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Judicial Watch • Mckinley v Fdic Opp2andcm4sj 04132011

Mckinley v Fdic Opp2andcm4sj 04132011

Mckinley v Fdic Opp2andcm4sj 04132011

Page 1: Mckinley v Fdic Opp2andcm4sj 04132011

Category:General

Number of Pages:15

Date Created:April 13, 2011

Date Uploaded to the Library:February 20, 2014

Tags:Undisputed, ADMIN, knowledge, Opinion, Judgment, summary, motion, AGENCY, requests, Insurance, defendant, plaintiff, watch, records, DOJ, michael, judicial, district, court, EPA, IRS, ICE, CIA


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UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

VERN MCKINLEY, 
 Plaintiff,  
vs.  Case No. 10-00420 (EGS)  

FEDERAL DEPOSIT INSURANCE 
CORPORATION,
 Defendant. 
____________________________________) 

PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT 
Plaintiff Vern McKinley, counsel and pursuant Rule 56(c) the Federal Rules Civil Procedure, hereby cross-moves for summary judgment against Defendant Federal Deposit Insurance Corporation. grounds therefor, Plaintiff respectfully refers the Court the accompanying Memorandum Law Opposition Defendants Motion for Summary Judgment and Support Plaintiffs Cross-Motion for Summary Judgment, Plaintiffs Local Civil Rule 7(h) Statement Material Facts Not Dispute, and Declaration Vern McKinley. Dated: April 13, 2011 Respectfully submitted, 
       Paul Orfanedes (D.C. Bar No. 429716) 
/s/ Michael Bekesha 
Michael Bekesha (D.C. Bar No. 995749) 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington, 20024 

(202) 646-5172 
Attorneys for Plaintiff 

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

VERN MCKINLEY, 
 Plaintiff,  
vs.  Case No. 10-00420 (EGS)  

FEDERAL DEPOSIT INSURANCE 
CORPORATION,
 Defendant. 
____________________________________) 

PLAINTIFFS MEMORANDUM LAW OPPOSITION DEFENDANTS 
MOTION FOR SUMMARY JUDGMENT AND SUPPORT PLAINTIFFS  
CROSS-MOTION FOR SUMMARY JUDGMENT 

Plaintiff Vern McKinley, counsel and pursuant Rule the Federal Rules Civil Procedure, respectfully submits this memorandum law opposition Defendant Federal Deposit Insurance Corporations motion for summary judgment and support Plaintiffs cross-motion for summary judgment. grounds therefor, Plaintiff states follows: 

MEMORANDUM LAW Background. set out prior briefing, because the unprecedented nature the response the Federal Deposit Insurance Corporation (FDIC) the financial crisis 2008-2009 and the continuing lack transparency with respect the governments actions, Plaintiff, private citizen, served three Freedom Information Act (FOIA) requests the FDIC December 2009 effort discover what the Government to.  U.S. DOJ Reporters Comm. for Freedom Press, 489 U.S. 749, 800 (1989). One Plaintiffs requests sought records from Defendant regarding its October 2008 decision create Temporary Liquidity Guarantee Program provide financial support banks, thrift institutions, and certain bank holding companies.  Plaintiffs other two requests sought records from Defendant regarding its decisions November 2008 and January 2009 extend such support Citigroup, Inc. and Bank America Corp., respectively.  Each request specifically asked for any information available these determinations.  Memorandum Opinion, dated December 23, 2010, Docket Entry No. (Opinion), 
Plaintiff initiated this lawsuit March 15, 2010, after Defendant failed respond his requests. April 15, 2010, one month after Plaintiff filed suit and approximately one week before Defendant was required respond Plaintiffs Complaint, Defendant produced six documents, comprising 102 pages heavily redacted meeting minutes and memos, response Plaintiffs requests. 
Shortly thereafter, Defendant moved dismiss Plaintiffs Complaint, and Plaintiff cross-moved for summary judgment.  Following briefing both motions, the Court denied Defendants motion dismiss and granted Plaintiffs motion for summary judgment part.  Defendant subsequently released the improperly withheld portions the documents. February 23, 2011, the Court ordered the parties brief what appears the only remaining issue this litigation: whether Defendant has satisfied its obligation conduct reasonable searches for documents responsive Plaintiffs requests.  Plaintiff submits that the answer no. 
II. Argument. Defendant must demonstrate that its searches were reasonable. its December 23, 2010 Memorandum Opinion, the Court, granting Plaintiffs motion for summary judgment regarding the adequacy Defendants searches, stated: The FDIC must either (1) conduct new search (or searches) for the records sought the plaintiff ensure the search adequate 
consistent with governing caselaw; (2) provide the Court with declarations from which the Court can find that the declarants have personal knowledge that the search methodology, procedures, and searches actually conducted were reasonably designed locate documents responsive plaintiffs requests.  
Opinion 10-11.  Defendant chose not conduct new searches.  Instead, submitted declarations attempt justify its prior searches for records responsive Plaintiffs requests. While Plaintiff does not contest that the declarants have personal knowledge Defendants search methodology and procedures that searches were actually conducted, the declarations fail satisfy Defendants burden demonstrating beyond material doubt that its search[es were] reasonably calculated uncover all relevant documents.  Nation Magazine United States Customs Service, F.3d 885, 890 (D.C. Cir. 1995) (quoting Truitt Department State, 897 F.2d 540, 542 (D.C. Cir. 1990)). The FDIC has failed conduct adequate searches. 
When courts analyze whether agency performed adequate search, courts not assess whether any further documents might conceivably exist.  Weisberg U.S. Department Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (quoting Perry Block, 684 F.2d 121, 128 
(D.C.
 Cir. 1982)). Instead, courts generally evaluate whether the governments search for responsive documents was adequate.  Weisberg, 705 F.2d 1351. The adequacy agencys search measured standard reasonableness and dependent upon the circumstances the case.  Id. (quoting McGehee CIA, 697 F.2d 1095, 1100-01 (D.C. Cir. 1983) and Founding Church Scientology National Security Agency, 610 F.2d 824, 834 

