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Carter v. USDA

United States District Court, W.D. Arkansas, El Dorado Division

September 13, 2017

JESSIE CARTER PLAINTIFF
v.
USDA and JENNIFER WEATHERLY in her official capacity DEFENDANTS

          ORDER

          Susan O. Hickey United States District Judge.

         Before the Court is Defendants' Amended Motion to Dismiss. ECF No. 24. Plaintiff has filed a response. ECF No. 25. The Court finds this matter ripe for consideration.

         I. BACKGROUND

         This case concerns Freedom of Information Act (“FOIA”) requests Plaintiff submitted in 2015. Plaintiff filed his Complaint seeking to compel Defendants to produce responses to his FOIA requests. ECF No. 1. In his Complaint, Plaintiff references three outstanding FOIA requests: (1) 2016-FNS-02999-F; (2) 2015-FNS-04394-F; and (3) 2015-FNS-3001-F. ECF No. 1. The Court subsequently found that only FOIA request 2015-FNS-3001-F (styled 2015-00207 as an appeal) is properly before the Court. ECF No. 8. Thus, this is the only FOIA request the Court will address. With this FOIA request, Plaintiff seeks information on institutions that were disqualified from participation in the Child and Adult Care Food Program between January 1, 1995, and December 31, 2001. ECF No. 15-1.

         In their original Motion to Dismiss, Defendants stated that they had supplied Plaintiff with the requested information and that, therefore, this action should be dismissed. ECF No. 15. In Plaintiff's response, he stated that Defendants had not yet disclosed all requested information. ECF No. 16. Although Plaintiff conceded that Defendants had provided the bulk of the information he seeks in his FOIA request, he argued that Defendants had not supplied information regarding “when did institutions become eligible to return/continue to participate in the program again?” ECF No. 18. Defendants contended that they had provided this information, having informed Plaintiff that “[i]nstitutions are typically disqualified for 7 years, unless they owe a debt” and “if a debt is owed they remain disqualified until the debt is paid.” ECF No. 15-1.

         The Honorable Barry A. Bryant, Magistrate Judge for the Western District of Arkansas, subsequently issued a Report and Recommendation in which he found that Defendants had provided the requested information and recommended that Defendants' Motion to Dismiss (ECF No. 15) be granted. ECF No. 20. In his objections, Plaintiff again stated that he had not received the requested information as to when entities disqualified from 1995 through 2001 were again allowed to take part in agency programs. ECF No. 21. Further, Plaintiff argued that the seven-year disqualification period did not come into effect until after the period covered by his FOIA request. ECF No. 21.

         The Court declined to adopt Judge Bryant's Report and Recommendation, finding that Defendants had failed to sufficiently demonstrate that they had fully responded to Plaintiff's FOIA request. The Court noted that Plaintiff appeared to seek “a list of specific dates upon which each organization that was disqualified from 1995 through 2001 again became eligible to participate in the program” and that Plaintiff believed that “Defendants maintain records that note the exact date upon which a disqualified entity again becomes eligible.” ECF No. 23. Accordingly, the Court directed Defendants to respond to Plaintiff's request for specific dates each entity disqualified from 1995 through 2001 again became eligible to participate in agency programs. Likewise, the Court stated that “if Defendants do not maintain such records, they are to advise Plaintiff of that fact and describe the process by which Defendants determine eligibility dates for entities disqualified from 1995 through 2001.”

         In their Amended Motion to Dismiss, Defendants inform the Court that they do not maintain records of specific dates upon which entities again become eligible to participate in agency programs. ECF No. 24. Further, Defendants have attached a Declaration of Defendant Weatherly in which she describes the reinstatement process. ECF No. 24-1. Defendant Weatherly states that:

Under FNS policy, a disqualified institution is generally disqualified for seven years, unless that institution owes a debt. If a debt is owed the institution remains disqualified until the debt is paid. In specific situations, an institution can request and be granted early removal from the disqualified list, if the institution creates an acceptable corrective plan and owe no debt. When an institution comes off of the National Disqualified List (NDL) of Providers, they would have to reapply to participate. They are not guaranteed approval. In order to have been placed on the NDL, there had to have been serious deficiency (or a suspension) which led to termination and disqualification. The serious deficiency(ies) which caused the termination and disqualification must be fully and permanently corrected. An institution may not be approved to participate until full and permanent correction is achieved.[] The institution needs to have completed the required corrective action for the serious deficiencies which led to their termination and disqualification. Paying a debt and waiting seven years does not remove the requirement that the institution achieve full permanent corrective action. Because this process has variations, FNS does not keep records with specific dates stating when each institution is eligible to re-apply.[1]

ECF No. 24-1, ¶¶ 6, 7.

         In response, Plaintiff argues that he believes Defendants do maintain records of when disqualified entities again become eligible to participate in agency programs. Plaintiff states that “[c]ommon sense tells me that if any part of this information was not available, Defendants would have brought this out long before now.” ECF No. 25, ¶ 5. Plaintiff argues that “[i]f there are no records now, because FNS [does not] maintain detail[ed] records of when a disqualified institution becomes eligible, there could not have been records in 2015 for the same reason.” ECF No. 25, ¶ 5. Plaintiff further cites Defendants' previous motion (ECF No. 13) requesting an extension of time to respond to Plaintiff's Complaint in support of his contention that Defendants maintain the records he seeks.[2] ECF No. 25, ¶ 6.

         Furthermore, Plaintiff notes that although Defendants contend that they do not maintain the requested records, they have provided specific eligibility dates in the past. ECF No. 25, ¶ 8. Plaintiff has included an email dated December 7, 2016, in which Defendant Weatherly stated that:

According to the NDL, Sparkman Learning Center was terminated on June 2, 2006 and became eligible to reapply to participate June 10, 2013 . . . COPE was terminated on March 1, 1997 and became eligible to reapply to participate August 13, 2009.”[3]

ECF No. 25, Doc. # 4. Plaintiff cites this email and argues that “Defendant did send just what she swore she didn't ...


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