Case Detail

FOIA Project Annotation: Judge Randolph Moss has ruled that the Executive Office for U.S. Attorneys properly withheld records from Peter Bernegger, who was serving a prison sentence after being convicted of mail and bank fraud in the Northern District of Mississippi after showing that Bernegger failed to exhaust his administrative remedies when he did not pay assessed fees for processing his FOIA request. In response to Bernegger's request for records concerning his conviction, EOUSA located more than 9,000 responsive pages. After indicating that Bernegger was entitled to 100 free pages, the agency assessed a fee of $442.50 for the remaining 8,850 pages. Instead of paying the assessed fee, Bernegger filed an administrative appeal with the Office of Information Policy, arguing that he deserved a public interest fee waiver. OIP remanded the issue to EOUSA, which rejected Bernegger's claim. Bernegger filed a second appeal. This time, OIP upheld EOUSA's decision that Bernegger was not entitled to a fee waiver. Bernegger argued that the agency had failed to conduct an adequate search. But Moss noted that "but that contention, along with Bernegger's demand for a Vaughn index, ignores the plain text of the governing regulation, which provides that the relevant Department of Justice component need not 'begin to process the request' until the payment is made. The EOUSA, accordingly, need not defend the adequacy of its search, unless Bernegger can show that he was entitled to a fee waiver." In response, Bernegger argued that his criminal trial was rife with fraud and corruption. Moss found Bernegger's arguments inadequate, noting that "even assuming that a fraud of the nature that Bernegger alleges would constitute a matter of public interest, his filings lack any reasonable basis to conclude that the requested 'documents would increase public knowledge of the function of government.'" Moss also indicated that Bernegger "has failed to demonstrate that he has the 'ability and intention to effectively convey or disseminate the requested information to the public.' Here again, Bernegger offers no colorable argument in his opposition to the EOUSA's motion." He observed that "in this case, Bernegger's failure to elaborate on his plans to disseminate the requested information further supports OIP's decision denying his waiver request."
Issues: Public Interest Fee Waiver

Date Filed	Doc #	Docket Text
2018-04-17		Initiating Pleading & IFP Application Received on 4/17/2018. (zmd) (Entered: 04/19/2018)
2018-04-17	1	COMPLAINT against EXECUTIVE OFFICE OF U.S. ATTORNEYS with Jury Demand filed by PETER M. BERNEGGER. (Attachments: # 1 Civil Cover Sheet) (zmd) (Entered: 04/19/2018)
2018-04-17	2	MOTION for Leave to Proceed in forma pauperis by PETER M. BERNEGGER. (zmd) (Entered: 04/19/2018)
2018-04-17	3	MOTION to have U.S. Marshal Serve Process on defendant EOUSA by PETER M. BERNEGGER. (zmd) (Entered: 04/19/2018)
2018-05-07	4	FIAT ORDER granting 2 Motion for Leave to Proceed in forma pauperis. "Leave to file without prepayment of costs GRANTED." Signed by Judge Colleen Kollar-Kotelly on 5/7/2018. (zmd) (Entered: 05/11/2018)
2018-05-11	5	NOTICE OF RELATED CASE by PETER M. BERNEGGER. Case related to Case No. 17-cv-563. (zmd) (Entered: 05/11/2018)
2018-05-11		Case Reassigned to Judge Randolph D. Moss. Unassigned is no longer assigned to the case. (zmd) (Entered: 05/11/2018)
2018-06-04	6	SUMMONS (3) Issued as to EXECUTIVE OFFICE OF U.S. ATTORNEYS, U.S. Attorney and U.S. Attorney General (zmd) (Entered: 06/04/2018)
2018-07-02	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 6/29/18. (ztd) (Entered: 07/10/2018)
2018-07-20	8	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/19/2018. Answer due for ALL FEDERAL DEFENDANTS by 8/18/2018. (ztd) (Entered: 07/24/2018)
