UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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PRISON LEGAL NEWS,

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Plaintiff,

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v.

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HARLEY G. LAPPIN, DIRECTOR, FEDERAL )

BUREAU OF PRISONS

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Defendant.

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_________________________________________ )

Civil Action No. 05-1812 (RBW)

MEMORANDUM OPINION

The plaintiff, Prison Legal News (“PLN”), brings this action challenging the Federal

Bureau of Prison’s (“BOP”) refusal to grant a waiver of all search and duplication fees associated

with a document request made under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552

(2000). Complaint for Declaratory and Injunctive Relief (“Compl.”) ¶¶ B, C. Currently before

the Court are the parties’ cross-motions for summary judgment directed to the propriety of the BOP’s waiver denial.1 For the reasons set forth below, this Court will grant the plaintiff’s

motion for summary judgment and deny the defendant’s motion for summary judgment.

I. Background

PLN is a legal journal devoted to reporting news and litigation concerning detention

facilities. Compl. ¶ 5. On August 6, 2003, PLN submitted a FOIA request to the BOP seeking

1 The following papers have been submitted in connection with these motions: (1) Defendant’s Motion for Summary Judgment (“Def.’s Mot.”) and its Memorandum of Points and Authorities in Support of Defendant’s Motion for Summary Judgment (“Def.’s Mem.”); (2) the Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment and Cross Motion for Summary Judgment (“Pl.’s Opp’n”); (3) the Defendant’s Reply to Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment and Opposition to Plaintiff’s Cross Motion for Summary Judgment (“Def.’s Reply”); and (4) the Plaintiff’s Reply to Defendant’s Opposition to Plaintiff’s Cross Motion for Summary Judgment (“Pl.’s Reply”).

“a copy of all documents showing all money paid by the [BOP] for lawsuits and claims against
it” between January 1, 1996 and July 31, 2003. Pl.’s Opp’n, Ex. 1. Specifically, PLN sought “a
copy of the verdict, settlement or claim in each case showing the dollar amount paid, the identity
of the plaintiff/claimant and the legal identifying information for each lawsuit or claim or
attorney fee award” and “a copy of the complaint . . . or the claim . . . in each incident which
describes the facts underlying each lawsuit and claim.” Id. Additionally, PLN requested a
waiver of all fees associated with processing the request and providing it with copies of the
responsive documents. Id.
Under the FOIA, fees will be waived if “disclosure of the information is in the public
interest because it is likely to contribute significantly to public understanding of the operations or
activities of the government and is not primarily in the commercial interest of the requester.” 5
U.S.C. § 552(a)(4)(A)(iii). To support its request for a fee waiver, PLN provided the following
information in its letter to the BOP:
PLN is a § 501[c](3) non-profit organization. We are a serious legal and political journal that reports on news and litigation involving detention facilities. We have published monthly since 1990 and currently have around 3,400 subscribers in all 50 states. We [e]stimate our actual readership to [be] in the range of 18,000 people. We believe that the requested documents will shed light on the operations of the BOP and help provide the public with a better understanding of how the nation’s prison system is run and managed since damage verdicts and settlements are an important means of measuring respect for constitutional rights within penal facilities. Moreover, the payout of government money is a strong indicator to tax payers of how government facilities are operated. The information requested is plainly related to the operations and activities of the BOP.
Pl.’s Opp’n, Ex. 1. PLN also made clear that, once produced, it would analyze and publish the
requested information both in its magazine and on its website. Id. In a letter dated September 9,
2003, the BOP denied the fee waiver request because in the BOP’s view the PLN request did not
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“explain how [the requested documents] would be of public interest.” Pl.’s Opp’n, Ex. 2. That same letter notified PLN that the estimated cost of accommodating the request was $6,944.00 plus copying fees, but this fee could likely be reduced if PLN reformulated its request. Id.
PLN appealed the BOP’s decision to the United States Department of Justice’s Office of Information and Privacy (“OIP”) pursuant to 28 C.F.R. § 701.16(a) (2000).2 Pl.’s Opp’n, Ex. 3. In a letter to the OIP dated October 20, 2003, PLN reasserted that the “public is greatly interested in the amount and manner in which their tax money is spent” and that “[m]edia review of government agency pay outs in litigation is a standard journalistic practice.” Pl.’s Opp’n, Ex. 3. Nevertheless, on May 23, 2005, the OIP concluded that PLN’s request for a fee waiver had been properly denied. Pl.’s Opp’n, Ex. 4. The OIP based its denial on two factors. First, the OIP found that PLN had not “demonstrated that it has both the intent and the ability to disseminate the requested records to the general public.” Id. To support this conclusion, the OIP noted that posting information on a website does not, by itself, demonstrate that information will be communicated to the public. Id. Moreover, the OIP concluded that the PLN newsletter was also an insufficient vehicle for distributing information because the PLN website did not contain current copies of the publication. Id. Second, the OIP noted that some of the requested documents, namely complaints and verdicts, were publicly available. Id. Thus, the OIP concluded that “the level of the public’s understanding would not be enhanced” by the release of information to which it already had access. Id.
2 In its rejection letter to PLN, Pl.’s Opp’n, Ex. 2, the BOP informed PLN that they could appeal the decision to the OIP pursuant to 28 C.F.R. § 16.9. However, the regulation cited in this opinion is the correct provision.
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On September 13, 2005, PLN filed this action seeking declaratory and injunctive relief and an order compelling the defendants to provide it with all documents responsive to its FOIA requests without any cost. Compl. at 1. Both parties have now filed motions for summary judgment. These motions are the subject of this opinion.
II. Standard of Review A motion for summary judgment under Rule 56(c) will be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). When ruling on a motion for summary judgment, courts must view the evidence in the light most favorable to the non-moving party. Bayer v. Dep’t of Treasury, 956 F.2d 330, 333 (D.C. Cir. 1992). However, the non-moving party cannot rely on “mere allegations or denials . . . but . . . must set forth specific facts showing that there are genuine issues for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation and internal quotation marks omitted).
III. Legal Analysis The Court is presented with two issues in resolving the motions before it. First, the Court must determine who is the proper defendant in this action. Def.’s Mem. at 5. And, second, the Court must address whether the OIP properly denied the PLN request for a fee waiver. The Court will address each question in turn. (A) Who is the Proper Defendant? The defendant claims that the Department of Justice (“DOJ”) is the only proper defendant in this FOIA action. Def.’s Mem. at 5. Specifically, the defendant argues that because the BOP is
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a component of the DOJ it does not qualify as an “agency” under 5 U.S.C. § 552(f), and therefore, because the DOJ was not named as a defendant, this case should be dismissed. Id. Before confronting that question, the Court must first determine who the plaintiff has named as the defendant. The caption of the plaintiff’s complaint lists as the defendant “Harley G. Lappin, Director, FEDERAL BUREAU OF PRISONS.” Compl. at 1. The caption would seem to indicate that Harley Lappin is being sued in his official capacity. The text of the complaint, however, asserts a claim against the BOP. Compl. ¶¶ 3, A-C. On the other hand, the plaintiff’s pleadings filed in connection with the motions currently before the Court identify Director Lappin as the intended defendant. Pl.’s Opp’n at 9. The plaintiff does not appear to recognize that the two are not interchangeable and that only an agency can be a defendant in a FOIA action. See Jefferson v. Reno, 123 F. Supp. 2d 1, 3 (D.D.C. 2000) (stating that under the FOIA, it is the agency’s responsibility to produce the requested documents, and not the responsibility of an individual employee); Astley v. Lawson, No. 89-2806, 1991 WL 7162, at *9 (D.D.C. Jan. 11, 1991) (“[T]he only proper defendants in a FOIA action are the agencies that allegedly improperly withheld documents.”); Whittle v. Moschella, 756 F. Supp. 589, 596 (D.D.C. 1991) (citing Petrus v. Bowen, 833 F.2d 581, 583 (5th Cir. 1987) (holding that the Court's jurisdiction is “limited to enjoining agency noncompliance, § 552(a)(4)(B), and consequently no [FOIA] claim may be asserted . . . against individual federal officials”); Sherwood Van Lines v. Dep't of Navy, 732 F. Supp. 240, 241 (D.D.C. 1990) (“The plain language of the statute does not create a cause of action against individual employees of the federal agency.”). Despite the inconsistencies in the plaintiff’s papers, this Court must conclude that the named defendant in this action is the BOP, as designated in the text of the complaint. Compl. ¶¶ 3, A-C.
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This Court now must determine whether the BOP is the proper defendant, or whether this action should have been commenced against the DOJ. The papers submitted by the parties provide only minimal guidance on this important issue. In fact, the defendant has offered no case authority in support of its position, and the cases cited by the plaintiff provide little useful assistance. Def.’s Mem. at 5-6; Pl.’s Opp’n at 9-10. Under the FOIA, this Court has the power “to enjoin [an] agency from withholding agency records and to order the production of any agency record improperly withheld.” 5 U.S.C. § 552(a)(4)(B) (emphasis added). There appears to be some disagreement in this Circuit regarding what constitutes an “agency” as it pertains to the District Court’s jurisdiction pursuant to the FOIA. Compare Lair v. Dep’t of Treasury, No. 03827, 2005 WL 645228, at *3 (D.D.C. Mar. 21, 2005) (holding that naming component agencies as the defendant is proper because an agency “need not be a cabinet-level agency” under the FOIA), with Brooks v. Bureau of Prisons, No. 04-0055, 2005 WL 623229, at *2 (D.D.C. Mar. 17, 2005) (holding that only cabinet-level agencies are proper defendants in FOIA actions).
The FOIA incorporates as part of its definition of the term “agency” the definition found in the Administrative Procedure Act (“APA”), 5 U.S.C. § 551(1) (2000). Cotton v. Heyman, 63 F.3d 1115, 1121 (D.C. Cir. 1995). The FOIA states that the term “‘agency’ as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” 5 U.S.C. § 552(f). And the APA defines the term “agency” as “each authority of the Government of the United States, whether or not it is within or subject to review by another agency . . . .” 5 U.S.C. § 551(1) (emphasis added). The District of Columbia Circuit recognized
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that “Congress . . . incorporated in FOIA the APA definition . . . of agency to expand, rather than limit, its coverage.” Cotton, 63 F.3d at 1121 (upholding District Court’s decision that the Smithsonian is an “agency” under the FOIA) (citing Energy Research Found. v. Def. Nuclear Facilities Safety Bd., 917 F.2d 581, 583 (D.C. Cir. 1990) (“Congress sought to encompass entities that might have eluded the APA’s definition in § 551(1), which [the] FOIA had incorporated by reference.”). The Circuit Court has interpreted the APA definition of “agency” to “confer[] agency status on any administrative unit with substantial independent authority in the exercise of specific functions.” Soucie v. David, 448 F.2d 1067, 1073 (D.C. Cir. 1971). There can be no doubt that the BOP exercises “substantial independent authority” in the administration of its more than 106 penal institutions and over the more than 185,000 prisoners who are detained in its facilities. See About the Bureau of Prisons, http://www.bop.gov/about/index.jsp (status as of June 7, 2006). Therefore, the BOP, despite its status as a component agency of the DOJ, is a proper defendant in this FOIA action. (B) Is the Plaintiff Entitled to a Fee Waiver?
Having concluded that the Court has jurisdiction to hear this case, it must turn now to the issue of whether the plaintiff is entitled to a fee waiver. In determining whether a party is entitled to a fee waiver, “the court shall determine the matter de novo,” however, “the court’s review of the matter shall be limited to the record [that was] before the agency.” 5 U.S.C. § 552(a)(4)(A)(vii).
Generally, the FOIA requires those who request documents to pay for the search and duplication costs. Larson v. CIA, 843 F.2d 1481, 1482 (D.C. Cir. 1988) (citing Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 153 (1980)). However, in certain
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situations those costs may be reduced or waived completely. Judicial Watch v. Dep’t of Justice, 185 F. Supp. 2d 54, 58 (D.D.C. 2002) (“Judicial Watch II”); see 5 U.S.C. § 552(a)(4)(A)(ii)(II) (fee reduction for requests from educational or noncommercial scientific institutions involved in scholarly or scientific research, or from representatives of the news media); 5 U.S.C. § 552(a)(4)(A)(iii) (fee waiver for requests that are in the public interest). The public interest fee waiver provision of the FOIA provides that “[d]ocuments shall be furnished without any charge . . . if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii).
The burden of satisfying the “public interest standard” is on the requester. Larson, 843 F.2d at 1483 (citing McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1284-85 (9th Cir. 1987)). Courts employ a two part test to determine whether the requester has satisfied the burden. Id. at 1483. First, the requester must establish that it does “not have a commercial interest in the disclosure of the information sought.” Id. (quoting 5 U.S.C. § 552(a)(4)(A)(iii)). Second, the requester must demonstrate “that the disclosure of the information [is] ‘likely to contribute significantly to public understanding of the operations or activities of the government.’” Id. (quoting 5 U.S.C. § 552(a)(4)(A)(iii)). The government concedes that PLN has satisfied the public interest requirement, therefore, the Court must only examine the second prong of the test. As to this part of the test, a requester must satisfy four factors:
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(1) the subject of the requested records must concern the “operations or activities” of the government; (2) the disclosure must be “likely to contribute” to an understanding of government operations or activities; (3) the disclosure of information must contribute to the public’s understanding; and (4) the disclosure must be likely to contribute “significantly” to public understanding of government operations or activities. Judicial Watch v. Dep’t of Justice, 133 F. Supp. 2d 52, 54 (D.D.C. 2000) (“Judicial Watch I”) (citing D.C. Technical Assistance Org. v. Dep’t of Housing and Urban Dev., 85 F. Supp. 2d 46, 48-49 (D.D.C. 2000)). The parties agree that the requested documents concern the “operations or activities” of the government. Pl.’s Opp’n, Ex. 4 (“[T]he records you seek concern in part the operations or activities of the BOP . . . .”). Accordingly, this Court need only examine whether the PLN request satisfied the second, third, and fourth factors. (1) The Parties’ Arguments The defendant contends that the plaintiff failed to satisfy its burden of establishing that it was entitled to a fee waiver under the second, third, and fourth prongs of the public interest test. First, the defendant alleges that the requested information is available in the public domain through either the internet or by conducting a search of court records. Def.’s Mem. at 7. Therefore, argues the defendant, disclosure of the information would not contribute to an understanding of government operations or activities because it is readily available to the public. Id. Second, the defendant opines that PLN has failed to adequately describe the public benefit that will be derived from disclosure because its request was overly broad and lacked reasonable specificity. Id. at 7-8. Finally, the defendant argues that the plaintiff has not demonstrated its intent and ability to adequately disseminate the requested records to the general public. Id. at 89. As support for its position, the defendant relies on the OIP’s determination that the limited
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information contained on the PLN website raised questions about its intent to actually communicate the information and its inability to transmit the requested information to the public. Id. at 9.
The plaintiff responds to the first argument by claiming that only a limited portion of the documents requested are available to the public and although some of the documents may be available on the internet or in courthouses, this does not mean that the documents are in the “public domain” within the context of the FOIA. Pl.’s Opp’n at 10. The plaintiff also takes exception to the defendant’s allegation that its request lacked specificity, claiming that the requested documents “related to a number of specific abuses and events at specific institutions” and the connection between the requested information and the public interest was repeatedly and sufficiently communicated. Id. at 14. In response to the defendant’s argument that PLN cannot adequately disseminate the requested information to the public, the plaintiff contends that the defendant misjudged the circulation level of PLN’s printed material and the number of people who visit its website based on the defendant’s review of the information contained on the website. Id. at 15-16. The plaintiff also asserts that it is a representative of the news media and therefore it is, at the least, entitled to a waiver of search and review costs, if not duplication fees, under 5 U.S.C. § 552(a)(4)(A)(ii)(II). Id. at 13-14. The defendant does not explicitly dispute this assertion, but by challenging the plaintiff’s ability to disseminate the requested information, the defendant, in effect, challenges the validity of plaintiff’s status as a member of the news media. Def.’s Mem. at 8-10.
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(2) Is the Requested Information Readily Available to the Public? “The mere fact that material is in the public domain does not justify denying a fee waiver; only material that has met a threshold level of public dissemination will not further ‘public understanding’. . . .” Campbell v. Dep’t of Justice, 164 F.3d 20, 36 (D.C. Cir. 1998). For example, simply because documents are available in an agency’s reading room does not negate the fact that their production is likely to contribute to the understanding of government operations or activities. See Schrecker v. Dep’t of Justice, 970 F. Supp. 49, 51 n.3 (D.D.C. 1997); Fitzgibbon v. Agency for Int’l Dev., 724 F. Supp. 1048, 1050-51 (D.D.C. 1989) (recognizing the difficulty of accessing an agency’s reading room). Here, the Court is compelled to conclude that the requested agency documents are not readily available to the public. The government concedes that at least some of the requested documents are not publicly available. Pl.’s Opp’n, Ex. 4 (“[A] portion of the records requested . . . is publicly available.”) (emphasis added). And, to the extent that the remaining documents are available to the public, they are not available in a manner which would further public understanding. First, unlike documents centrally located in a reading room, the publicly available documents responsive to the plaintiff’s request are likely dispersed throughout the more than ninety-four federal courthouses in this country.3 See Schrecker, 970 F. Supp. at 51 n.3. Second, in many cases covered by the PLN requests, the BOP may not be a named party, which would complicate significantly the public’s ability to discover those particular cases. See, e.g., Oakes v. Dalius, No. 5:03-CT-498-H, 2003 WL 23857312 (E.D.N.C. July 16, 2003) (prison warden was named defendant in case seeking
3 Although there are ninety-four federal judicial districts, there is more than one courthouse in some districts.
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monetary damages for alleged violation of prisoner’s right to free speech); Kaiser v. Bailey, No. 01-6151, 2003 WL 21500339 (D.N.J. July 1, 2003) (prison warden was named defendant in case seeking monetary damages for alleged violations of prisoner’s First and Eighth Amendment rights); Estrella v. Menifee, No. 02 Civ. 6144, 2003 WL 192177 (S.D.N.Y. Jan. 27, 2003) (prison warden was named defendant in case seeking monetary damages for alleged violations of prisoner’s constitutional rights); Indelicato v. Suarez, 207 F. Supp. 2d 216 (S.D.N.Y. 2002) (case manager was named defendant in case seeking monetary damages for alleged violations of prisoner’s constitutional rights). Furthermore, it should be noted that this Court’s own electronic case filing (“ECF”) system did not become operative until 2001, and as a test site for the ECF system this Court was one of the first to employ it. National implementation of the ECF system began in May of 2002 and still continues. See ECF Frequently Asked Questions, http://www.uscourts.gov/cmecf/cmecf_faqs.html (last visited June 16, 2006). Accordingly, the amount of the requested information that could be accessed by the public is drastically reduced for the period between 1996 and the date at which a particular district began to employ the ECF system. Moreover, there are currently thirteen of the ninety-four federal judicial districts that have yet to employ the ECF system. See Courts Accepting Electronic Filings, http://www.uscourts.gov/cmecf/cmecf_court.html (last visited June 16, 2006). In those districts, electronic access to records is restricted for the entire period of the plaintiff’s request.
There is a significant difference between locating the requested information in courthouses around the country and on the internet, as opposed to having access to the information in a single document. Cf. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764 (1989). Publication of the requested information by PLN will therefore
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contribute far more to public understanding than if the information remains available only in its current status. See Fitzgibbon, 724 F. Supp. at 1051. Accordingly, the plaintiff has established that the requested information is likely to contribute to public understanding of government operations or activities because it has not reached a threshold level of dissemination. See Campbell, 164 F.3d at 36; Fitzgibbon, 724 F. Supp. at 1051.
(3) Was the PLN Request Reasonably Specific? “The requester of a fee waiver bears the initial burden of identifying, with reasonable specificity, the public interest to be served . . . .” Fitzgibbon, 724 F. Supp. at 1050 (citing Nat’l Treasury Employees Union v. Griffin, 811 F.2d 644, 647 (D.C. Cir. 1987)). Two cases that have examined the reasonable specificity requirement aid the Court in making the determination that the plaintiff has satisfied this requirement. In Judicial Watch v. Rossotti, the plaintiff requested “reports, investigations, decisions, waivers and findings of fact concerning conflicts-of-interest by . . . IRS Commissioner Charles O. Rossotti.” 326 F.3d 1309, 1313 (D.C. Cir. 2003). The plaintiff asserted that “‘the public is always well served when it knows how government activities, particularly matters touching on legal and ethical questions, have been conducted,’ and that, ‘the information requested will be meaningfully informative in increasing public understanding of the IRS commissioner’s involvement and interest in lucrative government contracts.’” Id. at 1313-14. In that case, the District of Columbia Circuit found that the plaintiff’s letter “specifically explain[ed]” the public interest to be served. Id. at 1313. On the other hand, in Judicial Watch I, the plaintiff requested “material related in any way to the ‘[d]ecision(s) by Attorney General Janet Reno, the Department of Justice, the Immigration and Naturalization Service, and/or other persons and entities to return Elian Gonzales to the custody
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of his biological father in Cuba’. . . .” 133 F. Supp. 2d at 52-53. The Judicial Watch I Court denied a public interest fee waiver request, finding that the plaintiff’s assertion that the information would “promote accountable government” and “benefit the public by identifying areas for future reform as well as deterring future abuses that could otherwise proliferate without scrutiny” was “perfunctory” and “too ephemeral to satisfy the reasonable specificity standard.” Id. at 54.
The Court finds the circumstances in this case more analogous to Rossotti than Judicial Watch I. As in Rossotti, the PLN request specifically explains both the records sought and how the public will benefit from the information contained in those records. Pl.’s Opp’n, Exs. 1, 3. Moreover, in contrast to Judicial Watch I, PLN does not assert that information related to a single isolated event will benefit the public interest in the general sense of “promoting accountable government.” Rather, the PLN request seeks information regarding specific events that occurred within BOP facilities that will provide insight to the public about how its federal prisons are being managed and operated, and how its tax dollars are being expended. Pl. Opp’n, Ex 1. And, PLN repeatedly specified how the requested information would benefit the public. For example, in its letters dated August 6, 2003 and October 20, 2003, PLN clearly represented that information regarding litigation and settlements can provide important insight into how well the nation’s prisons are being managed. Pl.’s Opp’n, Ex. 1 (“[D]amage verdicts and settlements are an important means of measuring respect for constitutional rights within penal facilities); id., Ex. 3 (“Litigation against government agencies is an important barometer of how well managed, or badly run as the case may be, the agency may be as well as illustrating trends and patterns of
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abuse or other forms of mismanagement.”).4 The Circuit Court’s sentiment in Rossotti that “we cannot imagine what else [the plaintiff] could have said to satisfy the government’s appetite for specificity,” id., has equal applicability here.
(4) Does PLN Have the Intent and Ability to Disseminate The Requested Records to the General Public?
In assessing whether a public interest fee waiver request should be granted, the Court “must consider the requester’s ability and intention to effectively convey or disseminate the requested information to the public.” Judicial Watch II, 185 F. Supp. 2d at 62. In doing so, courts “must look to ‘the scope of the requester’s proposed dissemination—whether to a large segment of the public or a limited subset of persons’ . . . . ” VoteHemp, Inc. v. DEA, 237 F. Supp. 2d 55, 62 (D.D.C. 2002) (quoting D.C. Technical Assistance Org., 85 F. Supp. 2d at 49). PLN clearly stated its intention to “analyze and publish” the requested information in its printed journal and on its website. Pl.’s Opp’n, Ex. 1. The question before the Court, therefore, is whether PLN has the ability to disseminate the information. The government primarily argues that the finding by the OIP that the PLN website is not a viable distribution channel shows that PLN failed to demonstrate its dissemination ability. The Court does not agree. Regardless of the viability of the PLN website as a mechanism for distributing the requested information, with 3,400 reported subscribers and an estimated readership population of 18,000, PLN has demonstrated its ability to distribute the printed journal to the public.
4 The plaintiff has also provided this Court with an affidavit and several declarations in further support of its arguments. Affidavit of Fred Cohen; Declaration of David Fathi; Declaration of Paul Wright. The Court’s review, however, is limited to the record that was before the agency. 5 U.S.C. § 552(a)(4)(A)(vii). There is no indication that the affidavit or declarations were before the agency, and therefore, this Court cannot consider them.
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The government cites Larson in support of its position. However, Larson is not analogous to this case. In Larson, the plaintiff stated an intent to distribute requested information to a “major newspaper company.” Larson, 843 F.2d at 1482. The District of Columbia Circuit found that the plaintiff had not demonstrated an intent or ability to disseminate the information because he had not identified the newspaper, the purpose for requesting the information, or any contact he had with any major newspaper. Id. PLN, unlike the plaintiff in Larson, is a publication in and of itself, and therefore does not have to rely on another entity to disseminate the information. Thus, there is no “tenuous link” between the requester and the channels through which the information will be disseminated, as was the situation in Larson. See id. at 1483 n. 5.
In Linn v. Dep’t of Justice, the plaintiff asserted that his method of distribution would be to provide the requested information to federal inmate lobbying organizations with “member mailings number[ing] in the thousands each month.” No. 92-1406, 1997 WL 577586, at *6 (D.D.C. May 29, 1997). While similar to Larson in that the plaintiff in Linn relied on an intermediary to disseminate the requested information, the Court noted that, unlike Larson, the plaintiff had specified the lobbying organizations that would disseminate the information. Id. Thus, the Linn Court found that the “[p]laintiff’s representations that he will supply the information that he has received to organizations which can widely disseminate it to the relevant public . . .” entitled the plaintiff to a fee waiver. Id. The facts in this case compel the same conclusion. With a represented readership of “thousands each month,” PLN can “widely disseminate” the requested information to the “relevant public.” Id. Moreover, PLN’s ability to disseminate the requested information must be considered even greater than the plaintiff in Linn
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because, as noted above, PLN does not rely on an intermediary to distribute the information. Therefore, PLN has shown an intent and ability to disseminate the requested information.
V. Conclusion For the foregoing reasons, the Court concludes that the plaintiff has established that disclosure of the requested information is “in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii).5 Moreover, the plaintiff has demonstrated its intent and ability to disseminate the requested information to the relevant public. Accordingly, the plaintiff’s motion for summary judgment is granted and the defendant’s motion for summary judgment is denied. SO ORDERED this 26th day of June, 2006.6
REGGIE B. WALTON United States District Judge
5 Because the Court has determined that the plaintiff is entitled to the blanket fee waiver, there is no need to analyze whether the plaintiff is entitled to a partial fee waiver as a representative of the news media under 5 U.S.C. § 552(a)(4)(A)(ii)(II).
6 An Order consistent with the Court’s ruling accompanies this Memorandum Opinion.
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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PRISON LEGAL NEWS 2400 NW 80th Street - PMB #148 Seattle, WA 98117,
Plaintiff,
Harley G. Lappin, Director FEDERAL BUREAU OF PRISONS 320 First Street NW, Washington, DC 20534,
Defendant.

