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interpretation of Conflicting Statutes


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#1 foolish

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Posted 08 April 2012 - 06:08 AM

I am trying to find a case law that interprets ‘two’ different statutes that identical functions but are irreconcilably in conflict with one another.


Take for example subsection § (e) (2) of 1915 informa pauperis screening statute and compare it to § (a) (4) (B) of section 552 of FOIA’s ‘de novo’ reviewing statute. Altough these two statutes are reviewing statutes.  Informa pauperis's dismissing statute can in certain circumstance cut the heart out of FOIA's de novo review statute, if it's applied 'improvidently and prematurely'.  For this reason,  I need a case law that states which of these two statutes governs the manner a FOIA complaint is reviewed when a litigant is granted in forma pauperis. 


The closest I got was the interpretation of an earlier statute with a statute that was amended which conflicted with one another.



#2 Tax_Counsel

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Posted 08 April 2012 - 11:16 AM


foolish said...

For this reason,  I need a case law that states which of these two statutes governs the manner a FOIA complaint is reviewed when a litigant is granted in forma pauperis. 

You won't find it, because contrary to your stated belief, the two sections you mention do not conflict with each other. 5 U.S.C. § 552(a)(4)(B) does 3 things: (1) specifies which court has jurisdiction over the FOIA complaint, (2) authorizes the court to compel the agency to release the records sought by the plaintiff, and (3) specifies that the court's review of the agency's denial is de novo, which simply means that the court will give no special weight to the agency's decision and puts the burden on the agency to justify the refusal to release the requested records.

28 U.S.C. § 1915(e)(2) requires a court to dismiss the complaint filed by person in forma pauperis if (1) the court determines the allegation of poverty is untrue or (2) the court determines the action is frivolous or malicious, fails to state a claim for which relief can be granted, or states a monetary claim against a defendant immune from a money judgment. None of that conflicts with the FOIA requirement of a de novo review. Indeed, the requirements in (2) are pretty much nothing more than a restatement of some of the provisions of Rules 11 and 12 of the Federal Rules of Civil Procedure (FRCP), which apply to all civil actions in district court, including FOIA actions.  FRCP Rule 11 bars frivolous and malicious lawsuits. Rule 12(B) allows for dismissal of complaints that fail to state a claim for which relief can be granted.

Both of those determinations (whether under the provisions of the FRCP or 28 U.S.C. § 1915(e)(2)) are generally made based on the allegations stated in the complaint. If a complaint is so deficient that it is frivolous, malicious, or fails to state a valid claim, the court will dismiss it. The district court determines that de novo, as the agency's determination on that issue (if it made one) is given no weight by the court. So, even if that review were governed by FOIA, it doesn't conflict with FOIA as the review is de novo in any event: the court is not giving any special weight to the agency's determination. It makes its own determination of the matter.

Once again, you must state a valid claim in order to survive dismissal. Part of stating a valid claim is stating the facts that give rise to the claim. As I recall your problem, the district court dismissed the complaint because it lacked the facts needed to support the claim you made. You won't get around that problem by alleging a conflict between FOIA and 28 U.S.C. § 1915(e)(2) or the FRCP.


#3 foolish

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Posted 09 April 2012 - 06:46 AM

Tax counsel you don’t see the conflict, the dangers in taking out de novo review and replacing de novo review with sua sponte screening. First let me say from all research I've done of FOIA, FOIA's reviewing statutes stands far aside from other civil statutes and uniquely alone in that it’s one of the only statutes that “puts the burden on agency to sustain its action while directing the district courts to determine the matter de novo”  


 My understanding of what determining the matter “de novo” means is that a district court will consider the matter “anew” “afresh” “from scratch”.   It is impossible to consider the matter de novo if the court completely releases defendant’s from filing any type of response pleading, affidavit under 552(a)(4)(B), then dismisses the FOIA complaint for failure to state a claim on which relief may be granted before any pleading is filed by agency.    The only person’s (or entities) that has first knowledge and has the burden to sustain their action is released from carrying their burden.  


So how about it, can I get some help, how could I get some guidance in locating a case law where the court settles  irreconcilable difference between the two statutes.   



#4 Tax_Counsel

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Posted 09 April 2012 - 10:29 PM

foolish said...

