UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BERNARD GELB, Plaintiff, Case No. 23-cv-995 (JMC) v.

U.S. DEPARTMENT OF DEFENSE, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Bernard Gelb, proceeding pro se, brings this suit against the Department of

Defense (Defense), Defense Finance and Accounting Service (DFAS), Secretary of Defense Lloyd

J. Austin III, and Defense’s Chief Freedom of Information Act (FOIA) Officer Joo Y. Chung

(collectively, “Defendants”). ECF 12.1 Gelb brings two claims. Id. ¶¶ 99–115. First, he alleges that

Defendants automatically cancel checks after six months if they are not cashed, without notice to

the checks’ recipients, in violation of the Due Process and Takings Clauses of the Constitution

(Count I). Id. ¶¶ 99–106. Second, he alleges that Defendants failed to search for and produce

records responsive to his FOIA request (Count II). Id. ¶¶ 107–115. Defendants move to dismiss

Count I on several grounds, including that Gelb lacks standing. ECF 16. In response, Gelb moves

for summary judgment on both Counts I and II, ECF 19, and Defendants counter with their own

motion for summary judgment on both counts, ECF 24. Gelb also moves to strike several of

Defendants’ filings. ECF 31.

1 Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the top of each page. 1 Because Gelb lacks standing to bring his constitutional claims and Defendants did comply

with the FOIA’s requirements, the Court will GRANT Defendants’ motion to dismiss Count I

pursuant to Federal Rule of Civil Procedure 12(b)(1), ECF 16, GRANT Defendants’ cross-motion

for summary judgment on Count II, ECF 24, and DENY Gelb’s cross-motion for summary

judgment, ECF 19. The Court will also DENY Gelb’s motion to strike. ECF 31.

I. BACKGROUND

Gelb is a resident of New York who “specializes in finding persons to whom the

Government owes money and helping th[o]se persons obtain the funds to which they are entitled.”

ECF 12 ¶ 30. He alleges that Defendants “cancel all checks that remain outstanding six (6) months

after the date of issuance, without any notice to the payee who is the owner (“Owner”) of the

canceled checks proceeds or money outstanding.” Id. ¶ 43. He estimates that Defendants have

issued “about $500 million dollars in uncashed checks outstanding and unclaimed.” Id. ¶ 48.

In March 2021, Gelb submitted a FOIA request to DFAS (a Department of Defense

agency), requesting the following:

[A] search for all – Outstanding and Unpresented Checks not submitted for payment – stale-dated outstanding check lists . . . specifically, businesses, contractors, suppliers and vendors checks issued and payable in the years 2017, 2018, 2019, 2020 that are still outstanding and unpaid as of the date my FOIA search is processed for responsive documents. Please also include any Electronic Fund Transfer (EFT) payments that were made or were attempted and failed. To simplify this FOIA request, please search for all checks or ETF outstanding with a value of $100,000.00 and higher. Please eliminate from this list, any checks or electronic payments that have been actually paid or re-issued.

ECF 12-1 at 3. He asked that the resulting report include the following information:

1. ALC – Agency Location Code 2. Check Number 3. Payment Date 4. Cancel Date

2 5. Payment Amount 6. Invoice Number 7. Vendors, Suppliers, Businesses and Contractors, Name and Address 8. Agency Account Number Symbol Id.

Gelb specified that the agency should “search the Defense Finance and Accounting Service

Procurement [] Integrated Enterprise Environment (PIEE) computer database for the responsive

documents.” Id. He stated that his FOIA request “can be done in the PIEE databases background

and without any expense to DFAS because . . . DFAS would only be performing queries within its

PIEE database and utilizing existing software.” Id. at 4.

DFAS responded to Gelb’s request in April 2021, explaining that it had no existing

responsive records or reports. ECF 12-1 at 35. “To produce responsive records,” DFAS explained,

“would require the coordination of multiple disbursing locations, systems, and the creation of

database queries to generate a report solely for responding to your specific request.” Id. Because

this process would be burdensome, the agency estimated that it would cost Gelb, at minimum,

$4,608 in processing fees. Id. at 35–36. DFAS stated that if Gelb wished to proceed with his

request, he should submit a statement indicating his willingness to pay those fees. Id. at 35. Gelb

responded in October 2021, stating that he wished to proceed with his FOIA request and was

willing to pay the estimated fees. Id. at 39.

A few weeks later, the agency determined that it was in fact unable to fulfill Gelb’s request

because it “does not have a way to track if payments have cleared.” ECF 24-2 ¶ 22; ECF 24-5 at 1.

On October 29, 2021, FOIA Program Manager Gregory Outlaw spoke with Gelb on the phone “to

explain that DFAS could not fulfil his request as previously stated because [it had] determined that

the requested records did not exist and could not readily be compiled from existing sources.”

ECF 24-2 ¶ 24.

