Case 6:12-mc-00047-JA-DAB Document 5 Filed 07/18/12
Jed Margolin, Pro Se
1981 Empire Rd.
VC
Telephone: 775-847-7845
Email: jm@jmargolin.com
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF
|
JED MARGOLIN,
Plaintiff,
vs.
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,
Defendant. |
) ) ) ) ) ) ) ) ) ) ) ) |
Case No. 6:12-mc-00047-JA-DAB
OBJECTION TO PROPOSED FINDINGS AND RECOMMENDATIONS (#4) |
Comes now Plaintiff, Jed Margolin (“Margolin”), appearing pro se, and files his Objection to Proposed Findings and Recommendations (#4) made by the Court’s Magistrate in response to Margolin’s Motion for Writ of Execution against the National Aeronautics and Space Administration (#2). The Court’s Magistrate recommended that the Court deny Margolin’s Motion for Writ of Execution against the National Aeronautics and Space Administration (“NASA”) asserting there is no statutory authority for such an action. Margolin respectfully disagrees.[1]
Argument and Authorities
A. The United States has waived Sovereign Immunity in Freedom of Information Act actions brought under 5 U.S.C. §552(a)(4)(B) and, absent statutory exceptions, is subject to the civil process under the Federal Rules of Civil Procedure and the Court’s Local Rules which includes the use of a Writ of Execution to satisfy a judgment as contained in Federal Rules of Civil Procedure Rule 69.
1. The United States has waived Sovereign Immunity in Freedom of Information Act actions brought under 5 U.S.C. §552(a)(4)(B):
(B) 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. 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)(C) and subsection (b) and reproducibility under paragraph (3)(B).
Thus,
the
2. Under 5 U.S.C. §552(a)(4)(F)(i) agency personnel found by the Court to have acted arbitrarily or capriciously in withholding documents are subject to disciplinary action.
(F)(i) Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends.
.
.
.
3. Under 5 U.S.C. §552(a)(4)(G) agency employees who fail to comply with orders of the Court may be punished for contempt.
(G) In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member.
4. Public Law 110-175, Sec. 4(b), Dec. 31, 2007, 121 Stat. 2525, further provides that:
Notwithstanding section 1304 of title 31, United States Code, no amounts may be obligated or expended from the Claims and Judgment Fund of the United States Treasury to pay the costs resulting from fees assessed under section 552(a)(4)(E) of title 5, United States Code. Any such amounts shall be paid only from funds annually appropriated for any authorized purpose for the Federal agency against which a claim or judgment has been rendered.
Thus:
a. Congress has waived sovereign immunity to actions brought under the Freedom of Information Act;
b. Congress subjects agency employees to disciplinary action for arbitrarily or capriciously withholding documents;
c. Congress subjects agency employees to punishment for failure to comply with an order of the Court;
d. Congress requires that, where a plaintiff substantially prevails, the agency must pay costs from its own annual appropriations.
It is reasonable to believe that Congress did these things in order to provide agencies and their personnel with an incentive to comply with the Freedom of Information Act. It is therefore reasonable to believe that Congress did not mean to replace the remedies available in a civil process under the Federal Rules of Civil Procedure and a Court’s Local Rules (which includes the use of a Writ of Execution to satisfy a judgment) because the result would be to provide agencies with an incentive to not comply with the Freedom of Information Act. If Congress had meant to replace the remedies available in a civil process they would have explicitly done so. Therefore, the above incentives provided by Congress do not replace the standard remedies in the civil process, they augment them.
5. A writ of execution or attachment
is a type of “civil process” for the collection of a judgment, and hence is a
type of suit. See Franchise Tax Bd. v. United States Postal Serv., 467
U.S. 512, 518 (1984) (“Garnishment and attachment commonly are part and parcel
of the [civil] process, provided by statute, for the collection of debt.’”) (quoting FHA v. Burr, 309
Therefore,
in actions brought against the
B. Margolin’s Motion for Writ of Execution against the National Aeronautics and Space Administration (#2) was unopposed by Defendant NASA.
1. Margolin properly served NASA’s Counsel (Assistant U.S. Attorney for the District of Nevada) with a copy of his motion.