My
understanding of what determining the matter “de novo” means is that a
district court will consider the matter “anew” “afresh” “from scratch”.   It
is impossible to consider the matter de novo if the court completely
releases defendant’s from filing any type of response pleading,
affidavit under 552(a)(4)(B), then dismisses the FOIA complaint for
failure to state a claim on which relief may be granted before any
pleading is filed by agency.    The
only person’s (or entities) that has first knowledge and has the burden
to sustain their action is released from carrying their burden. 


You are seeing a conflict that does not exist because you apparently think de novo review means something more than it does. Nor is FOIA the radical statute you are trying to make it out to be. There is nothing in FOIA that dispenses with the provisions in Rule 12 of the FRCP and 28 U.S.C. § 1915(e) permitting the court to dismiss the case for failure to state a valid claim. Those rules apply to FOIA actions just like any other lawsuit in district court. You won't find any court decision that says otherwise.

Look at it logically. If your complaint on its face fails to state a proper claim, why does the court need to read an answer from the agency? If your own claim as, stated in your complaint, would not entitle you to any relief, there is no issue for the court and the case should be dismissed. An answer from the defendant won't cure the defects in your pleadings, after all. Before the court can consider your claims on the merits, you must first articulate a valid claim. This is a very fundamental part of civil procedure for all cases, including FOIA actions.

All 5 U.S.C. § 552(a)(4)(B) says is that when the court decides the substantive issues of the case it does so de novo, thus not giving any weight to the agency's determination of that issue. Put in more plain English, all this provision does is allow the court to review the FOIA exemptions that the agency claimed without giving any special weight to the agency's determination regarding the application of those exemptions. That's all it does; nothing more. You still have to file a complaint that lays out a good FOIA claim, i.e. you need allege facts in the complaint that indicate the agency is wrongfully withholding documents from you. If you don't do that, the case is subject to dismissal for failure to state a valid claim. Once you've stated a valid claim, the court will then review that claim de novo. In short, you have to get in the door with a good complaint before the court will do the review contemplated in § 552(a)(4)(B).

It appears to me that you are grasping at straws trying to find some provision that might save a complaint that the court found failed to state a valid claim. You could have appealed that determination and see if the appellate court would say you stated a good claim. But you won't find a provision that effectively says the court can't dismiss your complaint if the complaint on its face fails to state a valid claim.


#5 Tax_Counsel

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Posted 09 April 2012 - 11:33 PM

foolish said...

The
only person’s (or entities) that has first knowledge and has the burden
to sustain their action is released from carrying their burden. 

Perhaps this is where you are getting hung up here. The fact that the FOIA statute says that "the burden is on the agency to sustain its action" does not mean the court must first hear from the agency before dismissing the claim. Read the provision again. Section 552(a)(4)(B) start out with this:

On complaint, the district court of the United States in the district in
which the complainant resides, or has his principal place of business,
or in which the agency records are situated, or in the District of
Columbia, has jurisdiction to enjoin the agency from withholding agency
records and to order the production of any agency records improperly
withheld from the complainant.
(underlining added.) Now, that first sentence tells you that you need to file a (valid) complaint, and that means you must allege facts showing that the agency has records that it "improperly
withheld from the complainant." All complaints filed in district court must meet the requirements for pleading in Rule 8 of the FRCP and are subject to dismissal if they don't under rule 12(B) of the FRCP.

The next sentence says:

In such a case the court shall determine the matter de novo, and may
examine the contents of such agency records in camera to determine
whether such records or any part thereof shall be withheld under any of
the exemptions set forth in subsection (B) of this section, and the
burden is on the agency to sustain its action
. In addition to any other
matters to which a court accords substantial weight, a court shall
accord substantial weight to an affidavit of an agency concerning the
agency's determination as to technical feasibility under paragraph
(2)© and subsection (B) and reproducibility under paragraph (3)(B).
(underlining added.) The underlining here illustrates two things, first, the "in such a case" tells you that the review mentioned in this sentence follows the filing of the valid complaint mentioned in the first sentence. Once you've alleged sufficient facts in the complaint to support a good FOIA claim, the court reviews that claim de novo, i.e. without giving special weight to the agency's determination. The second part I underlined which discusses the burden of the agency simply say that the agency has the burden to sustain its refusal to release the records. But that burden is only triggered after you've filed a valid complaint. Putting that burden on the agency does not exempt you from the burden in the first sentence of filing a good complaint. It's not that hard to file a good FOIA complaint if you have a good understanding of the FOIA process. You don't have to prove the agency was wrong in withholding the records in the complaint.