2018-07-25	9	NOTICE of Appearance by Joshua L. Rogers on behalf of All Defendants (Rogers, Joshua) (Entered: 07/25/2018)
2018-08-07	10	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. EXECUTIVE OFFICE OF U.S. ATTORNEYS served on 8/3/2018 (jf) (Entered: 08/07/2018)
2018-08-17	11	First MOTION for Extension of Time to File Answer by EXECUTIVE OFFICE OF U.S. ATTORNEYS (Attachments: # 1 Text of Proposed Order)(Rogers, Joshua) (Entered: 08/17/2018)
2018-08-20		MINUTE ORDER: Upon consideration of Defendant's Motion for Extension of Time 11 , it is hereby ORDERED that the motion is GRANTED. Defendant shall answer or otherwise respond to the Complaint on or before September 19, 2018. Signed by Judge Randolph D. Moss on 8/20/2018. (lcrdm1, ) (Entered: 08/20/2018)
2018-08-20		Set/Reset Deadlines: Answer or otherwise respond to the Complaint on or before 9/9/2018. (dot) (Entered: 08/20/2018)
2018-09-19	12	ANSWER to 1 Complaint by EXECUTIVE OFFICE OF U.S. ATTORNEYS.(Rogers, Joshua) (Entered: 09/19/2018)
2018-09-25		MINUTE ORDER: It is hereby ORDERED that the parties shall submit a joint status report proposing a schedule for further proceedings on or before October 25, 2018. Signed by Judge Randolph D. Moss on 9/25/2018. (lcrdm1, ) (Entered: 09/25/2018)
2018-09-25		Set/Reset Deadlines: Joint Status Report due by 10/25/2018. (kt) (Entered: 09/25/2018)
2018-09-27	13	RESPONSE re 12 Answer to Complaint filed by PETER M. BERNEGGER. (ztd) (Entered: 10/02/2018)
2018-10-05		MINUTE ORDER: Upon consideration of the Plaintiff's Motion for Service 3 , it is hereby ORDERED that the motion is DENIED as moot. The U.S. Marshal has served process on Defendants, see Dkt. 7 , 8 , 10 , and Defendants have appeared before this Court, see Dkt. 9 . Signed by Judge Randolph D. Moss on 10/5/2018. (lcrdm1, ) (Entered: 10/05/2018)
2018-10-24	14	Joint STATUS REPORT by EXECUTIVE OFFICE OF U.S. ATTORNEYS. (Rogers, Joshua) (Entered: 10/24/2018)
2018-11-14	15	MOTION for Discovery, MOTION for Jury Trial to be Set by PETER M. BERNEGGER (ztd) (Main Document 15 replaced on 11/20/2018) (ztd). (Entered: 11/16/2018)
2018-11-21		MINUTE ORDER: Upon consideration of Plaintiff's motion for discovery, Dkt. 15 , it is hereby ORDERED that the motion is DENIED without prejudice as premature. The Court further ORDERS that the parties shall meet and confer regarding a schedule for filing dispositive motions and submit a proposed briefing schedule on or before December 17, 2018. Plaintiff may, if appropriate, address his contention that discovery is necessary in responding to the government's motion for summary judgment or other dispositive motion. Signed by Judge Randolph D. Moss on 11/21/2018. (lcrdm1, ) (Entered: 11/21/2018)
2018-11-21		Set/Reset Deadlines: Proposed Briefing Schedule due by 12/17/2018 (lsj) (Entered: 11/21/2018)
2018-12-11	17	RESPONSE TO ORDER OF THE COURT re Order on Motion for Discovery,,, Order on Motion for Trial,, filed by PETER M. BERNEGGER. (ztd) (Entered: 12/14/2018)
2018-12-14	16	MOTION for Extension of Time to File Briefing Schedule by EXECUTIVE OFFICE OF U.S. ATTORNEYS (Attachments: # 1 Text of Proposed Order)(Rogers, Joshua) (Entered: 12/14/2018)
2018-12-18	18	MOTION for Order by PETER M. BERNEGGER (ztd) (Entered: 12/19/2018)
2018-12-22		MINUTE ORDER: Upon consideration of Defendant's motion for extension of time, Dkt. 16 , it is hereby ORDERED that the motion is GRANTED in part and DENIED in part. Defendant shall confer with Plaintiff and submit a joint proposed briefing schedule on of before January 7, 2019. No additional extensions will be granted, absent extraordinary circumstances. It is further ORDERED that Plaintiff's motion to find Defendant in contempt, Dkt. 18 , is DENIED. Signed by Judge Randolph D. Moss on 12/22/2018. (lcrdm1, ) (Entered: 12/22/2018)
2018-12-26		Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 1/7/2019. (kt) (Entered: 12/26/2018)