Civ~ Action No.

VERIFIED COMPLAINT FOR DECLARATORY AND IN,IUNCTIVE RELIEF TO OBTAIN FREEDOM OF INFORMATION ACT INFORMATION I. INTRODUCTION
Plaintiff, Prison Legal NewS (PLN), respectfully submits this Complaint for declaratory and injunctive relief ordering the Federal Bureau of Prisons (BOP) to turn over any and all material that PLN requested under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2005).
In an August 6, 2003, letter PLN requested a copy of all documents concerning the monetary amounts the BOP paid for lawsuits and claims against it between January 1, 1996, through and including July 31, 2003. PLN also asked for a fee waiver for processing this request and providing copies of the relevant documents. In a September 9, 2003, letter, the BOP denied the fee waiver, stating that the request did not meet the threshold for granting the waiver.

II. JURISDICTION. This Court has jurisdiction pursuant to 5 U.S.C. § 552 (2005).
lie PARTIES. Plaintiff; Prison Legal News, is headquartered in the State of Washington, located at 2400 NW 80~1~ Street PMB #148, Seattle, WA 98117. PLN is a § 501[c](3) non-profit organization. Defendant, Federal Bureau of Prisons, is an agency of the United States government, located at 320 First Street NW, Washington, DC 20534.
IV. FACTS. PLN reasserts paragraphs 1 to 3. PLN is a legal journal that reports news and litigation concerning detention facilities. PLN has published monthly since 1990 and has 4,500 subscribers in all 50 states. PLN’s subscribers include lawyers, journalists, judges, courts, public libraries and universities. The estimated actual readership is 36~000. PLN also maintains a website that has received more than 36,000 visitors a month. PLN, a § 501 [c](3) non-profit organization, is small and underfunded. On August 6, 2003, PLN requested documents from the BOP pursuant to FOIA, 5 U.S.C. § 552 (2005), documenting all money the BOP paid for lawsuits and claims against it between January 1, 1996~ up to and including July 31, 2003. PLN requested a copy of the verdict or settlement in each case identifying the dollar amount of damages, the plaintiff’ s or claimant’s identity and the identifying information (i.e., names, docket number, court) for each lawsuit, administrative claim, and/or attorney fee award. PLN also requested a
2

copy of the complaint or other documents describing the facts of the case. PLN requested a fee waiver for processing its request and providing copies of the relevant documents. 10. The BOP is the largest prison system in the country with facilities in almost every state and approximately 200,000 inmates. 11. PLN will contribute to the public interest and understanding of BOP operations and activities by analyzing and publishing the information obtained through this FOIA request in its print journal and on its website. Specifically, PLN will analyze how the BOP spends public tax dollars, will publicize BOP facilities in which litigation has identified problems, and test how well BOP programs address inmate concerns. 12. On September 9, 2003, the BOP denied PLN’s request for a fee waiver, stating that the request did not explain why the information was of interest to the public. 13. On October 20, 2003, PLN appealed the denial of the fee waiver to the United States Department of Justice (DO J). In its appeal PLN explained in detail how the requested information would help the public identify problems in specific BOP facilities and programs, and provided an important overall measure of program efficiency and effectiveness within BOP. 14. On May 23, 2005, the DOJ denied PLN’s appeal. DOJ denied the appeal because PLN had not ~demostrated that it has both the intent and the ability to disseminate the requested records to the general public." 15. 5 U.S.C. § 552(a)(4)(A)(iii) grants the right to a fee waiver if it satisfies the following requirement:

~’if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester." 16. PLN satisfies this requirement as it will contribute to the public understanding of BOP operations and activities by analyzing and publishing the information obtained through this FOIA request in its print journal and on its website. This request is not primarily in the cornrnercial interest of PLN as it is a non-profit organization.
V. CAUSE OF ACTION - FAILURE TO WAIVE FEE RELATING TO FOIA REQUEST
Plaintiff reasserts paragraphs 1 to 16. As demonstrated in the facts, PLN satisfies the statutory requirement for a 5 U.S.C. § 552(a)(4)(A)(iii) fee waiver. 19. Therefore, BOP’s September 9, 2003, decision improperly denied PLN’s request for a fee waiver.
VL PRAYER FOR RELIEF WHEREFORE, PLN respectfully requests that this Court grant it the following relief: Declare that Defendant BOP’s denial of the fee waiver request is unlawful; B. Order Defendant BOP to grant the requested fee waiver; C. Order Defendant BOP to produce the requested documents within 30 days; D. Award PLN its reasonable attorney’s fees and costs incurred in this case under 5 U.S.C. § 552(a)(4)(E); Grant such further relief as the Court may find just and proper.

Dated:

Respectfully submitted,
By: dw~~-
Bar No. 460588 Klimaski & Associates, P.C 1819 L Street NW Suite 700 Washington, DC 20036 202-296-5600
Attorney for Plaintiff

VERIFICATION I, Paul Wright, on behalf of Prison Legal News, have read the above complaint and verify under penalty of perjury that the facts alleged are true to the best of my knowledge, recollection, information, and belief. Executed this 9th day of September, 2005.
Wright Prison Le
6

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

PRISON LEGAL NEWS,

)

)

Plaintiff,

)

)

v.

)

)

HARLEY G. LAPPIN, DIRECTOR, FEDERAL )

BUREAU OF PRISONS

)

)

Defendant.

)

_________________________________________)

Civil Action No. 05-1812 (RBW)

ORDER

In accordance with the Memorandum Opinion being issued contemporaneously herewith, it is

ORDERED that the plaintiff’s Motion for Summary Judgment is GRANTED. It is

further

ORDERED that the defendant’s Motion for Summary Judgment is DENIED. It is

further

ORDERED that the defendant shall process the plaintiff’s request for documents without

payment of the costs associated with the search and duplication of the documents.

SO ORDERED on this 26th day of June, 2006.

REGGIE B. WALTON United States District Judge

 
 IN TIm UMTED STATES DISTRICT COURT FOR mE DISTRICT OF COLUMBlA

)

PRISON LEGAL NEWS

}

)

Plaiutiff,

)

)

~

)

)

HARLEY G. LAPPIN, DWCTOR, FEDERAL)

BUREAU OF l'RISONS

)

)

Defendant.

)

)

Civil Action No. 05-1812 (RBW)

STIPUlATION AND ORDER

It is hereby stipulated by aM between the parties, through their """l'ective coUDSel of
reoord. subject to the approval ofme Court, that defendant shall pay plaiulUrs counsel, the total

sUm ofS48,709,72 in aItom~y'~ fees and costs. -

) ~

r:-'"" _ -l ,- - • " - . - - - -

Acceptance by plaintiffand plaintiff's counsel ofsaid aJIlQUllt shall settre end resolve
Plaintiff's Amend«ti p.mtion foc J\.ttOluq's Fee<!.

~
EDWARD J. EIDER KLIMASKl &. ASSOCIATES,P.C
1819 L Street, NW
Washin~on, DC 200036-3&30