3 In January 2022, Gelb emailed DFAS stating that the agency had constructively denied his

March 2021 FOIA request by failing to provide responsive records, and appealing that constructive

denial. ECF 12-1 at 41–42. Gelb filed this suit in May 2023 and amended his complaint in August

2023. ECF 1; ECF 12. He alleges that Defendants’ policy of canceling outstanding checks after

six months without providing notice to owners is unconstitutional (Count I), and that Defendants

violated the FOIA by “fail[ing] to search the PIEE database and produce responsive record[s] to

[his] March 11, 2021 FOIA Request” (Count II). ECF 12 ¶¶ 99–115.

In September 2023, Outlaw “realized that [he] had forgotten to send an official written

response for ‘no records’” to Gelb after their October 2021 phone call. ECF 24-2 ¶ 26. On

September 15, 2023, DFAS sent Gelb a letter formally stating that it was unable to locate records

responsive to his request. ECF 24-7 at 1. Gelb responded via email that same day dismissing

Outlaw’s response.2 ECF 24-8 at 1.

Defendants filed a partial motion to dismiss, asking the Court to dismiss Count I for lack

of standing, improper venue, and failure to state a claim pursuant to Federal Rules of Civil

Procedure 12(b)(1), 12(b)(3), and 12(b)(6). ECF 16. The Court issued a Fox order advising Gelb

of his obligations in responding to that motion. ECF 17. Gelb responded by filing a cross-motion

for summary judgment on both Counts I and II. ECF 19. Defendants, in turn, opposed Gelb’s

motion for summary judgment and filed a cross-motion for summary judgment of their own on

both Counts I and II. ECF 24. The Court issued a Neal order, again advising Gelb of his obligations

in responding to Defendants’ cross-motion. ECF 26. Gelb filed an opposition, ECF 29, and

2 That email stated: “We are in litigation. Nice try but it won’t work. You are years too late The record before the court is no response. No denial letter. No response to my appeal. No response to my email informing you of litigation. And copies were sent to your general counsel. No search was ever conducted for relevant documents during the relevant period of time. I have a copy of all your manuals and the information is there. I want to see someone dumb enough to sign a false affidavit, and suborn perjury.” ECF 24-8 at 1.

4 Defendants filed a reply, ECF 30. After all three motions were fully briefed, Gelb filed a motion

to strike Defendants’ cross-motion for summary judgment, their reply in support of their

cross-motion for summary judgment, and their combined response to his own statement of material

facts and reply statement of material facts. ECF 31. The Court permitted Gelb to file a reply

statement of material facts. See Nov. 18, 2024 Minute Order; ECF 36.

II. LEGAL STANDARD

Defendants move to dismiss Count I pursuant to Rules 12(b)(1), 12(b)(3), and 12(b)(6).

ECF 16. Because Gelb does not have standing to bring Count I, the Court need only address

Defendants’ 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Both parties

cross-move for summary judgment on Counts I and II pursuant to Rule 56. ECF 19; ECF 24.

A. Rule 12(b)(1)

When assessing a motion to dismiss for lack of subject matter jurisdiction pursuant to

Rule 12(b)(1), “[i]t is to be presumed that a cause lies outside [the federal courts’] limited

jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994). The court

accepts the complaint’s allegations as true, Banneker Ventures, LLC v. Graham,

(D.C. Cir. 2015), and “where necessary . . . may consider the complaint supplemented by

undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus

the court’s resolution of disputed facts,” Herbert v. Nat’l Acad. of Scis.,

(D.C.

Cir. 1992).

Because Gelb is proceeding pro se, the Court considers his complaint “in light of all filings,

including filings responsive to a motion to dismiss.” Brown v. Whole Foods Mkt. Grp., Inc.,

(D.C. Cir. 2015). Complaints filed by pro se litigants are “held to less stringent

standards than formal pleadings drafted by lawyers,” but still “must plead factual matter that

5 permits the court to infer more than the mere possibility of misconduct.” Atherton v. D.C. Off. of

Mayor,

, 681–82 (D.C. Cir. 2009).

B. Rule 56

“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.

Off. of U.S. Trade Rep.,

(D.C. Cir. 2011). A court will grant a motion for

summary judgment when “the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material

fact is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty

Lobby, Inc.,

(1986). In evaluating a motion for summary judgment, “[t]he

evidence is to be viewed in the light most favorable to the nonmoving party and the court must

draw all reasonable inferences” in that party’s favor. Talavera v. Shah,

(D.C.

Cir. 2011). “When parties file cross-motions for summary judgment, each motion is viewed

separately, in the light most favorable to the non-moving party, with the court determining, for

each side, whether a judgment may be entered in accordance with the Rule 56 standard.” Howard

Town Ctr. Dev., LLC v. Howard Univ.,

(D.D.C. 2017).

