a photography of her” and been “told to call [Mr. Hargrave] if
and when she entered the building.” Shapiro E-mail at 1. Interior security contacted Mr.
Hargrave when Ms. Menifee attempted to enter, and he denied Ms. Menifee permission to enter
4
Ms. Menifee was represented by counsel David Shapiro during her EEO proceedings. Mr.
Shapiro has not entered an appearance in this case.
5
the building. Id. When Ms. Menifee “attempted to go through and scan her ID,” Mr. Hargrave
“had another male building security guard block her path.” Id. Ms. Menifee felt “utterly
humiliated” by this event. Id.
Separately, Ms. Menifee refers to events that occurred on June 13, 2012, during
which “Mr. Hargrave[] had [her] detained for a second time and would not allow her to exit the
DOI headquarters building with her personal belongings until he conducted a search of them.”
Pl. MTD Opp. at 2. This second incident, about which no additional facts are in the record,
postdates the filing of the Amended Complaint.
2. FOIA Claim
Ms. Menifee submitted two FOIA requests to the Office of the Secretary of the
Department of the Interior: one on June 30, 2011, and the other on September 29, 2011. Julka
Decl., Def. MSJ Ex. [Dkt. 28-1] ¶ 5.
i. June 30, 2011 Request
The June 30, 2011 request sought 24 categories of documents, mostly e-mail
correspondence among certain individuals. Specifically, Ms. Menifee requested:
a. All emails between John Ross (john@johnwross.net;
JohnRoss@ios.doi.gov) and Tanya Henderson (TanyaEHenderson
@nbc.gov) from January 2011 to present.
b. All emails between John Ross(john@johnwross.net;
John_Ross@ios.doi.gov) and Dave Damron (DaveDamron
@nbc.gov) from January 2011 to present.
c. Email from John Ross to Andrew Jackson on or around May 13
in which Mr. Ross mentions “issues in the DC office is spreading
to the field.”
d. Email between John Ross and Eric Alvarez on June 28, 2011.
e. All emails between Tanya Henderson and Dave Damron from
January 2011 to present.
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f. All emails between Alex Glade and Danielle Dzidzienyo from
May 5, 2011 to present regarding relocation.
g. All emails between Alex Glade and John Ross from May 5,
2011 to present regarding relocation.
h. All emails between Alex Glade and Yolanda Jamison from May
5, 2011 to present regarding relocation.
i. Email(s) from Danielle Dzidzienyo to John Ross on or about
May 12, 2011 regarding the relocation of Alex Glade; email
subject line: “Email and other documentation relating to relocation
of Alex Glade.”
j. Email(s) from Yolanda Jamison to John Ross on or about May
12, 2011 regarding the relocation of Alex Glade; email subject
line: “Email and other documentation relating to relocation of Alex
Glade.”
k. All emails between Danielle Dzidzienyo and Tanya Henderson
from February 2011 to present.
l. All emails from Danielle Dzidzienyo (DanielleDzidzienyo
@ios.doi.gov) to Yolanda Jamison (YolandaJamison@nbc.gov;
JamisonYolanda@yahoo.com and yjamison@ufl.edu) from
January 3, 2011 to present.
m. All emails from Danielle Dzidzienyo to John Ross
(JohnRoss@ios.doi.gov) from April 2011 to present.
n. All emails between Danielle Dzidzienyo to Eric Alvarez from
January 2011 to present.
o. All emails from Yolanda Jamison (Yolanda Jamison@nbc.gov;
JamisonYoIanda@yahoo.com; and yjamison@ufl.edu) to Danielle
Dzidzienyo (Danielle Dzidzienyo@ios.doi.gov) from January 3,
2011 to present.
p. All emails from Yolanda Jamison (Yolanda Jamison@nbc.gov)
to Yolanda Jamison (JamisonYolanda@yahoo.com; and
yjamison@ufl.edu) from January 3, 2011 to present.
q. All emails from Yolanda Jamison (Yolanda Jamison@nbc.gov)
to Robert Davidoff (Robert L Davidoff@nbc.gov) from January 3,
2011 to present.
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r. June 10, 2011 email from Yolanda Jamison
(YolandaJamison@nbc.gov) to Michael Jurach regarding limited
inquiry.
s. All emails from Yolanda Jamison (Yolanda Jamison@nbc.gov)
to Ricardo Wiley-Pitts from February 2011 to June 17, 2011.
t. All emails between Yolanda Jamison (YolandaJamison
@nbc.gov) and Todd Stedeford from February 2011 to June 17,
2011.
u. All emails between Yolanda Jamison and Tanya Henderson
from February 2011 to June 17, 2011.
v. All emails between Yolanda Jamison and John Ross from April
2011 to June 17, 2011.
w. All emails between Yolanda Jamison and Eric Alvarez from
January 2011 to June 17, 2011.
x. Copy of the investigative report for [Office of Valuation
Services (OVS)] “Limited Inquiry” completed in June 2011.