(D.C.
 Cir. 1979)). 

Specifically, agency must make good faith effort conduct search for the requested records, using methods which can reasonably expected produce the information requested, and cannot limit its search only one record system there are others that are likely turn the information requested.  Nation Magazine, F.3d 890 (internal citations omitted).  Based the declarations submitted Defendant, evident that Defendants searches were inadequate. Moreover, Defendant improperly limited its searches only one system records even though Defendant easily could have searched other systems that likely contain additional, requested records. 
Plaintiffs requests seek any and all information available regarding the October 2008 decision create the Temporary Liquidity Guarantee Program, the November 2008 decision extend assistance Citigroup, and the January 2009 decision extend assistance Bank America. response, Defendant provided only single set minutes and single supporting memorandum for each the three determinations.  Defendant did not produce any email correspondence, meeting notes, other memoranda.  Nor did Defendant assert that was withholding any such records under claims exemption. 
Defendant attempts blame Plaintiff, private citizen, for Defendants inadequate searches. FDICs Memorandum Support Motion for Summary Judgment (Defs Mem.) (Very simply, Plaintiff wanted email correspondence, meeting notes, memoranda from FDIC officials dating from before the Board meetings should have asked for that information. did not.).1  Yet, the Court has noted, [P]laintiff specifically asked for any information available [the three] determinations.  Opinion Plaintiff did not limit his requests just minutes and supporting memoranda. asked Defendant produce all records related Defendants actions.  Plaintiffs requests described exactly records was seeking.  
Defendant also implies that Plaintiff knew what specific records request because Plaintiff read the GAO report the issue. Yet, Plaintiff submitted his three FOIA requests December 2009.  The GAO report was not published until April 2010.  Therefore, Plaintiff had way knowing exactly which records existed the time his request. 
Yet, even the Court determines that Plaintiffs requests did not reasonably include these additional records  and Plaintiff does not concede that the requests not  Defendant nevertheless had a duty construe [the] request[s] liberally.  Nation Magazine, F.3d 
890. 
Moreover, Defendant has presented evidence that did not understand Plaintiffs FOIA requests include these additional records.  Nor has Defendant demonstrated that Plaintiffs requests were defective.  According Defendants own regulations, request does not reasonably describe the records requested, Defendant may return the request and specify the deficiency. C.F.R.  309.5(c).  Defendant never took any such action.  Instead, for the first time since Plaintiff submitted his requests more than months ago, Defendant claims declaration Fredrick Fisch that Plaintiffs requests are overbroad and failed reasonably describe the records sought. Declaration Fredrick Fisch  12, 18, and 25.  Even though Defendant claims that the requests failed reasonably describe the requested records, also incongruously claims that Plaintiff was seeking information specific action taken the FDIC Board Directors specific date. Id. 
The law the Circuit clear: The linchpin inquiry whether the agency able determine precisely what records are being requested.  Yaegar Drug Enforcement Administration, 678 F.2d 315, 326 (D.C. Cir. 1982). Based Mr. Fischs declaration apparent that Defendant understood which records Plaintiff was seeking.  Id. (It clear this case that the [agency] knew precisely which its records had been requested and the nature the information sought from those records.).  Plaintiff was seeking any information regarding three specifically-identified determinations Defendant.  Opinion Defendant simply failed conduct reasonable searches for all the records Plaintiff requested.  Defendant has not demonstrated that its searches were reasonable, and, therefore, not entitled summary judgment. 
Along with asserting for the first time that does not understand Plaintiffs FOIA requests, Defendant asserts that searching only one system records was reasonable.  Defendant wrong. Plaintiff demonstrated previously, the few records that Defendant produced Plaintiff demonstrate the inadequacy Defendants searches.  For example, with respect the TLG Program, the meeting minutes produced Defendant refer study performed Defendants own staff: 
Mr. Brown then stated that recent study [FDIC] staff the effect run uninsured deposits economic activity indicates that percent run would reduce GDP growth 1.16 percent per annum normal economy while the same run stressed economy could decrease GDP growth much 1.96 percent per annum. 