2. In a subsequent filing in U.S. District Court for the District of Nevada Margolin reminded NASA of his filing in the Middle District of Florida. (See Exhibit 3 at 32, line 9).
3. NASA’s Counsel failed to make an appearance in this Court (Middle District of Florida).
4. NASA’s failure to
oppose Margolin’s motion raises an inference that
they do not object to the motion. See, e.g., Freshwater v. Shiver,
Case No. 6:05-cv-756; 2005 WL 2077306, at *2 (M.D.
Although copies of this motion were mailed to Plaintiff’s counsel on June 7, 2005, Plaintiff has not filed a brief in opposition as required under Local Rule 3.01(b). Failure to oppose such a motion to dismiss raises an inference that there is no objection to such motion. See Local Rule 3.01(b); (Doc. No. 14, filed on July 28, 2005, Sec. II-E) (“Where no memorandum in opposition has been filed, the Court routinely grants the motion as unopposed”).
Local Rule 3.01(b) states:
(b) Each party opposing a motion or application shall file within fourteen (14) days after service of the motion or application a response that includes a memorandum of legal authority in opposition to the request, all of which the respondent shall include in a document not more than twenty (20) pages.
Therefore, Margolin’s motion for a writ of execution should be granted if only because NASA has failed to oppose it.
C. This Court has failed to comply with Federal Rules of Civil Procedure Rule 70(d):
(d) OBTAINING A WRIT OF EXECUTION OR ASSISTANCE. On application by a party who obtains a judgment or order for possession, the clerk must issue a writ of execution or assistance.
Margolin made the proper application and paid the fee but the clerk has not issued the writ of execution. Indeed, the Court’s Magistrate has acted as an advocate for Defendant NASA who, as noted above, has failed to appear and has not opposed Margolin’s motion for a writ of execution.
D. Margolin wishes to inform the Court of several events that have taken place since April 26, 2012 when Margolin registered the cost judgment in this Court and filed a motion for writ of execution against NASA. First, a short summary of the events that led to Margolin’s actions in this Court.
1. As a result of a Freedom of Information Act action, Case Number 3:09-cv-00421-LRH-(VPC), heard in U.S. District Court For the District of Nevada Margolin obtained a cost judgment against NASA. In an Order released November 4, 2011 the Nevada District Court ordered NASA to pay Margolin costs of $525.06 . (#2-1 at 8)
2. In that Order (id.) the Nevada District Court ruled that Margolin had substantially prevailed.
3. The “Openness Promotes Effectiveness in the National Government Act of 2007,” also referred to as the OPEN Government Act of 2007 (Public Law 110-175 – December 31, 2007), amended several procedural aspects of the Freedom of Information Act. Section 4(b) requires that when a complainant has substantially prevailed the Agency must pay assessed costs from agency funds. The costs are not to be paid by the Claims and Judgment Fund of the United States Treasury.
4. On January 6, 2012 Margolin sent an email to various NASA staff, including General Counsel Michael C. Wholley and NASA Deputy Administrator Lori Garver. In part of that email Margolin reminded NASA that they had not complied with the Court’s Order to pay him the $525.06 judgment. (#2-1 at 11)
5. On February 6, 2012 Margolin filed two motions in U.S. District Court for the
District of Nevada: Motion to Compel NASA to Disclose Assets in the State of
6. On February 22, 2012 NASA filed
their Response to Motion to Compel NASA to Disclose Assets in the State of
7. NASA did not pay Margolin in March so on April 26 Margolin registered the cost judgment in this Court and filed a Motion for writ of execution against NASA.
The following events have taken place in the Nevada Court since then.
8. On May 17, 2012 the Nevada Court ordered NASA to file a status report. (USDC-Nevada Document 80, See Exhibit 1 at 13)
9. On May 29, 2012 NASA filed their status report. (USDC-Nevada Document 81, See Exhibit 2 at 15) NASA offered the following excuses for not paying Margolin:
a. Margolin had refused to give NASA his Social Security Number.
b. Courtney Graham (NASA) did not know until early January 2012 that the law requires that the funds come from NASA agency appropriations, and not from the Judgment Fund.
NASA further stated their intention to pay Margolin “within 10 working days.”