Julka Decl. ¶ 7.
On July 5, 2011, the Office of the Secretary forwarded the request to the National
Business Center and OVS for processing. Id. ¶ 8. The Office of the Secretary released 1576
pages to Ms. Menifee in their entirety in nine batches in June and July 2012. Id. ¶¶ 13–21. On
September 28, 2012, the Office of the Secretary released 965 pages with partial withholdings
pursuant to FOIA Exemptions 5 and 6. Id. ¶ 22.
ii. September 29, 2011 Request
In the September 29, 2011 request, Ms. Menifee requested the following:
a. All emails between John Ross and Tamara Lukjanczuk from
May 2011 to present.
b. All emails between John Ross and Diane Smith (BOEMRE)
from August 2011 to present.
c. All emails between John Ross and Maggie Torres from August
2011 to present.
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d. Copy of John Ross’s outlook calendar from August 8, 2011 to
present.
e. All emails between Andrew Jackson and Diane Smith
(BOEMRE) from September 2011 to present.
Julka Decl. ¶ 24.
The Office of the Secretary forwarded the request to the National Business Center
and to the individuals named in the request for a search for responsive records. Id. ¶ 25. On
April 2, 2012, the Office of the Secretary released 913 pages to Ms. Menifee with partial
withholdings pursuant to Exemptions 5 and 6. Id. ¶ 27.
II. LEGAL STANDARDS
A. Rule 12(b)(1)
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to
dismiss a complaint, or any portion thereof, for lack of subject-matter jurisdiction. Fed. R. Civ.
P. 12(b)(1). When reviewing a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), a
court must review the complaint liberally, granting the plaintiff the benefit of all inferences that
can be derived from the facts alleged. Barr v. Clinton, 370 F. 3d 1196, 1199 (D.C. Cir. 2004).
Nevertheless, “the court need not accept factual inferences drawn by plaintiffs if those inferences
are not supported by facts alleged in the complaint, nor must the Court accept plaintiff’s legal
conclusions.” Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006).
To determine whether it has jurisdiction over the claim, a court may consider
materials outside the pleadings. Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1107 (D.C. Cir.
2005). No action of the parties can confer subject matter jurisdiction on a federal court because
subject matter jurisdiction is an Article III and a statutory requirement. Akinseye v. District of
Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). The party claiming subject matter jurisdiction
9
bears the burden of demonstrating that such jurisdiction exists. Khadr v. United States, 529 F.3d
1112, 1115 (D.C. Cir. 2008); see Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375,
377 (1994) (noting that federal courts are courts of limited jurisdiction and “[i]t is to be
presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the
contrary rests upon the party asserting jurisdiction” (internal citations omitted)).
B. Rule 12(b)(6)
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated
a claim. Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(1). A
complaint must be sufficient “to give a defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff’s
obligation to provide the grounds of his entitlement to relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. The
facts alleged “must be enough to raise a right to relief above the speculative level.” Id. Rule
8(a) requires an actual showing and not just a blanket assertion of a right to relief. Id. at 555 n.3.
“[A] complaint needs some information about the circumstances giving rise to the claims.”
Aktieselskabet Af 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008)
(emphasis in original).
In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged
in the complaint, documents attached to the complaint as exhibits or incorporated by reference,
and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508
F.3d 1052, 1059 (D.C. Cir. 2007) (internal quotation marks and citation omitted). To survive a
10
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a
claim for relief that is “plausible on its face.” Twombly, 550 U.S. at 570. When a plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged, then the claim has facial plausibility. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.A court must treat the complaint’s factual allegations as true, “even if doubtful in
fact.” Twombly, 550 U.S. at 555. But a court need not accept as true legal conclusions set forth
in a complaint. Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations. When
there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.
C. Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must
be granted when “the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted
against a party who “after adequate time for discovery and upon motion . . . fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable
inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.
11
Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “[t]he mere
existence of a scintilla of evidence” in support of its position. Id. at 252.
FOIA cases are typically and appropriately decided on motions for summary
judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F.Supp.
477, 481 n.13 (D.D.C. 1980). In a FOIA case, the Court may award summary judgment solely
on the basis of information provided by the department or agency in affidavits or declarations
when the affidavits or declarations describe “the documents and the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir.
1973). An agency must demonstrate that “each document that falls within the class requested
either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act’s
inspection requirements.” Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation
and quotation omitted).