Minutes the Meeting the Board Directors the FDIC, October 13, 2008, Bates No. 56470. This study clearly responsive Plaintiffs request, and should have been produced. minimum, the study should have been identified the Vaughn index Defendant seeks withhold under claim exemption. try justify its failure produce records such the study, Defendant argues that an agency not required delve into the documents they locate seek out clues other responsive documents.  Defs Mem. support its assertion, Defendant cites one paragraph  out context  from Kowalczyk Department Justice, F.3d 386, 389 (D.C. Cir. 1996). After stating that agency is not required speculate about potential leads and not obligated look beyond the four corners the request for leads the location responsive documents[,] the Court Kowalczyk concluded: 
This not say that the agency may ignore what cannot help but know, but suspect that will the rare case indeed which agency record contains lead apparent that the Bureau cannot good faith fail pursue it. 
Id. The Court was correct. rare case for agency flatly fail perform its statutorily required duty. Yet, Defendants conduct this matter that rare case.   
Contrary Defendants assertions, Plaintiff has not asked Defendant chase rabbit trails that may appear documents.  Defs Mem.  Chasing rabbit trails colloquially understood mean exercise futility. other words, chasing rabbit trails often used describe the wasting time and energy pursue leads that will nowhere  even everywhere. Plaintiff, instead, requests that Defendant conduct searches reasonably designed locate documents responsive his requests.  Opinion 10.  Since the above-referenced study mentioned prominently responsive record identified Defendant, Defendant would not have wasted time and energy pursuing lead that went nowhere. Defendant could have easily asked Richard Brown, Chief Economist the Division Insurance and Research, for the study. Mr. Brown the staff member who referenced the study during the October 13, 2008 Meeting the Board Directors.  Minutes the Meeting the Board Directors the FDIC, October 13, 2008, Bates No. 56470. Obviously, such inquiry would not have been anything close chasing rabbit trails. 
Similarly, also obvious that other systems records addition the records the Executive Secretary System (ESS) are likely contain records responsive Plaintiffs requests. Each set minutes produced Defendant begins with list the names the meeting participants well their titles and the component Defendant that they represent.  Similarly, each case memorandum produced Defendant begins with the names, titles, and departments the individuals who prepared and received the case memoranda. other words, the lists names, titles, and components the participants and the authors and recipients the case memoranda make clear that Defendant could have easily ascertained which other systems records needed searched locate all responsive records.  Specifically, such other systems records would include, minimum, the following divisions Defendant, which are listed each case memorandum:  (1) the Division Resolutions and Receiverships; (2) the Division Supervision and Consumer Protection; (3) the Division Insurance and Research; and (4) the Office the General Counsel.  Because the extraordinary nature the actions taken Defendant during the height the financial crisis  including committing trillions dollars taxpayer funds assist financial institutions attempt restore order credit markets  inconceivable that officials and staff members who participated meetings and prepared received the case memoranda had prior knowledge the topics discussed and possessed records the issues and the decisions made.  Once again, such inquiry would not have been anything close chasing rabbit trails. 
Because least one other record exists that responsive Plaintiffs requests  the study referenced the minutes the October 13, 2008 meeting  irrefutable that Defendant has not produced all responsive records. Moreover, Defendant has not shown that its search was reasonable light the study. Perry, 684 F.2d 128 (Perhaps most troublesome gauging the adequacy the agencys search the fact that additional documents were found and released after affidavits were executed federal officials stating that further records responsive appellants request remained agency control.).  Therefore, Defendant has failed satisfy its burden demonstrating that its search for records responsive Plaintiffs requests was adequate and should conduct new search for all responsive records and produce all nonexempt, responsive records Plaintiff. 