In FOIA cases, it is the defending agency’s burden to prove it has complied with its

obligations under the statute. DOJ v. Tax Analysts,

, 142 n.3 (1989). A court may rely

on the agency’s “relatively detailed and non-conclusory” affidavits or declarations to resolve a

FOIA case. SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991). Such affidavits

“are accorded a presumption of good faith, which cannot be rebutted by ‘purely speculative claims

about the existence and discoverability of other documents.’”

(quoting Ground Saucer Watch,

Inc. v. CIA,

(D.C. Cir. 1981)).

6 III. ANALYSIS

The Court first addresses, and denies, Gelb’s motion to strike. ECF 31. The Court then

turns to Gelb’s FOIA claim, Count II, and concludes that Defendants are entitled to summary

judgment because they do not maintain the report Gelb seeks and the FOIA does not require them

to create new records. Finally, the Court determines that Gelb lacks standing to bring his

constitutional claims and therefore dismisses Count I for lack of subject matter jurisdiction.

A. Motion to Strike

“Motions to strike are ‘drastic remedies that courts disfavor,’ . . . and the trial judge has

discretion to either grant or deny the motion.” McFadden v. Wash. Metro. Area Transit Auth.,

, 139 (D.D.C. 2016) (quoting Riddick v. Holland,

(D.D.C. 2015)). First, Gelb asks the Court to strike Defendants’ reply filed in support of their

motion for summary judgment, ECF 30, arguing that it is in fact a second unauthorized reply or

surreply in support of Defendants’ motion to dismiss, ECF 31 at 1–2. The Court disagrees.

Defendants initially moved to dismiss Count I, arguing that—on the face of the complaint—Gelb

lacked standing, failed to state a claim, and had filed his case in the wrong district. ECF 16. In

their cross-motion for summary judgment, Defendants argue that they are also entitled to judgment

as a matter of law on Count I because (among other reasons) there is no genuine dispute of material

fact that Gelb lacks standing and that the alleged check-cancelling policy at issue does not exist.

See ECF 24. Defendants’ reply addresses those same concerns and raises arguments in response

to Gelb’s opposition to their motion for summary judgment. See ECF 30 at 8. Having filed their

own motion for summary judgment, Defendants were entitled to file a reply in support of that

motion. See also Jan. 22, 2024 Minute Order (granting consent motion to modify briefing schedule

and ordering Defendants to file a reply in support of their cross-motion for summary judgment);

7 Feb. 5, 2024 Minute Order (same). The Court thus concludes that Defendants’ reply, ECF 30, is

not an improper surreply.

Gelb also asks the Court to strike Defendants’ cross-motion for summary judgment,

arguing that it “is defective and invalid since Defendants did not file an actual Motion in support

of their cross-motion for Summary Judgment.” ECF 31 at 13. But Defendants complied with this

Court’s order to “file in a single submission their (i) reply in support of motion to dismiss,

(ii) opposition to Plaintiff’s motion for summary judgment, and (iii) motion for summary

judgment.” Nov. 20, 2023 Minute Order; see ECF 24 (the “February 2024 filing”). The document

Defendants filed clearly put Gelb on notice that Defendants were cross-moving for summary

judgment. See ECF 24 at 1. Additionally, the day after Defendants filed their cross-motion for

summary judgment, the Court issued a Neal order informing Gelb that Defendants had moved for

summary judgment, identifying the ECF number of that filing, and advising Gelb of his obligations

in responding to that motion. See ECF 26. Gelb filed his opposition to Defendants’ cross-motion

for summary judgment shortly thereafter. ECF 29. There can be no argument that Gelb lacked

notice of Defendants’ motion.

Gelb further argues that Defendants failed to respond to his statement of undisputed

material facts in their February 2024 filing, ECF 24, and instead responded to his asserted facts for

the first time in their reply, see ECF 30-1. He therefore asks this Court to strike that response,

located at ECF 30-1, and consider his stated material facts as admitted. ECF 31 at 9. Gelb is correct

that, although Defendants included their own statement of material facts in their February 2024

filing, they did not explicitly admit or deny Gelb’s proffered facts. See ECF 24-1. In order to give

Gelb a full and fair opportunity to respond to Defendants’ statements, the Court permitted him to

file a reply statement of material facts. See Nov. 18, 2024 Minute Order. Gelb did so, ECF 36, and

8 the Court considered his reply statement of facts in rendering its decision. Because the Court

rectified any error and eliminated any prejudice to Gelb, there is no need for the Court to strike

Defendants’ response or consider Gelb’s stated material facts as admitted.

Because Defendants’ cross-motion for summary judgment and reply were not improper,

and Gelb had the opportunity to respond to Defendants’ belated response to his statement of

material facts, the Court DENIES Gelb’s motion to strike, ECF 31.

B. FOIA Claim (Count II)

Gelb alleges that Defendants violated the FOIA by failing to produce records responsive

to his March 2021 request. ECF 12 ¶¶ 111–12. Defendants argue that Gelb’s request would require

the agency to create new records (which the FOIA does not mandate), and that doing so would be

unduly burdensome. ECF 24 at 32–35. Both parties cross-move for summary judgment on this

issue. ECF 19; ECF 24.