III. ANALYSIS
The Court addresses Interior’s motion to dismiss before turning to the motion for
summary judgment on Ms. Menifee’s FOIA claim. 5
A. Motion to Dismiss First Amendment and Tort Claims
Against all six defendants, Ms. Menifee alleges defamation (Count I), violation of
her First Amendment rights (Count II), intentional infliction of emotional distress and negligent
5
The Court has federal question jurisdiction over Ms. Menifee’s FOIA claim and First
Amendment claim, see 28 U.S.C. § 1331, and supplemental jurisdiction over her common law
claims, see 28 U.S.C. § 1367. Venue is proper in this Court under 28 U.S.C. § 1391(b).
12
infliction of emotional distress (Count IV), and abuse of process (Count V). Interior raises two
arguments: first, Ms. Menifee has failed to state a claim on which relief can be granted, and
second, sovereign immunity bars the tort claims. MTD Mem. at 6.
1. Failure to State a Claim
As to Ms. Menifee’s First Amendment claim, Interior argues that Ms. Menifee
“fails to describe what First Amendment rights are implicated or how Defendants interfered with
the conduct of those rights.” MTD Mem. at 7. Interior contends that “[Ms. Menifee] has not
identified any speech or how her workplace relationship with Defendants addressed a matter of
public concern.” Id. at 7 n.6. As to Ms. Menifee’s tort claims, Interior asserts that the Amended
Complaint contains only “[l]abels and conclusion[s]” with “[n]o further explanation.” Id. at 8.
Even looking beyond the face of the Amended Complaint to Ms. Menifee’s Surreply and other
filings, Interior argues, dismissal is required because “[Ms. Menifee’s] description of the event
that she was ‘denied entry into the Department of the Interior building where she worked’ and
that she was ‘unlawfully detained’ does not state a claim.” Id. at 8 n.8. The extent of Ms.
Menifee’s argument in response to both arguments is that she has “provided the facts as required
by the FRCP.” Pl. Mot. Amend Reply at 3; see also Pl. MTD Opp. at 3 (“[T]he Pro Se Plaintiff
strongly believes that she has and met all requirements of the court and the Federal Rules of
Civil Procedure . . . .”).
The Court concludes that Ms. Menifee has failed to state a claim for a violation of
her First Amendment rights or for defamation, intentional infliction of emotional distress,
negligent infliction of emotional distress, or abuse of process. Neither the Complaint nor the
Amended Complaint contains any facts on which such claims might be based. The Amended
Complaint consists of nothing more than “labels[,] conclusions, and a formulaic recitation of the
elements of [the] cause[s] of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678
13
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”).
Even scouring the record to cobble together factual allegations from all of Ms.
Menifee’s pro se filings is insufficient to save the Amended Complaint. Ms. Menifee only
makes reference to “unsettling acts of discrimination,” Mem. Supp. TRO ¶ 3, “unbearable”
harassment, id. ¶ 20, an “unauthorized” “investigation into [her] safety,” Pl. Mot. Amend Reply
2–3, and an “abuse[]” of “position and authority,” id., without any facts to demonstrate what she
means and what Interior needs to answer. As currently formulated, Ms. Menifee’s allegations
are insufficient to state a claim for a violation of her First Amendment rights, see Thompson v.
District of Columbia, 428 F.3d 283, 285–86 (D.C. Cir. 2005) (elements of First Amendment
claim), defamation, Jankovic v. International Crisis Group, 494 F.3d 1080, 1087 (D.C. Cir.
2007) (elements of defamation claim), intentional infliction of emotional distress, Ross v.
DynCorp, 362 F. Supp. 2d 344, 358 (D.D.C. 2005) (elements of intentional infliction of
emotional distress claim), negligent infliction of emotional distress, Rice v. District of Columbia,
774 F. Supp. 2d 25, 33 (D.D.C. 2011) (elements of negligent infliction of emotional distress
claim), or abuse of process, Scott v. District of Columbia, 101 F.3d 748, 756 (D.C. Cir. 1996)
(elements of abuse of process claim). 6 Even construing her allegations regarding the April 2,
2012 incident more broadly to allege false imprisonment or false arrest, Ms. Menifee’s
6
To the extent that Ms. Menifee’s allegations might fit under the rubric of employment
discrimination—e.g., a claim of hostile work environment or retaliation for complaining about
Mr. Ross—Ms. Menifee stated at the TRO hearing that she had filed an Equal Employment
Opportunity complaint raising such claims and she is pursuing it separately. Feb. 24, 2012 Hr’g
Tr. at 9–10. The Court lacks jurisdiction over such claims until administrative remedies are
exhausted. Similarly, to the extent that Ms. Menifee may seek to allege a Whistleblower
Protection Act claim, e.g. 5 U.S.C. § 2302(b)(8), it would also require exhaustion of
administrative remedies, and there is no evidence here that Ms. Menifee filed any such
administrative claim.