#6 foolish

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Posted 10 April 2012 - 07:09 AM

You say that there is nothing in FOIA that dispenses with the provisions in Rule 12 of the FRCP and 28 U.S.C. § 1915(e) permitting the court to dismiss the case for failure to state a valid claim.    I partially agree with you for different reasons.


I honestly believe we are seeing two sides of the same coin.  We both agree that 28 U.S.C. § 1915(e) mirrors Rule 12 of the FRCP language.  However, we part paths on how § 28 U.S.C. § 1915(e) is applied in FOIA cases.  The reason for this belief is § (a)(4)©  which I am reading it together with (a)(4)(B) of the FOIA,  subsection © states that


 Notwithstanding any other provision of law the defendant shall serve an answer or otherwise plead to ‘any complaint’ made under this subsection.” 


I am taking Notwithstanding any other provision of law to mean that despite, regardless, of any other provision of law the defendant must file an answer, plead to ‘any FOIA complaint.  Which in this case it excludes sua sponte dismissals under 28 U.S.C. § 1915(e), since it instructs the court to wait for the defendants response before it can consider both party’s positions, then it can take defendants word as “gospel”  But at least the record is developed on that issue


For this reason I don’t believe that FOIA “dispenses” with Rule 12 of the FRCP but makes clear that there is no getting around a Rule 12 motion to dismiss filed by defendant which lays out its grounds for dismissal or for motion for summary judgment under Rule 56 of the FRCP, allowing the requester to respond to the defendant’s motion.


However I continue to believe that FOIA does exclude dismissals under 28 U.S.C. § 1915(e) before the court receives any pleadings filed by defendant’s which makes an agencies action “unchallengeable”  contrary to FOIA.  In other words there is difference between being faced with a motion to dismiss filed by agency which is survivable since it allows the issues to be aired out naturally, allowing the record to develop on those issues as intended by FOIA.  But it’s impossible to survive a 1915 dismissal based on judges disbelief.  


Lastly let me get this right, are you also saying that I could file another FOIA complaint challenging the same denial, at the district court but that lays out a better more accurate or good FOIA claim?  Is it possible, are dismissal’s for failure to state a claims refillable?


Again can I get some help in finding a case law that interprets two statutes that supposed to have same function but are in irreconcilably in conflict with each other.



#7 Tax_Counsel

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Posted 14 April 2012 - 08:54 AM

foolish said...

You
say that there is nothing in FOIA that dispenses with the provisions in
Rule 12 of the FRCP and 28 U.S.C. § 1915(e) permitting the court to
dismiss the case for failure to state a valid claim.    I partially agree with you for different reasons.


I honestly believe we are seeing two sides of the same coin.  We both agree that 28 U.S.C. § 1915(e) mirrors Rule 12 of the FRCP language.  However, we part paths on how § 28 U.S.C. § 1915(e) is applied in FOIA cases.  The reason for this belief is § (a)(4)©  which I am reading it together with (a)(4)(B) of the FOIA,  subsection © states that


 Notwithstanding any other provision of law the defendant shall serve an answer or otherwise plead to ‘any complaint’ made under this subsection.” 

Two points here. First, the argument you are making is that § 552(a)(4)© resolves the conflict you claim is present by specifying which rule applies. If that were the case, you don’t need case law providing the rules to resolve the alleged conflict because you are arguing the statute has already done that.

Second, and unfortunately for the argument you wish to make, § 552(a)(4)© does not do what you think it does. The problem here is that you have focused only on the language of the sentence that appeals to the argument you want to make (as indicated by by the fact that you only quoted part of it) rather than reading the sentence as a whole.  The entire sentence reads as follows:

© Notwithstanding any other provision of law, the defendant shall serve an answer or otherwise plead to any complaint made under this subsection within thirty days after service upon the defendant of the pleading in which such complaint is made, unless the court otherwise directs for good cause shown.