The Court addresses two threshold issues before turning to the FOIA request itself: (1) the

proper defendants for Gelb’s FOIA claim, and (2) the relevance of the agency’s belated denial

letter. The Court then turns to the merits and concludes that there is no genuine dispute of material

fact that the agency complied with the FOIA. Defendants are therefore entitled to summary

judgment on Count II.

1. Gelb cannot bring FOIA claims against individual officers

As a threshold matter, Gelb sues the U.S. Department of Defense, the Defense Finance and

Accounting Service, Secretary of Defense Lloyd Austin, and the Department of Defense’s Chief

FOIA Officer Joo Y. Chung. ECF 12 ¶¶ 31–34. But the FOIA provides a cause of action only

against the agency, not against individual officers. See Martinez v. Bureau of Prisons,

(D.C. Cir. 2006). Defendants Austin and Chung are therefore entitled to judgment as a

9 matter of law on Count II. The remainder of the Court’s FOIA analysis pertains only to the

Department of Defense and DFAS, who are the proper defendants.

2. The agency’s belated denial letter does not impact the Court’s analysis

Gelb argues repeatedly that Defendants never sent him a denial letter. See ECF 19 at 68–

69 ¶ 107; ECF 29 at 18–19. The agency admits that it failed to send Gelb a denial letter after his

October 2021 phone call with Mr. Outlaw, and remedied that error only after Gelb filed this suit.

See ECF 24-2 ¶¶ 24–28. Such an error is unfortunate, but it does not change the outcome here.

Even where an agency makes no effort to respond to a FOIA request until after a suit is filed, such

“dilatory conduct” does not automatically entitle the requester to the records he seeks. See House

v. DOJ,

, 200–01 (D.D.C. 2016). Rather, “if the agency does not adhere to

FOIA’s explicit timelines, the ‘penalty’ is that the agency cannot rely on the administrative

exhaustion requirement to keep cases from getting into court.” Citizens for Resp. & Ethics in Wash.

v. Fed. Election Comm’n,

, 189–90 (D.C. Cir. 2013). Defendants do not contest that

Gelb has exhausted his administrative remedies. See generally ECF 24. The central issue before

the Court is whether responding to Gelb’s FOIA request would require the agency to create new

records—a question the Court takes up below. Therefore, the agency’s belated denial letter does

not impact the merits of Gelb’s FOIA claim. The Court turns to those merits now.

3. The FOIA does not require the agency to create new records

There is no genuine dispute of material fact that DFAS does not possess the record Gelb

requested: a report of all stale-dated checks and EFT payments worth $100,000 or more, issued

between 2017 and 2020, that remain uncashed. See ECF 12 at 27–28. In fact, as the Court explains

below, the PIEE database Gelb asked the agency to search does not track the key piece of

information he seeks: whether a check has been cashed. See ECF 24-9 ¶¶ 12–13. That information

10 is spread across as many as eight other (non-PIEE) databases. See ECF 24-10 ¶ 10. The central

question, therefore, is whether the FOIA requires DFAS to create a computer program that obtains

and synthesizes information from multiple databases to create a record that does not otherwise

exist. The Court, applying binding D.C. Circuit precedent, concludes that it does not. Defendants

are therefore entitled to summary judgment on Count II.

a. DFAS does not possess the requested records

Gelb contends that “the data responsive to [his] FOIA request is in Defendants’ PIEE

database and Defendants[] have the report to comply with [his] FOIA request.” ECF 19 at 39. But

the agency has provided “reasonably detailed” declarations from FOIA Program Manager Gregory

Outlaw and Lead Financial Specialist Bradley Kennedy stating that this is not the case. Oglesby v.

U.S. Dep’t of Army,

(D.C. Cir. 1990); see ECF 24-2 (Outlaw Declaration);

ECF 24-9 (Kennedy Declaration).3 The Outlaw Declaration explains that Gelb’s FOIA request

sought records pertaining to stale checks, and DFAS reasonably determined that the Enterprise

Solutions & Standards (ESS) Disbursing Office would be best suited to search for those records.