14
allegations do not state a claim because she contends only that she was prohibited from entering
the Interior office building. See Lyles v. Micenko, 468 F. Supp. 2d 68, 74 (D.D.C. 2006)
(discussing false imprisonment and false arrest and noting that “[t]he main component of a claim
for false arrest or false imprisonment is an unlawful detention”).
Ms. Menifee has thus failed to state a claim as to Counts I, II, IV, and V, and her
Amended Complaint must be dismissed as to those counts.
2. Sovereign Immunity
Assuming arguendo that Ms. Menifee stated a claim, her Amended Complaint
must nonetheless be dismissed as to her defamation, intentional and negligent infliction of
emotional distress, and abuse of process claims due to sovereign immunity. It is “axiomatic that
the United States may not be sued without its consent and that the existence of consent is a
prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983); see also Fed.
Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994) (absent a specific waiver, the United
States government is protected from suit by the doctrine of sovereign immunity). In addition,
sovereign immunity bars suits for money damages against public officials sued in their official
capacities absent a specific waiver by the government. Clark v. Library of Congress, 750 F.2d
89, 103 (D.C. Cir. 1984).
The exclusive remedy for torts committed by Government employees in the scope
of their employment is a suit against the Government itself under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680. In other words, the FTCA works as a limited
waiver of sovereign immunity. Sloan v. Dep’t of Housing and Urban Dev., 236 F.3d 756, 759
(D.C. Cir. 2001). Further, the FTCA bars claimants from bringing suit until they have exhausted
their administrative remedies, which includes the requirement that claimants first bring their
claims to the agency, and that the claims have been denied by that agency. McNeil v. United
15
States, 508 U.S. 106, 111, 113 (1993); see also 28 U.S.C. § 2675(a). The exhaustion
requirement is jurisdictional. GAF Corp. v. United States, 818 F.2d 901, 904 (D.C. Cir. 1987).
Because the exhaustion requirement is jurisdictional, Interior’s motion to dismiss falls under
Federal Rule of Civil Procedure 12(b)(1), and in evaluating whether Ms. Menifee has satisfied
the exhaustion requirement, the Court may consider evidence outside of the pleadings. See
Settles, 429 F.3d at 1107.
Interior argues that sovereign immunity bars Ms. Menifee’s claims against
Interior and all of the individual defendants, who were employees of Interior. MTD Mem. at 9–
13. The Court agrees. Ms. Menifee has not alleged that the United States has waived sovereign
immunity. Although the FTCA operates as a limited waiver of sovereign immunity in some
circumstances, Ms. Menifee has not alleged that she complied with the FTCA’s prerequisites for
waiver. By sworn declaration, Interior confirms that Ms. Menifee never filed any administrative
claim. Decl. Charles B. Wallace, Mem. MTD Ex. 2 [Dkt. 15-2]. Furthermore, all of the named
employee defendants—Andrew Jackson, John Ross, Tanya Henderson, Diane Smith, and Steve
Hargrave—were acting within their official capacities during the events alleged by Ms. Menifee,
as confirmed by the Amended Complaint. Interior has filed certifications establishing that each
individual defendant was acting within the scope of his or her employment at the time of the
allegations. See Cert. Rudolph Contreras, TRO Opp. Ex. 1 [Dkt. 5-1] (as to Messrs. Jackson and
Ross and Ms. Henderson and Smith), MTD Opp. Ex. 1 [Dkt. 15-1] (as to Mr. Hargrave). Other
than the bald declaration in her briefs that she exhausted her remedies, e.g., Surreply at 2 (stating
that “all remedies were exhausted”), Ms. Menifee provides no facts or evidence in support. Her
statement alone is insufficient in light of Interior’s evidence. See Kowal v. MCI Commc’ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986))
16
(holding that a court is not required to “accept legal conclusions cast in the form of factual
allegations”). The Court thus lacks jurisdiction to hear any of Ms. Menifee’s tort claims under
the FTCA because she has not exhausted her administrative remedies.
Even with exhaustion of administrative remedies, Ms. Menifee’s claims of
defamation and abuse of process would fail because the FTCA does not waive sovereign
immunity for those particular torts. See 28 U.S.C. § 2680(h) (exempting from the FTCA “[a]ny
claim arising out of,” inter alia, “false imprisonment, false arrest, malicious prosecution, abuse
of process, libel, [and] slander”); see also Sottile v. United States, 608 F. Supp. 1040, 1042
(D.D.C. 1985) (applying § 2680(h)). Ms. Menifee attempts to shoehorn her claim against Mr.
