UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

BRUSTEIN & MANASEVIT, PLLC, )

)

Plaintiff, )

)

v. ) Civil Action No. 13-cv-0714 (KBJ)

)

UNITED STATES DEPARTMENT OF 

EDUCATION, 

)

)

)

Defendant. )

)

MEMORANDUM OPINION

Plaintiff Brustein & Manasevit, PLLC (“Brustein” or “Plaintiff”) filed a

complaint against the United States Department of Education (“DOE” or “Defendant”)

under the Freedom of Information Act (“FOIA”), 5 U.S.C. §552 (2014), on May 15, 

2013,. (See Complaint (“Compl.”), ECF No. 1.) 1 The complaint seeks injunctive and 

declaratory relief in the form of a court order compelling DOE to release records that 

pertain to a computer program—known as the “State and Local Educational Agencies 

Risk Model” (“Risk Model”)—that DOE uses to identify state and local education 

agencies that are at risk of misusing federal funds. (Id. ¶ 7.) DOE initially withheld all 

responsive records; however, after the complaint was filed, DOE released in their 

entirety the documents that the agency had found in response to Plaintiff’s FOIA 

request. (Def.’s Statement of Material Facts as to Which There is no Genuine Dispute 

 1 Plaintiff Brustein & Manasevit, PLLC, is a law firm located in Washington D.C. that primarily 

practices federal education law, and that works with various state and local education agencies and 

other institutions on federal education programs and federal grant management. (Compl. ¶ 5.) 
2

(“Def.’s Facts”), ECF No. 8 at 3-4, ¶ 2.) 2 DOE then filed a motion to dismiss the 

complaint, or in the alternative, motion for summary judgment—the pleading that is 

before this Court today. (See (Def.’s Mem. in Supp. of Mot. to Dismiss or, in the 

Alternative, Mot. for Summ. J. (“Def.’s Mem.”), ECF No. 8, at 6-13.)

In its motion, DOE argues that the complaint must be dismissed pursuant to 

Federal Rule of Civil Procedure 12(b)(1) on the grounds that the agency’s production of 

documents has mooted this matter. (Id. at 9-11.) Alternatively, DOE maintains that 

summary judgment should be entered in its favor because there is no genuine issue of 

material fact regarding the reasonableness and adequacy of its search for responsive 

records. (Id. at 11-13.) In opposition to DOE’s motion, Plaintiff maintains that the

search was inadequate and the case is not moot, because the documents that DOE 

provided suggest that additional (unreleased) records responsive to the FOIA request

exist. (Pl.’s Mem. in Opp’n to Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 9-1, at 3-6.) 

Upon consideration of the motion and associated submissions from the parties, the 

entire record, and the applicable law, and for the reasons explained below, the Court

rejects Defendant’s argument that the complaint must be dismissed as moot, but agrees

that Defendant is entitled to summary judgment because the agency’s search for records 

was reasonable and adequate. Accordingly, Defendant’s motion is GRANTED, and 

summary judgment will be entered in its favor with respect to the one and only count of 

the complaint. A separate order consistent with this opinion will follow.

 2 Page numbers throughout this opinion refer to the page numbers generated by the Court’s electronic 

filing system.
3

I. BACKGROUND 

In November of 2012, DOE’s Office of the Inspector General (“OIG”) released a 

semi-annual report to Congress, in order to update lawmakers on “the activities and 

accomplishments of [the OIG.]” (Compl. Ex. 1 (OIG Semiannual Report (“OIG 

Report”)), ECF No. 1-2, at 2.) 3 In this report, the OIG affirmed its “commitment to 

promoting accountability, efficiency, and effectiveness in our oversight of [DOE’s] 

programs and operations[,]” (id. at 2), and described the Risk Model as one of the “data 

analytic tools” that the OIG had developed to promote this goal (id. at 18). 4 According 

to the report, OIG staff members use the Risk Model to “better identify which SEAs

[state education agencies] and LEAs [local educational agencies] are at higher risk” of 

misusing federal education grants and other sources of federal education funding. (Id.) 

On December 7, 2012, Plaintiff submitted a FOIA request to DOE. (See Compl. 

Ex. 2, ECF No. 1-3, at 1.) The request specifically referenced the OIG Report’s 

statement regarding use of the Risk Model, and stated: “I am requesting a complete 

copy of this State and Local Educational Agencies Risk Model[,]” or “[i]f a copy of the 

model is not available, I request a complete description of the State and Local 

Educational Agencies Risk Model.” (Id.) DOE confirmed receipt of Plaintiff’s FOIA

request on December 11, 2012. (Compl. ¶ 9.) 

