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Case TitleBURKE v. DEPARTMENT OF HOMELAND SECURITY
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2016cv01670
Date Filed2016-08-17
Date Closed2017-09-08
JudgeJudge Randolph D. Moss
PlaintiffDARRYL BURKE
Case DescriptionDarryl Burke, a federal prisoner, submitted a FOIA request to the Secret Service for records related to his assets that were seized when he was arrested. After hearing nothing from the agency, Burke filed suit.
Complaint issues: Failure to respond within statutory time limit

DefendantEXECUTIVE OFFICE FOR THE UNITED STATES ATTORNEY
TERMINATED: 08/17/2016
DefendantDEPARTMENT OF HOMELAND SECURITY
AppealD.C. Circuit 17-5224
Documents
Docket
Complaint
Complaint attachment 1
Opinion/Order [25]
FOIA Project Annotation: Judge Randolph Moss has ruled that the Secret Service conducted an adequate search for records containing the signatures of two individuals requested by prisoner Darryl Burke. Burke, who was convicted of bank fraud, submitted three separate requests for records pertaining to a real estate contract between two third parties, and notes taken by the Secret Service special agent about that page. Although the agency initially declined to search for the records without a third-party authorization, the agency ultimately conducted three searches of the files of the special agent involved in Burke's case, finding records that pertained to a grand jury subpoena to Wells Fargo, but were unable to locate the specific pages Burke requested. While both Burke and the agency insisted that a protective order issued in Burke's case was relevant, Moss pointed out that "the Service does not ultimately rely on that protective order in seeking summary judgment. With or without a protective order, the Secret Service cannot release records it does not have." Commenting on Burke's assertions about the effect of the protective order, Moss noted that "Burke appears to misunderstand the nature of a protective order. A protective order does not create a new class of documents that are necessarily filed and maintained separately from other documents, but rather governs how covered documents may be used and to whom they may be disclosed."
Issues: Adequacy - Search
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2016-08-171COMPLAINT against EXECUTIVE OFFICE FOR THE UNITED STATES ATTORNEY filed by DARRYL BURKE. (Attachments: # 1 Civil Cover Sheet)(zrdj) (Entered: 08/18/2016)
2016-08-172NOTICE OF RELATED CASE. Case related to Case No. 16-1595. (zrdj) (Entered: 08/18/2016)
2016-08-173MOTION for Leave to Proceed in forma pauperis by DARRYL BURKE (zrdj) (Entered: 08/18/2016)
2016-08-174PRISONER TRUST FUND ACCOUNT STATEMENT for period of six months by DARRYL BURKE (zrdj) (Entered: 08/18/2016)
2016-08-175ORDER that this civil action shall proceed under the Freedom of Information Act against the Department of Homeland Security. The Executive Office for United States Attorneys is DISMISSED WITH PREJUDICE as a party defendant. Signed by Judge Christopher R. Cooper on 8/16/2016. (zrdj) (Entered: 08/18/2016)
2016-08-176ORDER directing an initial partial filing fee in the amount of $8.20 from Prison Account of Darryl Burke and granting 2 MOTION for Leave to Proceed In Forma Pauperis (see order for full details). Signed by Judge Christopher R. Cooper on 8/16/2016. (zrdj) (Entered: 08/18/2016)
2016-08-187SUMMONS (3) Issued as to DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (md) (Entered: 08/18/2016)
2016-08-268RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF HOMELAND SECURITY served on 8/24/2016, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 8/24/2016., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/24/2016. ( Answer due for ALL FEDERAL DEFENDANTS by 9/23/2016.) (zrdj) (Entered: 08/29/2016)
2016-09-229NOTICE of Appearance by Marsha Wellknown Yee on behalf of DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Certificate of Service)(Yee, Marsha) (Entered: 09/22/2016)
2016-09-2210MOTION for Extension of Time to File Defendant's Response to Plaintiff's Complaint by DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order, # 3 Certificate of Service)(Yee, Marsha) (Entered: 09/22/2016)