Re&pertfUlly submitted,
Is/~ f? U~u.A.<lJ!~
K£NNETHL. WAlNSTElN, D.C. Bar #451052 j United States Attorney
R~LPHtf::!i£1£#4341Z2
ASsi&tall1 United Stales Attorney
~~~~~~.~DPc.C.Bar#Z785 5
Assistant UDited 5 Attorney 555 4'" SlIeet, N.W~ Ovil Division
W~D.C.20530
(Z02) Sl4-7224

2

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

PRISON LEGAL NEWS,

)

)

Plaintiff,

)

)

v.

)

)

HARLEY G. LAPPIN, DIRECTOR, FEDERAL )

BUREAU OF PRISONS,

)

)

Defendant.

)

)

Civil Action No. 05-1812 (RBW)

DEFENDANT’S RESPONSE TO THE COURT’S JUNE 26, 2006 ORDER

On June 26, 2006, this Court issued its Memorandum Opinion and Order which denied

defendant’s Motion for Summary Judgment, granted plaintiff’s Motion for Summary Judgment

and ordered that “defendant should process the plaintiff’s request for documents without

payment of the costs associated with the search and duplication of the documents.” The Order

did not specify a date that the documents were to be processed.

Defendant has now determined that it will not appeal this case. Accordingly, defendant

requests that it be permitted to advise the Court by September 15, 2006, of the time that will be

required to process plaintiff’s FOIA request. Plaintiff has no objection to defendant’s request.

Plaintiff requested a “copy of all documents showing all money paid by the Bureau of

Prisons (BOP) for lawsuits and claims against it. This is all funds paid out to claimants/litigants

between January 1, 1996 through and including July 31, 2003.” In addition, plaintiff also

requested:

a copy of the verdict, settlement or claim in each case showing the dollar amount paid, the identity of the plaintiff/claimant and the legal identifying information for each lawsuit or claim or

attorney fee award . . . [and] a copy of the complaint (if it was a lawsuit) or the claim (if it was not) in each incident which describes the facts underlying each lawsuit and claim. Plaintiff explained that he was “seeking this information for all lawsuits and claims where the BOP has paid money damages and/or attorney fees to litigants or claimants, this includes prisoners, employees, contractors, crime victims, etc.” It is anticipated that the search for records responsive to plaintiff’s request will produce a substantial number of documents and will consume a large amount of staff time. Declaration of Wilson J. Moorer, Paralegal Specialist, Federal Bureau of Prisons, ¶ 6. As the Moorer Declaration sets forth, a copy of plaintiff’s FOIA request has been forwarded to “all branches of the Office of General Counsel which consists of Commercial Law, Discrimination Complaints and Ethics (which encompasses Equal Employment Opportunity), Labor Law, Legal Administrative Branch, Legislative and Correctional Issues Branch, Litigation Branch, and Real Estate and Environmental Branch. Id at ¶ 4. In addition, “a copy of the request has also been forwarded to the six (6) BOP Regional Offices, the Administrative Division of the BOP (which consists of Contracts) and the Labor Management Relations Branch. Each section/branch has been instructed to identify any/all documents they may have that are responsive to the FOIA Request and the length of time it would take to search, gather, and process the responsive documents.” Id at ¶ 5. Accordingly, because of the substantial number of entities that will be involved in the search for documents herein, defendant requests that it be permitted to advise the Court by September 15, 2006 as to the time that will be required to process plaintiff’s FOIA request.
2

OF COUNSEL: Wanda Hunt Chief FOIA/PA Section Federal Bureau of Prisons

Respectfully submitted,
__/s/_____________________________________ KENNETH L. WAINSTEIN, D.C. Bar # 451058 Assistant United States Attorney
__/s/_____________________________________ RUDOLPH CONTRERAS, D.C. Bar # 434122 Assistant United States Attorney
__/s/_____________________________________ WYNEVA JOHNSON, DC Bar #278515 Assistant United States Attorney Judiciary Center Bldg. 555 4th Street, N.W., Civil Division Washington, D.C. 20530 (202) 514-7224

3

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Prison Legal News, Plaintiff, v.
Harley G. Lappin, Director FEDERAL BUREAU OF PRISONS,
Defendant.

Civil Action No. 05-1812-RBW September 12, 2007

PLAINTIFF’S OPPOSITION TO DEFENDANT’S LATEST MOTION FOR A FURTHER ENLARGEMENT OF TIME
Plaintiff Prison Legal News (PLN), through counsel, opposes Defendant’s latest Motion for Further Enlargement of Time, filed August 30, 2007 (“Tenth Enlargement Motion”). The Court should deny Federal Bureau of Prisons’ (BOP, and occasionally FBP) motion seeking further delay of proper document disclosures of public records as fully authorized under the Freedom of Information Act (FOIA).
As noted, this is now the BOP’s tenth request for further enlargement of time to release all the documents the Prison Legal News FOIA request sought — and that this Court ordered over a year ago on June 26, 2006.
Further, PLN made its original FOIA request over 3 years ago on August 6, 2003. I. STATEMENT OF THE CASE:
NUMEROUS BOP EXTENSION REQUESTS On June 26, 2006, this Court entered a Memorandum Opinion and accompanying Order (Docket Entries 17 and 18, respectively) granting PLN’s motion for summary judgment. The order stated that “the defendant shall process the plaintiff’s request for documents...”

On August 29, 2006, the BOP filed its Response to the Court’s June 26, 2006, Order (“Defendant’s Response”, Docket Entry No. 23), explaining that the BOP had forwarded PLN’s FOIA request to all branches of the Office of General Counsel, each of BOP’s six Regional Offices, its Administrative Division, and the Labor Management Relations Branch. The BOP requested it be allowed until September 15, 2006, just a little over 2 weeks, to advise the Court of the time needed to complete processing PLN’s FOIA request. A. The First Enlargement Motion
On September 15, 2006, the BOP filed a Motion for Further Enlargement of Time (“First Enlargement Motion”). BOP stated that it needed still more time to advise the Court of the time required to process PLN’s FOIA request. Defendant’s Counsel consulted with Plaintiff’s Counsel, pursuant to LCvR 7(m). Plaintiff’s Counsel did not oppose the motion.
The Court granted BOP’s First Enlargement Motion giving BOP 2 more weeks, up to and including September 29, 2006, to calculate how long it would take to process PLN’s request. B. The Second Enlargement Motion
However, on September 28, 2006, BOP filed further Motion for Enlargement of Time (“Second Enlargement Motion”). This Second Enlargement Motion stated that BOP received estimates of the time required to respond to PLN’s FOIA request from all but one of its branches and regional offices. But it did not provide those estimates.
Defendant’s Counsel consulted with Plaintiff’s Counsel, pursuant to LCvR 7(m). Again, Plaintiff’s Counsel did not oppose the motion.
Even though all but one of its regional offices and branches had reported, this Second Enlargement Motion requested that BOP be allowed over an additional month, until November 1,
-2-

2006, to advise the Court just of the time required to process PLN’s FOIA request. On September 29, 2006, this Court granted BOP’s Second Enlargement Motion. C. The Third Enlargement Motion
On November 2, 2006, BOP filed yet another Motion for Further Enlargement of Time (“Third Enlargement Motion). The BOP again requested more time to determine how long BOP would need to determine the time needed to process PLN’s FOIA request.
When Defendant’s Counsel consulted with Plaintiff’s Counsel, pursuant to LCvR 7(m), Plaintiff’s Counsel opposed the filing of this motion because BOP still failed to set forth any estimate of time remaining to process PLN’s FOIA request.
The Third Enlargement Motion requested that this Court allow them until December 1, 2006, to simply advise the Court of the time required to process PLN’s FOIA request. On November 9, 2006, this Court entered an Order granting BOP’s Third Enlargement Motion. D. The Fourth Enlargement Motion
On December 1, 2006, BOP filed a Fourth Enlargement Motion. BOP again requested more time to determine how long it would need to process PLN’s FOIA request. The Motion did not indicate BOP was actually processing any of the requested documents.
The Fourth Enlargement Motion requests that BOP be allowed until January 12, 2007, to advise the Court of the time required to process PLN’s FOIA request. The Court allowed this request.
This time, Defendant’s Counsel did not consult with Plaintiff’s Counsel prior to filing the Fourth Enlargement Motion. Nevertheless, the motion stated, “Plaintiff’s counsel opposes the filing of this Motion.”
-3-

E. The Fifth Enlargement Motion On January 12, 2007, BOP filed its Fifth Enlargement Motion. BOP again requested
more time just to advise the Court of the time required to process PLN’s FOIA request. The Court decided to allow BOP until February 12, 2007, to determine the time needed to
process PLN’s request. However, BOP still had not released a single document to PLN. F. The Sixth Enlargement Motion
On February 9, 2007, BOP filed its Sixth Enlargement Motion, again requesting even more time to process PLN’s FOIA request.
The Court granted BOP until March 20, 2007, to process PLN’s request. G. The Seventh Enlargement Motion
On March 30, 2007, BOP filed its seventh Enlargement Motion. BOP requested to and including April 30, 2007, to process PLN’s FOIA request.
Plaintiff opposed this motion. The Court granted BOP’s request. H. The Eighth Enlargement Motion
On May 8, 2007, BOP filed its Eighth Enlargement Motion, requesting yet another time extension to process PLN’s FOIA request.
The Court ordered BOP to process PLN’s FOIA request by June 8, 2007. Plaintiff did not oppose this Motion. BOP released 594 documents to PLN on May 4, 2007, but withheld 1200 pages for review and redaction. I. The Ninth Enlargement Motion
-4-

On June 12, 2007, BOP filed its Ninth Enlargement Motion. BOP requested yet another time extension to process PLN’s FOIA request. The Court ordered BOP to process PLN’s FOIA request by July 27, 2007.
BOP produced another 1,396 pages of documents. It withheld 569 pages for redaction. J. The Tenth Enlargement Motion
On August 30, 2007, BOP filed its tenth Enlargement Motion. BOP requested a time extension to November 2, 2007 to complete PLN’s FOIA. This is the request that stands before the Court at this time.
II. REPEATED IMPROPER REDACTIONS IN RELEASED DOCUMENTS
Plaintiff has been patient with BOP until now. However, in reviewing the released documents, PLN notes that they all contain redactions which are not allowed under any of the exemptions to information release. (See letter from Plaintiff’s counsel to BOP’s counsel of September 4, 2007, attached).
A sample of the released documents is also attached. The Court should note that many of these papers are court and administrative agency documents – meaning they are already public records.
BOP is not acting in a principled and honest manner to PLN’s request. The redactions make the documents worthless – mere boilerplate. The essential information to be gleaned from these records is missing.
III. HEARING REQUEST PLN requests an oral argument on this motion.
-5-

IV. CONCLUSION In light of the above, this Court should deny Defendant’s Motion for Further Enlargement of Time, filed August 30, 2007, and impose appropriate sanctions, including an award of attorney’s fees and costs incurred opposing this Motion.
Respectfully submitted,

September 12, 2007

/s/ James R. Klimaski James R. Klimaski, #243543 Klimaski & Associates, P.C. 1625 Massachusetts Avenue NW Suite 500 Washington, DC 20036-2001 202-296-5600
Attorney for Prison Legal News

Certificate of Service
I certify that the foregoing Plaintiff’s Opposition to Defendant’s Latest Motion for a Further Enlargement of Time will be served to the following counsel for Defendant in this case by the Court’s CM/ECF system after proper filing of an Adobe PDF version of this item on the Court’s secure website on September 12, 2007:

Ms. Wyneva Johnson Assistant U.S. Attorney U.S. Attorney's Office for D.C. Civil Division 555 4th Street NW Washington DC 20001

/s/ Jon Pinkus Jon Pinkus Klimaski and Associates, PC

-6-

 
 Case 1:05-cv-01812-RBW Document 60 Filed 03/26/2009 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

PRISON LEGAL NEWS,

)

)

Plaintiff,

)

)

v.

)

Civil Action No. 05-1812 (RBW)

)

HARLEY G. LAPPIN, DIRECTOR,

)

FEDERAL BUREAU OF PRISONS,

)

)

Defendant.

)

)

____________________________________)

ORDER

For the reasons set forth in the accompanying Memorandum Opinion, it is hereby

ORDERED that the plaintiff's motion for summary judgment is GRANTED. It

is further

ORDERED that the defendant's motion for summary judgment is DENIED

WITHOUT PREJUDICE. It is further

ORDERED that the Bureau must either conduct anew its searches for the records

sought by the plaintiff or submit an affidavit or alternative submission that adequately

demonstrates – consistent with the accompanying memorandum opinion – that the

Bureau employed search methods reasonably likely to lead to the discovery of records

responsive to the plaintiff's request and that the responsive documents and parts of

documents not produced to the plaintiff have properly been withheld under the FOIA

exemptions claimed by the Bureau. It is further

ORDERED that the parties shall submit a joint scheduling order proposing how

they wish to resolve this case within thirty days of the issuance of this Order.

Case 1:05-cv-01812-RBW Document 60 Filed 03/26/2009 Page 2 of 2 SO ORDERED this 26th day of March, 2009. _________/s/______________ REGGIE B. WALTON United States District Judge
2

 
 Case 1:05-cv-01812-RBW Document 61 Filed 03/26/2009 Page 1 of 9

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

PRISON LEGAL NEWS,

)

)

Plaintiff,

)

)

v.

)

Civil Action No. 05-1812 (RBW)

)

HARLEY G. LAPPIN, DIRECTOR,

)

FEDERAL BUREAU OF PRISONS,

)

)

Defendant.

)

)

____________________________________)

MEMORANDUM OPINION

The plaintiff, Prison Legal News, a non-profit legal journal challenges, pursuant

to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2008), the adequacy of the

search for records conducted by the defendant, the Federal Bureau of Prisons (the

"Bureau"), an agency of the United States government, which was conducted in

compliance with an order of this Court. See Memorandum Opinion & Order, June 26,

2006; see also Defendant's Response to the Court's June 26, 2006 Order. The plaintiff

also challenges the Bureau's withholding of records and information under several FOIA

disclosure exemptions. Memoranda in Support of Plaintiff's Motion for Judgment ("Pl.'s

Mem.") at 1; 5 U.S.C. § 552(b). Currently before the Court are the parties' cross-motions for summary judgment.1 For the reasons set forth below, this Court must grant the

plaintiff's motion and deny the Bureau's motion without prejudice.

1

The following papers were considered by the Court in resolving the parties' cross-

motions for summary judgment: the plaintiff's Motion for Judgment; the Memoranda in Support

of Plaintiff's Motion for Judgment ("Pl.'s Mem."); the Defendant's Cross Motion for Summary

Judgment and Opposition to Plaintiff's Motion for Summary Judgment; the Memorandum of

(continued . . . )

Case 1:05-cv-01812-RBW Document 61 Filed 03/26/2009 Page 2 of 9
I. BACKGROUND The plaintiff is a non-profit legal journal devoted to reporting on news and litigation concerning detention facilities. Verified Complaint for Declaratory and Injunctive Relief to Obtain Freedom of Information Act Information ("Compl.") ¶¶ 5, 7. On August 6, 2003, the plaintiff submitted a FOIA request to the Bureau seeking a copy of "all documents showing all money paid by the Bureau . . . for lawsuits and claims against it . . . between January 1, 1996 . . . and . . . July 31, 2003." Pl.’s Mem. at 1. Specifically, the plaintiff sought "a copy of the verdict, settlement or claim in each case showing the dollar amount paid,” Pl.’s Mem. at 1, “the plaintiff's or claimant's identity and the identifying information" for each lawsuit or claim or attorney fee award, Compl. ¶ 8, and "a copy of the complaint or other documents describing the facts of the case," Id. Additionally, the plaintiff requested a waiver of all fees associated with processing its request. Id. ¶ 9. When the plaintiff's fee waiver request was denied by the Bureau and the Department of Justice, the plaintiff sought relief from this Court by filing this lawsuit. Pl.'s Mem. at 2. Thereafter, this Court awarded summary judgment to the plaintiff on its fee waiver request and ordered the Bureau to conduct the search without costs to the plaintiff. Order, June 26, 2006. The Bureau represents that it conducted a search for the records sought by the plaintiff in several of its Washington D.C. headquarter offices, as well as in several of its
Points and Authorities in Support of Defendant's Cross Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment ("Def.'s Mem.") and the Declaration of Wilson J. Moorer ("Moorer Decl."); and the Defendant's Statement of Material Facts as to Which There is No Genuine Issue and Opposition to Plaintiff's Statement of Material Facts; and the Plaintiff's Reply and Opposition to Defendant's Cross Motion for Summary Judgment and Opposition to Plaintiff's Motion for Judgment ("Pl.’s Reply").
2

Case 1:05-cv-01812-RBW Document 61 Filed 03/26/2009 Page 3 of 9
branches and its six regional offices. Def.'s Mem. at 4. In six separate releases, the Bureau provided the plaintiff with over 10,000 pages of records responsive to its request. Pl.'s Mem. 3-6; Def.'s Mem. at 4. The Bureau redacted information from several of the documents pursuant to several FOIA exemptions, see Pl.'s Mem., Exhibits 1-2 through 63, while producing the remainder of the documents in full. The plaintiff now challenges the adequacy of the Bureau's search for responsive records and its utilization of the FOIA exemptions to withhold the redacted information and other documents that it claims have not been produced at all. Pl.'s Mem. at 1.
II. ANALYSIS A. Adequacy of the Bureau's Search for Responsive Records
At the summary judgment stage, the agency has the burden of showing that it complied with the FOIA, and in response to a challenge to the adequacy of its search for requested records the agency may meet its burden by providing "a reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials . . . were searched." Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-14 (D.C. Cir. 2003) (internal citations omitted). "A FOIA search is sufficient if the agency makes 'a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.'" Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)). The affidavit must be "reasonably detailed, [and] nonconclusory . . . [in] describing [the agency's] efforts." Baker, 473 F.3d at 318 (citations omitted). And, "[a]gency affidavits are accorded a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and
3

Case 1:05-cv-01812-RBW Document 61 Filed 03/26/2009 Page 4 of 9
discoverability of other documents.'" SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation omitted).
In response to an agency's affidavit attesting to the adequacy of its search, a "plaintiff may . . . provide 'countervailing evidence' as to the adequacy of the agency's search," which if it "raises substantial doubt, particularly in view of 'well defined requests and positive indications of overlooked materials,'" may entitle the plaintiff to summary judgment. Iturralde, 315 F.3d at 314 (internal citations omitted). However, it bears noting that "[a]n adequate FOIA search is not determined by the results of the search or by the information ultimately released by the agency[;] [r]ather, 'the adequacy of a FOIA search is generally determined . . . by the appropriateness of the methods used to carry out the search.'" James v. U.S. Customs and Border Protection, 549 F. Supp. 2d 1, 8 (D.D.C. 2008) (citing Iturralde, 315 F.3d at 315; Cleary, Gottlieb, Steen & Hamilton v. Dep't of Health and Human Servs., 844 F. Supp. 770, 777 n. 4 (D.D.C. 1993)).
The plaintiff contends that the affidavit submitted by the Bureau fails to demonstrate that the search it conducted was adequate. Pl.'s Reply at 1. Specifically, the plaintiff contends that the affiant "does not indicate that he conducted the searches himself, or that he directly supervised the individuals who did. He cannot claim, and does not claim, personal knowledge of the means by which the searches were conducted, or their thoroughness." Id. at 2. The Bureau has failed to respond to this argument.
The Bureau's sole affiant, Wilson J. Moorer, a Paralegal Specialist at the Bureau Washington D.C. FOIA Section, represents that he is "familiar with the procedures utilized by [the Bureau] in responding to . . . FOIA requests" but he does not outline the search methods undertaken by the Bureau to respond to the plaintiff's FOIA request, who
4

Case 1:05-cv-01812-RBW Document 61 Filed 03/26/2009 Page 5 of 9
would have conducted the searches, and, as the plaintiff correctly points out, nowhere does the affiant indicate how he is personally aware of the search procedures or that he knows they were followed by each of the Bureau's entities tasked with responding to this request. See Moorer Decl. at 1-11; Pl.'s Reply at 2. All of these deficiencies undermine the sufficiency of the affidavit.
Under Federal Rules of Civil Procedure, when a party either pursuing or challenging summary judgment submits an affidavit as support for its position, the "affidavit must be made on personal knowledge, [it must] set out facts that would be admissible in evidence, and [it must] show that the affiant is competent to testify on the matters stated." Fed. R. Civ. P. 56(e)(1). Because the Bureau bears the burden of demonstrating that its search for records was adequate, the Court cannot presume personal knowledge by the affiant, see Shaw v. FBI, 749 F.2d 58, 63 n.2 (D.C. Cir. 1984), and therefore cannot presume his personal knowledge of the activities of the Bureau's regional offices. For this reason alone, little if any weight can be given to the Bureau's affidavit concerning the adequacy of the searches conducted at the regional offices. The Bureau must do more than offer "a 'single, conclusory affidavit,' that generally asserts adherence to the reasonableness standard." Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (citations omitted); see Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) ("Conclusory statements that the agency has reviewed relevant files are insufficient to support summary judgment." (citation omitted)). Indeed, the Bureau must "'explain in reasonable detail the scope and method of the search conducted by the agency," in order to satisfy its "burden on summary judgment to 'prove[ ] that no substantial and material facts are in dispute and that [it] is
5

Case 1:05-cv-01812-RBW Document 61 Filed 03/26/2009 Page 6 of 9
entitled to judgment as a matter of law.'" Morley, 508 F.3d at 1121-22 (citations omitted). Specifically, "[t]he affidavits must . . . set[] forth the search terms and the type of search performed, and aver[] that all files likely to contain responsive materials (if such records exist) were searched." Nation Magazine, 71 F.3d at 890 (citation and quotations omitted).
The plaintiff also contends with respect to the adequacy of the Bureau's search that the Bureau failed to produce records responsive to its request because in some cases the Bureau provided only docket sheets of cases that it litigated while merely referencing "complaints, judgments and settlements" that were not produced. Pl.'s Mem. at 13. The Bureau maintains that the plaintiff's "suspicion that [the Bureau] artificially limited the searches to limit the responsive documents by not searching or retrieving every archived settlement record" is "unreasonable" and unfounded because it did not have "possession or control" over "potentially responsive records that subsequently have been destroyed." Def.'s Mem. at 14-15. The Court agrees with the Bureau that it does not have to turn over documents not contained in its files. "[T]he fact that responsive documents once existed does not mean that they remain in the [Bureau's] custody today or that the [Bureau] had a duty under FOIA to retain the records." Wilbur v. CIA, 355 F.3d 675, 677-78 (D.C. Cir. 2004) (citing Yeager v. Drug Enforcement Admin., 678 F.2d 315, 321 (D.C. Cir. 1982) ("A requester is entitled only to records that an agency has in fact chosen to create and retain."); Miller v. United States Dep't of State, 779 F.2d 1378, 1385 (8th Cir. 1985) ("The fact that a document once existed does not mean that it now exists; nor does the fact that an agency created a document necessarily imply that the agency has retained it.")).
6

Case 1:05-cv-01812-RBW Document 61 Filed 03/26/2009 Page 7 of 9
Yet, while the Court agrees with the Bureau that generally an "agency's failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search for the requested records," Wilbur, 355 F.3d at 678 (citations omitted); see also Morley, 508 F.3d at 1120, the Court does not have a sufficient affidavit before it from which it can conclude that the Bureau produced all responsive records in its possession and control. Without such evidence, the Court must grant the plaintiff's motion regarding the adequacy of the search. Accordingly, the Bureau must either conduct a new search of its files for the records sought by the plaintiff to ensure that the search was adequate and properly demonstrate that it was done so, or it must provide the Court with an affidavit (or affidavits) from which the Court can find that the affiant has personal knowledge that the Bureau's search procedures and the searches actually conducted were reasonably designed to locate documents responsive to the plaintiff's request. B. The Bureau's Withholding of Documents Pursuant to the Several FOIA
Exemptions The FOIA provides that any person may seek from a federal agency "records" so long as the request "reasonably describes such records." 5 U.S.C. § 552(a)(3)(A). The FOIA "reflects a general philosophy of full agency disclosure," Dep't of Defense v. FLRA, 510 U.S. 487, 494 (1994) (internal quotations omitted), but also permits an agency to withhold information if it falls within one of nine enumerated exemptions, 5 U.S.C. § 552(b). The exemptions reflect "Congress's recognition that the release of certain information may harm legitimate governmental or private interests," Summers v. Dep't of Justice, 140 F. 3d 1077, 1080 (D.C. Cir. 1998), but "[i]f an agency invokes an exemption [to withhold a record or any information contained within that record], it bears
7

Case 1:05-cv-01812-RBW Document 61 Filed 03/26/2009 Page 8 of 9
the burden of establishing the applicability of the claimed exemption," Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003). When an agency seeking "summary judgment on the basis of . . . agency affidavits" asserts through those affidavits that it has properly withheld documents or parts of a document pursuant to a FOIA exemption, the agency's affidavits must "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). And, as previously discussed, an affidavit must be made upon the affiant's "personal knowledge, [it must] set out facts that would be admissible in evidence, and [it must] show that the affiant is competent to testify on the matters stated." Fed. R. Civ. P. 56(e)(1).
Because the Bureau bears the burden of demonstrating that its utilization of the FOIA exemptions was proper, it must provide to the Court an affidavit or other form of submission that comports with Rule 56(e)(1). In addition, if the Bureau seeks to withhold documents or parts of documents from the plaintiff, its affidavit or other form of submission must conform with the criteria set forth in the preceding paragraph. See Military Audit Project, 656 F.2d at 738. That has not been accomplished here. Accordingly, the Court must grant the plaintiff's motion and deny the Bureau's motion on the issue of whether documents or portions of documents have properly been withheld pursuant to the FOIA exemptions relied upon by the Bureau.
8

Case 1:05-cv-01812-RBW Document 61 Filed 03/26/2009 Page 9 of 9
III. CONCLUSION For the reasons provided in this opinion, the Court must (1) grant the plaintiff's motion for summary judgment as to the adequacy of the Bureau's search and the Bureau's withholding of documents or parts of documents pursuant to the FOIA exemptions; (2) deny the Bureau's cross-motion for summary judgment without prejudice, and (3) remand this matter to the Bureau so that it may either conduct anew its searches for the records sought by the plaintiff or submit an affidavit or alternative submission that adequately demonstrates – consistent with this opinion – that the Bureau employed search methods reasonably likely to discover records responsive to the plaintiff's request and which shows that the responsive documents and parts of documents not provided to the plaintiff have properly been withheld under the FOIA exemptions claimed by the Bureau.2

2

An Order consistent with the Court’s ruling accompanies this Memorandum Opinion.

9

 
 Case 1:05-cv-01812-RBW Document 68 Filed 02/25/10 Page 1 of 12

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

PRISON LEGAL NEWS,

)

)

Plaintiff,

)

)

v.

)

Civil Action No. 05-1812 (RBW)

)

HARLEY G. LAPPIN, DIRECTOR,

)

FEDERAL BUREAU OF PRISONS,

)

)

Defendant.

)

__________________________________________)

ORDER

The defendant, the Federal Bureau of Prisons (“Bureau”), brings this motion pursuant to

Federal Rules of Civil Procedure 60(b)(1) and 60(b)(6), requesting the Court to reconsider the

March 26, 2009 Memorandum Opinion and Order granting a motion for summary judgment filed