Hargrave into § 2680(h)’s exception for claims of “assault, battery, false imprisonment, false
arrest, abuse of process, or malicious prosecution” against “investigative or law enforcement
officers of the United States Government.” See Pl. MTD Opp. 2 (“Mr. Hargrave stands alone
from the U.S. Government because the acts he committed were outside the scope of his
employment. . . . [T]orts involving Mr. Hargrave do not require a waiver of Sovereign Immunity.
It should be documented for the Court that Mr. Hargrave works within DOI, Office of Law
Enforcement & Security.”). But accepting Ms. Menifee’s argument would require ignoring her
abject failure to plead exhaustion, much less plead that Mr. Hargrave is an “investigative or law
enforcement officer.”
Moreover, a claim of abuse of process against Mr. Hargrave would not be covered
by the FTCA’s waiver of sovereign immunity because he is a “Supervisory Security Officer” at
Interior whose duties are, inter alia, “interpreting and implementing DOI security policies,
procedures, principles, and techniques.” Decl. Steven T. Hargrave, Def. MTD Ex. 3 [Dkt. 15-3]
¶¶ 1–2. Mr. Hargrave’s position does not authorize him to conduct searches, seize evidence, or
17
make arrests, id. ¶ 3, meaning that he is not an “investigative or law enforcement officer” as
defined within the relevant provision of the FTCA. See 28 U.S.C. § 2680(h) (“For the purpose
of this subsection, ‘investigative or law enforcement officer’ means any officer of the United
States who is empowered by law to execute searches, to seize evidence, or to make arrests for
violations of Federal law.”). Ms. Menifee’s response on this point—that “Mr. Hargrave[,] who
is not law enforcement, was charged by his co-defendants to conducted [sic] an investigation into
the Plaintiff’s safety, which he was not authorized to do[,] and provided unverified/unsworn
testimony [at the TRO hearing], which demonstrates his lack of qualifications,” Pl. Mot. Amend
Reply at 2–3—is nonresponsive to the requirement imposed by 28 U.S.C. § 2680(h) and, at any
rate, does not satisfy the legal standard. See Iqbal, 556 U.S. at 678 (requiring “more than a sheer
possibility that a defendant has acted unlawfully”). Thus, sovereign immunity would bar an
abuse of process claim against Mr. Hargrave even had Ms. Menifee exhausted her administrative
remedies and filed a proper complaint.
3. Conclusion
For the foregoing reasons, the Court will grant Interior’s motion to dismiss Ms.
Menifee’s First Amendment and tort claims, alleged in Counts I, II, IV, and V. The dismissal
will be with prejudice as to Counts I and V, the claims of defamation and abuse of process,
because sovereign immunity is not waived as to those torts. The dismissal is without prejudice
as to the First Amendment claim (Count II) and the intentional and negligent infliction of
emotional distress claim (Count IV).
B. FOIA Claim
Interior has moved for summary judgment on Count III, Ms. Menifee’s claim that
“[t]he Defendant intentionally withheld [her] request for records under [FOIA].” Interior argues
that: (1) it has conducted an adequate and reasonable search, Def. MSJ Mem. 4–5; (2) it has
18
“released all responsive, non-exempt records in response to [Ms. Menifee’s] FOIA request,” id.at 5–6; (3) its withholdings pursuant to Exemption 5 were proper, id. at 6–14; (4) its
withholdings pursuant to Exemption 6 were proper, id. at 14–19; and (5) it produced all
reasonably segregable, non-exempt information, id. at 20–21.
In her opposition to Interior’s motion for summary judgment, Ms. Menifee argues
that Interior “unlawfully withheld numerous records from the Plaintiff without just cause and
merit, alleging and asserting false exemption claims (Exemption 5 and Exemption 6) to
circumvent discovery.” Pl. MSJ Opp. [Dkt. 29] at 2. She avers that there is no “way to
determine what records were withheld” and that “incriminating emails were withheld from [her]
to protect the Defendants against [her] civil law suit.” Id. She further argues that “due to the
oversight of Defendant Andrew Jackson, the agency still refused to release emails [ ] to protect[ ]
his interest.” Id. Ms. Menifee relies heavily on three memoranda—one from President Barack
Obama, one from Attorney General Eric Holder, and one from Secretary of the Interior Kenneth
Salazar—that all reflect the Obama administration’s policy that FOIA “should be administered
with a clear presumption . . . [that] openness prevails.” See Pl. MSJ Supp. Op., Exs. 1–3 (policy
memoranda).