2016-09-24MINUTE ORDER: Upon consideration of defendant's motion for an extension of time 10 , the motion is hereby GRANTED, and it is ORDERED that defendant shall be permitted to answer or otherwise respond to the complaint on or before November 10, 2016. Signed by Judge Randolph D. Moss on 9/24/2016. (lcrdm3, ) (Entered: 09/24/2016)
2016-09-26Set/Reset Deadlines: Defendant shall be permitted to answer or otherwise respond to the complaint on or before 11/10/2016. (kt) (Entered: 09/26/2016)
2016-11-1011ANSWER to 1 Complaint by DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Certificate of Service)(Yee, Marsha) (Entered: 11/10/2016)
2016-12-0112MOTION for Extension of Time by DARRYL BURKE (zrdj) (Entered: 12/05/2016)
2016-12-05MINUTE ORDER: Plaintiff has moved for an extension of time to file a "reply to Defendant's complaint" 12 . To clarify: At this stage of the litigation, Plaintiff has filed his complaint 1 , and Defendant has now filed an answer 11 . The Federal Rules of Civil Procedure do not require that Plaintiff otherwise respond to Defendant's answer. The Rules do provide, however, that either party may move for summary judgment, see Rule 56, and that the Court may set a briefing schedule for such motions, see Rule 56(b). The Court will construe Plaintiff's motion as a request for such a schedule. Accordingly, it is hereby ORDERED that any party wishing to file a motion for summary judgment shall do so on or before January 16, 2017; any oppositions shall be filed on or before February 13, 2017; and any replies shall be filed on or before March 13, 2017. To the extent Plaintiff's motion requests an extension, that request is DENIED without prejudice as moot in light of the above schedule. Signed by Judge Randolph D. Moss on 12/5/2016. (lcrdm3, ) (Entered: 12/05/2016)
2016-12-05Set/Reset Deadlines: Any party wishing to file a motion for summary judgment shall do so on or before 1/16/2017; Any oppositions shall be filed on or before 2/13/2017; Any replies shall be filed on or before 3/13/2017. (kt) (Entered: 12/05/2016)
2017-01-1313MOTION for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Statement of Facts, # 2 Declaration (Campbell), # 3 Declaration (Falletich), # 4 Text of Proposed Order, # 5 Certificate of Service)(Yee, Marsha) (Entered: 01/13/2017)
2017-01-1414FOX / NEAL ORDER: Plaintiff is hereby ORDERED to file an opposition to Defendant's Motion for Summary Judgment 13 on or before February 13, 2017. Plaintiff is further advised that, if he does not file an opposition or seek an extension of time by that date, the Court may dismiss the action for failure to prosecute, may rule on the motion based on Defendant's arguments alone, and may accept as true the factual assertions in Defendant's motion that are supported by evidence. See attached document for details. Signed by Judge Randolph D. Moss on 1/14/2017. (lcrdm3, ) (Entered: 01/14/2017)
2017-01-17Set/Reset Deadlines: Plaintiff is to file an opposition to Defendant's Motion for Summary Judgment 13 on or before 2/13/2017. (kt) (Entered: 01/17/2017)
2017-01-3015Memorandum in opposition to re 13 MOTION for Summary Judgment filed by DARRYL BURKE. (jf) (Entered: 02/01/2017)
2017-02-1316Memorandum in opposition to re 13 MOTION for Summary Judgment filed by DARRYL BURKE. "LEAVE TO FILE GRANTED" by Judge Randolph D. Moss (zrdj) (Entered: 02/14/2017)
2017-02-1317MOTION TO SUPPLEMENT THE RECORD by DARRYL BURKE (See docket entry 16 to view document)(zrdj) (Entered: 02/14/2017)
2017-02-14MINUTE ORDER: Upon consideration of Plaintiff's "Motion to Supplement the Record" 16 , the motion is hereby GRANTED. The Court will construe Plaintiff's motion as a supplement to Plaintiff's initial Memorandum in Opposition 15 to Defendant's Motion for Summary Judgment, and will consider it as part of the same. Signed by Judge Randolph D. Moss on 2/14/2017. (lcrdm3, ) (Entered: 02/14/2017)
2017-02-1418MOTION for Subpoenas to be issued by the Clerk by DARRYL BURKE "LEAVE TO FILE GRANTED" by Judge Randolph D. Moss(zrdj) (Entered: 02/16/2017)
2017-02-17MINUTE ORDER: Upon consideration of Plaintiff's Motion for Subpoenas to be Issued 18 , the motion is hereby DENIED without prejudice pending resolution of Defendant's motion for summary judgment. Plaintiff has not met the high burden necessary to justify discovery in a Freedom of Information Act case. Signed by Judge Randolph D. Moss on 2/17/2017. (lcrdm3, ) (Entered: 02/17/2017)