2019-01-02	19	MOTION to Stay by EXECUTIVE OFFICE OF U.S. ATTORNEYS (Attachments: # 1 Text of Proposed Order)(Coles-Huff, Doris) (Entered: 01/02/2019)
2019-01-02		MINUTE ORDER: Upon consideration of Defendant's motion to stay, Dkt. 19 , it is hereby ORDERED that the motion is GRANTED. As soon as Congress has appropriated funds for the Department of Justice, Defendant's counsel shall notify the Court and the parties shall meet and confer to propose a schedule for dispositive motions. Signed by Judge Randolph D. Moss on 1/2/2019. (lcrdm1, ) (Entered: 01/02/2019)
2019-01-29	20	NOTICE of Restored Government Funding by EXECUTIVE OFFICE OF U.S. ATTORNEYS (Rogers, Joshua) (Entered: 01/29/2019)
2019-01-31		MINUTE ORDER: Upon consideration of Defendant's notice of restored funding, Dkt. 20 , it is hereby ORDERED that the stay in this case is lifted. It is further ORDERED that the parties shall meet and confer and submit a joint status report, on or before Friday, February 8, 2019, that includes a proposed schedule for further proceedings in this matter. Signed by Judge Randolph D. Moss on 1/31/2019. (lcrdm1, ) (Entered: 01/31/2019)
2019-01-31		Set/Reset Deadlines: Joint Status Report due by 2/8/2019. (kt) (Entered: 01/31/2019)
2019-02-25	21	MOTION to Dismiss, MOTION Full Awarding of All Records Requested to Plaintiff by PETER M. BERNEGGER (ztd) (Entered: 02/28/2019)
2019-03-11	22	MOTION for Extension of Time to File Joint Status Report by EXECUTIVE OFFICE OF U.S. ATTORNEYS (Attachments: # 1 Text of Proposed Order)(Rogers, Joshua) (Entered: 03/11/2019)
2019-03-11	23	RESPONSE re 21 MOTION to Dismiss MOTION Full Awarding of All Records Requested to Plaintiff filed by EXECUTIVE OFFICE OF U.S. ATTORNEYS. (Attachments: # 1 Text of Proposed Order)(Rogers, Joshua) (Entered: 03/11/2019)
2019-03-21		MINUTE ORDER: Upon consideration of Defendant's motion for extension of time, Dkt. 22 , it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that following schedule shall govern proceedings in this matter: (1) Defendant shall file its motion for summary judgment on or before April 30, 2019; (2) Plaintiff shall file his opposition or any cross-motion on or before May 30, 2019; (3) Defendant shall file its response/reply on or before June 29, 2019; and (4) Plaintiff will file his reply on or before July 29, 2019. Signed by Judge Randolph D. Moss on 3/21/2019. (lcrdm1, ) (Entered: 03/21/2019)
2019-03-21		Set/Reset Deadlines: Defendant shall file its motion for summary judgment on or before 4/30/2019; Plaintiff shall file his opposition or any cross-motion on or before 5/30/2019; Defendant shall file its response/reply on or before 6/29/2019; Plaintiff will file his reply on or before 6/29/2019. (kt) (Entered: 03/21/2019)
2019-03-21	24	REPLY to opposition to motion re 21 MOTION to Dismiss MOTION Full Awarding of All Records Requested to Plaintiff filed by PETER M. BERNEGGER. (tth) (Entered: 03/26/2019)
2019-03-21	25	RESPONSE re 22 MOTION for Extension of Time to File Joint Status Report filed by PETER M. BERNEGGER. (See Docket Entry 24 to view document) (tth) (Entered: 03/26/2019)
2019-04-29	26	MOTION for Summary Judgment, MOTION to Dismiss by EXECUTIVE OFFICE OF U.S. ATTORNEYS (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Rogers, Joshua). Added MOTION to Dismiss on 6/26/2019 (jf). (Entered: 04/29/2019)
2019-05-29	27	MOTION for Extension of Time to File Response/Reply as to 26 MOTION for Summary Judgment by PETER M. BERNEGGER (ztd) (Entered: 06/03/2019)
2019-06-03		MINUTE ORDER: Upon consideration of Plaintiff's motion for extension, Dkt. 27 , it is hereby ORDERED that the motion is GRANTED. Plaintiff shall file his response to Defendant's motion for summary judgment on or before July 1, 2019. Signed by Judge Randolph D. Moss on 6/3/2019. (lcrdm1, ) (Entered: 06/03/2019)
2019-06-03		Set/Reset Deadlines: Plaintiff's Response to 26 Motion for Summary Judgment due by 7/1/2019. (dot) (Entered: 06/05/2019)