Ms. Menifee asserts that Interior’s invocation of FOIA exemptions is
“contradictory of the directives of the President, the Attorney General, and the Secretary [of]
DOI” and is merely a “ploy by the agency for [its] noncompliance.” Id. at 4. Ms. Menifee
contends that Exemption 5 cannot apply here because she requested “emails,” not
“memorandums or letters.” Pl. MSJ Opp. at 2. She also argues that an “[a]ttorney client
privilege claim in this case is erroneous and did not apply” because “the emails requested did not
involve conversations between DOI attorneys and staff.” Pl. MSJ Supp. Opp. at 4. Interior’s
19
claim of attorney-client privilege under Exemption 6 fails, Ms. Menifee contends, because the e-
mails she requests “consist of email communications between non-Office of the Solicitor
attorneys.” Id. Ms. Menifee also argues that Interior cannot invoke Exemption 6 because the
documents she requested “did not involve conduct of the [Office of the Solicitor]” and “the
privacy interest in this matter was that of [her].” Pl. MSJ Supp. Opp. at 5. 7
The Court has reviewed the evidence submitted by Interior and concludes that
Interior has met its FOIA obligations. First, its search was reasonable. The adequacy of a search
is measured by a standard of reasonableness and depends on the individual circumstances of each
case. Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990). The question is not whether
other responsive documents may exist, but whether the search itself was adequate. Steinberg v.
United States Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). Before it can obtain summary
judgment in a FOIA case, “an agency must show, viewing the facts in the light most favorable to
the requester, that . . . [it] has conducted a search reasonably calculated to uncover all relevant
documents.” Id. There is no requirement that an agency search every record system, but the
agency must conduct a good faith, reasonable search of those systems of records likely to possess
the requested information. Blanton v. U.S. Dep’t of Justice, 182 F. Supp. 2d 81, 84 (D.D.C.
2002). Interior has submitted the Declaration of Clarice Julka, a FOIA officer with Interior’s
Office of the Secretary, who handled both of Ms. Menifee’s FOIA requests. The Julka
Declaration establishes that Interior’s Office of the Secretary processed both of Ms. Menifee’s
7
Ms. Menifee further contends that Interior “is in contempt and should be fined, penalized, and
judgment . . . ruled in favor of the Plaintiff” because Interior has “demonstrate[d] a lack of regard
to Federal laws and regulations and the authority of the Court.” Pl. MSJ Opp. at 3; see also Pl.
MSJ Supp. Opp. at 2 (arguing that “[a]fter being granted three extensions of time to respond, the
agency deliberately failed to respond to the Court[’]s order to provide records by July 30,
2012”). The Court rejects these arguments, which depend on Ms. Menifee’s erroneous belief
that the Court’s grant of extensions of time to file an answer to the Amended Complaint, e.g.,
Minute Order dated July 5, 2012, demonstrates a violation of Interior’s FOIA obligations.
20
FOIA requests and forwarded them to other offices for searches in accord with the type of
information that Ms. Menifee requested. See Steinberg, 23 F.3d at 551. The first request was
submitted to Interior’s National Business Center and the OVS for processing, while the second
request was submitted to the National Business Center and the individuals named in the request.
Julka Decl. ¶¶ 8, 25. Because Ms. Menifee requested “records relating to emails and office
activities of the [OVS],” Def. MSJ Mem. at 4, the OVS, National Business Center, and the
persons whose e-mails were requested were those likely to be in possession of responsive
records. Those entities and persons performed the searches, and a number of records were
produced to Ms. Menifee. Julka Decl. ¶¶ 8, 10–11, 13–22, 25, 27. The Court thus finds that
Interior’s search was adequate and reasonable.
Second, in response to Ms. Menifee’s two requests, Interior produced a total of
1576 pages in their entirety and 1878 pages with partial withholdings pursuant to Exemptions 5
and 6. Julka Decl. ¶¶ 13–22, 25, 27. Before turning to the specific exemptions, the Court finds
unavailing any reliance on President Obama’s January 21, 2009 FOIA policy memorandum and
the other memoranda issued by government officials pursuant to the President’s memorandum.
President Obama’s memorandum specifically stated that it did “not create any right or benefit,
substantive or procedural, enforceable at law or in equity by any party against the United States,
its departments, agencies, or entities, its officers, employees, or agents, or any other person.”
Presidential Memorandum, 74 Fed. Reg. 4683, 4683–84 (Jan. 21, 2009). The President’s
memorandum and the others cited by Ms. Menifee merely established policy; they did not, and
could not, change the legal requirements of FOIA as adopted by Congress. See Lewis v. Dep’t of
Justice, 867 F. Supp. 2d 1, 24 (D.D.C. 2011) (rejecting similar argument).