10. On June 2, 2012 Margolin filed his reply to NASA’s status report. (USDC-Nevada Document 82, See Exhibit 3 at 24; Exhibits in Document 82 omitted). In essence:
a. Margolin
had received a telephone message asking for his Social Security Number. The
telephone message purported to come from the office of the U.S. Attorney for
b. Graham’s assertion that she did not know until early January that the judgment had to be paid from NASA agency funds (instead of from the Judgment Fund) is probative, since she has asserted in the past that she has special expertise in matters of the Freedom of Information Act. Apparently, Ms. Graham’s claim to special expertise was overstated. Unfortunately, the Nevada Court relied on her claim to special expertise and gave her “special expertise” substantial deference.
c. NASA’s Counsel failed to explain why she ignored Margolin’s March 2 email about the telephone message.
d. In Margolin’s Reply (Id.) he informed the Court (and NASA) that he had registered the November 2011 Judgment in U.S. District Court for the Middle District of Florida and moved for a Writ of Execution, and that he had incurred additional costs in the amount of $107.99 in doing so. Margolin also asked the Nevada Court whether the Nevada Court or the Florida Court now had jurisdiction over the payment of the judgment. (See Exhibit 3 at 24)
11. Assuming that NASA’s “10 working days” is the same as “10 business days” NASA should have paid Margolin on or by June 13. NASA failed to pay Margolin by that day.
12. On June 25, 2012 the Nevada Court ordered (USDC-Nevada Document 84, See Exhibit 4 at 37.):
Before the court are Plaintiff Jed Margolin’s Motion to Compel NASA to Disclose Assets in the
State of
13. Since NASA hadn’t paid Margolin he informed the Court that NASA hadn’t paid him. (USDC-Nevada Document 85, filed June 26, 2012; See Exhibit 5 at 39)
14. On June 27, 2012 NASA informed the Court that a check had been mailed to Margolin on June 26 (the day after Margolin’s response) in the amount of $525.06. (USDC-Nevada Document 86, See Exhibit 6 at 43). Subsequently, Margolin did receive the check for $525.06.
15. On June 28, 2012 the Nevada Court ruled that since NASA had mailed Margolin the check, Margolin’s Motion For Sanctions and Motion to Compel were denied. (USDC-Nevada Document 87; See Exhibit 7 at 50) The Nevada Court did not address the issue of the additional costs Margolin has incurred or whether the present Court (Middle District of Florida) now has jurisdiction over payment of the judgment. Presumably, the Nevada Court’s only interest was in disposing of Margolin’s motions.
Since these additional costs were incurred in registering the judgment in the Middle District of Florida, and NASA did not pay Margolin until long after he registered the judgment in the Middle District of Florida, Margolin is entitled to these costs and the present Court has jurisdiction over NASA’s payment of this debt. NASA has refused to recognize their obligation to pay Margolin these additional costs. Indeed, by failing to appear in this Court NASA has shown its intention to ignore this Court’s authority.
Conclusion
For the foregoing reasons Margolin respectfully requests:
1. This Court disregard the recommendation of the Court’s Magistrate and grant Margolin’s Motion For Writ of Execution against the National Aeronautics and Space Administration so that NASA’s known assets at the Kennedy Space Center may be seized by U.S. Marshals and sold at public auction in order to satisfy NASA’s debt; and
2. This Court disregard the recommendation of the Court’s Magistrate and grant Margolin’s Ex Parte Motion Requesting Permission to Register For and Use the Court’s CM/ECF System because the Magistrate has given no reason for recommending that Margolin’s motion be denied.
Respectfully submitted,
_________________________
Jed Margolin, plaintiff pro se
1981 Empire Rd.
VC
775-847-7845
jm@jmargolin.com
Dated: July 16, 2012
Certificate of Mailing
I hereby certify that a copy of the foregoing OBJECTION TO PROPOSED FINDINGS AND RECOMMENDATIONS (#4) has been sent by first-class mail to the following addressee on July 16, 2012:
Charles F. Bolden, Administrator
National Aeronautics and Space Administration
300 E Street SW
__________________
Jed Margolin
July 16, 2012
[1] The Court’s Magistrate also recommended denying Margolin’s Ex Parte Motion Requesting Permission to Register For and Use the Court’s CM/ECF System. The Magistrate made this recommendation without giving a reason. Indeed, the recommendation was made without any discussion of the motion at all.