III. Conclusion. 

For the foregoing reasons, Plaintiff respectfully requests that Defendants motion for summary judgment denied and that Plaintiffs cross-motion for summary judgment granted. Dated: April 13, 2011 Respectfully submitted, 
       Paul Orfanedes (D.C. Bar No. 429716) 
/s/ Michael Bekesha 
Michael Bekesha (D.C. Bar No. 995749) 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington, 20024 

(202) 646-5172 
Attorneys for Plaintiff 

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

VERN MCKINLEY,
 Plaintiff, 

vs. Case No. 10-00420 (EGS) 
FEDERAL DEPOSIT INSURANCE 
CORPORATION,
 Defendant. 
____________________________________) 

PLAINTIFFS RESPONSE DEFENDANTS STATEMENT  
MATERIAL FACTS NOT GENUINE DISPUTE AND PLAINTIFFS  
STATEMENT MATERIAL FACTS NOT GENUINE DISPUTE  
SUPPORT PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT 

Plaintiff Vern McKinley, counsel and pursuant Local Civil Rule 7.1(h), respectfully 
submits this response Defendants Statement Material Facts Not Genuine Dispute and 
Plaintiffs Statement Material Facts Not Genuine Dispute Support Plaintiffs Cross-
Motion for Summary Judgment: 	Plaintiffs Response Defendants Statement Material Facts Not Genuine Dispute. 	
Undisputed. 	
Undisputed. 	
Undisputed. 	
Undisputed. 	
Undisputed. 	
Undisputed. 	
Undisputed. 
Undisputed. 
Plaintiff lacks knowledge confirm deny whether such event occurred.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 

10. 
Plaintiff lacks knowledge confirm deny whether such event occurred.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 

11. 
Plaintiff lacks knowledge confirm deny whether such event occurred.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 

12. 
Plaintiff lacks knowledge confirm deny whether such event occurred.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases).

 13. 
Undisputed. 

14. 
Undisputed. 

15. Plaintiff lacks knowledge confirm deny whether such event occurred.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the

asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 
16. 
Plaintiff lacks knowledge confirm deny whether such event occurred.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 

17. 
Plaintiff lacks knowledge confirm deny whether such event occurred.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 

18. 
Plaintiff lacks knowledge confirm deny whether such event occurred.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases).

 19. 
Undisputed. 

20. 
Undisputed. 

21. 
Plaintiff lacks knowledge confirm deny whether such event occurred.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 

22. 
Plaintiff lacks knowledge confirm deny whether such event occurred.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the

asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 
23. 
Plaintiff lacks knowledge confirm deny whether such event occurred.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 

24. 
Plaintiff lacks knowledge confirm deny whether such event occurred.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 

II. 	Plaintiffs Statement Material Facts Not Genuine Dispute Support Plaintiffs Cross-Motion for Summary Judgment. 
For his own LCv.R. 7.1(h) statement material facts not genuine dispute, Plaintiff respectfully refers the Court Defendants statement and Plaintiffs response thereto, set forth above. Dated: April 13, 2011 Respectfully submitted, 
       Paul Orfanedes (D.C. Bar No. 429716) 
/s/ Michael Bekesha 
Michael Bekesha (D.C. Bar No. 995749) 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington, 20024 

(202) 646-5172 
Attorneys for Plaintiff THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

VERN McKINLEY, 
 Plaintiff,  Civil Action No. 10-00420 (EGS)  

FEDERAL DEPOSIT INSURANCE 
CORPORATION,
 Defendant. 
____________________________________) 

[PROPOSED] ORDER 
Upon consideration Plaintiffs Cross-Motion for Summary Judgment against Defendant Federal Deposition Insurance Corporation (FDIC), Defendant FDICs opposition thereto, and the entire record herein, hereby ORDERDED that: The Cross-Motion granted. 
Dated: 	________________________________       The Hon. Emmet Sullivan, U.S.D.J.



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