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Bush v. Risk Management Agency/United States Department of Agriculture

United States District Court, N.D. Iowa, Western Division

June 8, 2017

WILLIAM J. BUSH, Plaintiff,




         Pending before the Court is (1) plaintiff's Rule 12(c) motion (Doc. 19); (2) defendant's Rule 12(b)(6) motion, or in the alternative, for summary judgment (Doc. 20); and (3) plaintiff's motion for a Rule 56(d) continuance to conduct limited discovery and extend deadlines. (Doc. 22). Neither party has requested oral argument and the Court finds argument unnecessary. For the reasons that follow, the Court denies plaintiff's motions and denies in part and grants in part defendant's motion. Only the summary judgment motion remains pending.


         In February 2016, plaintiff William J. Bush, filed a Freedom of Information Act (FOIA) request with the Risk Management Agency (RMA). Plaintiff asked for “the total production, acres harvested, and yield for corn and for soybeans aggregated by section for Amherst, Rock, Sheridan and Tilden townships in Cherokee County, Iowa for 2015, 2014, 2013 and 2012.” The agency provided a “no records” response to plaintiff's request. The agency explained that it did not have information available by sections[1] for townships within a county. The agency also explained that the Federal Crop Insurance Act prohibits the disclosure of identifying producer information and limits disclosure of producer information to the public only in the aggregate form. The agency also directed plaintiff to (, a page on its website containing several data files. Specifically, RMA's FOIA Officer directed plaintiff to “” for an average yield of soybeans and corn. (Doc. 1, at 25). Upon the Court's own review, this zip file contains historical aggregate yields for the production area of Cherokee County, Iowa, for irrigated and non-irrigated soybeans (from crop years 1991 to 2014) and for irrigated and non-irrigated corn (from crop years 1991 to 2014). Plaintiff appealed the agency's response. The agency upheld its “no records” response on appeal.

         On November 16, 2016, plaintiff filed this action in this Court. As a pro se litigant, plaintiff sued “United States Department of Agriculture Risk Management Agency” in his original complaint. (Doc. 1). The original complaint referred to a singular defendant. A few weeks later, in a pro se amended complaint, plaintiff sued the “Risk Management Agency” and the “United States Department of Agriculture” and referred to plural defendants. (Doc. 3). In February 2017, plaintiff filed a motion for default judgment against the United States Department of Agriculture (USDA) for failure to respond to the amended complaint. (Doc. 12). The same month, this Court entered an order denying plaintiff's motion for default judgment against the USDA. (Doc. 14). The Court found that plaintiff failed to provide evidence demonstrating that the Risk Management Agency (RMA) and the USDA are “legally-distinct” as the RMA's answer (Doc. 11 at 2, ¶ 5) states “RMA is an agency within the United States Department of Agriculture, an agency within the meaning of FOIA.” The Court reasoned that “[e]ven assuming RMA and USDA are distinct entities, I find that RMA's answer should be deemed to apply equally to USDA, ” and therefore found default judgment against USDA inappropriate. (Doc. 14). This distinction, if any even exists, of whether the USDA and the RMA are one in the same or distinct legal entities does not impact this order. The Court will refer to RMA/USDA as a singular defendant throughout this order.

         Plaintiff seeks the following relief (Doc. 3 at 18-19, ¶42): that the records at a section for township level be produced to him with a waiver of the search fee; declare Section 1619 of the Food, Conservation and Energy Act of 2008 inapplicable; award of attorney's fees and other litigation costs; declare the attorney's fee FOIA provision at Section 522(a)(4)(E) unconstitutional as to pro se non-attorney litigants; issue a written finding under Section 552(a)(4)(F)(i) that circumstances surrounding the improper record withholding raise questions about whether agency personnel acted arbitrary or capricious, prompting administrative investigation and further administrative corrective actions as needed; and grant any other relief the Court deems proper.

         Defendant maintains it did not improperly withhold agency records. Defendant first argues that the information sought by plaintiff does not exist as requested and as such the FOIA does not impose a duty on the agency to create new records to comply with FOIA requests. In the alternate, defendant contends that even if such information existed, or were produced in part, it would be exempt under Exemption 3 of the FOIA.

         A District Court has federal jurisdiction over FOIA actions, when it is “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, ” 5 U.S.C. § 552(a)(4)(B), and the District Court has the power to “enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” (Id.). Neither party disputes the Court's jurisdiction.

         III. ANALYSIS

         A. Motion for Judgment on the pleadings and Motion to dismiss for failure to state a claim upon which relief can be granted

         Plaintiff timely moved for judgment on the pleadings, Fed.R.Civ.P. 12(c), on May 4, 2017, after an answer was filed. (Doc. 19). Defendant timely resisted (Doc. 21) and cited to its previously filed 12(b)(6) motion to dismiss, or in the alternative, summary judgment. (Doc. 20). Thus, plaintiff's 12(c) motion is ripe.

         Defendant timely moved for a 12(b)(6) motion to dismiss, or in the alternative, summary judgment (Doc. 20) on May 8, 2017. (the last day to file dispositive motions). On May 23, 2017, plaintiff filed a motion under Rule 56(d) seeking to conduct limited discovery to oppose defendant's summary judgment motion. (Doc. 22).

         The most appropriate vehicle to address plaintiff's FOIA lawsuit is the pending summary judgment motion. The other two pending motions-namely plaintiff's motion for judgment on the pleadings and defendant's motion to dismiss for failure to state a claim upon which relief can be granted-would not allow the Court to consider the agency's affidavit, attached to defendant's motion at Doc. 20. If the Court did consider the affidavit, then the Rule 12 motions would, nonetheless, be automatically converted into summary judgment motions. See Fed. R. Civ. P. 12(d) (Rules 12(c) and 12(b)(6) motions will be treated as motions for summary judgment if the court is presented with matters outside the pleadings and does not exclude them). On point “FOIA litigation is typically adjudicated through summary judgment.” Judicial Watch, Inc. v. Export-Import Bank, 180 F.Supp.2d 19, 25 (D.C. Cir. 2000). See Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.C. Cir. 2009) (“FOIA cases typically and appropriately are ...

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