 3 The Inspector General Act of 1978 requires each Inspector General to “prepare semiannual reports 

summarizing the activities of the Office during the immediately preceding six-month periods ending 

March 31 and September 30.” 5 U.S.C. App. 3 § 5.

4 The Risk Model “consists of computer programs that interface with various database systems.” (Decl. 

of Edward Slevin (“Slevin Decl.”), ECF No. 10-1, ¶ 4.) Using inputs from various sources, the

program computes a ranking of local education agencies based upon their risk of misusing federal 

funds, and then makes that information available to the state education agency that oversees the local 

agency. (State and Local Education Agencies Risk Model Project Proposal, ECF No. 8-4, at 8-10.) In 

essence, the Risk Model is “an online robust risk model system” that permits evaluation of various 

local education agencies within a particular jurisdiction. (Id. at 8.)
4

After receiving the FOIA request, DOE searched its databases for responsive 

documents. (Def.’s Facts ¶ 2.) As a result of this search, DOE was able to identify

three documents, totaling 16 pages, that in DOE’s view “provide[d] a complete 

description” of the Risk Model. (Id.)

5

 DOE refused to produce these documents,

however, citing FOIA Exemptions 5 and 7(E), see 5 U.S.C. §§ 552(b)(5), (b)(7)(E), as 

the bases for its decision. (Compl. ¶ 10; see also Compl. Ex. 4, ECF No. 1-5.) Plaintiff 

filed a timely administrative appeal of DOE’s decision to withhold the documents

(Compl. Ex. 5, ECF No 1-6), which was denied on February 13, 2013 (Compl. Ex. 6, 

ECF No. 1-7). Plaintiff then filed the instant complaint, alleging one count of wrongful 

withholding of documents in violation of FOIA, and seeking to “compel [DOE] to 

disclose and release” the documents. (Compl. ¶¶ 1, 14-16.) 

At some point thereafter, DOE reconsidered its determination regarding the 

applicability of FOIA Exemptions 5 and 7(E), and on July 8, 2013, the agency released

the three documents in their entirety to Plaintiff, without any withholdings or 

redactions. (Def.’s Facts ¶¶ 4-5.) Defendant then filed a motion to dismiss the 

complaint on August 1, 2013, arguing that because the agency had produced all 

responsive records in full, Plaintiff’s FOIA claim was moot. (Def.’s Mem. at 9-11.) In 

the alternative, Defendant asserted that summary judgment should be granted in its 

favor because it had conducted an adequate search for documents, and had released all 

such documents to Plaintiff. (Id. at 11-13.) Plaintiff opposed Defendant’s motion, 

arguing that certain aspects of the documents DOE produced appeared to indicate that 

additional responsive documents are in DOE’s possession; therefore, the complaint was 

not moot and DOE had failed to conduct an adequate search. (Pl.’s Opp’n at 3-6.) 

 5 As explained further below, Plaintiff disputes this characterization.
5

Defendant’s motion to dismiss, or in the alternative motion for summary judgment, was

fully briefed on August 26, 2013, and is currently pending before the Court.

II. LEGAL STANDARDS

A. Motion To Dismiss For Mootness Pursuant To Federal Rule Of Civil 

Procedure 12(b)(1) 

A case becomes moot “when the issues presented are no longer live or the parties 

lack a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440

U.S. 625, 631 (1979) (internal quotation marks and citation omitted). A defendant who

asserts that a complaint is moot because of developments subsequent to its filing raises

a challenge to the court’s subject matter jurisdiction, see Flores ex rel. J.F. v. District 

of Columbia, 437 F. Supp. 2d 22, 28 (D.D.C. 2006), because federal courts only have 

constitutional authority to adjudicate “actual, ongoing controversies,” Honig v. Doe, 

484 U.S. 305, 317 (1988). Consequently, Rule 12(b)(1) is the proper mechanism for a 

defendant to assert that an action is moot. See Young v. D.C. Housing Auth., 13cv652, 

2014 WL 948317, at *1, 3 (D.D.C. Mar. 12, 2014) (“A motion to dismiss for mootness 

is properly brought under Federal Rule of Civil Procedure 12(b)(1).”); Toxco, Inc. v. 

Chu, 801 F. Supp. 2d 1, 5 (D.D.C. 2011) (“Under Rule 12(b)(1), a party may move to 

dismiss a case on grounds of mootness.”). 