by the plaintiff, Prison Legal News, and denying without prejudice the Bureau’s motion for

summary judgment. See Defendant’s Motion for Reconsideration and Memorandum in Support

and Response to the Court’s March 26, 2009 Order (“Def.’s Mot.”) at 1. The Bureau contends

that its reply to the plaintiff’s motion for summary judgment, which was to be filed on November

14, 2008, was “set for electronic filing . . . [but] due to an apparent transmission error, the

transmission did not occur.” Id. at 2. Therefore, the Court issued its Memorandum Opinion and

Order without the benefit of the Bureau’s additional arguments and supporting affidavits. Id.

The Bureau asserts in its motion for reconsideration, which is accompanied by the Bureau’s now

refiled reply and accompanying declarations, that it had already acted consistently with the

Court’s March 26, 2009 Order and therefore should be awarded summary judgment. Id. at 3.

Case 1:05-cv-01812-RBW Document 68 Filed 02/25/10 Page 2 of 12
The plaintiff opposes the Bureau’s motion.1 Plaintiff’s Opposition to Defendant’s Motion for
Reconsideration and Memorandum in Support and Response to the Court’s March 26, 2009
Order (“Pl.’s Opp’n”) at 1. For the reasons set forth below, the Court must deny the Bureau’s
motion without prejudice.
I. BACKGROUND
In its August 6, 2003 Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2006),
request, the plaintiff, a non-profit legal journal, requested that the Bureau provide it with copies
of “all documents showing all money paid by the [Bureau] . . . for lawsuits and claims against it”
from January 1, 1996 to July 31, 2003. Memorandum of Points and Authorities in Support of
Defendant’s Cross Motion for Summary Judgment and Opposition to Plaintiff’s Motion for
Summary Judgment at 3. The defendant made six productions of documents to the plaintiff that
totaled over 11,000 responsive documents. Def.’s Mot., Exhibit (“Ex.”) 3 (Declaration of
Wilson J. Moorer) (“Moorer Decl. II”) ¶ 5; Memoranda in Support of Plaintiff’s Motion for
Judgment at 3-6. In its original motion for summary judgment, the plaintiff argued that the
declaration of Wilson J. Moorer, who had submitted the only declaration on behalf of the Bureau
at that time, failed to show that the Bureau had conducted a reasonably adequate search. Pl.’s
Opp’n at 1. Given that the Bureau had submitted no additional declarations to cure the
1 The Court also considered the following documents in resolving the defendant’s motion for reconsideration: the Defendant’s Motion for Reconsideration and Memorandum in Support and Response to the Court’s March 26, 2009 Order; the Plaintiff’s Opposition to Defendant’s Motion for Reconsideration and Memorandum in Support and Response to the Court’s March 26, 2009 Order; the Defendant’s Reply to Plaintiff’s Opposition to Defendant’s Cross Motion for Summary Judgment; the Defendant’s Supplemental Statement of Material Facts as to Which There Is No Genuine Issue; the Declaration of Wilson J. Moorer, dated October 23, 2008; the Declaration of Kimberly E. Blow, dated October 9, 2008; the Declaration of Docia M. Casillas, dated October 9, 2008; the Declaration of Renee Brinker Fornshill, dated October 7, 2008; the Declaration of Cynthia Lawler, dated October 9, 2008; the Declaration of Georganne Osborn, dated October 17, 2008; the Declaration of Vickie Petricka, dated October 17, 2008; the Declaration of Alecia D. Sankey, dated October 7, 2008; the Declaration of Karen Summers, dated October 16, 2008; the Declaration of LeeAnn Tufte, dated October 7, 2008; the Declaration of Kathleen White, dated October 7, 2008; the Declaration of Deidre J. Williams, dated October 7, 2008; and the Declaration of Michael D. Tafelski, dated October 16, 2009.
2

Case 1:05-cv-01812-RBW Document 68 Filed 02/25/10 Page 3 of 12
insufficiencies identified by the plaintiff due to what the Bureau now asserts was an “apparent transmission error,” on March 26, 2009, the Court granted summary judgment in favor of the plaintiff and ordered the Bureau to either conduct new searches or submit additional documentation that adequately demonstrated that the Bureau “employed search methods reasonably likely to discover records responsive to the plaintiff’s request and which shows that the responsive documents and parts of documents not produced to the plaintiff have properly been withheld under the FOIA exemptions claimed by the Bureau.”2 Mar. 26, 2009 Memorandum Opinion at 9.
In its motion for reconsideration, the Bureau now contends that in awarding summary judgment to the plaintiff, the Court failed to consider a number of its papers that were inadvertently not transmitted to the Court by counsel for the Bureau. Def.’s Mot. at 1-2. Among these documents were the Defendant’s Reply to Plaintiff’s Opposition to Defendant’s Cross Motion for Summary Judgment (“Def.’s Reply”); Defendant’s Supplemental Statement of Material Facts as to Which There Is No Genuine Issue; the October 23, 2008 Declaration by Wilson J. Moorer; and twelve additional declarations from various officials in the Bureau of Prison’s administrative and litigation offices. Def.’s Mot. at 2. The Bureau asserts that its failure to timely file its reply and supporting declarations in support of its cross motion for summary judgment was a mere transmission error. Id. at 2. Therefore, the Bureau asks that the Court reconsider its ruling now with the benefit of the Bureau’s reply filing and the
2 The Court considered the following documents in resolving the parties’ cross-motions for summary judgment: the plaintiff’s Motion for Judgment; the Memoranda in Support of Plaintiff’s Motion for Judgment; the Defendant’s Cross Motion for Summary Judgment and Opposition to Plaintiff’s Motion for Summary Judgment; the Memorandum of Points and Authorities in Support of Defendant’s Cross Motion for Summary Judgment and Opposition to Plaintiff’s Motion for Summary Judgment; the Declaration of Wilson J. Moorer (“Moorer Decl. I”); the Defendant’s Statement of Material Facts as to Which There is No Genuine Issue and Opposition to Plaintiff’s Statement of Material Facts; and the Plaintiff’s Reply and Opposition to Defendant’s Cross Motion for Summary Judgment and Opposition to Plaintiff’s Motion for Judgment.
3

Case 1:05-cv-01812-RBW Document 68 Filed 02/25/10 Page 4 of 12
accompanying declarations. Id. at 1-2. The Bureau’s position is that these documents demonstrate that it has “already acted consistent with the Court’s order on remand” by conducting a reasonably adequate search for the records requested, entitling it to summary judgment. Id. at 3.
In opposition, the plaintiff argues that the Bureau’s counsel had a duty to monitor the docket and that its failure to discover and cure this error was inexcusable. Pl.’s Opp’n at 5. Therefore, the plaintiff requests that the Court deny the Bureau’s motion for reconsideration. Id.
II. STANDARDS OF REVIEW A. Motion for Reconsideration
In its discretion, the Court may relieve a party from an otherwise final judgment by granting relief from a judgment resulting from “mistake, inadvertence, surprise, or excusable neglect.” Lepkowski v. Dep't of Treasury, 804 F.2d 1310, 1311-12 (D.C. Cir. 1986) (citing Fed. R. Civ. P. 60(b)(1)). Relief under Rule 60(b) is rare, Hall v. CIA, 437 F.3d 94, 99 (D.C. Cir. 2006), and turns on equitable factors, notably whether any neglect was excusable, Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 392-93 (1993); see also Smalls v. United States, 471 F.3d 186, 191 (D.C. Cir. 2006) (“Rule 60(b) was intended to preserve the delicate balance between the sanctity of final judgments and the incessant command of the [C]ourt's conscience that justice be done in light of all the facts” (internal quotation marks, ellipses, and citation omitted)). Alternatively, under Rule 60(b)(6), the Court may grant relief from a judgment for “any other reason justifying [such] relief,” but courts apply this catch-all provision only in “extraordinary circumstances.” Pioneer Inv. Servs. Co., 507 U.S. at 393.
4

Case 1:05-cv-01812-RBW Document 68 Filed 02/25/10 Page 5 of 12
B. Summary Judgment Courts will grant a motion for summary judgment under Rule 56(c) if “the pleadings, the
discovery and disclosure materials on file, and any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). When ruling on a motion for summary judgment, this Court must view the evidence in the light most favorable to the nonmoving party. Bayer v. U.S. Dep’t of Treasury, 956 F.2d 330, 333 (D.C. Cir. 1992). The Court must also “draw all reasonable inferences in favor of the nonmoving party, and it may not make creditability determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). However, the nonmoving party cannot rely on “mere allegations or denials . . . but . . . must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted). Summary judgment is warranted “if a party fails to establish the existence of an element essential to the party’s case and on which that party will bear the burden of proof at trial.” Hazward v. Runyon, 14 F. Supp. 2d 120, 122 (D.D.C. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The party moving for summary judgment bears the burden of establishing the absence of evidence that supports the nonmoving party’s case. Id.
III. ANALYSIS A. The Adequacy of the Bureau’s Search
“An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” ValenciaLucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (citations omitted); Steinberg v. United States, 23 F.3d 548, 551 (D.C. Cir. 1994) (“the agency must demonstrate that it has
5

Case 1:05-cv-01812-RBW Document 68 Filed 02/25/10 Page 6 of 12
conducted a ‘search reasonably calculated to uncover all relevant documents’”); Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (holding that the agency need not search every record system but “must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested”). In determining whether the search was reasonably adequate, the Court focuses on the search itself and not the results. Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1345 (D.C. Cir. 1984) (noting also that the agency’s failure to find a particular document does not undermine the adequacy of the search).
Section 552 of the FOIA requires an agency that has received a request for records to make them “promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). To meet the burden of establishing the adequacy of a search for responsive documents, the agency may submit affidavits or declarations that are “‘relatively detailed’ and nonconclusory and must be submitted in good faith.” Perry v. Block, 684 F.2d 121, 126 (D.C. 1982). The plaintiff bears the burden of challenging the adequacy of an agency’s search and must present evidence rebutting the agency’s initial showing of a good faith search. Lipsey v. U.S. Dep’t of Justice, No. 06-423, 2007 WL 842956, at *2 (D.D.C. 2007) (citing Weisberg, 705 F.2d at 1351-52). Speculative claims alleging the existence and discoverability of other documents are insufficient to support a rebuttal. SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation omitted).
As the Court noted in the March 26, 2009 Memorandum Opinion, an affidavit submitted in support of a motion “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.” Mar. 26, 2009 Memorandum Opinion at 5 (citing Fed. R. Civ. P. 56(e)). Therefore, on the record that was before the Court when it originally awarded summary judgment, which was
6

Case 1:05-cv-01812-RBW Document 68 Filed 02/25/10 Page 7 of 12
devoid of the Bureau’s reply and supporting declarations, the Court found that the Bureau’s “‘single, conclusory affidavit,’ that generally assert[ed] adherence to the reasonableness standard” was insufficient. Id. (citing Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007)). However, the Court also recognized that to the extent the Bureau was being asked to disclose records no longer in its possession, it was not required to retrieve records that were no longer contained in its files. Id. at 6 (citing Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004) (“the fact that responsive documents once existed does not mean that they remain in the [agency’s] custody today or that the [agency] had a duty under FOIA to retain the records”)).
In its motion for reconsideration, the Bureau contends that the twelve additional declarations of officials from its administrative and litigation offices that it has now submitted sufficiently establish that the search was adequate and reasonable. Def.’s Mot. at 3. It maintains that the declarations sufficiently assert that the officials took reasonable efforts to ensure that they discovered all relevant documents, and that all responsive documents were identified, copied, and forwarded to the officer in charge of processing the request, along with an indication of which records the Bureau was unable to locate. See Def.’s Mot., Exs. 3-15. According to the Bureau, the declarations describe the databases and records searched at each office in an effort to identify the responsive documents. See id. In response, the plaintiff opposes the Bureau’s motion for reconsideration on fairness principles, contending that because the Bureau’s reply was not timely filed, it is “procedurally unsupported and unwarranted.”3 Pl.’s Opp’n at 2. The plaintiff maintains that the Bureau should have, but inexcusably failed, to notice the transmission
3 The plaintiff also noted that when it filed its opposition its counsel was unavailable to file a substantive response to the defendant’s motion for reconsideration because its counsel had recently been injured as a result of being struck by an automobile; the plaintiff therefore requested a sixty-day enlargement of time to review the case if a substantive response from it is required. Pl.’s Opp’n at 1-2. Given that more than sixty days have now elapsed since the filing of the plaintiff’s opposition, the Court assumes that the plaintiff’s counsel has now had the opportunity to review the motion for reconsideration and its supporting documents.
7

Case 1:05-cv-01812-RBW Document 68 Filed 02/25/10 Page 8 of 12
error as the Court’s electronic docketing system provides many avenues by which a party may secure a confirmation of a transmission. Id. at 3-5. Therefore, the plaintiff argues that the Bureau should not be excused from simply failing to monitor the docket in this case. Id.
Unfortunately for the Bureau, even upon subsequent consideration of the previously omitted documents, the Court finds that the Bureau has failed to establish the adequacy of its search. Although the Bureau’s declarations suggest that the officials made a good faith effort to conduct the search, Def.’s Mot., Exs. 3-15, the declarants fall short of explaining, in reasonable detail, the scope and method of the search. See Oglesby, 920 F.2d at 68 (holding that the declarations must contain the degree of detail “necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate”). The declarations do indicate whether responsive documents were identified and whether certain records could not be located. For example, one declaration asserts that the staff “searched cabinets containing case files which would have included all settlements or decisions maintained at the time [the] office received the request.” See Def.’s Mot., Ex. 5 (Declaration of Docia M. Casillas) ¶ 5. However, another declaration merely notes whether the documents were in paper or electronic format, and identifies the databases, monthly reports, and log books searched. See Def.’s Mot., Ex. 8 (Declaration of Georganne Osborn) ¶ 6 (stating that she “reviewed the Southeast Regional log for relevant litigation”); Def.’s Mot., Ex. 9 (Declaration of Vickie Petricka) ¶ 5 (identifying responsive records based on the monthly reports generated from the databases used in the office). Some of the other declarations do come closer to establishing the reasonableness of the search in the individual offices. For example, two of the declarations specify that officials “developed a list of litigation cases . . . in which money damages and/or attorney’s fees [were paid] to litigants or claimants” and assert that they
8

Case 1:05-cv-01812-RBW Document 68 Filed 02/25/10 Page 9 of 12
searched two Bureau databases, the Tort Information Management System (TIMS) program, and the Lawpack database for responsive records. See Def.’s Mot., Ex. 15 (Declaration of Michael D. Tafelski) ¶¶ 5-6; see also Def.’s Mot., Ex. 11 (Declaration of Karen Summers) ¶¶ 5-6. And another declaration details how the search was narrowed to identify the responsive records, the information that the search reports provided, and which specific files could not be located. See Def.’s Mot., Ex. 12 (Declaration of Leeann Tufte) ¶¶ 5-6. However, these declarations are nonetheless insufficient to establish the adequacy of the entire search, as specificity and detail to a reasonable degree must be provided in the supporting declaration for all individual offices.
The declarations fail to identify any search terms used, specify how the search was conducted, or detail with specificity what the search yielded. See Morley, 508 F.3d at 1122 (finding that adequacy of search had not been demonstrated because declarations lacked specificity concerning details of the search). Instead, the declarants state, without specificity, that they either used a “pre-formatted search,” see, e.g., Def.’s Mot., Ex. 4 (Declaration of Kimberly E. Blow) ¶ 4 (utilizing a pre-formatted search created by the computer staff, which revealed a “complete list of litigation and tort claims . . . in which monies were paid”), or “had a review conducted of the [database system],” see, e.g., Def.’s Mot., Ex. 6 (Declaration of Renée Brinker Fornshill) ¶ 5, or “reviewed the statistical reports that . . . identif[ied] the status of every case being handled,” see, e.g., Def.’s Mot., Ex. 14 (Declaration of Deidre J. Williams) ¶ 5. Without providing further description or specific detail concerning the search, the declarants’ conclusions that as a result of the search, “all responsive claims were identified,” see, e.g., Def.’s Mot., Ex. 7 (Declaration of Cynthia Lawler) ¶ 5, do not provide sufficient information for the Court to independently determine if the search was adequate, see Oglesby, 920 F.2d at 68. B. The FOIA Exemptions
9

Case 1:05-cv-01812-RBW Document 68 Filed 02/25/10 Page 10 of 12
The more troubling aspect of the Bureau’s position is that even if the Court could find that the searches were adequate, the Bureau has not justified the exemptions it seeks to invoke. Defendant’s Statement of Material Facts as to Which There is No Genuine Issue and Opposition to Plaintiff’s Statement of Material Facts at 2-10. When an agency claims an exception under Section 552(b), it “must provide detailed and specific information demonstrating ‘that material withheld is logically within the domain of the exemption claimed.’” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 30-31 (D.C. Cir. 1998) (quoting King v. U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)). The Declarations of Wilson Moorer are the only declarations that addressed the exemptions being invoked, while none of the newly filed declarations make any mention of these or any other exemptions. Defendant’s Cross Motion for Summary Judgment and Opposition to Plaintiff’s Motion for Summary Judgment (“Def.’s Cross Mot.”) , Ex. 1 (Declaration of Wilson J. Moore) (“Moorer Decl. I”) at ¶¶ 7-30; Def.’s Mot., Ex. 3 (Moorer Decl. II) at ¶ 6. However, as the Court has previously found, Mar. 26, 2009 Memorandum Opinion at 4-5, Mr. Moorer lacks the personal knowledge necessary to speak to the information redacted, and he also fails to note how the exemptions specifically apply to each redacted document. Id.; see Campbell, 164 F.3d at 30-31 (holding that categorical descriptions are inadequate and requiring “reasonable specificity . . . to create ‘as full a public record as possible, concerning the nature of the documents and the justification for nondisclosure’” (internal citations omitted)). Instead, Mr. Moorer merely notes the total number of documents contained in each release, the number of documents that were redacted in each release, and how the exemptions generally applied collectively to the groups of documents. Def.’s Cross Mot., Ex. 1 (Moorer Decl. I) at ¶¶ 7-10 (asserting that in the first release, the Bureau released 594 pages of responsive documents, of which 406 were redacted, and providing, without specificity, the
10

Case 1:05-cv-01812-RBW Document 68 Filed 02/25/10 Page 11 of 12
applicability of each invoked exemption). For example, with respect to the exemption for medical records, he makes no effort to provide any detail of the type of information redacted upon which the Court could make an informed assessment of the legality of the redactions, instead merely restating the exception and claiming the redacted portions meet the requirements of the exception. Compare 5 U.S.C. § 552(b)(6) (exempting “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy”), with Def.’s Cross Mot., Ex. 1 (Moorer Decl. I) at ¶ 9 (“Exemption (b)(6) exempts personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. The types of records redacted in this release include: Personal and private information of BOP staff and non-BOP staff.”).
Moreover, the Court is unaware of whether the Bureau created a Vaughn index to document the exemptions being invoked regarding documents or information being withheld, and a Vaughn index would be helpful, especially in light of the magnitude of the plaintiff’s request. See Johnson v. Executive Office for U.S. Att’ys, 310 F.3d 771, 774 (D.C. Cir. 2002) (“An agency may meet [its] burden by providing the requester with a Vaughn index, which must adequately describe each withheld document, state which exemption the agency claims for each withheld document, and explain the exemption's relevance”); Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973) (noting that this system of itemizing and indexing narrows the scope of the court’s inquiry, prevents an agency from making a generalized argument for the applicability of the exemption, and allows the court to rule on each element of the itemized list as opposed to applying an exemption to the search as a whole). The role of a Vaughn index is to provide “the court and the challenging party a measure of access without exposing the withheld information,” see Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 146 (D.C. Cir. 2006) (explaining
11

Case 1:05-cv-01812-RBW Document 68 Filed 02/25/10 Page 12 of 12
three important functions that the Vaughn index serves that promotes an efficient adversarial process), which would be helpful here. The Court is cognizant that although the FOIA promotes an open government, which is advanced through the accessibility to government records, any of nine exemptions may nonetheless be invoked under § 552(b) in light of “Congress’s recognition that the release of certain information may harm legitimate governmental or private interests,” Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). However, the Court must be put in position where this assessment can be intelligently made.
Thus, before the Court can conclude that the Bureau has properly invoked the designated exemptions, it must be assured that the Bureau has not utilized exemptions in a manner which “sweep[s] unprotected information within the statute’s reach.” Judicial Watch, 449 F.3d at 147. Clearly, the Bureau need not provide repetitive or detailed explanations of the documents retrieved in its Vaughn index, Morley, 508 F.3d at 1122, but upon the record now before it, the Court has an inadequate basis to find that the Bureau’s invocation of the FOIA exemptions is proper.
Accordingly, it is hereby ORDERED that the defendant’s motion for reconsideration is DENIED WITHOUT PREJUDICE. SO ORDERED this 25th day of February, 2010.
_____/s/________________ Reggie B. Walton United States District Judge
12

 
 Case 1:05-cv-01812-RBW Document 82 Filed 02/25/11 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

PRISON LEGAL NEWS,

)

)

Plaintiff,

)

)

v.

)

Civil Action No. 05-1812 (RBW)

)

HARLEY G. LAPPIN, DIRECTOR,

)

FEDERAL BUREAU OF PRISONS,

)

)

Defendant.

)

)

____________________________________)

ORDER

For the reasons set forth in the accompanying Memorandum Opinion, it is hereby

ORDERED that the plaintiff's motion for summary judgment is GRANTED IN PART

AND DENIED IN PART. It is further

ORDERED that the defendant's motion for summary judgment is GRANTED IN PART

AND DENIED IN PART. It is further

ORDERED that the Bureau shall, within 90 days of the issuance of this Order, submit a

new or supplemental Vaughn index meeting the specifications set forth in the Memorandum

Opinion issued by the Court on this same date. It is further

ORDERED that the plaintiff, should it continue to object to the defendant's reliance on

FOIA exemptions to withhold or redact records responsive to its FOIA request after receiving the

updated Vaughn index, shall move for summary judgment within 45 days of the filing of the new

or supplemental Vaughn index. It is further

ORDERED that the defendant shall file its opposition and cross-motion for summary

judgment no later than 30 days after the filing of the plaintiff's motion. It is further

Case 1:05-cv-01812-RBW Document 82 Filed 02/25/11 Page 2 of 2 ORDERED that the plaintiff shall file its opposition to the defendant's cross-motion for summary judgment no later than fifteen days after that motion is filed. SO ORDERED this 25th day of February, 2011.
_________/s/______________ REGGIE B. WALTON United States District Judge
2

 
 Case 1:05-cv-01812-RBW Document 119 Filed 07/23/13 Page 1 of 1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

PRISON LEGAL NEWS,

)

)

Plaintiff,

)

)

v.

)

Civil Action No. 05-1812 (RBW)

)

CHARLES E. SAMUELS, JR.,1 Director,

)

Federal Bureau of Prisons,

)

)

Defendant.

)

__________________________________________)

ORDER

For the reasons stated in the Memorandum Opinion entered this same date, it is

ORDERED that the defendant’s motion for summary judgment is GRANTED and the

plaintiff’s motion for summary judgment is DENIED. It is further

ORDERED that this case is CLOSED.

SO ORDERED this 23rd day of July, 2013.

REGGIE B. WALTON UNITED STATES DISTRICT JUDGE

1 The plaintiff’s complaint, filed September 13, 2005, names Harley G. Lappin, at that time the Director of the Federal Bureau of Prisons, as the defendant. The Court has substituted Director Charles E. Samuels, Jr., as the defendant in lieu of former Director Lappin pursuant to Federal Rule of Civil Procedure 25.

 
 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

PRISON LEGAL NEWS,

)

)

Plaintiff,

)

)

v.

)

Civil Action No. 05-1812 (RBW)

)

CHARLES E. SAMUELS, JR.,1 Director,

)

Federal Bureau of Prisons,

)

)

Defendant.

)

__________________________________________)

MEMORANDUM OPINION

The plaintiff, Prison Legal News, filed this Freedom of Information Act (“FOIA”), 5

U.S.C. § 552 (2006), action in 2005. Currently before the Court are the Plaintiff’s Fifth Motion

for Summary Judgment (“Pl.’s Mot.”) and the Defendant’s Cross Motion for Summary Judgment

and Opposition to the Plaintiff’s Fifth Motion for Summary Judgment (“Def.’s Mot.”). For the

reasons stated below, the Court will grant the defendant’s motion, and deny the plaintiff’s motion.2

1 The plaintiff’s complaint, filed September 13, 2005, names Harley G. Lappin, at that time the Director of the Federal Bureau of Prisons, as the defendant. The Court has substituted Director Charles E. Samuels, Jr., as the defendant in lieu of former Director Lappin pursuant to Federal Rule of Civil Procedure 25.
2 In addition to the filings already identified, the Court considered the following submissions in resolving the parties’ motions: (1) the Memorandum of Points and Authorities in Support of Plaintiff’s Fifth Motion for Summary Judgment (“Pl.’s Mem.”); (2) the Statement of Material Facts as to Which There is no Material Issue in Support of Plaintiff’s Fifth Motion for Summary Judgment (“Pl.’s Facts”); (3) the Memorandum of Points and Authorities in Support of Defendant’s Cross Motion for Summary Judgment and Opposition to Plaintiff’s Fifth Motion for Summary Judgment (“Def.’s Mem.”); (4) the Defendant’s Statement of Material Facts as to Which There is no Genuine Dispute (“Def.’s Facts”); (5) the Defendant’s Response to Statement of Material Facts as to Which There is no Material Issue in Support of Plaintiff’s Fifth Motion for Summary Judgment (“Def.’s Fact Resp.”); (6) the Plaintiff’s Reply to Defendant’s Opposition to Fifth Motion [for] Summary Judgment and Response to Defendant’s Cross Motion for Summary Judgment (“Pl.’s Reply”); and (7) the Defendant’s Reply to Plaintiff’s Opposition to Defendant’s Opposition to Plaintiff’s Fifth Motion for Summary Judgment (“Def.’s Reply”).

I. BACKGROUND
The following facts are undisputed.3 In 2003, the plaintiff, Prison Legal News, a non-
profit legal journal, filed a FOIA request with the Bureau of Prisons in which it sought:
(A)ll documents showing all money paid by the Bureau of Prisons (BOP) for lawsuits and claims against it. This is all funds paid out to claimants/litigants between January 1, 1996 through and including July 31, 2003. I am requesting a copy of the verdict, settlement or claim in each case showing the dollar amount paid, the identity of the plaintiff/claimant and the legal identifying information for each lawsuit or claim or attorney fee award. I am also requesting a copy of the complaint (if it was a lawsuit) or the claim (if it was not) in each incident which describes the underlying facts of each lawsuit and claim.
Pl.’s Facts ¶ 2. The defendant “produced approximately 11,000 pages in response to [the
plaintiff’s] FOIA request. 8,468 pages were produced without redaction and 2,993 pages were