21
The Court reviews each claimed exemption in turn. Under Exemption 5, an
agency need not produce “inter-agency or intra-agency memorandums or letters which would not
be available by law to a party other than an agency in litigation with the agency[.]” 5 U.S.C.
§ 552(b)(5). Exemption 5 encompasses all documents “normally privileged in the civil
discovery context[,]” including attorney work product and attorney-client communications.
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see also Formaldehyde Inst. v. Dep’t
Health and Human Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989), overruled on other grounds by
Nat'l Inst. of Military Justice, 512 F.3d 677 (D.C. Cir. 2008). Documents covered by the
deliberative process privilege are “documents reflecting advisory opinions, recommendations
and deliberations comprising part of a process by which governmental decisions and policies are
formulated.” Sears, Roebuck & Co., 421 U.S. at 150 (internal citation and quotation marks
omitted). Such documents are protected under Exemption 5 “to enhance the quality of agency
decisions by protecting open and frank discussion among those who make them within the
Government.” Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 9
(2001) (internal citation, modification, and quotation marks omitted).
Pursuant to Exemption 5, Interior has withheld: (1) policy document drafts;
(2) legal advice to Interior personnel; (3) internal communications related to other litigation; and
(4) conference call numbers and passwords. The policy document drafts are internal Interior
documents that reflect discussions amongst superiors and subordinates about an “overhaul” of
OVS, the office in which Ms. Menifee worked. Julka Decl. ¶¶ 29–30. Under personnel legal
advice, Interior has withheld “confidential communications between [Office of the Solicitor
(SOL)] attorneys, confidential communications between [SOL] attorneys and OVS
employees[, and] a confidential communication within OVS encompassing opinions provided by
22
SOL based on confidential, client-supplied facts.” Id. ¶ 31. The communications dealt with
“particular issues associated with several Equal Employment Opportunity (EEO) claims.” Id.
¶ 32. The “other litigation” category includes documents similar to those withheld as “personnel
legal advice” but pertaining to “appraisal litigation” instead of EEO matters. Id. ¶¶ 34–37.
Finally, Interior withheld private conference-call pass codes and telephone numbers that it
purchased “as an ordinary commercial buyer.” Id. ¶¶ 38–39.
The categories of information withheld by Interior under Exemption 5 fit within
that exemption as interpreted by the courts, either as work product or under the deliberative
process privilege. 8 Contrary to Ms. Menifee’s argument, she is not entitled to the e-mails she
seeks just because the FOIA statute protects from disclosure only “memorandums and letters.”
E-mails are often today’s equivalent of what would have been memorandums in another decade.
Where all or some of the information contained in a document—whether e-mail, letter,
memorandum or otherwise—is protected by Exemption 5 and the sworn declaration submitted
by an agency supports that classification, as Interior has done with the Julka Declaration, the
agency need not release the document or can redact exempt portions. See, e.g., Coastal States
Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (holding that Exemption 5
“covers recommendations, draft documents, proposals, suggestions, and other subjective
documents which reflect the personal opinions of the writer rather than the policy of the
agency.”). Moreover, in light of the Julka Declaration, Ms. Menifee’s bald assertions, such as
that “the emails requested did not involve conversations between DOI attorneys and staff” and
that Interior is using Exemption 5 as an “excuse not to release the records,” are insufficient to
8
Interior redacted “conference call numbers and passwords,” which are not covered by
Exemption 5’s work-product and deliberative-process privileges. However, Ms. Menifee
acknowledges that she “was not interest[ed] in obtaining conference call numbers and
passwords.” Pl. Supp. MSJ Opp. at 4.
23
survive summary judgment. See Schoenman v. FBI, 573 F. Supp. 2d 119, 134 (D.D.C. 2008)
(“In opposing a motion for summary judgment or cross-moving for summary judgment, a FOIA
plaintiff must offer more than conclusory statements.” (citations omitted)).
Exemption 6 permits an agency to withhold from disclosure “personnel and
medical files and similar files” if their disclosure would “constitute a clearly unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(6). To support a withholding under Exemption
6, an individual’s privacy rights are balanced against the public’s interest in disclosure. See Dep’t
of the Air Force v. Rose, 425 U.S. 352, 372–73 (1976). “[T]he only relevant ‘public interest in
disclosure’ to be weighed in this balance is the extent to which disclosure would serve the ‘core
purpose of the FOIA,’ which is ‘contributing significantly to public understanding of the
operations or activities of the government.’” Dep’t of Def. v. Federal Labor Relations Auth., 510
U.S. 487, 495 (1994) (citations omitted).