ECF 24-2 ¶¶ 14, 16. The ESS Disbursing office initially indicated that it believed it was possible

to obtain the requested files, but that doing so would be burdensome and costly. Id. ¶ 22. Therefore,

before the agency conducted any search, it reached out to Gelb to ask whether he was willing to

3 Gelb seems to argue that the Court should disregard Defendants’ declarations altogether because “Defendants’ counsel cannot manufacture a new administrative record as part of a post hoc litigation scheme.” ECF 19 at 38; see ECF 29 at 17–18 (arguing that “[t]here is no administrative record in this case”). Gelb is correct that, in most cases challenging agency action pursuant to the Administrative Procedure Act (APA), judicial review is confined to the administrative record and “post hoc rationalizations” have no place. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

(1983); see

. But FOIA cases work somewhat differently. “The peculiarities inherent in FOIA litigation, with the responding agencies often in sole possession of requested records and with information searches conducted only by agency personnel, have led federal courts to rely on government affidavits to determine whether the statutory obligations of the FOIA have been met.” Perry v. Block,

(D.C. Cir. 1982). By submitting declarations, Defendants are not manufacturing a new administrative record—they are complying with this Circuit’s FOIA precedent. The cases Gelb cites to the contrary deal with agency denials of FOIA fee waivers, which operate differently. See ECF 29 at 13;

(a)(4)(A)(vii) (providing that court’s review of a fee waiver denial “shall be limited to the record before the agency”). 11 pay the $4,608 in processing fees.

¶¶ 15–19. Gelb confirmed that he was willing to pay those

fees, which Mr. Outlaw’s office communicated to the ESS Disbursing Office.

¶¶ 20–21.4

According to the Kennedy Declaration, the ESS Disbursing Office then reached out to

Disbursing Operations and Vendor Pay (which owns the PIEE system Gelb had asked the agency

to search). ECF 24-9 ¶¶ 5, 12. ESS learned from these subcomponents that “[t]he PIEE does not

track if U.S. Treasury checks were cashed . . . [and] does not capture data on whether checks and

EFT payments have cleared.” Id. ¶ 12. Therefore, “[t]here is no information available in the system

on invoices actually paid that were not claimed (or if paid by check, the check was unclaimed).”

Id. ¶ 13.

In light of these declarations, which are accorded a presumption of good faith, there is no

genuine dispute that DFAS does not possess the report Gelb seeks and that the PIEE does not track

whether a check has been cashed. See SafeCard Servs., Inc.,

; ECF 24-9 ¶¶ 12–

13. Although the parties offer competing statements of material fact and Gelb designates various

facts as “disputed,” see, e.g., ECF 29 at 59–66; ECF 36, Gelb offers no competent evidence that

undermines Defendants’ declarations. Gelb argues generally that Defendants’ declarations “are all

false,” ECF 29 at 15—but again, agency declarations are “accorded a presumption of good faith,

which cannot be rebutted by purely speculative claims,” SafeCard Servs., Inc.,

.

He also submits two affidavits of his own, see ECF 19 at 47–72; ECF 29 at 38–58, which make

various statements about the agency’s databases and technological capabilities, see, e.g., ECF 29

4 The agency exchanged this information with Gelb in compliance with federal regulations, which require the Department of Defense to notify FOIA requesters if estimated processing fees will exceed $25. See

(f). The agency’s April 15 notice was not, as Gelb seems to argue, an offer to form a contract with him to produce records. See ECF 29 at 14–15. Rather, it was a condition precedent to the agency performing any work on the request. See

(f)(2) (“When a requester is notified that the actual or estimated fees are in excess of $25.00, the request will not be considered received and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee.”). But even if the agency had formed a contract with Gelb to process responsive records, it is not clear how that would help his case. This is a suit under the FOIA to assess whether the agency has complied with the statute’s requirements, not a suit for breach of contract. 12 at 46. But Gelb is not an agency employee, and he does not explain how he has personal knowledge

of DFAS’s internal databases or record-keeping practices. See Fed. R. Civ. P. 56(c)(4) (requiring

that affidavits or declarations at summary judgment “must be made on personal knowledge . . . and

show that the affiant or declarant is competent to testify on the matters stated”); Londrigan v. FBI,

(D.C. Cir. 1981) (holding that personal knowledge requirement “is

unequivocal, and cannot be circumvented”); Bigwood v. U.S. Dep’t of Def.,

,

141 n.10 (D.D.C. 2015) (declining to rely on declaration by plaintiff’s “search expert” in FOIA

case because the expert “is not a[n agency] employee, and he does not aver that he has ever worked

at [the agency]”). Gelb’s own beliefs about what records the agency maintains are not evidence,

even if they are packaged in an affidavit. See Londrigan,

(“An affidavit based

merely on information and belief is unacceptable.”).

Gelb also includes in his affidavit a screenshot of “a report from My Invoice Manual.”

ECF 19 at 66; ECF 36 ¶ 12. MyInvoice is the system DFAS uses to search the PIEE database.