released with redactions.” Id. ¶ 4. As outlined in prior memorandum opinions and orders issued
by this Court in this litigation, the defendant provided numerous affidavits, declarations, and
Vaughn indices4 in an effort to assure the Court that it had complied with the mandates of the
FOIA in responding to the plaintiff’s request. See Prison Legal News v. Lappin (Prison Legal
News I), 603 F. Supp. 2d 124 (D.D.C. 2009) (Walton, J.) (denying without prejudice the
defendant’s motion for summary judgment); February 25, 2010 Order, ECF No. 68 (denying
3 The “[d]efendant admits the [s]tatements set forth in paragraphs 1-12” of the plaintiff’s thirteen paragraph Statement of Material Facts as to Which There is no Material Issue in Support of Plaintiff’s Fifth Motion for Summary Judgment. Def.’s Fact Resp. at 1. Further, the defendant admits the majority of paragraph thirteen of the plaintiff’s statement of facts, but “cannot respond to [the p]laintiff’s assertion regarding religious affiliation or countries of origin because it is unclear as to the issue [the p]laintiff raises with regard to this information.” Id. Accordingly, the Court generally relies on the plaintiff’s statement of facts.
4 Vaughn indices are a mainstay of FOIA proceedings at the district court level in this Circuit. “In Vaughn [the District of Columbia Circuit] recognized the burden placed upon the district court when the government fails to establish with sufficient specificity the basis of claimed exemption from FOIA disclosure of specific documents. To alleviate that burden, [the Circuit] established the requirement for a Vaughn index so that a district judge could examine and rule on each element of the itemized list.” Summers v. DOJ, 140 F.3d 1077, 1080-81 (D.C. Cir. 1998) (internal citation omitted). The Circuit further noted that although it “ha[s] never required repetitive, detailed explanations for each piece of withheld information,” Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (citation omitted), “[t]he Vaughn index ‘must adequately describe each withheld document or deletion from a released document,’ and ‘must state the exemption claimed for each deletion or withheld document, and explain why the exemption is relevant,’” Summers, 140 F.3d at 1080 (citation omitted).
2

without prejudice the defendant’s motion for reconsideration of the Court’s March 26, 2009 memorandum opinion and order); Prison Legal News v. Lappin (Prison Legal News II), 780 F. Supp. 2d 29 (D.D. C. 2011) (Walton, J.) (granting summary judgment in part to the defendant and finding that the defendant had performed an adequate search under the FOIA, and also granting summary judgment in part to the plaintiff and finding that the defendant had not sufficiently justified its reliance on the exemptions to the FOIA); see also Pl.’s Facts ¶¶ 3-9.
Following the issuances of the above referenced memorandum opinions and orders, the defendant produced a new Vaughn index in May 2011. Pl.’s Facts ¶ 10. The plaintiff again “moved for summary judgment . . . , asserting that the supplemental Vaughn index did not sufficiently justify the redactions.” Id. ¶ 11. In support of its position, the plaintiff noted that “[i]n approximately 2,000 of the 11,000 documents produced to Plaintiffs, Defendant redacted all personal names, judicial and administrative case numbers, and large blocks of text.” Id. In response to the plaintiff’s motion for summary judgment, the defendant provided the plaintiff “with newly redacted Exhibits 1 through 102 and a 129-page Second Supplemental Vaughn index on or about November 30, 2011.” Id. ¶ 12. The newly redacted documents “still contain[ed] redactions of individual names, job titles, department descriptions, work addresses, dates of employment, dates of events, . . . and occasionally, entire sentences of text.” Id. ¶ 13; Def.’s Fact Resp. at 1.
The parties have now filed cross motions for summary judgment. In conjunction with its motion, the defendant has submitted supplemental declarations and exhibits that it believes demonstrate that it correctly relied upon FOIA exemptions in redacting the 102 documents that
3

remain at issue.5 Def.’s Facts ¶ 2; Def.’s Mem. at 2; id., Declaration of Clinton Stroble (“Stroble Decl.”), attaching April 25, 2012 Vaughn Index (“Stroble Vaughn Index”); id., Fourth Supplemental Declaration of Wilson J. Moorer (“Fourth Moorer Decl.”).6
II. STANDARD OF REVIEW A court reviews an agency’s response to a FOIA request de novo, 5 U.S.C. § 552(a)(4)(B), and “FOIA cases typically and appropriately are decided on motions for summary judgment,” ViroPharma Inc. v. HHS, 839 F. Supp. 2d 184, 189 (D.D.C. 2012) (citations omitted). The Court will grant summary judgment if 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. See Fed. R. Civ. P. 56(a). More specifically, in a FOIA action to compel production of agency records, the agency “is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced . . . or is wholly exempt from the [FOIA’s] inspection requirements.’” Students Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)). “To successfully challenge an agency’s showing that it complied with the FOIA, the plaintiff must come forward with ‘specific facts’ demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records.” Span v. DOJ, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (quoting DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989)). Summary judgment in a FOIA case may be based solely on information provided in an agency’s supporting affidavits or declarations if they are “relatively detailed and non-
5 Despite the parties’ repeated references to 102 documents, the plaintiff makes clear that it does not dispute the defendant’s redactions to Documents 5, 54, 56, and 64, and notes also that Documents 95-10, 96-2, 100-2, 100-4, 101-2, 101-3, 103-7, 103-8, and 103-11 are no longer redacted. Pl.’s Mem. at 2 n.2. 6 The Court will refer to the declarations and Vaughn index collectively as the defendant’s “Vaughn submissions.”
4

conclusory,” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotations and citations omitted), and when they:
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 [or] by evidence of agency bad faith. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see Beltranena v. Clinton, 770 F. Supp. 2d 175, 181-82 (D.D.C. 2011). In determining whether the defendant agency has met its burden in support of non-production, “the underlying facts are viewed in the light most favorable to the [FOIA] requester.” Weisberg v. DOJ, 705 F.2d 1344, 1350 (D.C. Cir. 1983). Further, consistent with congressional intent tilting the scales in favor of full disclosure, courts impose a substantial burden on an agency seeking to avoid disclosure based on the FOIA exemptions. Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007). Consequently, “exemptions from disclosure must be narrowly construed . . . and conclusory and generalized allegations of exemptions are unacceptable.” Id. at 1114-15 (citing Founding Church of Scientology of Wash., D.C., Inc. v. Nat’l Sec. Agency, 610 F.2d 824, 830 (D.C. Cir. 1979)) (internal quotation marks and citation omitted). Nonetheless, “[w]hen disclosure touches upon certain areas defined in the exemptions, . . . the [FOIA] recognizes limitations that compete with the general interest in disclosure, and that, in appropriate cases, can overcome it.” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004).
III. ANALYSIS The defendant asserts, see Def.’s Mem. at 2-3, and the plaintiff does not dispute, see generally Pl.’s Reply, that the narrow issue, as it relates to the application of Exemptions 6 and 7(C), is whether the agency has met its burden in withholding names and personal identifying information that would likely reveal the identity of a person related to
5

claims filed with the [d]efendant pursuant to the Federal Torts Claims Act (FTCA) and claims filed against the defendant related to [the] Equal Employment Opportunity Commission (EEOC) or [the] Merit Systems Protection Board [(MSPB)]. More specifically, as it r elates to claims pursuant to the FTCA, the types of documents in question, as described in the Vaughn Index are Tort Claim Form SF-95; Tort Claim Judgments; Tort Claim Voucher for Payment; and documents including e-mails, facsimile cover sheets, and other documents related to the processing and disposition of such claims. As it relates to claims related to [the] EEOC or [the] MSPB, the types of documents in question relate to Settlement Stipulations, General Correspondence (E-mails, Fax Cover Sheets, Letters[)]; Merit System Protection Board—Settlement Agreements; Equal Employment Opportunity Commission—Settlement Agreements, Order of Dismissal, Settlement or Compr[om]ise Agreement, Notice of Settlement, Agency Offer of Resolution, and/or Stipulation of Dismissal; and Complaint of Discrimination, Form DOJ 201.
Def.’s Mem. at 2-3.7 The defendant contends “that it has properly applied Exemptions 6 and
7(C) in redactions contained in the 102 [e]xhibits.” Id. at 3.
The FOIA requires government agencies to release records to the public on request, see
generally 5 U.S.C. § 552(a), except for those records protected by any of nine enumerated
exemptions, see § 552(b). The defendant’s updated Vaughn index indicates that the defendants
applied both § 552(b)(6) (“Exemption 6”) and § 552(b)(7)(C) (“Exemption 7(C)”) to each of the
documents at issue.8 See generally Stroble Vaughn Index. Thus, if the Court determines that the
documents at issue fall within the ambit of either exemption, it will be unnecessary to determine
whether the other also applies. See Coleman v. Lappin (Coleman I), 607 F. Supp. 2d 15, 23
7 Although the plaintiff also complains of and identifies inconsistencies in the defendant’s redaction of a few documents, Pl.’s Mem. at 9-10, the defendant has reviewed and corrected the inconsistencies, Def.’s Facts ¶ 6; see also Def.’s Mem., Stroble Decl. ¶ 4. The plaintiff does not dispute that the defendant had adequately remedied the inconsistencies. See generally Pl.’s Reply. Accordingly, the Court treats the issue as undisputed, and does not address the inconsistencies identified by the plaintiff in this Memorandum Opinion. Fed. R. Civ. P. 56(e) (“If a party fails to properly . . . address another party’s assertion of fact . . . the court may . . . consider the fact undisputed for purposes of the motion.”).
8 The only exception is Document 81, which was redacted pursuant to Exemption 5. Def.’s Mem., Stroble Vaughn Index at 107. However, the plaintiff challenges only the application of Exemptions 6 and 7(C) to the documents. See generally Pl.’s Mem. Additionally, although Document 54 lists only Exemption 6 in the column entitled “Exemptions Applied,” both Exemptions 6 and 7(C) are discussed in the column entitled “Rationale for Exemptions.” See Def.’s Mem., Stroble Vaughn Index at 76.
6

(D.D.C. 2009) (“If the Court determines that information properly is withheld under one exemption, it need not determine whether another exemption applies to that same information.” (citing Simon v. DOJ, 980 F.2d 782, 785 (D.C. Cir. 1992))). A. Exemption 6
Exemption 6 protects “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” § 552(b)(6). The term “similar files” is construed broadly and is “‘intended to cover detailed Government records on an individual which can be identified as applying to that individual.’” U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982) (citation omitted). “The information in the file ‘need not be intimate’ for the file to satisfy the standard, and the threshold for determining whether information applies to a particular individual is minimal.” Milton v. DOJ, 783 F. Supp. 2d 55, 58 (D.D.C. 2011) (quoting New York Times Co. v. NASA, 920 F.2d 1002, 1006 (D.C. Cir. 1990)). Information protected under Exemption 6 includes not only files, but also such items as a person’s name, address, place of birth, employment history, and telephone number. See Judicial Watch, Inc. v. FDA, 449 F.3d 141, 152 (D.C. Cir. 2006); Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989); see also Gov’t Accountability Project v. U.S. Dep’t of State, 699 F. Supp. 2d 97, 106 (D.D.C. 2010) (personal e-mail addresses); Schwaner v. Dep’t of the Army, 696 F. Supp. 2d 77, 82 (D.D.C. 2010) (names, ranks, companies and addresses of Army personnel).
Here, the requested information consists of individuals’ names and personal identifying information. Pl.’s Reply at 3; Def.’s Mem. at 2-3 (describing requested records as documents concerning “person[s] related to claims filed with the Defendant pursuant” to various statutes). Accordingly, the records are subject to Exemption 6. See Salas v. Office of Inspector Gen., 577
7

F. Supp. 2d 105, 111 (D.D.C. 2008) (finding that a “Complaint Form ‘concern[ing] an allegation of work-related misconduct,’ and includ[ing] such information as names, social security numbers, and dates of birth of the complainant and the subject” met the Exemption 6 threshold as “personnel, medical, or similar file[s]” (citation omitted)).
Once this threshold inquiry is met, the Court employs a balancing test to determine whether release of such information constitutes a clearly unwarranted invasion of personal privacy. See Wash. Post Co. v. HHS, 690 F.2d 252, 260 (D.C. Cir. 1982). It is the requester’s obligation to demonstrate the existence of a significant public interest in disclosure. See Coleman v. Lappin (Coleman II), 680 F. Supp. 2d 192, 196 (D.D.C. 2010).
1. Whether Disclosure Would Constitute a Clearly Unwarranted Invasion of Personal Privacy
The defendant relied on Exemption 6 to withhold “the names and personal identifying information that would reveal the identity of a person related to claims filed with the [d]efendant pursuant to the Federal Tort Claims Act (FTCA) and claims filed against the defendant related to [the] Equal [Employment] Opportunity Commission (EEOC) or Merit System Protection Board.” Def.’s Mem., Stroble Decl. ¶ 6; see generally id., Stroble Vaughn Index; id., Fourth Moorer Decl. The plaintiff argues that the “[d]efendant has failed to . . . establish that the release of the names would constitute a clearly unwarranted invasion of personal privacy.” Pl.’s Mem. at 14. However, with respect to the FTCA claims, the defendant considered the fact that disclosing names or other personal identifying information “would specifically disclose injuries, death or losses suffered by individuals.” Def.’s Mem., Fourth Moorer Decl. ¶ 11. The defendant conducted a similar analysis with respect to documents and information related to EEOC claims and Merit System Protection Board claims, observing that “[t]he fact that a claim was filed discloses that a specified individual has alleged that he or she suffered some form of
8

discrimination.” Id., Fourth Moorer Decl. ¶¶ 79, 102. Documents such as these, which associate names and identifying information with personal information about injuries, deaths, and allegations of discrimination, “easily fall under the purview of an individual’s ‘interest in avoiding disclosure of personal matters,’ and controlling ‘information concerning his or her person.’” Judicial Watch, Inc. v. DOJ, 365 F.3d 1108, 1125 (D.C. Cir. 2004) (quoting DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 762-63 (1989)); see also Wilson v. U.S. Dep’t of Transp., 730 F. Supp. 2d 140, 156 (D.D.C. 2010) (“Because EEO charges often concern matters of a sensitive nature, an EEO complainant has significant privacy interest in keeping confidential the fact that she is an EEO complainant.”), aff’d, No. 10-5295, 2010 WL 5479580 (D.C. Cir. 2010); Horowitz v. Peace Corps, 428 F.3d 271, 279-80 (D.C. Cir. 2005) (holding that complainant of sexual misconduct claim had a privacy interest in his name). The Court therefore finds that the disclosure of the names and other personal identifying information would constitute “a clearly unwarranted invasion of personal privacy.” § 522(b)(6).
The plaintiff contends that the defendant “has controverted its own justifications by revealing the names of individuals in the majority of the cases from which documents have been released and redacting the names from only a portion of similar documents.” Pl.’s Mem. at 1415. However, the defendant states that “if an administrative complaint resulted in litigation in the United States District Court and [the] [d]efendant was able to connect the administrative complaint with litigation filed in the United States District Court, the information from the administrative complaint was not redacted.” Def.’s Mem. at 7; see also id., Fourth Moorer Decl. ¶¶ 57-58 (indicating that only social security numbers and personal banking routing or account numbers were redacted with respect to documents associated with cases filed in a United States
9

District Court). Accordingly, the fact that the defendant did not redact names from all of the documents does not undermine its reliance on Exemption 6.
2. Whether the Public Interest Outweighs the Personal Privacy Interests The plaintiff first states that there is a public interest in disclosing the names and identifying information because without them, “records from administrative agency proceedings lose most of their analytical use” and individuals reviewing the records would be unable to identify “complementary records that would yield even more information by searching for documents based on the names of the parties involved.” Pl.’s Mem. at 13-14. While there may be a public interest in being able to more easily identify complementary records, the District of Columbia Circuit has held that “[t]he operative inquiry in determining whether disclosure of a document implicating privacy issues is warranted is the nature of the requested document itself, not the purpose for which the document is being requested.” Judicial Watch, Inc. v. DOJ, 365 F.3d at 1126 (citing Reporters Comm., 489 U.S. at 773); see also Reed v. NLRB, 927 F.2d 1249, 1252 (D.C. Cir. 1991). As the Circuit recently observed, “[t]he single relevant public interest in FOIA balancing is the ‘extent to which disclosure of the information sought would she[d] light on an agency’s performance of its statutory duties or otherwise let citizens know what their government is up to.’” Consumers’ Checkbook Ctr. for the Study of Servs. v. HHS, 554 F.3d 1046, 1059 (D.C. Cir. 2009) (alteration in original) (citation omitted). Thus, while the plaintiff’s first stated interest in being better able to match certain documents with certain other documents identifies a particular purpose for how the information will be used, it does not constitute a proper public interest under Exemption 6. The plaintiff also states that there is a public interest “in knowing how much money was used to settle claims against [the defendant’s] employees and officials.” Pl.’s Reply at 9. The
10

plaintiff states further that, “[w]ithout the identifying information from these 102 documents, there is no way to know whether those individuals have been accused multiple times of serious offenses, how much tax payer money has been used to resolve claims against those individuals, and whether those individuals continue to be employed by [the defendant].” Id.
Although “the public may have an interest in knowing that a government investigation itself is comprehensive, that the report of an investigation released publicly is accurate, that any disciplinary measures imposed are adequate, and that those who are accountable are dealt with in an appropriate manner,” such “public interests . . . would not be satiated in any way by the release of the names” of the employees. Stern v. FBI, 737 F.2d 84, 92 (D.C. Cir. 1984).9 “[T]he public interest in the disclosure of the identities of the censured employees is only in knowing who the public servants are that were involved in the governmental wrongdoing, in order to hold the governors accountable to the governed.” Id. Thus, the Circuit has held that where a FOIA request “occur[s] against the backdrop of a well-publicized scandal, and the public [is] aware that certain employees ha[ve] been censured,” disclosure of the employees’ names might be warranted. Beck v. DOJ, 997 F.2d 1489, 1493 (D.C. Cir. 1993).
The defendant here has disclosed the names of individuals who were acting in their official capacities, see, e.g., Def.’s Mem., Fourth Moorer Decl. ¶¶ 11, 34, 67, as well as the names of individuals who were involved in public litigation, id. at 7; see also id., Fourth Moorer Decl. ¶¶ 57-58. The requested information thus consists entirely of the names and other personal identifying information, Pl.’s Mem. at 3, of individuals who were not acting in an official capacity, Def.’s Mem., Fourth Moorer Decl. ¶¶ 11, 34, 67. The plaintiff has identified no well-
9 Although the Stern court was applying Exemption 7(C), 737 F.2d at 92, the Supreme Court has stated that “Exemptions 7(C) and 6 differ in the magnitude of the public interest that is required to override the respective privacy interests protected by the exemptions,” but not “the identification of the relevant public interest to be weighed in the balance,” DOD v. FLRA, 510 U.S. 487, 496 n.6 (1994) (first emphasis added). Accordingly, the Court considers Exemption 7(C) cases instructive in regards to the identification of the public interest in disclosure.
11

publicized scandal or other information, such as a public letter censuring particular employees, see, e.g., Stern, 737 F.2d at 93-94, to serve as the public interest in disclosing the names and other identifying information. Indeed, another member of this Court has held that, pursuant to Exemption 6, the same defendant properly withheld “‘names [and other identifying information] of [its] staff members and other inmates that were involved in the investigation of retaliation, sexual harassment, and cruel and unusual wrongful acts.’” Coleman I, 607 F. Supp. 2d at 22 (citation omitted); see also Wilson, 730 F. Supp. 2d at 156 (holding that name of EEO complainant was properly withheld); Horowitz, 428 F.3d at 279-80 (holding that name of complainant of sexual misconduct claim was properly withheld).
It is true that “[t]he Court ordinarily ‘consider[s], when balancing the public interest in disclosure against the private interest in exemption, the rank of the public official involved and the seriousness of the misconduct alleged,’” Coleman II, 680 F. Supp. 2d at 199-200 (quoting Kimberlin v. DOJ, 139 F.3d 944, 949 (D.C. Cir. 1998)), because “there is a strong public interest in monitoring the conduct and actual performance of public officials,” Baez v. DOJ, 647 F.2d 1328, 1339 (D.C. Cir. 1980). Here, however, given the nature of the privacy interests at stake, i.e., public confirmation that particular individuals suffered deaths or other losses, and disclosure of details of various types of discrimination allegations made by or against particular individuals, and given also the lack of a well-publicized scandal or other information suggesting that agency misconduct occurred within the timeframe of the plaintiff’s FOIA request, the Court finds that the public interest in knowing the names and other identifying information does not outweigh the individuals’ privacy interests. Cf. Stern, 737 F.2d at 93-94 (disclosing names and identifying information where public was aware of censure letter indicating that high ranking official had acted in an “intolerable” manner); Beck, 997 F.2d at 1493 (“The Supreme Court has made clear .
12

. . that . . . there is no public interest in” the release of “information that would identify . . . specific government employees as the subjects of ‘findings’ of wrongdoing.”). Accordingly, the Court finds that the defendant properly relied on Exemption 6 to withhold the names and other identifying information at issue. Because the defendant appropriately relied on Exemption 6, the Court will not consider the applicability of Exemption 7(C). B. Segregability
Where an agency establishes the applicability of an exemption, “it must nonetheless disclose all reasonably segregable, nonexempt portions of the requested record.” Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 58 (D.C. Cir. 2003) (citing 5 U.S.C. § 552(b)). As this Court noted in a prior opinion in this litigation, segregability is not at issue because the defendant made that assessment previously. Prison Legal News II, 780 F. Supp. 2d at 35 n.3. In any event, because the Court has now determined that the defendant properly redacted names and other identifying information, and upon review of the defendant’s Vaughn submissions, the Court finds that the submissions adequately specify “which portions of the document[s] are disclosable and which are allegedly exempt.” Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973).
IV. CONCLUSION For the foregoing reasons, the Court grants the defendant’s motions for summary judgment, and denies the plaintiff’s motion for summary judgment.10 SO ORDERED this 23rd day of July, 2013.
REGGIE B. WALTON UNITED STATES DISTRICT JUDGE
10 An Order consistent with this Memorandum Opinion will be issued by the Court.
13

 
 Case 1:05-cv-01812-RBW Document 111 Filed 04/25/12 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

PRISON LEGAL NEWS

)

)

)

Plaintiff,

)

)

v.

)

)

HARLEY G. LAPPIN, Director,

)

Federal Bureau of Prisons

)

)

Defendant.

)

____________________________________ )

Civil Action No. 05-1812 (RBW)

DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFF’S FIFTH MOTION FOR SUMMARY JUDGMENT

Defendant, by undersigned counsel, respectfully moves the Court, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for an order granting defendant summary judgment on the ground that no genuine issue of material fact exists and defendant is entitled to judgment as a matter of law.
In support of this motion, the Court is respectfully referred to the accompanying Memorandum of Points and Authorities, Statement of Material Facts Not in Genuine Dispute, Declaration of Clinton Stroble, Assistant General Counsel, Office of General Counsel, Central Office, Federal Bureau of Prisons, Washington, DC, Vaughn Index and Exhibits. 1 A proposed order is also attached.

1 Simultaneously with this Motion, Defendant is requesting an enlargement of time until April 26, 2012 to file the 102 exhibits on ECF.

Case 1:05-cv-01812-RBW Document 111 Filed 04/25/12 Page 2 of 19

Of Counsel:
C. DARNELL STROBLE Assistant General Counsel (FOIA/PA) Section Central Office Federal Bureau of Prisons

Respectfully submitted,
RONALD C. MACHEN JR., D.C. Bar #447889 United States Attorney for the District of Columbia
DANIEL F. VAN HORN, D.C. Bar # 924092 Acting Civil Chief
By: ___________________________ WYNEVA JOHNSON, D.C. BAR #278515 Assistant U.S. Attorney 555 4th Street, N.W. Washington, D.C. 20530 (202) 514-7224 wyneva.johnson@usdoj.gov

2

Case 1:05-cv-01812-RBW Document 111 Filed 04/25/12 Page 3 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

PRISON LEGAL NEWS

)

)

)

Plaintiff,

)

)

v.

)

)

HARLEY G. LAPPIN, Director,

)

Federal Bureau of Prisons

)

)

Defendant.

)

____________________________________ )

Civil Action No. 05-1812 (RBW)

DEFENDANT’S STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE DISPUTE

Pursuant to Fed. R. Civ. P. 56 and Local Rule 7(h), Defendant, Harley G. Lappin, Director, Federal Bureau of Prisons, respectfully submits the following Statement of Material Facts as to Which There is no Genuine Dispute.
1. Clinton Stroble, Assistant General Counsel, Office of General Counsel, Central Office, Federal Bureau of Prisons, Washington, D.C., is presently assigned to the Freedom of Information Act/Privacy Act (FOIA/PA) Section. His responsibilities include the coordination of the FOIA/PA Section litigation. Declaration of Clinton Stroble, ¶ 1.
Exemptions 2. A new Vaughn index (Stroble Vaughn), hereby supports Defendant’s CrossMotion for Summary Judgment. The Vaughn index is an approximate 129 page document that identifies the exhibits with a general specificity of the type of document, the number of pages of that document, the exemptions applied, and the rationale for the exemptions, Stroble Declaration ¶ 5.

Case 1:05-cv-01812-RBW Document 111 Filed 04/25/12 Page 4 of 19
3. Defendant applied Exemption 6 to redact the names and personal identifying information that would reveal the identity of a person related to claims filed with the Defendant pursuant to the Federal Torts Claims Act (FTCA) and claims filed against the defendant related to Equal Opportunity Commission (EEOC) or Merit Systems Protection Board. Stroble Declaration, ¶ 6.
4. Stroble applied Exemption 7(C) to redact the names and personal identifying information that would reveal the identity of a person related to claims filed with the Defendant pursuant to the Federal Torts Claims Act (FTCA) and claims filed against the defendant related to Equal Opportunity Commission (EEOC) or Merit Systems Protection Board. Stroble Declaration, ¶ 7.
5. Exemption 2 Low was not applied in the Stroble Vaughn on the 102 Exhibits. Stroble Declaration, ¶ 9.
Exhibits 6. Stroble reviewed the exhibits set forth below and redacted any inconsistencies where needed. Stroble Declaration, ¶ 4.
Exhibits 5 and 95 A. Exhibits 5 and 95 represent the same documents. Exhibit 5 was the release provided to the Plaintiff on June 10, 2011. Exhibit 95 was the Defendant’s November 2011 release. On Page 1 of Exhibit 5, the Defendant did not redact the name of the complainant or witnesses, but on page 1 of Exhibit 95, the Defendant redacted this information. The Defendant has unredacted page 1 of Exhibit 95 as it appears that the claim was submitted as a part of a federal district court case. On page 2 of Exhibit 5, the Defendant did not redact the name on a witness, but redacted this name on page 2 of Exhibit 95. The Defendant has unredacted page 2 of Exhibit 95 as it appears that the claim was submitted as a part of a federal district court case.