In FOIA cases, “[o]nce the records are produced the substance of the controversy 

disappears and becomes moot since the disclosure which the suit seeks has already been 

made.” Crooker v. U.S. State Dep’t, 628 F.2d 9, 10 (D.C. Cir. 1980) (citing Ackerly v. 

Ley, 420 F.2d 1336, 1340 (D.C. Cir. 1969)). However, even where an agency has 

already produced the requested records, the plaintiff may still have “a cognizable 

interest in having [a] [c]ourt determine whether the search for records was adequate 
6

under the [FOIA] standards for adequate records searches[.]” Looney v. WaltersTucker, 98 F. Supp. 2d 1, 2 (D.D.C. 2000); see also, e.g., Judicial Watch, Inc. v. FDA, 

514 F. Supp. 2d 84, 88 (D.D.C. 2007) (noting that “courts deciding FOIA disputes 

always have jurisdiction to determine the adequacy of a search by the agency for 

records duly requested under the FOIA”) (internal quotation marks and citation

omitted); Snyder v. CIA, 230 F. Supp. 2d 17, 19 n.1 (D.D.C. 2002) (“[P]laintiff has a 

cognizable interest in having this Court determine whether [an agency’s] search for 

records responsive to plaintiff’s request was adequate under the FOIA and relevant case 

law. . . . The case is therefore not moot.”) The “heavy burden of establishing mootness 

lies with the party asserting a case is moot.” Honeywell Int’l, Inc. v. Nuclear 

Regulatory Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010) (internal quotation marks and 

citation omitted).

B. Motion for Summary Judgment Under Rule 56

Summary judgment is appropriate if there is “no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). “Only disputes over facts that might affect the outcome of the suit under the 

governing law will properly preclude the entry of summary judgment.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The “party seeking summary 

judgment always bears the initial responsibility of [stating] . . . the basis for its motion, 

and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, 

and admissions on file, together with the affidavits, if any,’ which it believes 

demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 

477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). The nonmoving party must then 
7

go beyond the pleadings and with “affidavits, or by the depositions, answers to 

interrogatories, and admissions on file, designate specific facts showing that there is a 

genuine issue for trial.” Id. at 324 (internal quotation marks omitted).

An agency seeking summary judgment in a FOIA case must show that it 

conducted “a search reasonably calculated to uncover all relevant documents, and, if 

challenged, must demonstrate beyond material doubt that the search was reasonable.” 

Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (internal quotation marks 

omitted). “The agency must establish through affidavits or declarations the adequacy of 

both its search methods (where and how it looked for responsive records) and the scope 

of its search (what it was looking for).” Looney, 98 F. Supp. 2d at 3. The agency’s

affidavits must be, “relatively detailed and non-conclusory[.]” Ground Saucer Watch, 

Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981) (internal quotation marks and citation 

omitted). Although the agency declarants need not “set forth with meticulous 

documentation the details of an epic search for the requested records,” they must show 

“that the search method was reasonably calculated to uncover all relevant documents[.]” 

Looney, 98 F. Supp. 2d at 3 (internal quotation marks and citation omitted). Notably, 

“[a]gency affidavits are accorded a presumption of good faith, which cannot be rebutted 

by ‘purely speculative claims about the existence and discoverability of other 

documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)

(quoting Ground Saucer Watch, 692 F.2d at 771). Moreover, in analyzing the 

reasonableness of an agency’s search, “[t]he issue is not whether any further documents 

might conceivably exist but rather whether the government’s search for responsive 
8

documents was adequate.” Truitt, 897 F.2d at 542 (internal quotation marks and 

citation omitted).

III. ANALYSIS

A. Defendant’s Motion To Dismiss On Mootness Grounds 

Defendant maintains that the complaint should be dismissed as moot under Rule

12(b)(1) because DOE conducted an adequate search for records that describe the Risk 

Model in response to Plaintiff’s FOIA request, and because the agency released in their 

entirety the documents that it found as a result of its reasonable search. (Def.’s Mem. 

at 9-10.) It is undisputed that DOE has produced fully the documents that it had 

originally withheld. (Def.’s Facts ¶ 5; Pl.’s Statement of Material Facts as to Which 

There is Genuine Dispute (“Pl.’s Facts”), ECF No. 9-2, ¶ 1.) But the production of 

documents in the context of a FOIA case does not automatically render the case moot,

because, as explained above, the plaintiff may still hold “a cognizable interest” in 

having a court determine the adequacy of the agency’s search for records. See 

Conservation Force v. Ashe, 12cv1428, 2013 WL 5574185, at *1, 4 (D.D.C. Oct. 10, 

2013) (“In the FOIA context, . . . a court maintains jurisdiction even after an agency 

releases documents when other related issues, such as the proper scope of the agency’s 

search, remain unresolved.”). Thus, when a plaintiff maintains a challenge to the 

adequacy of a defendant’s search despite having received responsive documents, that 

challenge will, in most cases, be sufficient to warrant the court’s rejection of a motion 

to dismiss on mootness grounds. See, e.g., Short v. U.S. Army Corps of Eng’rs, 593 F. 

