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Shortall v. Baltimore District U.S. Army Corps of Engineers

United States District Court, D. Maryland

June 4, 2015

PURNELL A. SHORTALL et al.
v.
BALTIMORE DISTRICT U.S. ARMY CORPS OF ENGINEERS

MEMORANDUM

WILLIAM M. NICKERSON, Senior District Judge.

Before the Court is a Motion to Dismiss filed by Defendant Baltimore District U.S. Army Corps of Engineers (the Corps). ECF No. 9. The motion is fully briefed and ripe for review. Upon a review of the papers, facts, and applicable law, the Court determines that no hearing is necessary, Local Rule 105.6, and that Defendant's motion will be granted.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs, Purnell and Mary Ann Shortall (the Shortalls), pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seek documents that they believe are in the Corps' possession related to a piece of property they own located at 11523 Cordova Road, Cordova, Maryland, 21625 (the Property). In particular, they seek field notes of a former Corps Non-Tidal Wetlands Consultant, Alex Dolgos, to confirm that in 1991 Mr. Dolgos recommended to the Shortalls to leave in place metal disposed of on the Property. The Shortalls have been ordered to remove this metal by the Maryland Department of the Environment, and they believe that Dolgos' field notes would support their contention that it would be more environmentally sound to leave the metal in place.

On September 15, 2014, the Shortalls submitted their FOIA request to the Corps asking for "all written materials, photographs, photocopies, maps, drawings, hand written notes and other material in your possession and on record... maintained during the time of 1985-2014" that related to the Property "in the name of Purnell and Mary Ann Shortall, or Shortall Building Supplies & Hardware, Inc." ECF No. 1-1. A Corps employee, Michael S. Fraer, called the Shortall household on September 24, 2014, to discuss the request and an agreement was made and confirmed by e-mail to limit the request to the time period of 1985-1992. ECF No. 1-2.

On October 3, 2014, Mr. Fraer sent an e-mail notifying the Shortalls that the Corps made an initial determination to grant the FOIA request. ECF No. 1-3. On the same date, Mr. Fraer also sent a memorandum to the Chief of the Operations Division in the Baltimore District Regulatory Branch requesting responsive copies by October 14, 2014. ECF No. 9-6. No response from the Regulatory Branch by that date is in the record. Mr. Fraer left the Army Corps on October 14 and at that point the Shortalls' request was dropped. Mrs. Shortall sent emails to Mr. Fraer's account on October 30 and November 13, 2014, which went unanswered. ECF Nos. 1-4 and 1-5.

Finally, on December 1, 2014, Mr. Shortall sent a letter to the Corps notifying the Corps that he had yet to receive his FOIA documents and he would file legal proceedings if he did not receive the documents by December 12. ECF No. 1-6. On December 9, 2014, Michael Shields, an attorney in the Baltimore District Office Counsel, notified Mrs. Shortall by e-mail of Mr. Fraer's departure, that her October and November e-mails had not been received, and that he would forward responsive records as soon as they were produced by the District Regulatory Office. ECF No. 1-7. Mrs. Shortall replied the same day, reiterating the request regarding the Property and adding that the request was

"in regards to a report on some metal products located in non-tidal wetlands, Ace Adkins [sic] advised me, and I am sure he would have put it in his notes, that I did not have to move the metal. He should have a report stating this information."

ECF No. 9-11.

The Shortalls filed this action on December 16, 2014. ECF No. 1. On December 17, 2014, Kathy Anderson, Chief of the Maryland Southern Section in the Regulatory Branch, produced a memorandum stating that a search of the Regulatory database returned no results for the Property or its related company names. The Shortalls received a letter from the Office of Counsel dated the same day stating that a "search of the U.S. Army Corps of Engineers, Baltimore District files... failed to locate any records responsive to your request." ECF No. 9-13. The letter also advised, in response to Mrs. Shortall's last e-mail, that Ace Atkins was an employee of the Maryland Department of the Environment and not the Corps. Id. The Shortalls received this letter via e-mail from Mr. Shields.

Mrs. Shortall replied the same day stating that "[t]here are definitely records of reports by the Army Corps of Engineers in your custody. There were numerous visits from the Army Corps of Engineers to inspect our property, therefore there must be reports in your custody." ECF No. 9-14 at 2. In response, on February 2, 2015, Mr. Shields contacted Ms. Anderson and Sandy Zelen, Enforcement Program Manager in the Regulatory Branch, to ask if there was any other location for potentially responsive records. ECF No. 9-3 ¶ 17 (Decl. Michael Shields). That inquiry produced hardcopy records that were not attached to the Property address but did reference the Shortalls. Id. ¶ 18. These records were scanned and sent via e-mail to the Shortalls on February 11, 2015, at which point Mr. Shields stated that these files were the only ones that could be located. Id. ¶ 19. There was no further communication between the Shortalls and the Corps.

On April 6, 2015, the Corps filed this instant Motion to Dismiss or in the Alternative for Summary Judgment, under Rules 12(b)(1), 12(b)(6), and 56 of the Federal Rules of Civil Procedure, on the ground that the Corps responded to the Shortalls' FOIA request, thus making this action moot. The Corps has also moved for the Court to deny the Shortalls' request for fees and damages. The Shortalls have opposed this motion, arguing that since the Corps' disclosures neither include letters Walter Washington - a Corps employee - received in the early 1990s regarding the Property nor the field notes of Mr. Dolgos, the Corps has failed to adequately respond under FOIA.

II. LEGAL STANDARD

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Court must dismiss an action if it discovers it lacks subject matter jurisdiction. The plaintiff has the burden of proving the Court has jurisdiction, and the Court must make all reasonable inferences in the plaintiff's favor. Khoury v. Meserve, 268 F.Supp.2d 600, 606 (D. Md. 2003). A challenge to subject matter jurisdiction may be facial, asserting that the allegations in the complaint are insufficient to establish jurisdiction, or factual, asserting that the jurisdictional allegations in the complaint are not true. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). In a factual challenge, "the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction." Id. at 192. In this circumstance, the court may "look beyond the ...


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