2

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Exhibits 2 and 23 B. On page 1 of Exhibit 2, the name of the EEO Specialist was not redacted, but on page 1 of Exhibit 23, the name is redacted. The Defendant has unredacted the name on Exhibit 23. Additionally, the Defendant redacted the name of a witness on page 7 of Exhibit 2, but inadvertently did not redact this name on page 7 of Exhibit 23. The Defendant has redacted the name of the Witness on page 7 of Exhibit 23.
Exhibits 3 and 82 C. Exhibits 3 and 82 are the same documents. Exhibit 3 was the release provided to the Plaintiff on June 10, 2011. Exhibit 82 was the Plaintiff’s November 2011 release. Exhibit 3 revealed some information that Defendant’s contended during the November 2011 joint meeting should be protected. Thus, when the Defendant’s reviewed Plaintiff’s Exhibit 82, the Defendant redacted this exhibit consistent with its stated purpose of redacting personal identifying information. However, since the Plaintiff already possessed Exhibit 3 personal identifying information revealed, it would have been futile and almost pointless to go back and redact this information from Exhibit 3.
Exhibits 4 and 51 D. On page 33 of Exhibit 51, the name of witnesses were not redacted as it appears the administrative claim was filed as part of a district court case, but on page 33of Exhibit 4, these same names were redacted. The Defendant has unredacted the names on Exhibit 4.
Exhibits 12 and 81 E. On pages 4 and 5 of Exhibit 12, the Defendant did not redact a reference where the word “inmate” or “officer” was used. However, on pages 4 and 5 of Exhibit 81, the
3

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Defendant redacted these same references. The Defendant has unredacted the reference to
“inmate” or “officer” on pages 4 and 5 of Exhibit 81.
Exhibits 26 and 68
F. The Defendant has unredacted Exemption 2 Low application to administrative
complaint number on Exhibit 26. Further, on page 1 of Exhibit 26, the Defendant redacted the
name of a person that was not a witness. However, on page 1 of Exhibit 68, the Defendant did
not redact the same name. The Defendant has unredacted the name on Exhibit 26.
Exhibits 79 and 80
G. On page 3 of Exhibit 79, the name of the parties were redacted, but inadvertently
the names were not redacted on page 3 of Exhibit 80. The Defendant has redacted the name of
the Witness on page 3 of Exhibit 80.
Respectfully submitted,
RONALD C. MACHEN JR., D.C. Bar #447889 United States Attorney for the District of Columbia
DANIEL F. VAN HORN, D.C. Bar # 924092 Acting Civil Chief
By: ___________________________ WYNEVA JOHNSON, D.C. BAR #278515 Assistant U.S. Attorney 555 4th Street, N.W. Washington, D.C. 20530 (202) 514-7224 wyneva.johnson@usdoj.gov
Of Counsel:
C. DARNELL STROBLE Assistant General Counsel (FOIA/PA) Section Central Office Federal Bureau of Prisons
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

PRISON LEGAL NEWS

)

)

)

Plaintiff,

)

)

v.

)

)

HARLEY G. LAPPIN, Director,

)

Federal Bureau of Prisons

)

)

Defendant.

)

____________________________________ )

Civil Action No. 05-1812 (RBW)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFF’S FIFTH MOTION FOR SUMMARY JUDGMENT

Plaintiff filed an August 15, 2003 FOIA request which sought the following documents:

[A]ll documents showing all money paid by the Bureau of Prisons (BOP) for lawsuits and claims against it. This is all funds paid out to claimants/litigants between January 1, 1996 through and including July 31, 2003. I am requesting a copy of the verdict, settlement or claim in each case showing the dollar amount paid, the identity of the plaintiff/claimant and the legal identifying information for each lawsuit or claim or attorney fee award. I am requesting a copy of the complaint (if it was a lawsuit) or the claim (if it was not) in each incident which describes the underlying facts of each lawsuit and claim.

After several years of litigation, and Defendant’s release of thousands of pages of

documents, the parties have agreed that the 102 Exhibits attached to Plaintiff’s Fifth Motion for

Summary Judgment constitute the remaining documents in contention in this litigation. Plaintiff

requests that Defendant release “copies to Plaintiff of all documents previously produced in

Plaintiff’s 2003 FOIA Request without any redaction of any names, job titles or descriptions,

dates of employment or events, and religious affiliation of individuals.” Motion at 1.

Case 1:05-cv-01812-RBW Document 111 Filed 04/25/12 Page 8 of 19
Defendant herewith files a Cross-Motion for Summary Judgment with a new 125 page Vaughn Index submitted by Clinton Stroble, Assistant General Counsel, Freedom of Information Act/ Privacy Act Section (“Stroble Vaughn”), April 25, 2012. The Stroble Vaughn explains Defendant’s redactions pursuant to FOIA exemptions 6 and 7(C) on the above referenced 102 Exhibits noted on the attached Discs 1, 2, and 3. Defendant continues to argue, as it has in its previous Memoranda, that Exemptions 6 and 7(C) are applicable here to the release of individual names, and to the extent that job titles, department descriptions, work addresses, dates of employment, dates of events, religious affiliation, countries of origin, and entire sentences of text would identify individual names, the information has been properly redacted.1
Thus, at this stage of the litigation, the narrow issue, as it relates to the application of Exemptions 6 and 7(C), is whether the agency has met its burden in withholding names and personal identifying information that would likely reveal the identity of a person related to claims filed with the Defendant pursuant to the Federal Torts Claims Act (FTCA) and claims filed against the defendant related to Equal Employment Opportunity Commission (EEOC) or Merit Systems Protection Board. More specifically, as it relates to claims pursuant to the FTCA, the types of documents in question, as described in the Vaughn Index are Tort Claim Form SF95; Tort Claim Judgments; Tort Claim Voucher For Payment; and documents including e-mails, facsimile cover sheets, and other documents related to the processing and disposition of such claims. As it relates to claims related to EEOC or the MSPB, the types of documents in question relate to Settlement Stipulations, General Correspondence (E-mails, Fax Cover Sheets, Letters; Merit System Protection Board—Settlement Agreements; Equal Employment Opportunity Commission—Settlement Agreements, Order of Dismissal, Settlement or Comprise Agreement,
1 The application of Exemption 2 low has not been requested in the “Stroble Vaughn” (April 25, 2012). 2

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Notice of Settlement, Agency Offer of Resolution, and/or Stipulation of Dismissal; and Complaint of Discrimination, Form DOJ 201. Defendant submits that it has properly applied Exemptions 6 and 7(C) in redactions contained in the 102 Exhibits.
ARGUMENT A. Standard of Review “In review of a motion for summary judgment under FOIA, the Court must conduct a de novo review of the record.” Lardner v. Dept. of Justice, 638 F.Supp.2d 14, 20 (D.D.C. 2009), aff’d, 398 Fed. Appx. 609 (2010); citing 5 U.S.C. § 552(a)(4)(B). The court determines “whether the agency has sustained its burden of demonstrating that the documents requested * * * are exempt from disclosure under FOIA.” Id. ; Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003)) (omission in original). Although, “[u]nderlying facts and inferences are analyzed in the light most favorable to the FOIA requester,” Lardner, 638 F.Supp at 20, “a plaintiff . . . must establish that the agency has improperly claimed an exemption as a matter of law or that the agency has failed to segregate and disclose all non-exempt information in the requested documents.” Id.; PerryTorres v. Dep’t. of State, 404 F.Supp.2d 140, 142 (D.D.C. 2005)). The agency bears the burden to justify its withholding, describing with specific detail in accompanying affidavits or declarations the justifications for nondisclosure and that such non-disclosure falls within a claimed exemption, and “detailing what proportion of the information in a document is nonexempt and how that material is dispersed throughout the document.” Lardner, 638 F.Supp at 20-21. As we set forth below, the agency has met its burden regarding the application of Exemptions 6 and 7(C).
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B. Exemption 6 Was Appropriately Applied to Redact the Names and Personal Identifying Information That Would Reveal the Identity of A Person.
Exemption 6 permits the government to withhold all information about individuals in "personnel and medical files and similar files" when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7). To warrant protection under Exemption 6, information must meet the threshold requirement, that is, it must fall within the category of personnel and medical files and similar files. United States Department of State v. Washington Post Co., 456 U.S. 595, 602 n. 4 (1982). The threshold is met where the information applies to any particular, identifiable individual. Once it has been established that information meets the threshold requirement of Exemption 6, the focus of the inquiry turns to whether disclosure of the records at issue "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C.  552(b )(6). This requires a balancing of the public's right to disclosure against the individual's right to privacy. See Dep't of the Air Force v. Rose, 425 U.S. 352, 372 (1976); Fund for Constitutional Gov't v. Nat'l Archives & Records Serv., 656 F.2d 856, 862 (D.C. Cir. 1981).
The next step under Exemption 6 involves identifying the relevant privacy interests in non-disclosure and the public interest in disclosure, and determining whether, on balance, disclosure would work a clearly unwarranted invasion of personal privacy. Reed v. NLRB, 927 F.2d 1249, 1251 (D.C.Cir.1991), cert. denied, 502 U.S. 1047 (1992) (quoting National Ass’n. of Retired Federal Employees v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989).
The essential issue is whether Exemption 6 permits the Defendant to exempt names and personal identifying information that will reveal the identity of a person related to claims filed with the Defendant pursuant to the Federal Torts Claims Act (FTCA) and claims filed against the
4

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defendant related to the Equal Employment Opportunity Commission (EEOC) or the Merit Systems Protection Board. The answer to the first point ultimately resolves the latter point. Plaintiff argues that the “Defendant has improperly redacted complainant, tortfeasor, and witness names from the newly produced documents.” Plaintiff’s Fifth Motion For Summary Judgment at 9.
To the contrary, there is a clearly established privacy interest in names. Painting and Drywall Work Preservation Fund, Inc. v. Dep't of Housing and Urban Dev., 936 F.2d 1300, 1303 (D.C.Cir.1991) (holding that the disclosure of names and addresses of construction workers from payroll records submitted by contractors would constitute a substantial invasion of privacy not outweighed by the public interest in disclosure); Sherman v. U.S. Dep't of the Army, 244 F.3d 357, 363-64 (5th Cir. 2001) (protecting social security numbers of soldiers even though Army publicly disclosed SSNs in some circumstances, because individuals rather than government hold privacy interest in that information). Nat'l Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989), cert. denied, 494 U.S. 1078 (1990); see also Int'l Bhd. of Elec. Workers Local No. 5 v. HUD, 852 F.2d 87, 89 (3d Cir. 1988) (perceiving no public interest in disclosure of employees' social security numbers); DOD v. FLRA, 510 U.S. 487, 500-02 (1994) (finding privacy interest in federal employees' home addresses).
“Exemption 6 permits an agency to withhold information contained within ‘personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.’” Lardner, 638 F.Supp at 23. In this context, “similar files” is given a broad interpretation thus protecting from disclosure “all information that ‘applies to a particular individual’ in the absence of a public interest in disclosure.” Id.; State Dep’t v. Washington Post Co., 456 U.S. 595, 602 (1982). Although the balance tilts in favor of disclosure
5

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against privacy, Lardner, 638 F.Supp. at 23, upon the agency meeting its burden in nondisclosure, Exemption 6 is applicable.
Determining whether Exemption 6 applies, the court will determine “whether disclosure of the [the information at issue] ‘would comprise a substantial, as opposed to de minimis privacy interest.’” Id. at 24; Multi Ag Media LLC v. Dep’t of Agriculture, 515 F.3d 1224, 1230 (D.C. Cir. 2008). In this context, “information that ‘reveals little or nothing about an agency’s own conduct does not further the statutory purpose; thus the public has no cognizable interest in the release of such information.” Lardner, 638 F.Supp. at 24.
Without clearly articulating a reason for the disclosure of names of individuals that have filed claims or were named as witnesses pursuant to the FTCA, EEOC claims, and/or MSPB claims, the Plaintiff generally suggests that it seeks the “names of the individuals for several reasons, which are all related to the public interest in gathering information that would contribute to an understanding of the Bureau of Prisons operations.” Plaintiff’s Fifth Motion for Summary Judgment at 13. More specifically, the Plaintiff argues that “[w]ithout the name of the plaintiff/claimant, records from administrative agency proceedings lose most of their analytical use.” Id. Further, the Plaintiff argues that “[w]ithout knowing the name of the party, plaintiff, or claimant, the seeker of information is left to try to sort through every case ever filed against the Defendant(s) named in order to try to find the one with the particular facts or details of interest.” Id. at 14.
Plaintiff’s assertions do not establish that the disclosure of the names will reveal anything concerning the agency’s conduct or an understanding of the Defendant’s operations. When considering the claims pursuant to the FTCA, such claims cover a large universe of potential types of claims to include claims such as damage to uniforms. Thus, a payment pursuant to the
6

Case 1:05-cv-01812-RBW Document 111 Filed 04/25/12 Page 13 of 19
FTCA does not necessarily indicate that an individual has engaged in actionable conduct. If anything, knowledge that a claim has been filed, the allegations supporting such a claim and that the government settled the claim may arguably reveal information concerning the Defendant’s conduct. In fact, Plaintiff’s effort to seek disclosure of the names of persons that sought administrative recovery from the Defendant, places the identity of those persons’ names in the public realm for seeking administrative relief or for merely being named in the request for administrative relief. Indeed, such disclosure serves to embarrass and intimidate those individuals. This embarrassment and intimidation operates as a chilling effect on a government employee’s right to seek redress. Thus, the Plaintiff’s interest in the disclosure of individual names is more about the individuals and less about exposing the operations of the Bureau of Prisons and properly exempted pursuant to Exemption 6.
Plaintiff argues that “[t]he frequency of litigation and the results thereof are good standards for measurement of the performance of public officials and government operations.” Plaintiff’s Fifth Motion For Summary Judgment at 14. Thus, the Plaintiff argues that “knowledge of whether or not certain public employees have been repeatedly named as defendants in successful civil complaints would help identify problematic areas of public functions.” Id.
Plaintiff’s argument is misplaced for two reasons. First, complaints filed in United States District Courts have not been redacted. Thus, if an administrative complaint resulted in litigation in the United States District Court and Defendant was able to connect the administrative complaint with litigation filed in the United States District Court, the information from the administrative complaint was not redacted.
7

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Second and more important, the agency administrative complaints are treated differently than matters filed in the United States District Courts. Thus, for example, as it relates to an FTCA matter, there are two important statutory deadlines—(1) the presentation of the claim to the agency within two years of the date of injury and (2) filing a civil action after within six months of the notice of the final denial by the agency. See 28 U.S.C. § 2401(b). Similarly, in EEOC cases, the mere filing of an EEOC complaint with the agency is not the same as the filing of civil litigation in the United States District Court regarding EEOC claims. The staff names on an EEO complaint are personal in nature as they are claims filed by an individual. Purely personal details pertaining to government employees are protected under Exemption 6. Plain Dealer Publ'g Co.v. U.S. Dep't of Labor, 471 F. Supp. 1023, 1028-30 (D.D.C. 1979).
Indeed, innocuous information will trigger the protections of Exemption 6. See Wash. Post Co., 456 U.S. at 600. The information need not be intimate or embarrassing to qualify. Horowitz v. Peace Corps, 428 F.3d 271, 279 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1627 (2006); Nat'l Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989); Knight v. NASA, No. 2:04-2054, 2006 WL 3780901, at *6 (E.D. Cal. Dec. 21, 2006); see also Appleton v. FDA, 451 F. Supp. 2d 129, 145 (D.D.C. 2006) ("Individuals have a privacy interest in personal information even if it is not of an embarrassing or intimate nature."). Some or all information in a claim summary may be personal in nature. As a result, the redactions to the claim summary portion of the various claims were determined on a case by case basis using a line by line review.
Plaintiff argues that the redaction of all personal names does not outweigh the public interest in disclosure of spent taxpayer dollars. Plaintiff asserts that “[n]o court, absent an order to seal the information, has found a per se privacy interest for litigants who file suit in open
8

Case 1:05-cv-01812-RBW Document 111 Filed 04/25/12 Page 15 of 19
court” and “when such litigants are successful and obtain monetary relief paid from the public coffers, the Courts have consistently held that disclosure of information related to the suit is proper,” citing Inform v. Bureau of Land Management, 611 F.Supp. 2d 1178 (D. Colo 2009) and Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). Plaintiff’s Fifth Motion for Summary Judgment at 10. Plaintiff, however, fails to proffer any case that supports the position that the redaction of all personal names does not outweigh the public interest in the disclosure of spent taxpayer dollars. In fact, the cases proffered by the Plaintiff do not support that contention. For example, in Inform, the court was evaluating the application of Exemption 5, unlike Exemption 6 applied in this case, and does not support the proposition asserted by Plaintiff. Plaintiff also cites Lardner v. Dept. of Justice, 638 F.Supp.2d 14, 20 (D.D.C. 2009) for the proposition that it is entitled to know the identities of individuals who used governmental process to redress grievances suffered at the hands of public officials and who were paid with public funds in satisfaction of judgment or settlement on those claims. Lardner does not support Plaintiff’s assertion that the redaction of all personal names does not outweigh the public interest in the disclosure of spent taxpayer dollars. The facts here are distinguishable. In Lardner, clemency applications in the Office of the Pardon Attorney do not have a reasonable expectation of privacy because the clemency application specifically states that upon request, the office would advise anyone whether a named person has been granted or denied clemency. Lardner, 638 at 24. Thus, Lardner provides no support for Plaintiff’s position. Accordingly, Defendant has properly applied Exemption 6 to redact the personal identifying information in Exhibits 1-102.
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C. Exemption 7(C) was Appropriately Applied to Redact the Names and Personal Identifying Information That Would Reveal the Identity of a Person as the Documents Related to the Enforcement of a Federal Law.
Exemption 7(C) of the FOIA exempts from mandatory disclosure information compiled for law enforcement purposes when disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).
Exemption 7(C) ordinarily permits the Government to withhold only the specific information to which it applies, not the entire page or document in which the information appears; any non-exempt information must be segregated and released, unless the “exempt and nonexempt information are ‘inextricably intertwined,’ such that the excision of exempt information would impose significant costs on the agency and produce an edited document with little informational value.” Mays v. Drug Enforcement Admin., 234 F.3d 1324, 1327 (D.C.Cir. 2000) (citations omitted).
The information redacted by the BOP pursuant to Exemption 7 (C ) is private in nature and the public’s need to know does not outweigh this interest. Plaintiff’s contention that the Defendant “improperly relies on Exemption 7(C) because (a) none of the documents at issue are properly considered law enforcements records and (b) Defendant has failed to show that the release of any individual name ‘could reasonably be expected to constitute an unwarranted invasion of person privacy,” citing 5 U.S. C. §552(b)(7)(C), is erroneous. Plaintiff’s Fifth Motion For Summary Judgment at 15.
It is well established that courts do defer to agencies’ assertions of law enforcement purposes. See Gardels v. CIA, 689 F.2d 1100, 1104-05 (D.C. Cir. 1982) (the “test” is not whether the court agrees with the agency; rather, the test is “whether on the whole record the Agency’s judgment objectively survives” because court must “accord” weight to agency
10

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determination); see also, Schoenman v. FBI, 575 F.Supp. 2d 166, 174 (D.D.C. 2008) (at “the onset the Court notes” agency specializing in law enforcement is entitled to deference when it invokes 7, but adding that deferential standard is not vacuous).
Under FOIA, “Courts have generally interpreted Exemption 7 as applying to records that pertain to specific investigations conducted by agencies, whether internal or external, and whether created or collected by the agency—in other words, investigatory files.” See Families For Freedom v. U.S. Customs and Border Protection, 797 F.Supp. 2d 375, 397 n. 144 (S.D.N.Y. 2011); see e.g., Ortiz v. United States Dep't of Health and Human Servs., 70 F.3d 729, 32 (2d Cir.1995) (finding letter that HHS's Office of Inspector General “used ... to launch a criminal investigation” qualifies as a law enforcement record under Exemption 7); Vento v. Internal Revenue Serv., 714 F.Supp. 2d 137, 148 (D.D.C.2010) (finding documents “compiled in the course of an investigation into plaintiff's tax liability” qualify as law enforcement records under Exemption 7, and compiling cases); Ligorner v. Reno, 2 F.Supp. 2d 400 (S.D.N.Y.1998) (finding complaint letter that contained the identity of an individual who accused another of misconduct within the Department of Justice qualifies as a law enforcement record under Exemption 7); Lurie v. Department of Army, 970 F.Supp. 19, 36 (D.D.C.1997) (finding records pertaining to Army's informal investigation of military medical researcher's representations qualify as law enforcement records under Exemption 7).
Thus, it is axiomatic that a Complaint of Discrimination (Form DOJ 201) and Claim For Damage, Injury, or Death (Standard Form 95) all qualify as law enforcement records because the records, in and of themselves, accuse another of some level of misconduct.
Further, Plaintiff’s reliance on whether the documents are law enforcement documents is somewhat misplaced. The two-part test for determining whether the threshold for Exemption 7
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has been met is as follows: (1) whether the agency’s investigatory activities that gave rise to the documents sought are related to the enforcement of federal laws or to the maintenance of national security; and (2) whether the nexus between the investigation and one of the agency’s law enforcement duties is based on information sufficient to support at least a colorable claim of rationality. See Pratt v. Webster, 673 F.2d 408, 420-21 (D.C. Cir. 1982).
In Wilson Moorer’s Fourth Supplemental Declaration,2 dated May 26, 2011, the Defendant has articulated the enforcement of the federal laws related to each category of document in which Exemption 7(C) was applied. Although Plaintiff contends that matters arising in the context of civil claim litigation or quasi-judicial forums are not part of any law enforcement as is “commonly understood,” Plaintiff’s Fifth Motion For Summary Judgment at 16, the specific emphasis on “law enforcement” is misplaced. The appropriate emphasis, however, is on “enforcement of federal laws.” When one couples “enforcement of federal laws” with the fact that the Defendant is an agency specializing in law enforcement, the Defendant is entitled to deference related to Exemption 7(C). Thus, the application of Exemption 7(C) was proper.
CONCLUSION Based on the foregoing and its previous Memoranda, incorporated herein, Defendant submits that all responsive documents have been released to Plaintiff, that Exemptions 6 and 7(C) have been properly applied to the redactions in Exhibits 1-102, and that summary judgment should be granted to Defendant.
2 For the convenience of the Court, Moorer’s Fourth Supplemental Declaration is attached. 12

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Of Counsel:
C. DARNELL STROBLE Assistant General Counsel (FOIA/PA) Section Central Office Federal Bureau of Prisons

Respectfully submitted,
RONALD C. MACHEN JR., D.C. Bar #447889 United States Attorney for the District of Columbia
__/s/___________________________________ DANIEL F. VAN HORN, D.C. Bar # 924092 Acting Civil Chief
By: ___ /s/__________________________________ WYNEVA JOHNSON, D.C. Bar #278515 Assistant United States Attorney 555 4th Street, N.W. Washington, D.C. 20530 (202) 514-7224 wyneva.johnson@usdoj.gov

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District of Columbia live database
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:05-cv-01812-RBW

CLOSED,TYPE-I

PRISON LEGAL NEWS v. LAPPIN Assigned to: Judge Reggie B. Walton Case in other court: 12-05269 Cause: 05:552 Freedom of Information Act Plaintiff PRISON LEGAL NEWS
https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?105316242809496-L_1_0-1

Date Filed: 09/13/2005 Date Terminated: 04/04/2017 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant
represented by Ronald G. London DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Avenue, NW Suite 800 Washington, DC 20006-3401 (202) 973-4235 Fax: (202) 973-4499 Email: ronnielondon@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam K. Cook HUMAN RIGHTS DEFENSE CENTER 1037 Western Avenue Brattleboro, VT 05303 (802) 257-1342 Fax: (866) 735-7136 Email: acook@humanrightsdefensecenter.org TERMINATED: 07/25/2011 PRO HAC VICE
Carl L. Messineo PARTNERSHIP FOR CIVIL JUSTICE, INC. 617 Florida Avenue, NW Washington, DC 20001 (202) 232-1180 x201 Fax: (202) 747-7747 Email: cm@JusticeOnline.org TERMINATED: 06/23/2010
Edward John Elder LAW OFFICES OF EDWARD J. ELDER 2000 P Street, NW Suite 415 Washington, DC 20036 (202) 957-8257
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Email: edelder@mindspring.com TERMINATED: 07/11/2012
James R. Klimaski KLIMASKI & ASSOCIATES, P.C. 1717 N Street, NW Suite 200 Washington, DC 20036 (202) 296-5600 Fax: (202) 296-5601 Email: klimaski@klimaskilaw.com TERMINATED: 04/14/2009
Lance T. Weber Dan Newlin & Partners 7335 W. Sand Lake Road Suite 300 Orlando, FL 32819 407-250-6513 Email: lance.weber@newlinlaw.com TERMINATED: 12/27/2016 PRO HAC VICE
Lynn Ilene Miller KLIMASKI & ASSOCIATES, P.C. 1717 N Street, NW Suite 200 Washington, DC 20036 (202) 296-5600 Fax: (202) 296-5601 Email: miller@klimaskilaw.com TERMINATED: 04/14/2009
Mara E. Verheyden-Hilliard PARTNERSHIP FOR CIVIL JUSTICE, INC. 617 Florida Avenue, NW Washington, DC 20001 (202) 232-1180 x 202 Fax: (202) 747-7747 Email: mvh@JusticeOnline.org TERMINATED: 06/23/2010
Radhika M.S. Miller NATIONAL LEGAL AID & DEFENDER ASSOCIATION 1901 Pennsylvania Avenue, NW Suite 500 Washington, DC 20006 (202) 452-0620 ext. 207 Fax: (202) 872-1031 Email: radhika.singhmiller@gmail.com TERMINATED: 06/23/2010

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?105316242809496-L_1_0-1

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V.
Defendant
HARLEY G. LAPPIN Director FEDERAL BUREAU OF PRISONS

represented by Wyneva Johnson U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252-2518 Fax: (202) 252-2599 Email: wyneva.johnson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

09/13/2005

1 COMPLAINT against HARLEY G. LAPPIN (Filing fee $ 250) ﬁled by PRISON LEGAL NEWS.(td, ) (Entered: 09/15/2005)

09/13/2005

SUMMONS (3) Issued as to HARLEY G. LAPPIN, U.S. Attorney and U.S. Attorney General (td, ) (Entered: 09/15/2005)

09/28/2005

2 NOTICE of Appearance by Wyneva Johnson on behalf of HARLEY G. LAPPIN (Johnson, Wyneva) (Entered: 09/28/2005)

09/28/2005

3 Unopposed MOTION for Extension of Time to File Answer re 1 Complaint by HARLEY G. LAPPIN. (Attachments: # 1 Text of Proposed Order)(Johnson, Wyneva) (Entered: 09/28/2005)

09/28/2005

