Opinion
Case No. CV-06-260-E-BLW.
March 28, 2007
MEMORANDUM DECISION AND ORDER
INTRODUCTION
The Court has before it the FBI's second motion to dismiss and Wellard's request to examine the box at issue. The Court heard oral argument on March 14, 2007. Pursuant to agreement of counsel, the Court dismissed the FOIA claims from the bench. The Court then took the remainder of the issues under advisement. For the reasons expressed below, the Court will deny the FBI's motion to dismiss the remaining claim under the APA, and will order that the FBI make the box available for inspection by Wellard and her counsel.
ANALYSIS
Plaintiff Wellard wants to examine the box of files that she alleges might be the cause of her illness. Earlier, the Court ordered the FBI to test the box and its contents for certain contaminants. See Order (docket no. 21).
The FBI promptly conducted those tests, finding no significant levels of the listed contaminants. See Notice (docket no. 22). The FBI then sought dismissal of the case on the ground that it had complied with the Court's Order.
However, a question was raised in the record as to whether the box tested was the box Wellard handled. A photograph of the box being opened just prior to the testing in October of 2006, showed that it contained a lot of empty space. See Photograph #8. Yet, when the box was returned to FBI headquarters in January of 2007, and examined by the FBI's Section Chief Gretchen Schlag, she found that "the interior contents almost completely filled the box; that is, it would be difficult to insert any additional documents into the box." See Second Declaration of Schlag at ¶ 6.
At oral argument, Wellard's counsel argued that this discrepancy warranted Wellard's examination of the box to ensure that the box tested was the box she handled. About four days after the hearing, the FBI moved to supplement the record with a declaration of Frank Fitzpatrick who participated in the FBI's testing in October of 2006. Fitzpatrick will testify that he removed several folders from the box before the photograph was taken, explaining why the box appeared to have a substantial amount of empty space. See FBI's Motion for Leave to File Supplemental Declaration at p. 2.
The Court will assume that Fitzpatrick would so testify. Nevertheless, it would be valuable to the Court to get Wellard's opinion on whether the box tested is the box she handled. While her opinion is certainly not determinative, it is relevant to the Court's concern that the proper box be tested.
The Court has the inherent authority to enforce its orders. See Degen v. U.S., 517 U.S. 820, 827 (1996) (district court "has at its disposal an array of means to enforce its orders . . . [and] its powers include those furnished by . . . inherent authority"). To assure itself that the box tested was the box Wellard handled, the Court will order the FBI to make the box available for inspection by Wellard and her counsel at a time convenient to all parties in the FBI's Pocatello facility.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the FBI's second motion to dismiss (Docket No. 24) is GRANTED IN PART AND DENIED IN PART. It is granted to the extent it seeks dismissal of the FOIA claims but denied in all other respects.
IT IS FURTHER ORDERED, that the FBI make the box at issue available for inspection by Wellard and her counsel at a time convenient to all parties at the Pocatello FBI facility.