Reading the sentence as a whole, what the provision is telling you is not that the agency must file a responsive pleading, but rather that if the agency files a responsive pleading, it must be done within 30 days. The purpose for this provision is to shorten the 60 day time period that the government otherwise has to respond to complaints under FRCP 12(a)(2), which provides as follows:

(2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney.

Thus the mandatory requirement of this provision focuses on the time specified of  “30 days” not the “answer.“ It is a provision meant to set the time for the agency to file any response, not to require a response in every instance. Case law notes that this is the effect of § 552(a)(4)©. In Weber v. Coney, 642 F.2d 91 (5th Cir. 1981), Ms. Weber asserted, as you do, that she had a mandatory right to a de novo hearing and that the government was required to file an answer to her complaint. In rejecting her claim, the court stated:

The FOIA also provides generally that, notwithstanding any other provision of law, a defendant must serve an answer within 30 days. 5 U.S.C. § 552(a)(4) ©. The key words are "30 days," not "answer." See H.R.Rep.No.93-876 and Conf.Rep.No.93-1200, 93d Cong., 2d Sess., reprinted in (1974) U.S.Code Cong. & Ad.News 6267 and 6285. Ms. Weber misunderstands section 552(a)(4)©.

Note that the Court in Weber cites the legislative history for support for its position. A little knowledge of the background to FOIA is important to understanding what § 552(a)(4)© was put in the statute to do. Congress was dissatisfied with the slow pace of response to these kinds of claims and recognized that prompt resolutions of FOIA disputes was important as information may dissipate or become less valuable over time.  For that reason, the original Act contained § 552(a)(4)(D), which required that the district court give priority to FOIA litigation over most other cases. This requirement in (D) was later repealed in 1984. Reading © and (D) together along with the legislative history tells you that the focus was on timing, i.e. making the agency file any response it wants to make earlier than the usual 60 days that the FRCP provides in order to provide prompt resolution to FOIA cases.

You see this too Judge Leventhal’s concurrence in Open America v. Watergate Special Prosecution Force, 547 F.2d 605, fn 8 (DC Cir. 1976):

5 U.S.C. § 552(a)(4)© sets 30 days for answer (unless the court otherwise directs for good cause shown) in contrast with the 60 days generally available automatically under Rule 12(a), Fed.Rules Civ.Proc

The precedence and expediting provision appears in 5 U.S.C. § 552(a)(4)(D): "Except as to cases the court considers of greater importance, proceedings before the district court, as authorized by this subsection, and appeals therefrom, take precedence on the docket over all cases and shall be assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way.”

In short, the purpose for § 552(a)(4)© was to expedite the time for filing whatever response the agency wishes to file, not to override the court’s usual power to dismiss defective complaints.

This can be further seen by analyzing another part of the language of that sentence. Note that for § 552(a)(4)© to apply, there must be a complaint “made under this subsection,” i.e. a valid FOIA complaint. If the claim on its face is in sufficient to make out a claim under FOIA, this provision won’t apply. For example, a district court stated:

Randle’s motion for default judgment on the original FOIA complaint is likewise without merit. Randle served his complaint on October 4, 1991. FO
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#8 foolish

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Posted 14 April 2012 - 11:50 AM


 


Tax Counsel you say that § 552(a)(4) only applies once a good complaint under FOIA has been filed.  So far the cases you cited were cases that were responded too for example


 The Weber case involved a claim that the case was improperly transferred causing loss of subject matter jurisdiction.  I agree with the court that FOIA places jurisdiction in the judicial district where complainant resides [and not on a particular court].  In the Weber case the issues were decided by summary judgment meaning that defendants filed their affidavits denying the existence if requested records.  The reason why Weber’s appeal was denied was because she did not file an affidavit or other evidence to refute the government’s affidavit. See: Fed R. Civ. P. 56(e)


As for Petrus, Petrus named individual agents in the FOIA complaint instead of agency itself. Randel filed his FOIA complaint out of time beyond the 30 day deadline.


I don’t know what your’ definition of filing a “good complaint”    But can you give me the Black’s law dictionary definition of “[N]otwithstanding” or


the full phrase of “notwithstanding any other provision of law”   This is not about a limited time to file a response but of filing an answer or pleading to complaint.


 






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