ECF 24-10 ¶¶ 3–4. The report depicted in the screenshot includes a “Status” column, which

identifies each invoice visible in the report as “PAID.” See ECF 19 at 66. According to Gelb, this

screenshot “confirm[s] the data responsive to Plaintiff’s FOIA request is in Defendants’ PIEE

database and Defendants[] have the report to comply with Plaintiff’s FOIA Request.” Id.; see

ECF 36 ¶ 12. Even assuming this screenshot accurately captures the agency’s internal MyInvoice

website, see ECF 24-10 ¶ 3, it does not help Gelb’s case. Defendants’ declarations explain that an

invoice might be listed as “paid” in MyInvoice although the check remains unclaimed:

[T]he PIEE does not capture data on whether checks and EFT payments have cleared. It can only provide data on invoices that have been paid, or invoices that have not been paid due to a list of failures (e.g., errors on the contract, missing data on the invoice, etc.). There is no information available in the system on invoices

13 actually paid that were not claimed (or if paid by check, the check was unclaimed).

ECF 24-2 ¶ 22; ECF 24-5 at 1. Gelb’s screenshot is therefore immaterial.

In sum, there is no genuine dispute that the PIEE does not contain the data Gelb seeks.

Instead, Gelb asserts that the agency must create a computer program that can extract information

maintained across multiple databases to compile the report he requested. See ECF 29 at 12; ECF 36

¶¶ 14, 23. The Court turns to that issue now.

b. The agency need not create new records to perform an adequate search

Gelb argues that “[i]n order to conduct an ‘actual search’ of Defendants’ database for

records in response to [his] FOIA request, Defendants must create a computer program/quer[y]

necessary to do the search.” ECF 29 at 12. Because Defendants admit that they did not do so, Gelb

claims that DFAS did not comply with the FOIA.

Defendants counter that fulfilling Gelb’s

request would compel the agency to create new records, which the FOIA does not require and

which would be unduly burdensome. ECF 24 at 34–36. The Court agrees with Defendants that

Gelb’s request would require the creation of new documents, and that the FOIA does not compel

the agency to do so. The Court therefore need not address whether fulfilling Gelb’s request would

be unduly burdensome.

“FOIA imposes no duty on the agency to create records.” Forsham v. Harris,

(1980). The statute “only requires disclosure of documents that already exist, not the creation

of new records not otherwise in the agency’s possession.” Nat’l Sec. Couns. v. CIA,

(D.C. Cir. 2020). “The FOIA also does not require agencies to conduct research by

‘answer[ing] questions disguised as a FOIA request.’” Nat’l Sec. Couns. v. CIA,

(D.D.C. 2012), aff’d,

(D.C. Cir. 2020) (quoting Hudgins v. IRS,

(D.D.C. 1985), aff’d,

(D.C. Cir. 1987)).

14 When a plaintiff requests aggregate data from an electronic database, it can be particularly

difficult to draw the line between searching for records (required) and creating records or analyzing

data (not required). See id. at 270. As another court in this District has explained, “[a]lthough the

E–FOIA Amendments condone ‘the application of codes or some form of programming to retrieve

the information’ contained in an electronic database,” the amendments provide no guidance “on

when the manipulation of data points in an electronic database through [programming] crosses the

all-important line between searching a database, on the one hand, and either creating a record or

conducting research in a database on the other.” Id. at 270–71. And, as Gelb points out, “[a]lthough

accessing information from computers may involve a somewhat different process than locating

and retrieving manually-stored records, these differences may not be used to circumvent the full

disclosure policies of the FOIA.” ECF 29 at 14 (quoting Inst. for Just. v. IRS,

(D.C. Cir. 2019)). But, although close questions may arise in this area of FOIA litigation, the D.C.

Circuit’s decision in National Security Counselors v. Central Intelligence Agency,

(D.C. Cir. 2020), makes this case a straightforward one. Under the standard articulated in National

Security Counselors, Gelb asks for more than a database search—he asks the agency to collect

information from multiple databases and create a new record synthesizing that information. The

FOIA does not require Defendants to do so.

In National Security Counselors, plaintiffs asked the CIA for “a listing of all FOIA

requesters from fiscal years 2008 to 2010 organized under each of four fee categories contemplated

by FOIA.”

. The agency submitted a declaration stating that, because “fee category is not

a mandatory field in CIA’s current electronic FOIA records system,” the agency would have to

“individually review each FOIA request submitted from 2008 to 2010 and manually sort thousands

of requests based on fee category” to fulfill the plaintiff’s request.

. The D.C. Circuit held

15 that such “manual review and sorting of numerous electronic records and the ensuing compilation

of lists that do not otherwise exist . . . self-evidently amounts to records creation, which FOIA does

not require.”

Defendants face a similar conundrum here. Gelb requests all “stale-dated outstanding

check lists . . . issued and payable in the years 2017, 2018, 2019, 2020,” with a value of $100,000

or more, and “any Electronic Fund Transfer (EFT) payments that were made or were attempted

and failed” during this period. ECF 12 at 27–28. He also asks that the agency “eliminate from this

list, any checks or electronic payments that have been actually paid or re-issued.”

Gelb’s FOIA

request specified that the agency should search its PIEE database for these records.