MINUTE ORDER granting 3 Motion for Extension of Time to Answer. The defendants shall ﬁle an answer or otherwise respond to the plaintiff's complaint by 11/21/2005. Signed by Judge Reggie B. Walton on 9/28/05. (lcrbw1, ) (Entered: 09/28/2005)

11/15/2005

4 Unopposed MOTION for Extension of Time to File Answer or Respond by HARLEY G. LAPPIN. (Attachments: # 1 Text of Proposed Order)(Johnson, Wyneva) (Entered: 11/15/2005)

11/16/2005

MINUTE ORDER granting 4 Motion for Extension of Time to Answer. The defendant shall ﬁle an answer or otherwise respond to the plaintiff's complaint by 11/21/05. Signed by Judge Reggie B. Walton on 11/15/05. (lcrbw1, ) (Entered: 11/16/2005)

11/21/2005

5 Unopposed MOTION for Extension of Time to File Answer or Respond by HARLEY G. LAPPIN. (Attachments: # 1 Text of Proposed Order)(Johnson, Wyneva) (Entered: 11/21/2005)

11/30/2005

MINUTE ORDER granting 5 Motion for Extension of Time. The defendant shall ﬁle an answer or otherwise respond to the plaintiff's complaint by 11/30/2005. Signed by Judge Reggie B. Walton on 11/30/05. (lcrbw1, ) (Entered: 11/30/2005)

11/30/2005

6 MOTION for Summary Judgment by HARLEY G. LAPPIN. (Attachments: # 1 Statement of Facts # 2 Afﬁdavit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit)(Johnson, Wyneva) (Entered: 11/30/2005)

12/07/2005

7 Consent MOTION for Extension of Time to File Opposition to Summary Judgment by PRISON LEGAL NEWS. (Elder, Edward) (Entered: 12/07/2005)

12/08/2005

MINUTE ORDER granting 7 Motion for Extension of Time. The plaintiff's opposition

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shall be ﬁled by 12/23/05, and the defendant's reply shall be ﬁled by 1/11/06. Signed by Judge Reggie B. Walton on 12/8/05. (lcrbw1, ) (Entered: 12/08/2005)
8 Second MOTION for Extension of Time to File Opposition by PRISON LEGAL NEWS. (Elder, Edward) (Entered: 12/23/2005)
MUNUTE ORDER granting 8 Unopposed Motion for Extend Deadline for Plaintiff's Summary Judgment Opposition. The plaintiff shall ﬁle its opposition to the defendant's motion for summary judgment by December 30, 2005. Signed by Judge Reggie B. Walton on December 23, 2005. (lcrbw3, ) (Entered: 12/23/2005)
9 Memorandum in opposition to re 6 to Defendant's motion for summary judgment and Cross Motion for summary judgment in favor of Plaintiff ﬁled by PRISON LEGAL NEWS. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Afﬁdavit # 8 Afﬁdavit # 9 Afﬁdavit # 10 Afﬁdavit # 11 Afﬁdavit)(Elder, Edward) (Entered: 12/30/2005)
15 CROSS MOTION for Summary Judgment by PRISON LEGAL NEWS. (Please see Document No. 9 for scanned images). (nmw, ) (Entered: 02/01/2006)
10 NOTICE of Separate Filing on Paper and Compact Disk of Exhibit 5 to PLN's Summary Judgment Opp. and Cross Motion for Summary Judgment by PRISON LEGAL NEWS re 9 Memorandum in Opposition, (Elder, Edward) (Entered: 01/03/2006)
11 Unopposed MOTION for Extension of Time to File Response/Reply as to 9 Memorandum in Opposition, to Defendant's Motion for Summary Judgment and its Opposition to Plaintiff's Cross Motion for Summary Judment by HARLEY G. LAPPIN. (Attachments: # 1 Text of Proposed Order)(Johnson, Wyneva) (Entered: 01/10/2006)
MINUTE ORDER granting 11 Motion for Extension of Time. The defendant's reply shall be ﬁled by 1/25/2006. Signed by Judge Reggie B. Walton on 1/11/06. (lcrbw1, ) (Entered: 01/11/2006)
12 MOTION for Extension of Time to File Response/Reply as to 9 Memorandum in Opposition, by HARLEY G. LAPPIN. (Attachments: # 1 Text of Proposed Order) (Johnson, Wyneva) (Entered: 01/25/2006)
MINUTE ORDER granting 12 Motion for Extension of Time to File Response/Reply. The defendant's reply shall be ﬁled by 1/31/06. Signed by Judge Reggie B. Walton on 1/26/06. (lcrbw1, ) (Entered: 01/26/2006)
13 REPLY to opposition to motion re 6 , i.e., Defendant's Motion for Summary Judgment ﬁled by HARLEY G. LAPPIN. (Attachments: # 1 Defendant's Opposition to Plaintiff's Statement of Material Facts Not in Dispute# 2 Text of Proposed Order)(Johnson, Wyneva) (Entered: 01/31/2006)
14 RESPONSE to 15 Plaintiff's Cross Motion for Summary Judgment (Opposition) ﬁled by HARLEY G. LAPPIN. (Attachments: # 1 Defendant's Opposition to Plaintiff's Statement of Material Facts Not in Dispute# 2 Text of Proposed Order)(Johnson, Wyneva) Modiﬁed on 2/1/2006 (nmw, ). (Entered: 01/31/2006)
16 REPLY to opposition to motion re 9 Memorandum in Opposition, and Cross Motion for Summary Judgment ﬁled by PRISON LEGAL NEWS. (Elder, Edward) (Entered: 02/10/2006)
17 ORDER denying 6 Motion for Summary Judgment, granting 15 Motion for Summary Judgment. Signed by Judge Reggie B. Walton on 6/26/06. (lcrbw1, ) (Entered: 06/26/2006)

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18 MEMORANDUM AND OPINION. Signed by Judge Reggie B. Walton on 6/26/06. (lcrbw1, ) (Entered: 06/26/2006)
19 Consent MOTION for Extension of Time to File Fee Petition by PRISON LEGAL NEWS. (Attachments: # 1 Text of Proposed Order)(Elder, Edward) (Entered: 07/06/2006)
MINUTE ORDER granting 19 Motion for Extension of Time. The plaintiff shall ﬁle a motion for attorney's fees by 8/9/06. The government shall ﬁle any opposition by 9/6/06, and any reply thereto shall be ﬁled by 9/20/06. Signed by Judge Reggie B. Walton on 7/7/06. (lcrbw1, ) (Entered: 07/07/2006)
20 MOTION for Attorney Fees and Costs by PRISON LEGAL NEWS. (Attachments: # 1 Memoranda in Support# 2 Appendix Accounting of Fees and Costs)(Elder, Edward) (Entered: 08/09/2006)
21 Amended MOTION for Attorney Fees and Costs by PRISON LEGAL NEWS. (Attachments: # 1 Memoranda in Support# 2 Afﬁdavit Of Edward J. Elder# 3 Attachment A# 4 Attachment B# 5 Attachment C# 6 Text of Proposed Order)(Elder, Edward) (Entered: 08/11/2006)
22 ERRATA by PRISON LEGAL NEWS 21 Amended MOTION for Attorney Fees and Costs ﬁled by PRISON LEGAL NEWS,. (Attachments: # 1 Memorandum in Support of Amended Motion for Attorney's Fees and Costs)(Elder, Edward) (Entered: 08/11/2006)
23 RESPONSE TO ORDER OF THE COURT re 17 Order on Motion for Summary Judgment, ﬁled by HARLEY G. LAPPIN. (Attachments: # 1 Exhibit Declaration of Wilson J. Moorer# 2 Exhibit)(Johnson, Wyneva) (Entered: 08/29/2006)
MINUTE ORDER. In accordance with the Court's June 26, 2006 Order, the defendant shall advise the Court by September 15, 2006, of the time that will be required to process the plaintiff's FOIA request. Signed by Judge Reggie B. Walton on 9/5/06. (lcrbw2, ) (Entered: 09/05/2006)
24 Unopposed MOTION for Extension of Time to ﬁle its Response to plaintiff's Amended Petition for Attorney's Fees by HARLEY G. LAPPIN. (Attachments: # 1 Text of Proposed Order)(Johnson, Wyneva) (Entered: 09/06/2006)
25 ERRATA (RE: Document #24) by HARLEY G. LAPPIN 24 Unopposed MOTION for Extension of Time to ﬁle its Response to plaintiff's Amended Petition for Attorney's Fees ﬁled by HARLEY G. LAPPIN,. (Attachments: # 1 Defendant's Unopposed Motion for Enlargement of Time# 2 Text of Proposed Order)(Johnson, Wyneva) (Entered: 09/06/2006)
ORDER granting 24 , 25 Motion for Extension of Time. The defendant shall ﬁle its response to plaintiff's amended petition for attorney's fees by September 13, 2006. Signed by Judge Reggie B. Walton on 9/8/06. (lcrbw2, ) (Entered: 09/08/2006)
26 STIPULATION and Order Concerning Attorney's Fees and Costs by HARLEY G. LAPPIN. (Johnson, Wyneva) Additional attachment(s) added on 9/19/2006 (mpt, ). (Entered: 09/13/2006)
27 Unopposed MOTION for Extension of Time to advise the Court of time required to process Plaintiff's FOIA request by HARLEY G. LAPPIN. (Attachments: # 1 Moorer Declaration# 2 Text of Proposed Order)(Johnson, Wyneva) (Entered: 09/15/2006)
MINUTE ORDER denying as moot 20 Motion for Attorney Fees, denying as moot 21 Amended Motion for Attorney Fees. Signed by Judge Reggie B. Walton on 9/18/06. (lcrbw2) (Entered: 09/18/2006)

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MINUTE ORDER granting 27 Motion for Extension of Time. The defendant shall have up to and including September 29, 2006 to advise the Court of the time that will be required to process the plaintiff's FOIA request. Signed by Judge Reggie B. Walton on 9/18/06. (lcrbw2) (Entered: 09/18/2006)

09/28/2006

28 MOTION for Extension of Time to process plaintiff's FOIA request by HARLEY G. LAPPIN. (Attachments: # 1 Text of Proposed Order)(Johnson, Wyneva) (Entered: 09/28/2006)

09/29/2006

MINUTE ORDER granting 28 Motion for Extension of Time. The defendant shall advise the Court of the time that will be required to process the plaintiff's FOIA request by November 1, 2006. Signed by Judge Reggie B. Walton on 9/29/06. (lcrbw2) (Entered: 09/29/2006)

11/01/2006

29 Consent MOTION for Extension of Time to advise the Court of the time that will be required to process plaintiffs FOIA request by HARLEY G. LAPPIN. (Attachments: # 1 Text of Proposed Order)(Johnson, Wyneva) (Entered: 11/01/2006)

11/02/2006

30 MOTION for Extension of Time to advise the Court of the time that will be required to process Plaintiff's FOIA request by HARLEY G. LAPPIN. (Attachments: # 1 Exhibit Declaration of Wilson J. Moorer# 2 Text of Proposed Order)(Johnson, Wyneva) (Entered: 11/02/2006)

11/09/2006

MINUTE ORDER denying as moot 29 Motion for Extension of Time. Signed by Judge Reggie B. Walton on 11/09/06. (lcrbw2) (Entered: 11/09/2006)

11/09/2006

MINUTE ORDER granting 30 Motion for Extension of Time. The defendant shall advise the Court of the time that will be required to process the plaintiff's FOIA request by December 1, 2006. Signed by Judge Reggie B. Walton on 11/9/06. (lcrbw2) (Entered: 11/09/2006)

12/01/2006

31 MOTION for Extension of Time to advise the Court of the time that will be required to process plaintiff's FOIA request by HARLEY G. LAPPIN. (Attachments: # 1 Text of Proposed Order)(Johnson, Wyneva) (Entered: 12/01/2006)

12/07/2006

MINUTE ORDER granting 31 Motion for Extension of Time. The defendant shall advise the Court of the time that will be required to process the plaintiff's FOIA request by January 12, 2007. Signed by Judge Reggie B. Walton on 12/7/06. (lcrbw2) (Entered: 12/07/2006)

01/12/2007

32 MOTION for Extension of Time to to advise the Court of the time that will be required to process plaintiff's FOIA request by HARLEY G. LAPPIN. (Attachments: # 1 Text of Proposed Order)(Johnson, Wyneva) (Entered: 01/12/2007)

01/16/2007

33 NOTICE of Appearance by James R. Klimaski on behalf of PRISON LEGAL NEWS (Klimaski, James) (Entered: 01/16/2007)

01/17/2007

MINUTE ORDER granting 32 Motion for Extension of Time. The defendant shall advise the Court of the time that will be required to process the plaintiff's FOIA request by February 12, 2007. Signed by Judge Reggie B. Walton on 1/17/07. (lcrbw2) (Entered: 01/17/2007)

02/09/2007

34 Unopposed MOTION for Extension of Time to process plaintiff's FOIA request by HARLEY G. LAPPIN. (Attachments: # 1 Afﬁdavit Declaration of Wilson J. Moorer# 2 Text of Proposed Order)(Johnson, Wyneva) (Entered: 02/09/2007)

02/15/2007

MINUTE ORDER granting 34 Motion for Extension of Time. The defendant shall process the plaintiff's FOIA request by March 20, 2007. Signed by Judge Reggie B. Walton on 2/15/07. (lcrbw2) (Entered: 02/15/2007)

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Set/Reset Deadlines: Plaintiff's FOIA request due by 3/20/2007 (mpt, ) (Entered: 02/15/2007)

03/30/2007

35 MOTION for Extension of Time to Respond to Court Order by HARLEY G. LAPPIN (Attachments: # 1 Afﬁdavit Declaration of Wilson J. Moorer# 2 Text of Proposed Order) (Johnson, Wyneva) (Entered: 03/30/2007)

04/09/2007

MINUTE ORDER granting 35 Motion for Extension of Time. The defendant shall process the plaintiff's FOIA request by April 30, 2007. Signed by Judge Reggie B. Walton on 4/9/07. (lcrbw2) (Entered: 04/09/2007)

05/08/2007

36 Unopposed MOTION for Extension of Time to by HARLEY G. LAPPIN (Attachments: # 1 Text of Proposed Order # 2 Exhibit Letter)(Johnson, Wyneva) (Entered: 05/08/2007)

05/08/2007

MINUTE ORDER granting 36 Motion for Extension of Time. The defendant shall process the plaintiff's FOIA request by June 8, 2007. Signed by Judge Reggie B. Walton on 5/8/07. (lcrbw2) (Entered: 05/08/2007)

05/09/2007

Set/Reset Deadlines: Defendant shall process the plaintiff's FOIA request by 6/8/2007 (mpt, ) (Entered: 05/09/2007)

06/12/2007

37 Unopposed MOTION for Extension of Time to by HARLEY G. LAPPIN (Attachments: # 1 Exhibit Letter# 2 Afﬁdavit Declaration of Wilson Moore# 3 Text of Proposed Order) (Johnson, Wyneva) (Entered: 06/12/2007)

06/13/2007

MINUTE ORDER granting 37 Motion for Extension of Time. The defendant shall respond to the plaintiff's FOIA request by July 27, 2007. Signed by Judge Reggie B. Walton on 6/13/07. (lcrbw2) (Entered: 06/13/2007)

06/14/2007

Set/Reset Deadlines: Respond to plaintiff's FOIA request due by 7/27/2007 (mpt, ) (Entered: 06/14/2007)

08/30/2007

38 MOTION for Extension of Time to File Response/Reply by HARLEY G. LAPPIN (Attachments: # 1 Declaration # 2 Exhibit A# 3 Exhibit B# 4 Text of Proposed Order) (Johnson, Wyneva) (Entered: 08/30/2007)

08/30/2007

39 ERRATA by HARLEY G. LAPPIN 38 MOTION for Extension of Time to File Response/Reply ﬁled by HARLEY G. LAPPIN. (Attachments: # 1 Errata Motion for Enlargement of Time)(Johnson, Wyneva) (Entered: 08/30/2007)

09/12/2007

40 NOTICE of Change of Address by James R. Klimaski (Klimaski, James) (Entered: 09/12/2007)

09/12/2007

41 Memorandum in opposition to re 38 MOTION for Extension of Time to File Response/Reply further delaying overdue FOIA releases ordered by the Court in June of 2006 ﬁled by PRISON LEGAL NEWS. (Attachments: # 1 Klimaski Letter to AUSA W. Johnson# 2 Example of improper FOIA redactions# 3 Another example# 4 And another of many...)(Klimaski, James) (Entered: 09/12/2007)

09/24/2007

42 REPLY to opposition to motion re 38 MOTION for Extension of Time to File Response/Reply ﬁled by HARLEY G. LAPPIN. (Attachments: # 1 Exhibit A -Declaration of Wilson J. Moorer# 2 Exhibit B)(Johnson, Wyneva) (Entered: 09/24/2007)

09/25/2007

43 NOTICE of Filing of Signed Declaration of Wilson J. Moorer and Substitution of Exhibit A by HARLEY G. LAPPIN re 42 Reply to opposition to Motion (Attachments: # 1 Afﬁdavit Declaration of Wilson J. Moorer with Exhibit A)(Johnson, Wyneva) (Entered: 09/25/2007)

10/01/2007

MINUTE ORDER granting 38 Motion for Extension of Time to File Response/Reply. The defendant shall respond to the plaintiff's FOIA request by November 2, 2007. The

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parties shall ﬁle a brieﬁng schedule by November 9, 2007. Signed by Judge Reggie B. Walton on 10/1/07. (lcrbw2) (Entered: 10/01/2007)
Set/Reset Deadlines: Brieﬁng schedule due by 11/9/2007.,Responses to plaintiff's FOIA request due by 11/2/2007 (mpt, ) (Entered: 10/01/2007)
44 NOTICE of Appearance by Edward J. Elder on behalf of PRISON LEGAL NEWS (Elder, Edward) (Entered: 10/03/2007)
45 STATUS REPORT Submitting Joint Brieﬁng Schedule by PRISON LEGAL NEWS. (Elder, Edward) (Entered: 11/09/2007)
46 Consent MOTION for Extension of Time to File Briefs by PRISON LEGAL NEWS (Attachments: # 1 Text of Proposed Order)(Elder, Edward) (Entered: 01/18/2008)
MINUTE ORDER granting 46 Motion for Extension of Time to File. The plaintiff shall ﬁle its dispositive motion by February 8, 2008, the defendant shall ﬁle an opposition and cross motion by March 21, 2008, the plaintiff shall ﬁle its reply and opposition by April 11, 2008, and the defendant shall ﬁle its reply by May 2, 2008. Signed by Judge Reggie B. Walton on 1/31/08. (lcrbw2) (Entered: 01/31/2008)
Set/Reset Deadlines: Dispositive Motions due by 2/8/2008. Opposition and Cross Motion due by 3/21/2008; reply and opposition due by 4/11/08; any replies due by 5/2/2008. (mpt, ) (Entered: 01/31/2008)
47 Consent MOTION to Amend/Correct Brieﬁng Schedule by PRISON LEGAL NEWS (Attachments: # 1 Text of Proposed Order)(Elder, Edward) (Entered: 02/08/2008)
MINUTE ORDER granting 47 Motion to Amend/Correct. The plaintiff shall ﬁle its dispositive motion by February 29, 2008, the defendant shall ﬁle an opposition and cross motion by April 11, 2008, the plaintiff shall ﬁle its reply and opposition by May 2, 2008, and the defendant shall ﬁle its reply by May 23, 2008. Signed by Judge Reggie B. Walton on 2/12/08. (lcrbw2) (Entered: 02/12/2008)
Set/Reset Deadlines: Dispositive Motions due by 2/29/2008. Opposition to Dispositive Motions and Cross Motion due by 4/11/2008. Plaintiff's Reply and Opposition due by 5/2/2008, and defendant's reply by 5/23/08. (mpt, ) (Entered: 02/12/2008)
48 Consent MOTION to Amend/Correct Brieﬁng Schedule by PRISON LEGAL NEWS (Attachments: # 1 Text of Proposed Order)(Elder, Edward) (Entered: 02/29/2008)
MINUTE ORDER granting 48 Motion to Amend/Correct. The plaintiff shall ﬁle its dispositive motion by March 28, 2008, the defendant shall ﬁle an opposition and cross motion by May 9, 2008, the plaintiff shall ﬁle its reply and opposition by May 30, 2008, and the defendant shall ﬁle its reply by June 20, 2008. Signed by Judge Reggie B. Walton on 3/12/08. (lcrbw2) (Entered: 03/12/2008)
Set/Reset Deadlines: Dispositive Motions due by 3/28/2008; Opposition and cross motion due by 5/9/2008; Reply and opposition by 5/30/2008; reply due by 6/20/08; (mpt, ) (Entered: 03/12/2008)
49 MOTION for Judgment by PRISON LEGAL NEWS (Attachments: # 1 Memoranda, # 2 Text of Proposed Order, # 3 Exhibit 1-1, # 4 Exhibit 1-2, # 5 Exhibit 1-3, # 6 Exhibit 1-4, # 7 Exhibit 2-1, # 8 Exhibit 2-2, # 9 Exhibit 2-3, # 10 Exhibit 2-4, # 11 Exhibit 3-1, # 12 Exhibit 3-2, # 13 Exhibit 3-3, # 14 Exhibit 3-4, # 15 Exhibit 3-5, # 16 Exhibit 4-1, # 17 Exhibit 4-2, # 18 Exhibit 4-3, # 19 Exhibit 4-4, # 20 Exhibit 5-1, # 21 Exhibit 5-2, # 22 Exhibit 5-3, # 23 Exhibit 5-4, # 24 Exhibit 5-5, # 25 Exhibit 6-1, # 26 Exhibit 6-2, # 27 Exhibit 6-3)(Elder, Edward) (Entered: 03/29/2008)

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50 Consent MOTION to Amend/Correct Order on Motion to Amend/Correct, Set/Reset Deadlines by HARLEY G. LAPPIN (Attachments: # 1 Text of Proposed Order Order) (Johnson, Wyneva) (Entered: 05/06/2008)

06/05/2008

51 MOTION to Amend/Correct Brieﬁng Schedule by HARLEY G. LAPPIN (Attachments: # 1 Text of Proposed Order Order)(Johnson, Wyneva) (Entered: 06/05/2008)

06/26/2008

52 Consent MOTION for Extension of Time to Amend Brieﬁng Schedule by HARLEY G. LAPPIN (Attachments: # 1 Text of Proposed Order Order)(Johnson, Wyneva) (Entered: 06/26/2008)

07/14/2008

53 Cross MOTION for Summary Judgment by HARLEY G. LAPPIN (Attachments: # 1 Afﬁdavit Wilson Moorer Declaration, # 2 Text of Proposed Order Order)(Johnson, Wyneva) (Entered: 07/14/2008)

07/14/2008

54 Memorandum in opposition to re 49 MOTION for Judgment ﬁled by HARLEY G. LAPPIN. (Attachments: # 1 Afﬁdavit Wilson Moorer Declaration, # 2 Text of Proposed Order Order)(Johnson, Wyneva) (Entered: 07/14/2008)

07/24/2008

ORDER denying as moot 50 Motion to Amend/Correct; denying as moot 51 Motion to Amend/Correct; granting 52 Motion for Extension of Time to Amend. the defendant has ﬁled its opposition and cross motion for summary judgment on July 14, 2008. The plaintiff shall ﬁle its reply and opposition by August 4, 2008. The defendant shall ﬁle its reply brief by August 25, 2008. Signed by Judge Reggie B. Walton on 7/24/08. (lcrbw2) (Entered: 07/24/2008)

07/25/2008

Set/Reset Deadlines: Reply and Opposition due by 8/4/2008; Reply Brief due by 8/25/2008. (mpt, ) (Entered: 07/25/2008)

08/03/2008

55 Consent MOTION to Amend/Correct Brieﬁng Schedule by PRISON LEGAL NEWS (Attachments: # 1 Text of Proposed Order to Amend Brieﬁng Schedule)(Elder, Edward) (Entered: 08/03/2008)

08/25/2008

56 Consent MOTION to Amend/Correct Brieﬁng Schedule by PRISON LEGAL NEWS (Attachments: # 1 Text of Proposed Order)(Elder, Edward) (Entered: 08/25/2008)

09/02/2008

MINUTE ORDER denying as moot 55 Motion to Amend/Correct the Brieﬁng Schedule; granting 56 Motion to Amend/Correct the Brieﬁng Schedule. The plaintiff shall ﬁle a reply to the defendant's opposition to the plaintiff's motion for summary judgment and an opposition to the defendant's cross motion for summary judgment by September 8, 2008. The defendant shall ﬁle a reply to the plaintiff's opposition to the defendant's cross motion for summary judgment by September 29, 2008. Signed by Judge Reggie B. Walton on 9/2/08. (lcrbw2) (Entered: 09/02/2008)

09/02/2008

Set/Reset Deadlines/Hearings: The plaintiff shall ﬁle a reply to the defendant's opposition to the plaintiff's motion for summary judgment and an opposition to the defendant's cross motion for summary judgment by September 8, 2008. The defendant shall ﬁle a reply to the plaintiff's opposition to the defendant's cross motion for summary judgment by September 29, 2008. (jwd) (Entered: 09/02/2008)

09/08/2008

57 Memorandum in opposition to re 53 Cross MOTION for Summary Judgment ﬁled by PRISON LEGAL NEWS. (Attachments: # 1 Statement of Facts in opposition to Defendentant's Statement of Facts, # 2 Text of Proposed Order, # 3 Exhibit One, # 4 Exhibit Two, # 5 Exhibit Three, # 6 Exhibit Four, # 7 Exhibit Five, # 8 Exhibit Six)(Elder, Edward) (Entered: 09/08/2008)

09/25/2008

58 Consent MOTION for Extension of Time to File Response/Reply as to 53 Cross MOTION for Summary Judgment by HARLEY G. LAPPIN (Attachments: # 1 Text of Proposed Order)(Johnson, Wyneva) (Entered: 09/25/2008)

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MINUTE ORDER granting 58 Motion for Extension of Time to File Response/Reply. The defendant shall ﬁle his reply to the plaintiff's opposition to the defendant's cross motion for summary judgment by October 31, 2008. Signed by Judge Reggie B. Walton on 09/29/08. (lcrbw2) (Entered: 09/29/2008)
Set/Reset Deadlines: Reply to plaintiff's opposition to cross motion for summary judgment due by 10/31/2008. (mpt, ) (Entered: 09/29/2008)
59 MOTION for Extension of Time to File Response/Reply Plaintiff's Opposition by HARLEY G. LAPPIN (Attachments: # 1 Text of Proposed Order Order)(Johnson, Wyneva) (Entered: 10/29/2008)
MINUTE ORDER granting 59 Motion for Extension of Time to File Response/Reply. The defendant shall ﬁle his reply to the plaintiff's opposition to the defendant's cross motion for summary judgment by November 14, 2008. Signed by Judge Reggie B. Walton on 10/30/08. (lcrbw2) (Entered: 10/30/2008)
Set/Reset Deadlines: Reply to plaintiff's opposition to the defendant's cross motion for summary judgment due by 11/14/2008. (mpt, ) (Entered: 10/30/2008)
60 ORDER granting 49 Motion for Judgment; denying without prejudice 53 Motion for Summary Judgment. The plaintiff's motion for summary judgment is granted. The defendant's motion for summary judgment is denied without prejudice. The Bureau must either conduct anew its searches for the records sought by the plaintiff or submit an afﬁdavit or alternative submission that adequately demonstrates consistent with the accompanying opinion that the Bureau employed search methods reasonably likely to lead to the discovery of records responsive to the plaintiff's request and that the responsive documents and parts of documents not produced to the plaintiff have properly been withheld under the FOIA exemptions claimed by the Bureau. The parties shall submit a joint scheduling order proposing how they wish to resolve this case within thirty days of the issuance of this Order. Signed by Judge Reggie B. Walton on 03/26/09. (lcrbw2) (Entered: 03/26/2009)
61 MEMORANDUM AND OPINION. An Order consistent with the Courts ruling 60 accompanies this Memorandum Opinion. Signed by Judge Reggie B. Walton on 03/26/09. (lcrbw2) (Entered: 03/26/2009)
62 MOTION for Reconsideration re 61 Memorandum & Opinion, 60 Order on Motion for Judgment,,,, Order on Motion for Summary Judgment,,, by HARLEY G. LAPPIN (Attachments: # 1 Memorandum in Support Reply Memorandum, # 2 Statement of Facts Supplemental Statement of Facts, # 3 Afﬁdavit Moorer Declaration, # 4 Afﬁdavit Blow Declaration, # 5 Afﬁdavit Cassillas Declaration, # 6 Afﬁdavit Fornshill Declaration, # 7 Afﬁdavit Lawler Declaration, # 8 Afﬁdavit Osborn Declaration, # 9 Afﬁdavit Petricka Declaration, # 10 Afﬁdavit Sankey Declaration, # 11 Afﬁdavit Summers Declaration, # 12 Afﬁdavit Tuft Declaration, # 13 Afﬁdavit White Declaration, # 14 Afﬁdavit Williams Declaration, # 15 Afﬁdavit Tafelski Declaration, # 16 Text of Proposed Order Proposed Order)(Johnson, Wyneva) (Entered: 04/08/2009)
63 NOTICE OF WITHDRAWAL OF APPEARANCE as to PRISON LEGAL NEWS. Attorney James R. Klimaski and Lynn Ilene Miller terminated. (Klimaski, James) (Entered: 04/14/2009)
64 NOTICE of Appearance by Carl L. Messineo on behalf of PRISON LEGAL NEWS (Messineo, Carl) (Entered: 04/16/2009)
65 NOTICE of Appearance by Mara E. Verheyden-Hilliard on behalf of PRISON LEGAL NEWS (Verheyden-Hilliard, Mara) (Entered: 04/16/2009)

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66 NOTICE of Appearance by Radhika M.S. Miller on behalf of PRISON LEGAL NEWS (Miller, Radhika) (Entered: 04/16/2009)

04/21/2009

67 Memorandum in opposition to re 62 MOTION for Reconsideration re 61 Memorandum & Opinion, 60 Order on Motion for Judgment,,,, Order on Motion for Summary Judgment,,, MOTION for Reconsideration re 61 Memorandum & Opinion, 60 Order on Motion for Judgment,,,, Order on Motion for Summary Judgment,,, MOTION for Reconsideration re 61 Memorandum & Opinion, 60 Order on Motion for Judgment,,,, Order on Motion for Summary Judgment,,, MOTION for Reconsideration re 61 Memorandum & Opinion, 60 Order on Motion for Judgment,,,, Order on Motion for Summary Judgment,,, ﬁled by PRISON LEGAL NEWS. (Attachments: # 1 Text of Proposed Order, # 2 Text of Proposed Order Alternative Proposed Order)(Messineo, Carl) (Entered: 04/21/2009)

02/25/2010

68 ORDER denying without prejudice 62 Motion for Reconsideration. For the reasons set forth in this order, the motion for reconsideration is denied without prejudice. Signed by Judge Reggie B. Walton on 02/25/10. (lcrbw2) (Entered: 02/25/2010)

03/04/2010

69 Consent MOTION for Extension of Time to RESPOND TO THE COURTS FEBRUARY 25, 2010 ORDER by HARLEY G. LAPPIN (Johnson, Wyneva) (Entered: 03/04/2010)

03/04/2010

MINUTE ORDER granting 69 Motion for Extension of Time. Upon consideration of Defendant's Consent Motion for Enlargement of Time to Respond to the Court's February 25, 2010 Order, and for good cause shown, it is hereby 4th day of March, 2010, ORDERED that Defendant's motion is GRANTED; and it is FURTHER ORDERED that Defendant may have up to and including March 17, 2010, to respond to the Court's February 25, 2010 Order. Signed by Judge Reggie B. Walton on 03/04/10. (lcrbw2) (Entered: 03/04/2010)

03/05/2010

Set/Reset Deadlines: Response to Court's February 25, 2010 Order due by 3/17/2010 (mpt, ) (Entered: 03/05/2010)

03/17/2010

70 MOTION for Extension of Time to RESPOND TO THE COURT'S FEBRUARY 25, 2010 ORDER by HARLEY G. LAPPIN (Johnson, Wyneva) (Entered: 03/17/2010)

04/01/2010

MINUTE ORDER granting 70 Motion for Extension of Time. Upon the Court's review of the defendant's motion for an enlargement of time to respond to the Court's February 25, 2010, which the defendant stated was opposed by the plaintiff, but to which the plaintiff never ﬁled an opposition, the Court ﬁnds that good cause exists to grant the motion. The defendant shall have until May 17, 2010, to respond to the Court's February 25, 2010 Order. The defendant shall ﬁle any motion for summary judgment that it intends to ﬁle by June 1, 2010. Signed by Judge Reggie B. Walton on 04/01/10. (lcrbw2) (Entered: 04/01/2010)

04/01/2010

Set/Reset Deadlines: Respond to February 25, 2010 Order due by 5/17/2010; Summary Judgment motions due by 6/1/2010. (mpt, ) (Entered: 04/01/2010)

05/17/2010

71 RESPONSE TO ORDER OF THE COURT re 68 Order on Motion for Reconsideration ﬁled by HARLEY G. LAPPIN. (Attachments: # 1 Declaration Supplemental Declaration of Wilson J. Moorer, # 2 Exhibit Vaughn Index, # 3 Declaration Declaration of Kimberly Blow, # 4 Declaration Declaration of Docia M. Casillas, # 5 Declaration Declaration of Renee Brinker Fornshill, # 6 Declaration Declaration of Christine M. Greene, # 7 Declaration Declaration of Cynthia Lawler, # 8 Declaration Declaration of Vickie Petricka, # 9 Declaration Declaration of Alecia S. Sillah, # 10 Declaration Declaration of Karen Summers, # 11 Declaration Declaration of Michael D. Tafelski, # 12 Declaration Declaration of Leeann Tufte, # 13 Declaration Declaration of Kathleen White, # 14 Declaration Declaration of Deidre J. Williams)(Johnson, Wyneva) (Entered: 05/17/2010)

05/20/2010 72 NOTICE of Filing of Corrected Declaration of Alecia S. Sillah by HARLEY G. LAPPIN

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re 71 Response to Order of the Court,,, (Attachments: # 1 Declaration Corrected Declaration of Alecia S. Sillah)(Johnson, Wyneva) (Entered: 05/20/2010)
73 Cross MOTION for Summary Judgment and Memorandum in Support by HARLEY G. LAPPIN (Attachments: # 1 Statement of Facts Second Supplemental Statement of Material Facts, # 2 Declaration May 28, 2010 Supplemental Moorer Declaration, # 3 Declaration May 14, 2010 Supplemental Moorer Declaration, # 4 Exhibit Vaughn Index, # 5 Declaration Karen Blow Declaration, # 6 Declaration Rene Brinker-Fornshill Declaration, # 7 Declaration Kathleen White Declaration, # 8 Declaration Deidre J. Williams Declaration, # 9 Declaration Cynthia Lawler Declaration, # 10 Declaration Docia M. Casillas Declaration, # 11 Declaration LeeAnn Tufte Declaration, # 12 Declaration Michael D. Tafelski Declaration, # 13 Declaration Alecia S. Sillah Declaration, # 14 Declaration Karen Summers Declaration, # 15 Declaration Christine M. Greene Declaration, # 16 Declaration Vickie Petricka Declaration)(Johnson, Wyneva) (Entered: 06/01/2010)
74 Consent MOTION for Extension of Time to File Response/Reply as to 73 Cross MOTION for Summary Judgment and Memorandum in Support by PRISON LEGAL NEWS (Attachments: # 1 Text of Proposed Order Granting Extension)(Elder, Edward) (Entered: 06/16/2010)