Supp. 2d 69, 72 n.5 (D.D.C. 2009) (“Because [plaintiff] challenges the adequacy of the 

search, the motion to dismiss as moot must be denied.”); Nw. Univ. v. USDA, 403 F. 
9

Supp. 2d 83, 85-86 (D.D.C. 2005) (refusing to dismiss action as moot despite belated 

release of documents because plaintiff challenged adequacy of defendant’s document 

production); Yonemoto v. Dep’t of Veterans Affairs, 686 F.3d 681, 689 (9th Cir. 2011)

(“A FOIA claim is not moot, for example, if the agency produces what it maintains is 

all the responsive documents, but the plaintiff challenges whether the [agency’s] search 

for records was adequate.”) (internal quotations marks omitted).

Here, Plaintiff has not conceded that DOE has conducted an adequate search and

has produced all responsive documents in full compliance with the FOIA request. To 

the contrary, Plaintiff vigorously maintains that the dispute is still alive and well 

because there are additional documents related to the Risk Model that DOE has not

located or released, and therefore DOE’s search was obviously inadequate. (Pl.’s 

Opp’n at 3-4.) To support this contention, Plaintiff notes that the released documents 

contain specific references both to “10 risk factors” and a scoring system that appears 

to be based on those 10 factors, but “[n]owhere in the 16 pages of documentation is 

there a description of how points are assessed and weighted” among the factors. (Id. at 

4.) As a result, Plaintiff speculates that there must be “additional documents related to 

the scoring system” that DOE’s search has not found. (Id.) 

Given Plaintiff’s insistence that additional responsive documents must exist and 

that therefore the released records have not been provided after an adequate search (see 

Pl.’s Opp’n at 3-4), the Court concludes that Plaintiff has a cognizable interest in 

having this Court determine whether the Defendant’s search for records was adequate. 

See, e.g., Judicial Watch, 514 F. Supp. 2d at 88; Snyder, 230 F. Supp. 2d at 19 n.1.
10

Accordingly, Defendant’s motion to dismiss Plaintiff’s complaint on mootness grounds 

must be denied.

6

B. Defendant’s Motion For Summary Judgment 

As an alternative to its mootness argument, Defendant asks that the Court grant 

summary judgment in its favor because its search for responsive records was reasonable 

and adequate as a matter of law, and thus no genuine issues of material fact remain. 

(Def.’s Mem. at 11-13.) As noted above, in a FOIA case, “the issue to be resolved is 

not whether there might exist any other documents possibly responsive to the request, 

but rather whether the search for those documents was adequate.” Weisberg v. 

DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (emphasis in original). Considering the 

affidavits and information DOE has provided regarding the search it conducted in 

response to Plaintiff’s FOIA request, this Court concludes that an adequate search was 

conducted with respect to the FOIA request at issue here. 

DOE has included with its motion a declaration from OIG Counsel Marta Erceg. 

(See Declaration of Marta Erceg (“Erceg Decl.’”), ECF No. 8-1.) Ms. Erceg avers, in 

relevant part, that she is “responsible for coordinating [FOIA] requests” (id. ¶ 1), and 

that “upon receipt of Plaintiff’s request, OIG searched its electronic and hard copy 

records for responsive documents” (id. ¶ 5), as a result of which the agency “located 

three documents that provide a complete description” of the Risk Model (id. ¶ 7). 