But, as the

Kennedy Declaration explains, the PIEE database (much like the CIA’s records system in National

Security Counselors) does not capture the key piece of information he seeks: “whether checks and

EFT payments have cleared.” ECF 24-9 ¶ 12. Defendants submitted a declaration from DFAS

Lead Financial Management Analyst Bryan Harper explaining that, to determine whether any

single invoice in the PIEE—among the millions of invoices contained in that database, see

ECF 24-10 ¶¶ 4–7—actually refers to an uncashed check, an employee would have to

(1) determine which of eight (non-PIEE) databases might contain that information, (2) obtain

credentials for and/or log in to that database, and (3) review the payment information in that

database to determine whether that invoice or check was in fact cashed. ECF 24-10 ¶ 10. And the

result of that process, as in National Security Counselors, would be the “compilation of [a] list[]

that do[es] not otherwise exist,”

: a list of checks and EFT payments that the agency

has manually cross-checked against as many as eight other databases to determine that those

payments remain outstanding. The FOIA does not require the agency to create this new record,

whether by performing these tasks manually or creating a computer program that can do so. See

16 id.; Reclaim the Recs. v. U.S. Dep’t of State, No. 23-CV-1471,

, at *7

(S.D.N.Y. Aug. 7, 2024) (concluding that plaintiffs’ request required the creation of new records

where “the Department would have to run hundreds of [database] searches, verify the results by

cross-checking them with the physical index cards, [and] stitch each incomplete list of search

results together”).5

* * *

The PIEE database does not track the key piece of information Gelb seeks: whether a check

has been cashed. Finding that information would require the agency to review millions of invoices

in the PIEE and conduct a miniature research project on each invoice—searching as many as eight

additional databases in the process—to determine whether that invoice represented an uncashed

check. See ECF 24-9 ¶¶ 12–13. The result of compiling that information would be a record that

does not otherwise exist. Because the FOIA does not require the agency to create new records,

Defendants have complied with the FOIA and are entitled to summary judgment on Count II.

C. Constitutional Claims (Count I)

The Court now turns to Gelb’s constitutional claims. Gelb alleges that Defendants

“[a]utomatically . . . cancel all checks that remain outstanding six (6) months after the date of

issuance, without any notice to the payee who is the owner (“Owner”) of the canceled checks

proceeds or money outstanding,” in violation of the Constitution’s Due Process and Takings

Clauses. ECF 12 ¶¶ 43–47. Defendants move to dismiss this claim for lack of standing, improper

venue, and failure to state a claim, ECF 16, and move in the alternative for summary judgment,

ECF 24. (In support of their motion for summary judgment, Defendants include a declaration

5 The cases Gelb cites to the contrary, see ECF 29 at 13–14 (citing Schladetsch v. HUD, No. 99-CV-0175,

(D.D.C. Apr. 4, 2000); Ctr. for Investigative Reporting v. DOJ,

(9th Cir. 2021); and ACLU Immigrants’ Rights Proj. v. ICE,

(2d Cir. 2023)), are not binding on this Court and do not override the D.C. Circuit’s decision in National Security Counselors. 17 stating that the alleged check-cancellation policy does not exist. ECF 24-11 ¶¶ 7–9.) Gelb

cross-moves for summary judgment in his favor. ECF 19. Because Gelb lacks standing, the Court

will dismiss Count I pursuant to Rule 12(b)(1) and need not reach the parties’ arguments for

summary judgment.

Gelb does not claim that he was personally subject to Defendants’ alleged check-cancelling

policy. Rather, he is “an independent money finder” who for 25 years has “specialize[d] in finding

persons to whom the Government owes money and helping these persons obtain the funds to which

they are entitled.” ECF 12 ¶ 57. Gelb therefore seeks to assert third-party standing on behalf of the

uncashed check recipients (the “Owners”)—his potential customers. To do so, he “must show that

he has standing under Article III, and that he satisfies third party . . . standing requirements.”

Lepelletier v. FDIC,

(D.C. Cir. 1999) (emphasis in original); see Kowalski v.

Tesmer,

, 128–29 n.2 (2004) (considering whether plaintiffs alleged third-party

standing, and assuming without deciding that they had independent Article III standing). Article III

standing has three requirements: the plaintiff “must show (i) that he suffered an injury in fact that

is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the

defendant; and (iii) that the injury would likely be redressed by judicial relief.” TransUnion LLC

v. Ramirez,

(2021). Third-party standing has two additional requirements: “the

litigant must have a close relation to the third party . . . and there must exist some hindrance to the

third party’s ability to protect his or her own interests.” Powers v. Ohio,

(1991).

