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Brannum v. Dominguez

July 7, 2005

ROBERT VINSON BRANNUM PLAINTIFF,
v.
MICHAEL L. DOMINGUEZ*FN1 ACTING SECRETARY OF THE AIR FORCE DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge

MEMORANDUM OPINION

This matter comes before the Court on defendant's motion for leave to file a renewed motion for summary judgment, defendant's renewed motion for summary judgment, and plaintiff's response to these motions. Also before the Court are plaintiff Brannum's cross-motions for summary judgment. Upon consideration of the filings, the entire record herein and the relevant law, the Court will grant defendant leave to file a renewed motion for summary judgment, and will grant defendant's renewed motion for summary judgment and deny plaintiff's cross-motions for summary judgment.

I. Procedural Posture

This case originated when plaintiff Brannum filed a request with defendant, Secretary of the Department of the Air Force on November 20, 2002 under the Freedom of Information Act ("FOIA") and the Privacy Act seeking "...copies of all papers, documents, reports and materials, to include but not limited to cover and or [sic] transmittal notes, sheets, letters or memoranda forwarded to and or used by...the SAF Personnel Council or any other person, persons, office, agency, bureau, department, committee, council, or entity of the US Air Force to determine [plaintiff's] highest grade [in the Air Force] for retirement. (See Plaintiff's Complaint ("Compl.") Attach. 1.) Dissatisfied with the Air Force's response, plaintiff filed the instant suit on August 18, 2003. Following numerous motions for an extension of time to file a dispositive motion by defendant, (See Defendant's ("Def.'s) Motions from April 30, 2004; May 14, 2004; May 28, 2004) which were granted by this Court (See Court's Orders from May 5, 2004 and June 1, 2004), defendant filed a motion to dismiss or in the alternative, a motion for summary judgment on June 2, 2004 (See Def.'s Motion from June 2, 2004.) Plaintiff responded with a memorandum in opposition on June 30, 2004. (See Plaintiff's ("Pl.'s") June 30, 2004 Memorandum ("Mem.").)

Plaintiff's memorandum was followed by three consecutive motions on the part of defendant for an extension of time in which to file a reply to plaintiff's June 30, 2004 memorandum. Each of these motions was again granted by this Court but no reply was ever filed by defendant. On November 18, 2004, this Court denied defendant's motion for summary judgment or motion to dismiss, and required defendant to submit a Vaughn index by December 10, 2004 followed by a dispositive motion, which was due on December 20, 2004. (See Court's Order from November 18, 2004.) Defendant filed a belated Vaughn index on December 13, 2004 (Def.'s December 13, 2004 Notice of Filing Vaughn Index), and as a result, plaintiff filed a cross-motion for summary judgment (See Pl.'s Mot. from December 13, 2004). This Court denied plaintiff's cross-motion for summary judgment. (See Court's Order from December 13, 2004.) Plaintiff then subsequently filed another cross-motion for summary judgment. (See Pl.'s December 13, 2004 Mot.)

On January 10, 2005, nearly one month after defendant's dispositive motion was due, defendant filed a motion for leave to file renewed motion for summary judgment along with defendant's renewed motion for summary judgment and memorandum in support of defendant's renewed motion for summary judgment. (Def.'s Motions and Memorandum from January 10, 2005.) These motions were subsequently followed by plaintiff's memorandum in opposition, (Pl.'s Mem. from January 13, 2005), and yet another cross-motion for summary judgment by plaintiff.

II. Background

Plaintiff is Robert Vinson Branson, a legal resident of the District of Columbia. (Compl. ¶ 3.) Defendant is Michael L. Dominguez, Acting Secretary of the Department of the Air Force. (Id.) On November 20, 2002, plaintiff filed a request with defendant under the FOIA and the Privacy Act requesting records and documents pertaining to the determination of plaintiff's highest grade for retirement. (Compl. ¶ 5.) In letters dated February 4, 2003 and March 17, 2003, defendant provided plaintiff with interim responses to plaintiff's requests for information in which defendant stated that additional time would be needed to process the request. (Def.'s June 2, 2004 Mot. Ex. B.)

On August 19, 2003, Mr. John M. Espinal, the FOIA Manager at the Department of the Air Force, responded to defendant's request. (Def.'s June 2, 2004 Mot. Ex. C.) Mr. Espinal noted in his letter that defendant's request for documents was only processed under the Freedom of Information Act, and not under the Privacy Act, since the records were not retrievable by name or other identifier, and therefore the records were not in a "system of records" as defined by the Privacy Act. (Id.; Def.'s January 10, 2005 Mem. at 2.) Mr. Espinal's office did release information requested pursuant to the FOIA with certain redactions. (Def.'s January 10, 2005 Mem. at 2-3.)

Information withheld included names and personal signatures on Vote Sheets under Exemption 6 and "remarks" and "board rationale" under Exemption 5 of the FOIA. (Id. at 3-12.) Also withheld was the first paragraph of the "Recommendation for Involuntary Reassignment from 4 SVS/CC" pursuant to Exemption 5 of the FOIA. (Id. at 6.) Mr. Espinal attested to this information in an October 29, 2003 executed declaration. (Def.'s June 2, 2004 Mot. Ex. D.) The same information is also contained in the index filed by defendant on December 13, 2004 pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). (See Def.'s December 13, 2004 Notice of Filing Vaughn Index.)

III. Defendant's Motion for Leave to File Renewed Motion for Summary Judgment

On January 10, 2005 defendant filed a motion for leave to file a renewed motion for summary judgment. (Def.'s Mot. from January 10, 2005.) This dispositive motion was due on December 20, 2004, and was therefore nearly one month late. (See Court's Order from November 18, 2004.) This was not the first instance in which counsel for defendant was late in filing a motion, and in each of the preceding instances, this Court has been exceedingly accommodating to defendant's motions for extensions of time in which to file. The conduct of counsel for defendant has been less than what is expected of those practicing before this Court, and counsel was already aware of this Court's displeasure. (See id.) Nevertheless, the judicial system has a strong presumption of adjudication on the merits. See Shepard v. Am. Broad. Cos., 62 F.3d 1469, 1475 (D.C. Cir. 1995). The mere fact that this Court found it necessary both in this instance and at least in one prior occurrence in this case to criticize the conduct of this litigation by the U.S. Attorney's office should be sufficient to deter such future conduct. Accordingly, this Court will proceed in deciding the instant case solely on the merits.

IV. Analysis

A. Defendant's Renewed Motion for ...


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