Erceg admits that DOE originally withheld these documents (id. ¶ 8), but after Plaintiff

 6 It is for this same reason that the Court rejects DOE’s assertion—made in a single footnote in the 

memorandum accompanying its motion—that “Defendant’s release of all responsive documents also 

requires dismissal pursuant to Rule 12(b)(6) of the Federal Rule of Civil Procedure.” (Def.’s Mem. at 6, 

n.1 (internal citations omitted).) DOE is mistaken when it argues that the only way to state a claim 

under FOIA is to “show that the agency has improperly withheld agency records.” (Id.) To the 

contrary, if a plaintiff can establish that an agency’s search for records was inadequate, the fact that the 

agency has turned over all of the documents that its unreasonable search turned up is beside the point. 
11

filed the complaint, “Defendant provided Plaintiffs with a full release of all [the 

documents] that completely describe the [Risk Model] as requested in Plaintiff’s initial 

request[,]” without withholding or redacting any pages (id. ¶ 12). DOE has also 

submitted a declaration from Edward Slevin, the Director of the Computer Assisted 

Assessment Techniques team within OIG. (See Declaration of Edward Slevin (“Slevin 

Decl.”), ECF No. 10-1.) Mr. Slevin’s declaration states that he is the director of the 

team that created the Risk Model and has managed the Risk Model since its creation. 

(Id. ¶¶ 4, 6.) Mr. Slevin further avers that “all records related to” the Risk Model are 

stored on his “work-issued computer [and] secured under his user identification.” (Id. ¶ 

7.) Finally, Mr. Slevin reports that he personally conducted the search for Plaintiff’s 

requests and located the documents that were eventually produced. (Id. ¶¶ 7-8.) 

In the Court’s view, the declarations of Erceg and Slevin—which are presumed 

to have been submitted in good faith and are entitled to great weight—are sufficient to 

carry Defendant’s burden of showing that it conducted “a search reasonably calculated 

to uncover all relevant documents[.]” Truitt, 897 F.2d at 542 (internal quotation marks 

and citation omitted). Indeed, Slevin’s attestation that “all records related to” the Risk 

Model are stored on his own work computer, which he personally searched in response 

to Plaintiff’s FOIA request, eliminates any material questions of fact regarding the 

scope of the search and also effectively disposes of any adequacy issue. (Slevin 

Decl. ¶ 7.) 

Plaintiff’s arguments to the contrary merely restate its assertions regarding the 

mootness question—that is, Plaintiff asserts that DOE’s ‘“identification or retrieval 

procedure [is] genuinely in issue” because the released documents “hint at a scoring 
12

system without providing details.” (Pl.’s Opp’n at 6.) But it is well established that 

“the presumption of good faith” that accompanies agency affidavits submitted in the 

FOIA context “cannot be rebutted by purely speculative claims about the existence and 

discoverability of other documents.” SafeCard Servs., 926 F.2d at 1200 (internal

quotation marks and citations omitted); see also Hodge v. FBI, 703 F.3d 575, 580 (D.C. 

Cir. 2013) (“Mere speculation that as yet uncovered documents may exist does not 

undermine the finding that the agency conducted a reasonable search.”). Plaintiff here

has provided nothing beyond rank speculation about the possible existence of materials 

that explain the various factors in the Risk Model in its attempt to undermine the clear 

conclusion that DOE’s search was reasonable and adequate. And this speculation is 

rendered all the more speculative in light of supplemental evidence that Defendant has 

submitted to cast doubt on Plaintiff’s underlying assumptions.

7 

In short, because Defendant has carried its burden of showing that it conducted a 

reasonable and adequate search for responsive records, and because Plaintiff has 

provided no reason for the Court to conclude otherwise, the Court will grant 

Defendant’s motion and enter summary judgment in its favor. 

 

 7 Defendant has filed a supplemental declaration from Marta Erceg to rebut Plaintiff’s assertion that the 

released documents fail to explain how the various risk factors are “weighted” for use in the Risk 

Model. The declaration explains that, in fact, “[t]he documents provided state that the user selects the 

risk indicators he/she wants to include in the model” and “assigns weights to individual or grouped 

indicators” (Suppl. Decl. of Marta Erceg, ECF No. 10-2, ¶ 9), a process that is typical of statistical 

models that are designed to assess the impact of various factors. Cf. Federal Judicial Center, Reference 

Manual on Scientific Evidence § 303 (3d ed. 2011) (explaining, with respect to multiple regression 

analyses, that such models involve selecting multiple factors and assigning them specific values “to 

predict the values of one variable using the values of others[]”). 
13

IV. CONCLUSION

For the reasons set forth above, the Court concludes that Plaintiff’s complaint is 

not moot, and so declines to dismiss the complaint on those grounds. However, the 

Court also concludes that, because the agency’s search for records responsive to 

Plaintiff’s request was reasonable and adequate, Defendant is entitled to summary 

judgment. Accordingly, Defendant’s motion is GRANTED and summary judgment is 

entered in its favor. 

Date: March 31, 2013 Ketanji Brown Jackson

KETANJI BROWN JACKSON

United States District Judge