There are a number of potential flaws with Gelb’s theory of standing, but the Court need only

18 address one: redressability. Because Gelb has not established this required ingredient of Article III

standing, the Court will dismiss Count I for lack of subject matter jurisdiction.6

To establish redressability, Gelb must show that it is “likely, as opposed to merely

speculative, that [his] injury will be redressed by a favorable decision.” Lujan v. Defs. of Wildlife,

(1992). Gelb’s asserted injury is that he has lost the “opportunity to develop a

business relationship with Owners who have unclaimed money outstanding,” because the Owners

are not aware that they have such outstanding checks. ECF 12 ¶ 59; ECF 19 at 29. But the remedy

for the alleged constitutional violation—canceling Owners’ checks without notice—would be to

provide notice to the Owners, not to Gelb. See ECF 12 at 24 (asking that the Court “[o]rder

Defendants to send notices to the Owners of unclaimed money, prior to being deprived of their

money”). Then, as another court found in a similar case filed by Gelb, “the Owners would, first,

have to decide to attempt to claim the property; second, decide to seek out a property recovery

service; and third, seek out Gelb’s particular service.” Gelb,

, at *5. Such an

attenuated series of events that “depends on the unfettered choices made by independent actors not

before the court[]” is far too speculative to establish redressability. Lujan,

(quoting

ASARCO Inc. v. Kadish,

(1989)); see Gelb,

, at *5.

Gelb argues that he has standing under Lepelletier, in which the D.C. Circuit held that a

money finder had Article III and third-party standing to sue the Federal Deposit Insurance

Corporation (FDIC) for “the release of the names of depositors with unclaimed funds.”

; see ECF 19 at 18, 27. Defendants counter that Lepelletier was abrogated by the Supreme

6 Because Gelb lacks Article III standing, the Court need not assess whether he meets the additional requirements of third-party standing. The Court observes, however, that several other courts have dismissed similar claims brought by Gelb for (among other reasons) failure to establish third-party standing. See Gelb v. Niblack, No. 22-CV-2601,

, at *2–4 (E.D.N.Y. Sept. 6, 2023); Gelb v. DHS, No. 15-CV-6495,

, at *8 (S.D.N.Y. Sept. 15, 2017); Gelb v. Fed. Rsrv. Bank of N.Y., No. 12-CV-4880,

, at *3–4 (S.D.N.Y. Aug. 29, 2016). 19 Court’s subsequent decision in Kowalski, which held that attorneys lacked third-party standing to

sue on behalf of “hypothetical” clients.

; see ECF 24 at 14–15. In the alternative,

Defendants argue that Lepelletier is distinguishable. ECF 30 at 15. Because the Court resolves

Defendants’ motion on Article III standing grounds, rather than third-party standing, the Court

need not decide whether Lepelletier’s statements about third-party standing remain good law. And,

as explained below, the Court finds Lepelletier to be distinguishable when it comes to Article III

redressability.

Lepelletier, like Gelb, was “an independent money finder.” Lepelletier,

.

Like Gelb, his alleged injury was the “denial of the opportunity to develop a business relationship

with depositors who have unclaimed deposits.”

. But unlike Gelb, Lepelletier argued that

the Due Process Clause required something more than individual notice to depositors—he

contended that the Constitution required “public disclosure of the depositors’ names.”

;

see ECF 12 at 24. Any remedy “short of full public disclosure,” the D.C. Circuit explained, “would

not appear to redress Lepelletier’s injury, because he would not learn the names of parties with

unclaimed deposits and, as a consequence, he would remain unable to contact those individuals in

the hope of soliciting business from them.”

That is precisely the redressability problem that

Gelb faces here: even if DFAS sent notice to the Owners, Gelb “would remain unable to contact”

the Owners because he would not himself be entitled to any notice.

Thus, Gelb cannot rely on

Lepelletier to sustain his due process claim because he has requested a different remedy—one that

would not redress his alleged constitutional injury—and he has made no argument that the

Constitution requires Defendants to disclose the Owners’ identities to him or to the general public.

Finally, Gelb cannot borrow standing from his FOIA claim. Gelb states that he “personally

suffered an injury in fact when Defendants improperly withheld Owner records responsive to [his]

20 FOIA Request” and that releasing those records would redress that injury. ECF 29 at 42. That

describes Gelb’s alleged injury and requested remedy as to his FOIA claim, not his constitutional

claim. A plaintiff “must demonstrate standing for each claim he seeks to press,” and Gelb has not

done so here. Town of Chester v. Laroe Ests., Inc.,

(2017) (quoting Davis v.

FEC,

(2008)). And, regardless, the Court has already determined that

Defendants did not improperly withhold records in violation of the FOIA. Count I is therefore

DISMISSED for lack of subject matter jurisdiction.

* * *

For the foregoing reasons, Defendants’ motion to dismiss Count I, ECF 16, is GRANTED;

Defendants’ cross-motion for summary judgment, ECF 24, is GRANTED as to Count II;

Plaintiff’s cross-motion for summary judgment, ECF 19, is DENIED; and Plaintiff’s motion to

strike, ECF 31, is DENIED. A separate order accompanies this memorandum opinion.

SO ORDERED.

__________________________ JIA M. COBB United States District Judge

Date: January 8, 2025

21