2017-03-1319MOTION for Extension of Time to File Defendant's Reply in Further Support of its Motion for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Yee, Marsha) (Entered: 03/13/2017)
2017-03-14MINUTE ORDER: Upon consideration of Defendant's Motion for Extension of Time to File Reply 19 , the motion is hereby GRANTED. Defendant may file its reply in support of its Motion for Summary Judgment on or before March 21, 2017. Signed by Judge Randolph D. Moss on 3/14/2017. (lcrdm3, ) (Entered: 03/14/2017)
2017-03-15Set/Reset Deadlines: Defendant may file its reply in support of its Motion for Summary Judgment on or before 3/21/2017. (kt) (Entered: 03/15/2017)
2017-03-2120REPLY to opposition to motion re 13 MOTION for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Declaration (Brian Swain), # 2 Certificate of Service)(Yee, Marsha) (Entered: 03/21/2017)
2017-08-01MINUTE ORDER: As Plaintiff notes in his opposition to Defendant's motion for summary judgment, the "signature page" of the "real estate contract between John H. Cobb and Claris[s]a Garvey" and "any notes about th[at] [s]ignature page from S.S. Agent Nat Maloney are the only documents [he] wants to receive" as a result of this FOIA action. Dkt. 15 at 5. He also attaches to his supplemental opposition several pages of trial transcripts from his criminal trial in which a witness discusses the signature page of that real estate contract and in which a lawyer indicates that the signature page has been entered into evidence as "Government... Exhibit UU." Dkt. 16 at 5-6. In its reply brief, Defendant notes that, as part of its search for that signature page, it reviewed "10 banker boxes of documents associated with the criminal investigation of [Plaintiff]" and that it "search[ed]... all of the electronic material related to [Plaintiff's] criminal investigation on the Miami Field Office network drive," but could not locate it. Dkt. 20 at 2. Defendant's reply brief does not, however, note if it maintained copies of the trial exhibits from Plaintiff's criminal trial, and, if so, whether it searched those trial exhibits for the signature page. Accordingly, on or before August 8, 2017, Defendant is hereby ORDERED to submit a supplemental declaration informing the Court whether it has maintained a copy of the trial exhibits from Plaintiff's criminal trial, 1:2013-cr-20616-JIC; if so, whether it searched those trial exhibits for the signature page described in Plaintiff's FOIA request; and, if so, what, if any, responsive records were located as a result of that search. Signed by Judge Randolph D. Moss on 8/1/2017. (lcrdm1, ) (Entered: 08/01/2017)
2017-08-01Set/Reset Deadlines: Defendant to submit a supplemental declaration by 8/8/2017. (dot) (Entered: 08/01/2017)
2017-08-0721NOTICE of Filing Supplemental Declaration by DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Declaration Supplemental, # 2 Certificate of Service)(Yee, Marsha) (Entered: 08/07/2017)
2017-08-2322MOTION for In Camera Review; "Let this be filed" by Judge Randolph D. Moss by DARRYL BURKE (td) (Entered: 08/25/2017)
2017-08-2323RESPONSE to the Governments Supplemental Declaration of Brian Swain re 21 Notice (Other) filed by DARRYL BURKE. "Let this be filed" by Judge Randolph D. Moss (td) Modified on 8/25/2017 (td). (Entered: 08/25/2017)
2017-08-2824MOTION for Extension of Time to File Response to Plaintiff's "Motion for In Camera Review" by DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Yee, Marsha) (Entered: 08/28/2017)
2017-09-0825MEMORANDUM OPINION on Defendant's motion for summary judgment (Dkt. 13 ), Plaintiff's motion for in camera review (Dkt. 22 ), and Defendant's motion for an extension of time to respond to Plaintiff's motion for in camera review (Dkt. 24 ). See document for details. A separate order (Dkt. 26 ) will issue. Signed by Judge Randolph D. Moss on 9/8/2017. (lcrdm1, ) (Entered: 09/08/2017)
2017-09-0826ORDER: For the reasons stated in the accompanying Memorandum Opinion, Dkt. 25 , it is hereby ORDERED that Defendant's motion for summary judgment, Dkt. 13 , is GRANTED; that Plaintiff's motion for in camera review, Dkt. 22 , is DENIED; and that Defendant's motion for an extension of time to respond to Burke's motion for in camera review, Dkt. 24 , is DENIED as moot. See attached document. Signed by Judge Randolph D. Moss on 9/8/2017. (lcrdm1, ) (Entered: 09/08/2017)
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