Bothwell v. DOJ, No. 19-00500, 2023 WL 3973621 (W.D. Okla. June 23, 2023) (Dishman, J.)

Bothwell v. DOJ, No. 19-00500, 2023 WL 3973621 (W.D. Okla. June 23, 2023) (Dishman, J.)

Re:  Request for records concerning appointment of third-party to certain positions in the United States Attorney’s Office for the Western District of Oklahoma (“WDOK”)

Disposition:  Accepting Magistrate Judge’s Report and Recommendation as modified; granting in part and denying in part defendants’ motion to dismiss

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court finds that a portion of plaintiff’s FOIA request was remanded, but “[t]he Court is not persuaded . . . that the records [plaintiff] seeks in this lawsuit ‘fall squarely within the FOIA remand.’”  “OIP remanded ‘the portion of [plaintiff’s] request concerning “person[s] serving in an ‘acting’ capacity and the dates such service began” to EOUSA for a further search for responsive records.’”  “After comparing this remand language with the Amended Complaint, the Court concludes . . . that the records [plaintiff] seeks in this lawsuit are outside the scope of the remand and are thus ripe for judicial review.”  The court finds that “[i]n his First Claim for Relief, [plaintiff] seeks an order requiring DOJ to produce records showing the appointment, commission, and oaths of office for [the third-party subject of the request] ‘to the office[s] of AUSA, First AUSA, and Acting [United States Attorney]’ from September 1995 to the ‘present day.’”  “It appears that records relating to offices [the third-party subject of the request] held in an official capacity (i.e., AUSA and First AUSA) would be outside a remand for records of ‘person[s] serving in an “acting” capacity and the dates such service began.’”  “Admittedly, records relating to [the third-party subject of the request’s] appointment, commission, and oaths of office as Acting United States Attorney are superficially related to the remand in that they necessarily concern an individual serving in an acting capacity.”  “However, [plaintiff] does not seek records showing ‘dates such service began’; rather, he seeks records showing appointments, commissions, and oaths for [the third-party subject of the request] during a specified period.”  “OIP specifically noted that [plaintiff’s] request not only included access to records of acting attorneys within the WDOK ‘and any report that found any person served longer than 210 days as the Acting United States Attorney,’ but also appointment information for [the third-party subject of the request].”  “Thus, OIP viewed the [the third-party subject of the request] Requests as separate and not part of the remand.”  “The Court therefore concludes that the records sought in [plaintiff’s] First Claim for Relief (i.e., records responsive to the [third-party subject of the request] Requests) fall outside the scope of a remand for a search for records of ‘person[s] serving in an “acting” capacity and the dates such service began.’”  “Accordingly, [plaintiff’s] administrative appeal of [his request] exhausted his administrative remedies with respect to his First Claim for Relief.”  “[Plaintiff’s] Second Claim for Relief seeks an order requiring DOJ to produce certain ‘5 U.S.C. § 3349 certificates’ for vacancies in the office of the USAO-WDOK.”  “Upon careful review, the Court concludes that these records do not fall within OIP’s remand for a further search for records showing ‘person[s] serving in an “acting” capacity and the dates such service began.’”  “Although the Court notes that the remand language seems to track the portion of § 3349(a)(2) requiring notifications to the Comptroller General to include the ‘name of any person serving in an acting capacity and the date such service began,’ OIP’s appeal decision letter . . . does not mention § 3349 at all, nor does it generally reference notifications to the Comptroller General.”  “Additionally, the remand does not cover records showing notifications of vacancies, dates of vacancies, nominations to fill the vacancy, or notifications of persons serving as Acting United States Attorney longer than 210 days.”  “Based on this record, the Court is unable to find that the records sought in [plaintiff’s] Second Claim for Relief (i.e., records responsive to the Vacancy Requests) fall squarely within the scope of a remand for a search for records of ‘person[s] serving in an “acting” capacity and the dates such service began.’”  “Accordingly, the Court finds [plaintiff’s] administrative appeal of [his FOIA request] exhausted his administrative remedies with respect to this claim.”

• Litigation Considerations, Adequacy of Search & Procedural Requirements, Searching for Responsive Records:  “After conducting a de novo review, the Court agrees with [the magistrate judge’s] conclusion that the Amended Complaint states a claim under FOIA . . . .”  “[Plaintiff] identifies a notable gap in time between [the third-party subject of the request] appointment as an AUSA in March 1996 and being named Acting United States Attorney in January 2018, a position which under the [Federal Vacancies Reform Act] required him to be a First AUSA.”  “In other words, he has alleged sufficient facts suggesting that DOJ withheld records concerning [the third-party subject of the request’s] appointment or promotion from AUSA to First AUSA, or that DOJ provided an inadequate response to such request.”  “Finally, the Amended Complaint also alleges facts showing that there have been various vacancies in the office of United States Attorney for the WDOK since 1995, but that DOJ was unable to locate any notifications under § 3349.”  “Given these factual allegations, the relevant statutory and constitutional provisions identified by [plaintiff] in the Amended Complaint, either by citation or otherwise, and drawing all reasonable inferences in favor of [plaintiff], the Court concludes that [plaintiff] has plausibly alleged facts showing that an adequate search would have revealed additional records and that DOJ thus ‘improperly withheld’ agency records.”  “In the very least and considering the Court’s generous construction of [plaintiff’s] pro se pleading, the Court finds that [plaintiff] has alleged sufficient facts to plausibly show that DOJ responded to his FOIA requests in an inadequate manner.”

• Litigation Considerations, Pleadings:  The court finds that “neither party objected to [the magistrate judge’s] conclusion that EOUSA and USAO-WDOK are offices within the agency of DOJ and, therefore, are not proper parties.”  “Accordingly, the Court accepts the [report and recommendation] to the extent it recommends dismissal of EOUSA and USAO-WDOK.”