Interior has withheld the following categories of information under Exemption 6:
(1) e-mail addresses, (2) personnel matters, (3) personal health, (4) personal health of third
parties, and (5) days that employees take leave. Julka Decl. ¶¶ 40–44. The e-mail addresses at
issue include employees’ personal e-mail addresses. Id. ¶ 40. Under personnel matters, Interior
has withheld information employees shared with supervisors regarding “personnel grievances.”
Id. ¶ 41. Interior withheld “[e]xtremely detailed health-related information about a single SOL
employee . . . from one document.” Id. ¶ 42. It further withheld “[t]he names of relatives of an
SOL employee, the name and familial status of a relative of an individual writing to a SOL
employee, the nature of [the] familial relationship between an individual unrelated to the
Department and another SOL employee, and the identity and time and means of death of a
recently[ ]deceased individual who was related to an SOL employee.” Id. ¶ 43. Finally, Interior
24
has withheld information as to employees’ “personal appointments and personal reasons for
taking leave.” Id. ¶ 44. The Court concludes that the Julka Declaration supports Interior’s
decision to withhold the specified information pursuant to Exemption 6. See U.S. Dep’t of State
v. Wash. Post Co., 456 U.S. 595, 596 n.1, 601–02 (1982) (holding that Exemption 6 applies to
information contained in “personnel and medical files and similar files,” which include files that
“appl[y] to a particular individual”). Ms. Menifee’s vague, unsupported arguments to the
contrary—for example, that “the privacy interest in this matter was that of [her],” Pl. MSJ Supp.
Opp. at 5—are not enough to compel a contrary conclusion. See Schoenman, 573 F. Supp. 2d at
134 (“[A] plaintiff pursuing an action under FOIA must establish that either: (1) the Vaughn
index does not establish that the documents were properly withheld; (2) the agency has
improperly claimed an exemption as a matter of law; or (3) the agency has failed to segregate
and disclose all nonexempt material in the requested documents.” (citations omitted)).
Further, Ms. Menifee offers unsupported assertions that Interior is withholding e-
mails to protect Mr. Jackson and that Interior “withheld information simply because [it] could do
so.” Pl. MSJ Supp. Opp. at 5. She has proffered no facts to contradict Interior’s assertion that
the redacted information falls outside the scope of her requests. The privacy interests at stake are
not Ms. Menifee’s but those of the other Interior employees, and the public interest against
which those privacy interests are balanced is not Ms. Menifee’s individual matters but the
general public interest in knowing what the government is up to. See Nat’l Archives & Records
Admin. v. Favish, 541 U.S. 157, 172 (2004) (observing that the public-privacy balancing of
FOIA “requires [courts] to protect, in the proper degree, the personal privacy of citizens against
the uncontrolled release of information compiled through the power of the State”). Because an
agency has “no obligation to produce information that is not responsive to a FOIA request,” there
25
is no reason for this Court to find these redactions improper, even if not exempted from FOIA
disclosure. See Wilson v. U.S. Dep’t of Transp., 730 F. Supp. 2d 140, 156 (D.D.C. 2010)
(internal citations and quotation marks omitted). The Court concludes that Interior has released
responsive records and that its withholdings under Exemptions 5 and 6 were proper.
Finally, the Court must separately examine any issues of segregability, even
where the claimed exemption is not contested, to ensure compliance with the FOIA. Trans-
Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999). The
Julka Declaration states that “no meaningful portions [of the withheld documents] could
reasonably be released without destroying the integrity of such document as a whole.” Julka
Decl. ¶ 47. As discussed above, the Court has reviewed Interior’s justifications for its
withholdings pursuant to Exemptions 5 and 6 and has concluded that they are proper. Ms.
Menifee has neither controverted these assertions by contrary facts nor presented facts of agency
bad faith. See Casey, 656 F.2d at 738. Therefore, the Court concludes that Interior has satisfied
the segregability requirement.
Because Interior has demonstrated that it has met its FOIA obligations and Ms.
Menifee has adduced no credible argument or facts to the contrary, the Court will grant Interior’s
motion for summary judgment.
IV. CONCLUSION
For the reasons set forth above, the Court will grant Interior’s motion to dismiss
and motion for summary judgment. Judgment will be entered in favor of Defendants on Ms.
Menifee’s FOIA claim.
Counts I and V, the claims of defamation and abuse of process will be dismissed
with prejudice. Count II, the First Amendment claim, and Count IV, the intentional and
26
negligent infliction of emotional distress claim, will be dismissed without prejudice. A
memorializing Order accompanies this Opinion.
DATE: March 21, 2013
/s/
ROSEMARY M. COLLYER
United States District Judge
27