2019-06-25	28	RESPONSE re 26 MOTION for Summary Judgment MOTION to Dismiss filed by PETER M. BERNEGGER. (jf) (Entered: 06/26/2019)
2019-06-28	29	REPLY to opposition to motion re 26 MOTION for Summary Judgment MOTION to Dismiss filed by EXECUTIVE OFFICE OF U.S. ATTORNEYS. (Attachments: # 1 Declaration (Natasha Hudgins), # 2 Exhibit (Exhibits A-H))(Rogers, Joshua) (Entered: 06/28/2019)
2019-07-29	30	NOTICE of Change of Address by PETER M. BERNEGGER (ztd) (Entered: 08/01/2019)
2019-09-30		MINUTE ORDER: Upon consideration of the Plaintiffs motion for termination of case with full awarding of all records requested to Plaintiff 21 , it is hereby ORDERED that the motion is DENIED. Failure, by both parties, to timely file a single status report is not grounds for awarding Plaintiff full relief, imposing sanctions, or holding Defendant in contempt. Signed by Judge Randolph D. Moss on 09/30/19. (lcrdm3, ) (Entered: 09/30/2019)
2020-05-20		MINUTE ORDER: Upon consideration of Defendant's motion to dismiss or, in the alternative, for summary judgment, Dkt. 26 , it is hereby ORDERED that the motion is DENIED without prejudice. First, Defendant's motion is properly considered a motion for summary judgment because it relies on factual assertions and materials not contained within or appended to Plaintiff's complaint. See Dkt. 26 ; Dkt. 26-2; Guam Indus. Servs., Inc. v. Rumsfeld , 442 F. Supp. 2d 21, 22 n.1 (D.D.C. 2006) (treating Defendant's "motion to dismiss or for summary judgment" as a motion for summary judgment because it "relies on extrinsic evidence"). Second, Defendant admits that, in filing its motion for summary judgment, it "neglected to attach the declaration and exhibits" upon which its motion relies "when filing EOUSA's Motion in the Court's electronic filing system." Dkt. 29 at 2. Defendant included the Hudgins Declaration and exhibits A-H as attachments to its reply brief, filed on June 28, 2019. Dkt. 29 ; Dkt. 29-1; Dkt. 29-1. But that does not remedy the fact that they were unavailable to Plaintiff at the time that he filed his opposition to Defendant's motion on June 25, 2019. Dkt. 28 ; Fed. R. Civ. P. 56(c)(1)(A) (requiring that a movant support its factual positions through citations "to particular parts of materials in the record " (emphasis added)). Defendant's representation in its reply brief that it "does not object to Plaintiff filing a sur-reply if he so wishes," Dkt. 29 at 1 n.1, does not cure Defendant's failure to provide the relied-upon materials along with its motion in the first place, particularly given that Plaintiff is pro se. The Court also notes its failure to issue a Fox/Neal order alerting pro se Plaintiff to his obligations in opposing Defendant's motion following Defendant's filing of its motion. Given Defendant's error as well as the Court's, it is hereby ORDERED that Defendant may refile a motion for summary judgment, appending any materials upon which that motion relies, on or before June 3, 2020. Plaintiff may file any opposition to that motion on or before July 1, 2020; and Defendant may file any reply on or before July 14, 2020. The parties are encouraged to focus on the merits of Defendant's refusal to grant Plaintiff's duplication fee waiver request. See Cause of Action v. FTC , 799 F.3d 1108, 1111-1113 (D.C. Cir. 2015) (remanding to district court to review Defendant's "denial of [the plaintiff's] applications for fee waivers" where the Plaintiff had not paid the fee and Defendant had accordingly withheld responsive documents); id. at 1115 (explaining that, for the "public-interest waiver provision" to apply, "[d]isclosure of the requested information must: (1) shed light on 'the operations or activities of the government'; (2) be 'likely to contribute significantly to public understanding' of those operations or activities; and (3) not be 'primarily in the commercial interest of the requester.'" (quoting 5 U.S.C. 552(a)(4)(A)(iii)))); see also 5 U.S.C. 552(4)(A)(vii) (providing for courts' de novo review of fee waiver determinations based on the "record before the agency"). Signed by Judge Randolph D. Moss on 5/20/2020. (lcrdm1) (Entered: 05/20/2020)