75 Consent MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Adam K Cook, :Firm- Human Rights Defense Center, :Address- 1037 Western Avenue, Brattleboro, VT, 05303. Phone No. - 802-257-1342. Fax No. - 866-735-7136 by PRISON LEGAL NEWS (Attachments: # 1 Text of Proposed Order Granting Motion)(Elder, Edward) (Entered: 06/16/2010)
MINUTE ORDER granting 75 Motion for Leave to Appear Pro Hac Vice. Upon consideration of the Motion to Appear Pro Hac Vice, and the accompanying Declaration of Adam Cook, constituting Adam K. Cook's Application for Admission Pro Hac Vice, it is this 16th day of June, 2010, hereby ORDERED that the motion is GRANTED; and it is further ORDERED that Adam K. Cook may appear before this Court pro hac vice as counsel for the Plaintiff in the above-captioned matter. Signed by Judge Reggie B. Walton on 06/16/10. (lcrbw2) (Entered: 06/16/2010)
MINUTE ORDER granting 74 Motion for Extension of Time to File Response/Reply. Upon consideration of the Plaintiff's Consent Motion to Enlarge, it is hereby: ORDERED that the motion is GRANTED; Plaintiff's reply to the Defendant's Renewed Cross Motion for Summary Judgment is due on August 2nd, 2010 and it is further; ORDERED that the Defendant's reply date the Plaintiff's ﬁling is due on August 27th, 2010. Signed by Judge Reggie B. Walton on 06/16/10. (lcrbw2) (Entered: 06/16/2010)
Set/Reset Deadlines: Plaintiff's to the Defendant's Cross Motion for Summary Judgment is due by 8/2/2010. Defendant's Reply to the Plaintiff's ﬁling is due by 8/27/2010. (tg, ) (Entered: 06/17/2010)
76 NOTICE of ﬁling of Supplement by PRISON LEGAL NEWS (Attachments: # 1 Declaration Of Adam K Cook)(Elder, Edward) (Entered: 06/17/2010)
77 NOTICE OF WITHDRAWAL OF APPEARANCE as to PRISON LEGAL NEWS. Attorney Mara E. Verheyden-Hilliard; Carl L. Messineo and Radhika M.S. Miller terminated. (Messineo, Carl) (Entered: 06/23/2010)
78 Memorandum in opposition to re 73 Cross MOTION for Summary Judgment and Memorandum in Support of Summary Jugment ﬁled by PRISON LEGAL NEWS. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Exhibit 1, # 3 Declaration of Paul

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Wright, Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit 6)(Elder, Edward) (Entered: 08/02/2010)
79 Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiff's Opposition to Defendant's Renewed Cross-Motion for Summary Judgment by HARLEY G. LAPPIN (Johnson, Wyneva) (Entered: 08/27/2010)
80 REPLY to opposition to motion re 73 Cross MOTION for Summary Judgment and Memorandum in Support (Defendant's Reply to Plaintiff's Opposition to Defendant's Renewed Cross-motion for Summary Judgment and Plaintiff's Renewed Motion for Summary Judgment) ﬁled by HARLEY G. LAPPIN. (Attachments: # 1 Afﬁdavit Supplemental Declaration of Wilson J. Moorer (5-14-10 with Vaughn Index), # 2 Afﬁdavit Supplemental Declaration of Wilson J. Moorer (5-28-10), # 3 Afﬁdavit Third Supplemental Declaration of Wilson J. Moorer (9-1-10))(Johnson, Wyneva) (Entered: 09/01/2010)
81 RESPONSE To Defendant's Reply ﬁled by PRISON LEGAL NEWS. (Attachments: # 1 Exhibit Exhibit 2, # 2 Exhibit Exhibit 3, # 3 Exhibit Exhibit 4)(Elder, Edward) (Entered: 10/11/2010)
82 ORDER granting in part and denying in part 73 Defendant's Motion for Summary Judgment; ﬁnding as moot 79 Motion for Extension of Time to File Response/Reply. As explained in the attached Order and in the Memorandum Opinion of this same date, it is hereby ORDERED that the plaintiff's motion for summary judgment is GRANTED IN PART AND DENIED IN PART. It is further ORDERED that the defendant's motion for summary judgment is GRANTED IN PART AND DENIED IN PART. It is further ORDERED that the Bureau shall, within 90 days of the issuance of this Order, submit a new or supplemental Vaughn index meeting the speciﬁcations set forth in the Memorandum Opinion issued by the Court on this same date. It is further ORDERED that the plaintiff, should it continue to object to the defendant's reliance on FOIA exemptions to withhold or redact records responsive to its FOIA request after receiving the updated Vaughn index, shall move for summary judgment within 45 days of the ﬁling of the new or supplemental Vaughn index. It is further ORDERED that the defendant shall ﬁle its opposition and cross-motion for summary judgment no later than 30 days after the ﬁling of the plaintiff's motion. It is further ORDERED that the plaintiff shall ﬁle its opposition to the defendant's cross-motion for summary judgment no later than ﬁfteen days after that motion is ﬁled. Signed by Judge Reggie B. Walton on 2/25/2011. (lcrbw2) (Entered: 02/25/2011)
83 MEMORANDUM AND OPINION. This Memorandum Opinion accompanies the Order of this same date. Signed by Judge Reggie B. Walton on 2/25/2011. (lcrbw2) (Entered: 02/25/2011)
84 Consent MOTION for Leave to File Excess Pages for Defendant's Response to the February 25, 2011 Court Order by HARLEY G. LAPPIN (Johnson, Wyneva) (Entered: 04/29/2011)
85 RESPONSE TO ORDER OF THE COURT re 82 Order on Motion for Summary Judgment, Order on Motion for Extension of Time to File Response/Reply,,,,,,,,,, ﬁled by HARLEY G. LAPPIN. (Attachments: # 1 Afﬁdavit Fourth Supplemental Declaration of Wilson J. Moorer)(Johnson, Wyneva) (Entered: 05/26/2011)
86 Supplemental Notice of Vaughn Index from defendant. (See Docket Entry 85 to view document). (td, ) Modiﬁed on 5/31/2011 (znmw, ). (Entered: 05/27/2011)
87 ORDER denying 84 Motion for Leave to File Excess Pages. As explained in the attached Order, the page limitations imposed by Local Civil Rule 7(e) do not apply, and it is

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hereby ORDERED that the defendant's motion is DENIED AS MOOT. Signed by Judge Reggie B. Walton on 5/31/2011. (lcrbw2) (Entered: 05/31/2011)

07/08/2011

88 NOTICE OF SUBSTITUTION OF COUNSEL by Edward J. Elder on behalf of PRISON LEGAL NEWS Substituting for attorney Adam K Cook (Elder, Edward) (Entered: 07/08/2011)

07/10/2011

89 MOTION for Extension of Time to File Motion for Summary Judgement by PRISON LEGAL NEWS (Attachments: # 1 Text of Proposed Order)(Elder, Edward) (Entered: 07/10/2011)

07/11/2011

MINUTE ORDER granting 89 Motion for Extension of Time to File. In light of the parties' consent, and for good cause shown, the motion is GRANTED. It is hereby ORDERED that the plaintiff shall ﬁle its motion on or before July 25, 2011, and that the defendant shall ﬁle its opposition and cross-motion on or before August 24, 2011. Signed by Judge Reggie B. Walton on 7/11/2011. (lcrbw2) (Entered: 07/11/2011)

07/11/2011

NOTICE OF ERROR re 88 Substitution of Counsel; emailed to edelder@mindspring.com, cc'd 5 associated attorneys -- The PDF ﬁle you docketed contained errors: 1. Need a Motion for leave to appear Pro Hac Vice for Lance Weber (td, ) (Entered: 07/11/2011)

07/11/2011

Set/Reset Deadlines: Motions due by 7/25/2011; Opposition/Cross Motion due by 8/24/2011. (mpt, ) (Entered: 07/11/2011)

07/14/2011

90 Consent MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Lance Weber, :Firm- Human Rights Defense Center, :Address- 1037 Western Avenue, West Brattleboro, VT 05303. Phone No. - (802) 257-1342. Fax No. - (866) 735-7136 by PRISON LEGAL NEWS (Attachments: # 1 Declaration of Lance Weber, # 2 Text of Proposed Order) (Elder, Edward) (Entered: 07/14/2011)

07/19/2011

MINUTE ORDER granting 90 Motion for Leave to Appear Pro Hac Vice. Upon consideration of the motion and its satisfaction of LCvR 83.2(d), and ﬁnding good cause to grant the relief requested, the motion is granted. Lance T. Weber shall be admitted pro hac vice to appear and be heard in this case. Signed by Judge Reggie B. Walton on 7/19/2011. (lcrbw2) (Entered: 07/19/2011)

07/25/2011

91 Consent MOTION for Extension of Time to File Summary Judgment by PRISON LEGAL NEWS (Attachments: # 1 Text of Proposed Order)(Elder, Edward); Modiﬁed on 7/26/2011 to add linkage to exhibits 1-102 (td, ). (Entered: 07/25/2011)

07/25/2011

92 NOTICE OF SUBSTITUTION OF COUNSEL by Edward J. Elder on behalf of PRISON LEGAL NEWS Substituting for attorney Lance Weber (Elder, Edward) (Entered: 07/25/2011)

07/25/2011

93 MOTION for Summary Judgment by PRISON LEGAL NEWS (Attachments: # 1 Declaration of Paul Wright, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5)(Elder, Edward) (Entered: 07/25/2011)

07/25/2011

94 Exhibits 6-8 to MOTION for Summary Judgment 93 by PRISON LEGAL NEWS (Attachments: # 1 Exhibit 7, # 2 Exhibit 8)(Elder, Edward) Modiﬁed on 7/26/2011 (td, ). (Entered: 07/25/2011)

07/25/2011

95 Exhibits 9-28 to MOTION for Summary Judgment 93 by PRISON LEGAL NEWS (Attachments: # 1 Exhibit 10, # 2 Exhibit 11, # 3 Exhibit 12, # 4 Exhibit 13, # 5 Exhibit 14, # 6 Exhibit 15, # 7 Exhibit 16, # 8 Exhibit 17, # 9 Exhibit 18, # 10 Exhibit 19, # 11 Exhibit 20, # 12 Exhibit 21, # 13 Exhibit 22, # 14 Exhibit 23, # 15 Exhibit 24, # 16 Exhibit 25, # 17 Exhibit 26, # 18 Exhibit 27, # 19 Exhibit 28)(Elder, Edward) Modiﬁed on 7/26/2011 (td, ). (Entered: 07/25/2011)

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96 Exhibits 29-31 to MOTION for Summary Judgment 93 by PRISON LEGAL NEWS (Attachments: # 1 Exhibit 30, # 2 Exhibit 31)(Elder, Edward) Modiﬁed on 7/26/2011 (td, ). (Entered: 07/25/2011)
97 Exhibits 32-35 to MOTION for Summary Judgment 93 by PRISON LEGAL NEWS (Attachments: # 1 Exhibit 33, # 2 Exhibit 34, # 3 Exhibit 35)(Elder, Edward) Modiﬁed on 7/26/2011 (td, ). (Entered: 07/25/2011)
98 Exhibit 36 MOTION for Summary Judgment 93 by PRISON LEGAL NEWS (Elder, Edward) Modiﬁed on 7/26/2011 (td, ). (Entered: 07/25/2011)
99 Proposed Order, Statement of Fact, Memo in Support and Exhibits 37-45 MOTION for Summary Judgment 93 Text of Proposed Order by PRISON LEGAL NEWS (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibit 37, # 4 Exhibit 38, # 5 Exhibit 39, # 6 Exhibit 40, # 7 Exhibit 41, # 8 Exhibit 42, # 9 Exhibit 43, # 10 Exhibit 44, # 11 Exhibit 45)(Elder, Edward) Modiﬁed on 7/26/2011 (td, ). (Entered: 07/26/2011)
100 Exhibits 46-55 MOTION for Summary Judgment 93 by PRISON LEGAL NEWS (Attachments: # 1 Exhibit 47, # 2 Exhibit 48, # 3 Exhibit 49, # 4 Exhibit 50, # 5 Exhibit 51, # 6 Exhibit 52, # 7 Exhibit 53, # 8 Exhibit 54, # 9 Exhibit 55)(Elder, Edward) Modiﬁed on 7/26/2011 (td, ). (Entered: 07/26/2011)
101 Exhibits 56-70 MOTION for Summary Judgment 93 by PRISON LEGAL NEWS (Attachments: # 1 Exhibit 57, # 2 Exhibit 58, # 3 Exhibit 59, # 4 Exhibit 60, # 5 Exhibit 61, # 6 Exhibit 62, # 7 Exhibit 63, # 8 Exhibit 64, # 9 Exhibit 65, # 10 Exhibit 66, # 11 Exhibit 67, # 12 Exhibit 68, # 13 Exhibit 69, # 14 Exhibit 70)(Elder, Edward) Modiﬁed on 7/26/2011 (td, ). (Entered: 07/26/2011)
102 Exhibits 71-85 MOTION for Summary Judgment 93 by PRISON LEGAL NEWS (Attachments: # 1 Exhibit 72, # 2 Exhibit 73, # 3 Exhibit 74, # 4 Exhibit 75, # 5 Exhibit 76, # 6 Exhibit 77, # 7 Exhibit 78, # 8 Exhibit 79, # 9 Exhibit 80, # 10 Exhibit 81, # 11 Exhibit 82, # 12 Exhibit 83, # 13 Exhibit 84, # 14 Exhibit 85)(Elder, Edward) Modiﬁed on 7/26/2011 (td, ). (Entered: 07/26/2011)
103 Exhibits 86-102 to MOTION for Summary Judgment 93 by PRISON LEGAL NEWS (Attachments: # 1 Exhibit 87, # 2 Exhibit 88, # 3 Exhibit 89, # 4 Exhibit 90, # 5 Exhibit 91, # 6 Exhibit 92, # 7 Exhibit 93, # 8 Exhibit 94, # 9 Exhibit 95, # 10 Exhibit 96, # 11 Exhibit 97, # 12 Exhibit 98, # 13 Exhibit 99, # 14 Exhibit 100, # 15 Exhibit 101, # 16 Exhibit 102)(Elder, Edward) Modiﬁed on 7/26/2011 (td, ). (Entered: 07/26/2011)
MINUTE ORDER ﬁnding as moot 91 Motion for Extension of Time to File. The plaintiff's motion for an extension was ﬁled on the date its motion for summary judgment was due. Before the Court could act on the motion for an extension, the plaintiff ﬁled its motion for summary judgment and numerous attachments and exhibits, thus mooting the need for an extension. The attachments ﬁled in the early hours of July 26, 2011, rather than July 25, 2011, will be deemed timely ﬁled. Signed by Judge Reggie B. Walton on 7/26/2011. (lcrbw2) (Entered: 07/26/2011)
104 Consent MOTION for Extension of Time to File Response/Reply as to 93 MOTION for Summary Judgment by HARLEY G. LAPPIN (Johnson, Wyneva) (Entered: 08/03/2011)
MINUTE ORDER granting 104 Motion for Extension of Time to File Response/Reply. In light of the parties' consent, the motion is GRANTED. It is hereby ORDERED that the defendant shall respond to the plaintiff's motion for summary judgment on or before September 16, 2011. Signed by Judge Reggie B. Walton on 8/4/2011. (lcrbw2) (Entered: 08/04/2011)

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Set/Reset Deadlines: Defendant's Response to Plaintiff's Motion for Summary Judgment due by 9/16/2011. (mpt, ) (Entered: 08/05/2011)
105 Consent MOTION for Extension of Time to File Response/Reply to Plaintiffs Fourth Motion for Summary Judgment by HARLEY G. LAPPIN (Attachments: # 1 Afﬁdavit Declaration of Wanda M. Hunt, # 2 Text of Proposed Order)(Johnson, Wyneva) (Entered: 09/12/2011)
MINUTE ORDER granting 105 Motion for Extension of Time to File Response/Reply. In light of the parties' consent, and for good cause shown, the motion is granted. The defendant shall ﬁle its reply on or before October 31, 2011. Signed by Judge Reggie B. Walton on 9/14/2011. (lcrbw2) (Entered: 09/14/2011)
Set/Reset Deadlines: Reply on or before due by 10/31/2011. (mpt, ) (Entered: 09/15/2011)
106 Consent MOTION for Extension of Time to Release Documents and for Further Brieﬁng by HARLEY G. LAPPIN (Johnson, Wyneva) (Entered: 10/26/2011)
MINUTE ORDER granting 106 Motion for Extension of Time. In light of the parties' consent, and for good cause shown, the motion is GRANTED. It is hereby ORDERED that the defendant ﬁle its opposition on or before December 12, 2011, and that the plaintiff ﬁle its reply on or before January 31, 2012. Signed by Judge Reggie B. Walton on 10/28/2011. (lcrbw2) (Entered: 10/28/2011)
Set/Reset Deadlines: Opposition due by 12/12/2011; Reply due by 1/31/2012. (mpt) (Entered: 10/28/2011)
107 Consent MOTION for Extension of Time to Brieﬁng Schedule by HARLEY G. LAPPIN (Attachments: # 1 Text of Proposed Order)(Johnson, Wyneva) (Entered: 12/07/2011)
MINUTE ORDER denying without prejudice 93 Motion for Summary Judgment; granting 107 Motion for Extension of Time. In light of the parties' consent, the current brieﬁng schedule is hereby suspended. For administrative purposes, the pending motion for summary judgment is denied without prejudice, and shall be subject to reinstatement upon request of the parties. The parties shall ﬁle a status report with the Court on or before January 17, 2012. Signed by Judge Reggie B. Walton on 12/8/2011. (lcrbw2) (Entered: 12/08/2011)
Set/Reset Deadlines: Status Report due by 1/17/2012 (mpt) (Entered: 12/08/2011)
108 STATUS REPORT JOINT by HARLEY G. LAPPIN. (Johnson, Wyneva) (Entered: 01/17/2012)
MINUTE ORDER. In light of the representations made in the parties' January 17, 2012 Joint Status Report, it is hereby ORDERED that the parties shall ﬁle a status report and brieﬁng schedule on or before January 24, 2012. Signed by Judge Reggie B. Walton on 1/19/2012. (lcrbw2) (Entered: 01/19/2012)
Set/Reset Deadlines: Status Report and Brieﬁng Schedule due by 1/24/2012 (mpt) (Entered: 01/23/2012)
109 STATUS REPORT JOINT by HARLEY G. LAPPIN. (Johnson, Wyneva) (Entered: 01/24/2012)
MINUTE ORDER. In light of the representations made in the parties' January 24, 2012 Joint Status Report, it is hereby ORDERED that that the plaintiff shall ﬁle its motion for summary judgment on or before March 26, 2012; that the defendant shall ﬁle his crossmotion and opposition on or before April 25, 2012; that the plaintiff shall ﬁle its opposition to the defendant's cross-motion on or before May 10, 2012; and that the

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defendant shall ﬁle his reply to the plaintiff's opposition on or before May 24, 2012. Signed by Judge Reggie B. Walton on 1/25/2012. (lcrbw2) (Entered: 01/25/2012)
Set/Reset Deadlines: Motion for Summary Judgment due by 3/26/12; Opposition and Cross Motion due by 4/25/12; Reply to Opposition and Opposition to Cross Motion due by 5/10/12; Reply to Cross Motion due by 5/24/12. (mpt) (Entered: 01/25/2012)
110 MOTION for Summary Judgment the ﬁfth by PRISON LEGAL NEWS (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order, # 4 Declaration 2nd Supplemental Declaration of Paul Wright, # 5 Exhibit 1, # 6 Exhibit 2, # 7 Exhibit 3, # 8 Exhibit 4, # 9 Exhibit 5, # 10 Exhibit 6, # 11 Exhibit 7, # 12 Exhibit 8, # 13 Exhibit 9, # 14 Exhibit 10, # 15 Exhibit 11, # 16 Exhibit 12, # 17 Exhibit 13, # 18 Exhibit 14, # 19 Exhibit 15, # 20 Exhibit 16, # 21 Exhibit 17, # 22 Exhibit 18, # 23 Exhibit 19, # 24 Exhibit 20, # 25 Exhibit 21, # 26 Exhibit 22, # 27 Exhibit 23, # 28 Exhibit 24, # 29 Exhibit 25, # 30 Exhibit 26, # 31 Exhibit 27, # 32 Exhibit 28, # 33 Exhibit 29, # 34 Exhibit 30, # 35 Exhibit 31, # 36 Exhibit 32, # 37 Exhibit 33, # 38 Exhibit 34, # 39 Exhibit 35, # 40 Exhibit 36, # 41 Exhibit 37, # 42 Exhibit 38, # 43 Exhibit 39, # 44 Exhibit 40, # 45 Exhibit 41, # 46 Exhibit 42, # 47 Exhibit 43, # 48 Exhibit 44, # 49 Exhibit 45, # 50 Exhibit 46, # 51 Exhibit 47, # 52 Exhibit 48, # 53 Exhibit 49, # 54 Exhibit 50, # 55 Exhibit 51, # 56 Exhibit 52, # 57 Exhibit 53, # 58 Exhibit 54, # 59 Exhibit 55, # 60 Exhibit 56, # 61 Exhibit 57, # 62 Exhibit 58, # 63 Exhibit 59, # 64 Exhibit 60, # 65 Exhibit 61, # 66 Exhibit 62, # 67 Exhibit 63, # 68 Exhibit 64, # 69 Exhibit 65, # 70 Exhibit 66, # 71 Exhibit 67, # 72 Exhibit 68, # 73 Exhibit 69, # 74 Exhibit 70, # 75 Exhibit 71, # 76 Exhibit 72, # 77 Exhibit 73, # 78 Exhibit 74, # 79 Exhibit 75, # 80 Exhibit 76, # 81 Exhibit 77, # 82 Exhibit 78, # 83 Exhibit 79, # 84 Exhibit 80, # 85 Exhibit 81, # 86 Exhibit 82, # 87 Exhibit 83, # 88 Exhibit 84, # 89 Exhibit 85, # 90 Exhibit 86, # 91 Exhibit 87, # 92 Exhibit 88, # 93 Exhibit 89, # 94 Exhibit 90, # 95 Exhibit 91, # 96 Exhibit 92, # 97 Exhibit 93, # 98 Exhibit 94, # 99 Exhibit 95, # 100 Exhibit 96, # 101 Exhibit 97, # 102 Exhibit 98, # 103 Exhibit 99, # 104 Exhibit 100, # 105 Exhibit 101, # 106 Exhibit 102, # 107 Exhibit 103, # 108 Exhibit 104, # 109 Exhibit 105, # 110 Exhibit 106)(Elder, Edward) (Entered: 03/26/2012)
111 Cross MOTION for Summary Judgment by HARLEY G. LAPPIN (Attachments: # 1 Afﬁdavit Declaration of Clinton Stroble, # 2 Afﬁdavit Fourth Supplemental Declaration of Wilson J. Moorer, # 3 Defendant's Response to Statement of Material Facts as to Which There Is No Material Issue in Support of Plaintiff's Fifth Motion for Summary Judgment, # 4 Text of Proposed Order)(Johnson, Wyneva) (Entered: 04/25/2012)
112 Memorandum in opposition to re 110 MOTION for Summary Judgment the ﬁfth ﬁled by HARLEY G. LAPPIN. (Johnson, Wyneva) (Entered: 04/25/2012)
113 MOTION for Extension of Time to ﬁle exhibits in support of Defendant's Cross-Motion for Summary Judgment and Opposition to Plaintiff's Fifth Motion for Summary Judgment by HARLEY G. LAPPIN (Attachments: # 1 Text of Proposed Order)(Johnson, Wyneva) (Entered: 04/25/2012)
114 NOTICE of Filing of Defendant's Exhibits by HARLEY G. LAPPIN re 111 Cross MOTION for Summary Judgment, 112 Memorandum in Opposition (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38

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District of Columbia live database
Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58, # 59 Exhibit 59, # 60 Exhibit 60, # 61 Exhibit 61, # 62 Exhibit 62, # 63 Exhibit 63, # 64 Exhibit 64, # 65 Exhibit 65, # 66 Exhibit 66, # 67 Exhibit 67, # 68 Exhibit 68, # 69 Exhibit 69, # 70 Exhibit 70, # 71 Exhibit 71, # 72 Exhibit 72, # 73 Exhibit 73, # 74 Exhibit 74, # 75 Exhibit 75, # 76 Exhibit 76, # 77 Exhibit 77, # 78 Exhibit 78, # 79 Exhibit 79, # 80 Exhibit 80, # 81 Exhibit 81, # 82 Exhibit 82, # 83 Exhibit 83, # 84 Exhibit 84, # 85 Exhibit 85, # 86 Exhibit 86, # 87 Exhibit 87, # 88 Exhibit 88, # 89 Exhibit 89, # 90 Exhibit 90, # 91 Exhibit 91, # 92 Exhibit 92, # 93 Exhibit 93, # 94 Exhibit 94, # 95 Exhibit 95, # 96 Exhibit 96, # 97 Exhibit 97, # 98 Exhibit 98, # 99 Exhibit 99, # 100 Exhibit 100, # 101 Exhibit 101, # 102 Exhibit 102) (Johnson, Wyneva) (Entered: 04/26/2012)
MINUTE ORDER granting nunc pro tunc 113 Motion for Extension of Time. The motion is GRANTED nunc pro tunc to April 25, 2012. Signed by Judge Reggie B. Walton on 4/30/2012. (lcrbw2) (Entered: 04/30/2012)
115 Memorandum in opposition to re 111 Cross MOTION for Summary Judgment ﬁled by PRISON LEGAL NEWS. (Attachments: # 1 Text of Proposed Order)(Elder, Edward) (Entered: 05/10/2012)
116 REPLY to opposition to motion re 110 MOTION for Summary Judgment the ﬁfth ﬁled by PRISON LEGAL NEWS. (See Docket Entry 115 to view document). (znmw, ) (Entered: 05/11/2012)
117 SURREPLY re 116 Reply to opposition to Motion (Defendant's Reply to Plaintiff's Opposition to Defendant's Opposition to Plaintiff's Fifth Motion for Summary Judgment) ﬁled by HARLEY G. LAPPIN. (Johnson, Wyneva) Modiﬁed event title on 5/25/2012 (znmw, ). (Entered: 05/24/2012)
118 NOTICE OF SUBSTITUTION OF COUNSEL by Edward J. Elder on behalf of PRISON LEGAL NEWS Substituting for attorney Edward Elder (Elder, Edward) (Entered: 07/11/2012)
119 ORDER denying 110 Motion for Summary Judgment; granting 111 Motion for Summary Judgment. For the reasons stated in the Memorandum Opinion entered this same date, it is ORDERED that the defendant's motion for summary judgment is GRANTED and the plaintiff's motion for summary judgment is DENIED. It is further ORDERED that this case is CLOSED. Signed by Judge Reggie B. Walton on 7/23/2013. (lcrbw2) (Entered: 07/23/2013)
120 MEMORANDUM OPINION. Signed by Judge Reggie B. Walton on 7/23/2013. (lcrbw2) (Entered: 07/23/2013)
121 MOTION for Extension of Time to File Application for Attorneys' Fees by PRISON LEGAL NEWS (Weber, Lance) (Entered: 08/01/2013)
MINUTE ORDER granting 121 Motion for Extension of Time. For good cause shown, and in light of defense counsel's notiﬁcation that she does not oppose the motion, it is ORDERED that the motion is GRANTED. The plaintiff shall ﬁle its motion for attorneys' fees on or before October 7, 2013. Signed by Judge Reggie B. Walton on 8/9/2013. (lcrbw2) (Entered: 08/09/2013)
Set/Reset Deadlines: Motion for Attorneys' Fees due by 10/7/2013. (mpt) (Entered: 08/09/2013)

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08/05/2015
01/06/2016
01/06/2016 01/13/2016 01/15/2016

District of Columbia live database
122 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 120 Memorandum & Opinion by PRISON LEGAL NEWS. Filing fee $ 455, receipt number 0090-3441703. Fee Status: Fee Paid. Parties have been notiﬁed. (Weber, Lance) (Entered: 08/22/2013)
123 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 122 Notice of Appeal to DC Circuit Court. (jf, ) (Entered: 08/22/2013)
USCA Case Number 12-5269 for 122 Notice of Appeal to DC Circuit Court ﬁled by PRISON LEGAL NEWS. (td, ) (Entered: 09/09/2013)
124 Second MOTION for Extension of Time to File Application for Attorneys' Fees by PRISON LEGAL NEWS (Weber, Lance) (Entered: 09/26/2013)
MINUTE ORDER granting 124 Motion for Extension of Time. For good cause shown, and in light of the parties' consent, it is ORDERED that the Consent Motion fo Extension of Time to File Attorneys' Fees Application is GRANTED. The plaintiff shall ﬁle its application for attorneys' fees on or before November 7, 2013, and the defendant shall ﬁle his response to the plaintiff's application for attorneys' fees on or before December 6, 2013. Signed by Judge Reggie B. Walton on 9/27/2013. (lcrbw2) (Entered: 09/27/2013)
Set/Reset Deadlines: Application for Attorneys' Fees due by 11/7/2013. Response due by 12/6/2013 (mpt, ) (Entered: 10/01/2013)
125 Consent MOTION for Extension of Time to File Application for Attorneys' Fees by PRISON LEGAL NEWS (Weber, Lance) (Entered: 11/04/2013)
MINUTE ORDER granting 125 Motion for Extension of Time. For good cause shown, and in light of the parties' consent, it is ORDERED that the motion is GRANTED. The plaintiff shall ﬁle its application for attorneys' fees, if any, within 30 days after the date of the ﬁnal disposition of the appeal in this matter, and the defendant shall ﬁle his response, if any, within thirty days after the plaintiff ﬁles its application. Signed by Judge Reggie B. Walton on 11/5/2013. (lcrbw2) (Entered: 11/05/2013)
126 MANDATE of USCA (certiﬁed copy) as to 122 Notice of Appeal to DC Circuit Court ﬁled by PRISON LEGAL NEWS. ORDERED and ADJUDGED that the judgment of the District Court appealed from in this cause is hereby reversed and the case is remanded for further proceedings, in accordance with the opinion of the court ﬁled herein this date. USCA Case Number 13-5269. (rd) Modiﬁed on 8/6/2015 (rd). (Entered: 08/06/2015)
127 ORDER. In light of the District of Columbia Circuit's decision, ECF No. 126, and the Court having heard nothing from the parties since the decision, it is hereby ORDERED that the parties shall jointly submit a status report, which shall at least include a proposal as to how the parties want to proceed in this matter, on or before January 13, 2016. Signed by Judge Reggie B. Walton on January 6, 2016. (lcrbw2) (Entered: 01/06/2016)
Set/Reset Deadlines: Status Report due by 1/13/2016 (mpt) (Entered: 01/06/2016)
128 Joint STATUS REPORT AND PROPOSAL by HARLEY G. LAPPIN. (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration, # 4 Declaration)(Johnson, Wyneva) (Entered: 01/13/2016)
129 MINUTE ORDER. Upon consideration of the Joint Status Report and Proposal, and in light of the parties' consent, it is hereby ORDERED that the parties shall ﬁle joint status reports in this case according to the deadlines set forth in case no. 15-cv-823. It is further ORDERED that joint status reports shall be ﬁled on both this docket and the docket for case no. 15-cv-823. Signed by Judge Reggie B. Walton on January 15, 2016. (lcrbw2) (Entered: 01/15/2016)

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01/11/2017 02/22/2017 02/23/2017

District of Columbia live database
130 Joint STATUS REPORT by HARLEY G. LAPPIN. (Attachments: # 1 Declaration) (Johnson, Wyneva) (Entered: 05/06/2016)
MINUTE ORDER. Upon consideration of the Notice of Filing of Joint Status Report, and in light of the parties' consent, it is hereby ORDERED that the parties shall ﬁle a joint status report on or before July 15, 2016. Signed by Judge Reggie B. Walton on May 9, 2016. (lcrbw2) (Entered: 05/09/2016)
Set/Reset Deadlines: Joint Status Report due by 7/15/2015 (hs) (Entered: 05/09/2016)
131 Joint STATUS REPORT by HARLEY G. LAPPIN. (Attachments: # 1 Declaration) (Johnson, Wyneva) (Entered: 07/14/2016)
132 Joint STATUS REPORT by HARLEY G. LAPPIN. (Attachments: # 1 Declaration) (Johnson, Wyneva) (Entered: 09/16/2016)
MINUTE ORDER. Upon consideration of the Joint Status Report, it is hereby ORDERED that this case shall proceed as follows: (1) the defendant shall ﬁle its motion for summary judgment on or before November 16, 2016; (2) the plaintiff shall ﬁle its opposition to the defendant's motion for summary judgment on or before January 16, 2017; and (3) the defendant shall ﬁle its reply in support of its motion for summary judgment on or before January 31, 2017. It is further ORDERED that the parties shall appear for a status conference on April 24, 2017, at 10:00 a.m. Signed by Judge Reggie B. Walton on September 19, 2016. (lcrbw2) (Entered: 09/19/2016)
Set/Reset Deadlines/Hearings: Summary Judgment motions due by 11/16/2016. Response to Motion for Summary Judgment due by 1/16/2017. Reply to Motion for Summary Judgment due by 1/31/2017. Status Conference set for 4/24/2017 at 10:00 AM in Courtroom 16 before Judge Reggie B. Walton. (hs) (Entered: 09/20/2016)
133 Joint STATUS REPORT by HARLEY G. LAPPIN. (Johnson, Wyneva) (Entered: 11/03/2016)
MINUTE ORDER. Upon consideration of the parties' Notice of Filing of Joint Status Report, and for good cause shown, it is hereby ORDERED that the request is GRANTED. It is further ORDERED that the brieﬁng schedule for summary judgment motions in this case is STAYED until January 16, 2017. Signed by Judge Reggie B. Walton on November 4, 2016. (lcrbw2) (Entered: 11/04/2016)
134 NOTICE OF WITHDRAWAL OF APPEARANCE as to PRISON LEGAL NEWS. Attorney Lance T. Weber terminated. (Weber, Lance) (Entered: 12/27/2016)
135 Joint STATUS REPORT by HARLEY G. LAPPIN. (Johnson, Wyneva) (Entered: 01/09/2017)
MINUTE ORDER. Upon consideration of the parties' Notice of Filing of Joint Status Report, and for good cause shown, it is hereby ORDERED that the request is GRANTED. It is further ORDERED that the brieﬁng schedule for summary judgment motions in this case is STAYED until February 24, 2017. It is further ORDERED that the parties shall ﬁle an additional status report on or before February 24, 2017, providing the Court with an update on the status of the case. Signed by Judge Reggie B. Walton on January 10, 2017. (lcrbw2) (Entered: 01/10/2017)
Set/Reset Deadlines: Joint Status Report due by 2/24/2017 (hs) (Entered: 01/11/2017)
136 Joint STATUS REPORT by HARLEY G. LAPPIN. (Johnson, Wyneva) (Entered: 02/22/2017)
MINUTE ORDER. Upon consideration of the parties' Notice of Filing of Joint Status

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Report, and for good cause shown, it is hereby ORDERED that the request is GRANTED. It is further ORDERED that the brieﬁng schedule for summary judgment motions in this case is STAYED until March 31, 2017. It is further ORDERED that the parties shall ﬁle an additional status report on or before March 31, 2017, providing the Court with an update on the status of the case. Signed by Judge Reggie B. Walton on February 23, 2017. (lcrbw2) (Entered: 02/23/2017)
Set/Reset Deadlines: Joint Status Report due by 3/31/2017. (hs) (Entered: 02/23/2017)
137 STIPULATION of Settlement and Dismissal by HARLEY G. LAPPIN. (Johnson, Wyneva) (Entered: 03/31/2017)
138 STIPULATION OF SETTLEMENT AND DISMISSAL. Signed by Judge Reggie B. Walton on April 3, 2017. (lcrbw2) (Entered: 04/03/2017)

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