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Cunningham v. DOJ, No. 13-188, 2013 WL 4446795 (D.D.C. Aug. 21, 2013) (Collyer, J.)

Re: Request for records concerning decision to deny plaintiff federal crime victim status Disposition: Granting defendants' motion for summary judgment
  • Proper Party Defendants & Jurisdiction:  The court dismisses the claims brought against the individual federal employee defendants named in the suit.  "[I]n FOIA cases, individual federal employees are not proper parties; only agencies in the executive branch of the Government."
  • Damages: The court rejects plaintiff's argument that he is entitled to money damages because defendants' failure to produce records responsive to his request was a constitutional deprivation.  "There is no Bivens remedy available where a statute provides a 'comprehensive system to administer public rights.'"  "FOIA presents such a statutory scheme."  Accordingly, the court concludes that a violation of FOIA would not entitle plaintiff to money damages.
  • Adequacy of Search: The court concludes that the defendant agencies all conducted adequate and reasonable searches for responsive records.  "At the direction of EOUSA, USAO-SDNY searched for responsive records . . . via LIONS and PACER."  After that, "USAO-SDNY asked [the relevant] AUSA and its Victim Witness Coordinator to search their files for records that might be responsive."  "Neither of these individuals located any responsive records."  The court finds that this was reasonable.  "EOUSA was not required to search every record system."Likewise, the court determines that "the FBI through its affidavits demonstrating its multiple search efforts of the relevant databases, has shown that the searches it conducted in response to [plaintiff's] FOIA request . . . were reasonably calculated to discover the requested documents."  The court also notes that plaintiff's claim that the special agent who interviewed him engaged in criminal conduct by failing to enter notes of the interview into the FBI's database is without merit.  Setting aside the issue that this claim is outside the allegations of the complaint, the court "observes that [the special agent's] notes were personal, only to be used to refresh [her] memory if necessary, and FBI agents have some degree of discretion as to what notes might be indexed in CRS."  "Because no charges or charging documents were ever filed in relation to the 2005 search of [plaintiff's] residence, the Court finds that the notes were unofficial and the lack of indexing CRS does not indicate a FOIA violation." Finally, the court also concludes that OJP conducted an adequate and reasonable search.  OJP directed its Office for Victims of Crime [OVC] "to search its records for responsive documents."  OVC searched using plaintiff's name in its electronic systems and its paper systems and located "a draft letter from [the] former OVC director."  OJP then searched its Executive Secretariat Correspondence Tracking System and located the response to plaintiff's 2008 inquiry, plaintiff's incoming letter, and all attachments.
Court Decision Topic(s)
Litigation Considerations, Adequacy of Search
District Court opinions
Litigation Considerations, Jurisdiction
Updated August 6, 2014