2020-06-02	31	NOTICE OF SUBSTITUTION OF COUNSEL by William Chang on behalf of EXECUTIVE OFFICE OF U.S. ATTORNEYS Substituting for attorney JOSHUA ROGERS (Chang, William) (Entered: 06/02/2020)
2020-06-03	32	MOTION for Extension of Time to re-file Motion for Summary Judgment by EXECUTIVE OFFICE OF U.S. ATTORNEYS (Attachments: # 1 Text of Proposed Order)(Chang, William) Modified on 6/3/2020 (ztd). (Entered: 06/03/2020)
2020-06-04		MINUTE ORDER: Upon consideration of Defendant's motion for extension of time 32 , it is hereby ORDERED that the motion is GRANTED. Defendant shall file its motion for summary judgment on or before June 24, 2020. Signed by Judge Randolph D. Moss on 6/4/20. (lcrdm3, ) (Entered: 06/04/2020)
2020-06-05	33	NOTICE of Change of Address by PETER M. BERNEGGER (ztd) (Entered: 06/09/2020)
2020-06-24	34	MOTION for Summary Judgment by EXECUTIVE OFFICE OF U.S. ATTORNEYS (Attachments: # 1 Memorandum in Support, # 2 Exhibit Hudgins EOUSA Decl., # 3 Exhibit Agency Record, # 4 Text of Proposed Order)(Chang, William) (Entered: 06/24/2020)
2020-06-25	35	ERRATA by EXECUTIVE OFFICE OF U.S. ATTORNEYS 34 MOTION for Summary Judgment filed by EXECUTIVE OFFICE OF U.S. ATTORNEYS. (Attachments: # 1 Statement of Facts)(Chang, William) (Entered: 06/25/2020)
2020-07-10	36	AFFIDAVIT by PETER M. BERNEGGER. (ztd) (Entered: 07/14/2020)
2020-07-17	37	FOX/NEAL ORDER: Plaintiff is hereby ORDERED to file any supplement to his response to Defendants' Motion for Summary Judgment, Dkt. 34 , on or before August 7, 2020. See document for details. Signed by Judge Randolph D. Moss on 7/17/20. (lcrdm3, ) (Entered: 07/17/2020)
2020-08-04	38	AFFIDAVIT by PETER M. BERNEGGER. (ztd) (Entered: 08/09/2020)
2020-08-13		MINUTE ORDER: Upon consideration of the Affidavit of Plaintiff Bernegger, Dkt. 38 , it is hereby ORDERED that Defendant may file any reply to said affidavit on or before August 28, 2020. Signed by Judge Randolph D. Moss on 08/13/2020. (lcrdm3) (Entered: 08/13/2020)
2020-08-13		Set/Reset Deadlines: Defendant's Reply due by 8/28/2020. (kt) (Entered: 08/13/2020)
2020-08-13	39	AFFIDAVIT by PETER M. BERNEGGER. (ztd);' ("Leave to file Granted" by Judge Randolph D. Moss 8/13/2020) (Entered: 08/13/2020)
2020-08-14	40	REPLY to opposition to motion re 34 MOTION for Summary Judgment filed by EXECUTIVE OFFICE OF U.S. ATTORNEYS. (Chang, William) (Entered: 08/14/2020)
2020-08-26	41	NOTICE by PETER M. BERNEGGER (ztd) (Entered: 08/27/2020)
2020-11-05	42	NOTICE OF SUBSTITUTION OF COUNSEL by Paul Cirino on behalf of EXECUTIVE OFFICE OF U.S. ATTORNEYS Substituting for attorney Doris Denise Coles-Huff and William Chang (Cirino, Paul) (Entered: 11/05/2020)
2022-02-25	43	MEMORANDUM OPINION: For the reasons stated in the attached Memorandum Opinion, the Court will GRANT Defendant's motion for summary judgment, Dkt. 34 . See document for details. A separate order will issue. Signed by Judge Randolph D. Moss on 2/25/2022. (lcrdm1) (Entered: 02/25/2022)
2022-02-25	44	ORDER: For the reasons stated in the Court's Memorandum Opinion, Dkt. 43 , it is hereby ORDERED that Defendant's motion for summary judgment, Dkt. 34 , is GRANTED, and that judgment is hereby ENTERED in favor of Defendant. This Order constitutes a final judgment of the Court within the meaning of Rule 58(a) of the Federal Rules of Civil Procedure. The Deputy Clerk of Court is directed to terminate the case. See document for details. Signed by Judge Randolph D. Moss on 2/25/2022. (lcrdm1) (Entered: 02/25/2022)
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