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Silbaugh v. Pizzella

United States District Court, W.D. Washington, Seattle

September 13, 2019

PATRICK PIZZELLA, Acting Secretary, U.S. Department of Labor, [1] Defendant.



         This matter comes before the Court on Defendant's motion for summary judgment (Dkt. No. 36). Having thoroughly considered the briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the motion for the reasons explained herein.

         I. BACKGROUND

         In March 2017, Plaintiff filed a workers' compensation claim with the Department of Labor's (“DOL”) Office of Workers' Compensation Programs (“OWCP”). (Dkt. No. 38 at 3.) On May 24, 2017, OWCP denied Plaintiff's claim. (Id.; see Dkt. No. 38-1.) Plaintiff appealed OWCP's denial of her claim to the Employees' Compensation Appeals Board (“ECAB”), which divested OWCP of jurisdiction to consider Plaintiff's claim during the pendency of the ECAB appeal. (Dkt. No. 38 at 3-5.)[2]

         On May 22, 2018, OWCP received a CD-R disc from Plaintiff. (Id. at 4; Dkt. No. 38-3 at 2.) Plaintiff had written her name, address, “May 18, 2018, ” “Reconsideration, ” and a case number on the disc. (See Dkt. No. 38-4 at 2.) OWCP did not review the contents of the disc, as Plaintiff's ECAB appeal remained pending and OWCP had denied Plaintiff's underlying claim almost a year before. (Dkt. No. 38 at 4-5.)[3] Further, as the disc did not comply with the rules governing reconsideration requests made to OWCP, OWCP recorded its receipt of the disc in its physical evidence log and filed the disc as physical evidence supporting Plaintiff's claim. (Dkt. Nos. 38 at 4, 38-4 at 2, 38-5 at 2.)

         On May 31, 2018, ECAB denied Plaintiff's appeal. (Id. at 5; Dkt. No. 38-6 at 2-4.) Plaintiff subsequently contacted the Seattle office of OWCP's Division of Federal Employees' Compensation (“DFEC”) and stated that she had submitted a reconsideration request to OWCP. (Dkt. No. 38 at 5.) DFEC responded that it had not received a reconsideration request, as Plaintiff's case file did not include written documentation of such a request. (Id.)

         On June 5, 2018, Plaintiff sent DOL a request pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking “the one-page document admitting that USPS parcel was delivered, received, and currently tracked in OWCP” (the “proof of delivery request”). (Dkt. No. 38 at 6; see Dkt. No. 38-7 at 2.) Arginia Karamoko, a Government Information Specialist employed by DOL's Office of Information Services (“OIS”), entered the proof of delivery request into DOL's SIMS-FOIA database and assigned it a tracking number. (Dkt. No. 38 at 6- 7.) Marcus Tapia, the District Director for DFEC's Seattle office, began processing the request on June 29, 2018. (Id. at 7.) Tapia examined Plaintiff's iFECS case file for evidence that Plaintiff had filed a reconsideration request, but could not find a written request for reconsideration. (Id.)[4]Tapia located a written record of a voicemail a claims examiner left with Plaintiff on June 1, 2018, which informed Plaintiff that her claim file did not contain a request for reconsideration. (Id. at 8.) On July 2, 2018, OWCP sent Plaintiff a disc containing a copy of the contents of Plaintiff's case file and a cover letter responding to the proof of delivery request and describing Plaintiff's right to appeal. (Id. at 8-9; Dkt. No. 38-11 at 2-4.) Plaintiff did not appeal OWCP's response to the proof of delivery FOIA request. (Dkt. No. 37 at 3.)

         In July 2018, Plaintiff submitted two additional FOIA requests to DOL, seeking a record of a telephone conversation she had with OWCP's Seattle office and communications between the Federal Aviation Administration (“FAA”) and OWCP. (Dkt. No. 40 at 3.) DOL did not register these requests due to technical issues with its FOIA inbox. (Id. at 4.) In August 2018, Plaintiff resubmitted her requests. (Id.) In September 2018, Karamoko notified Plaintiff that DOL had not received her July 2018 requests and told Plaintiff that her August 2018 requests were not perfected because Plaintiff had not included her address and phone number. (Id.) Plaintiff did not subsequently provide the information, and OIS did not take further action on Plaintiff's July and August 2018 FOIA requests. (Id.)

         On August 13, 2018, Plaintiff filed her complaint in this action. (See Dkt. No. 5.) Plaintiff sought documents responsive to her previous FOIA requests, as well as an order directing Defendant to conduct searches reasonably likely to discover responsive records, to produce any nonexempt records, and to provide a Vaughn index regarding any documents withheld pursuant to a FOIA exemption. (Id. at 3-4.)[5] Plaintiff also sought to enjoin Defendant from withholding nonexempt records. (Id. at 4.)[6]

         On April 9, 2019, Plaintiff submitted a FOIA request to DOL seeking the “phone record of the ‘recorded and monitored' conversation with the Seattle District Office . . . [that occurred] on Friday, July 13, around 3:09pm . . . with Glen Crownman [sic], Seattle District Manager . . .” (the “phone record request”). (Dkt. No. 39 at 3) (alterations in original). Karamoko entered the phone record request into DOL's SIMS-FOIA database, assigned it a tracking number, and notified Janice Semper, DFEC's Government Information Specialist, of the request. (Id. at 4.) On April 20, 2019, Semper searched Plaintiff's iFECS case file and found “a CA-110 notice of a July 13, 2018 phone conversation” signed by Glen Croman. (Id. at 5.) Semper contacted Croman and OWCP's National Office, but neither had created an audio recording of the call. (Id.) On April 25, 2019, Semper produced the July 13, 2018 CA-110 notice to Plaintiff with an accompanying cover letter. (Id.; see Dkt. No. 39-4 at 2-4.) Semper did not withhold any portion of the responsive records. (Dkt. No. 39 at 6.)

         On April 12, 2019, Plaintiff submitted a FOIA request to DOL seeking “all communications between FAA and OWCP” (the “FAA request”) (Dkt. No. 39 at 6; see Dkt. No. 39-5 at 2.) Plaintiff later clarified that she sought only communications between the FAA and OWCP related to her case file. (See Dkt. Nos. 39 at 7, 39-7 at 2-7.) Semper searched Plaintiff's iFECS case file and identified 351 pages of responsive records, which “referenced FAA either by cc or addressed to/from FAA directly.” (Dkt. No. 39 at 7.) Semper also contacted Hoffer and requested that she and other claims examiners who may have worked with Plaintiff search for any responsive records in their emails or hard drives. (Id.) Hoffer and several other claims examiners conducted the searches using Plaintiff's full name and workers' compensation claim file number, and they did not find any responsive documents. (Id. at 7-8.) On May 15, 2019, Semper produced the 351 pages of responsive documents to Plaintiff with an accompanying cover letter. (Id. at 8.) Semper did not withhold any of the documents or alter those that were produced. (Id.)

         On July 16, 2019, DOL sent Plaintiff a supplemental response to the proof of delivery request, which included a scanned copy of the disc labeled “Reconsideration, ” a redacted copy of OWCP's physical evidence log, and a copy of Hoffer's memorandum regarding the disc. (Dkt. No. 38 at 9; see Dkt. No. 38-12.)

         Defendant moves for summary judgment. (Dkt. No. 36.) Plaintiff has not filed a response to Defendant's motion for summary judgment.

         II. ...

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