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SUSSMAN v. UNITED STATES MARSHALL SERVICE

October 13, 2005.

MICHAEL SUSSMAN, Plaintiff,
v.
UNITED STATES MARSHALL SERVICE, Defendant.



The opinion of the court was delivered by: HENRY KENNEDY JR., District Judge

MEMORANDUM OPINION

Plaintiff, proceeding pro se, bings this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522, and the Privacy Act, 5 U.S.C. § 552a. This court previously granted defendant's motion for summary judgment on plaintiff's Privacy Act claim and denied summary judgment on his FOIA claim because defendant's search for records was inadequate. Defendant has filed a renewed motion for summary judgment and plaintiff has filed a cross-motion for summary judgment. Based on the parties' filings and the applicable law, defendant's motion will be granted and plaintiff's cross-motion denied.

I. Background

  On July 19, 2002, plaintiff sent a letter to the United States Marshal Service ("USMS"), pursuant to FOIA and the Privacy Act, requesting

 
Any and all records relating to me, mention me, or otherwise pertain to me. The records should include, but not be limited to, documents, files, investigative reports, communications, electronic data, voice mail recordings (or other voice storage files), facsimiles, teletypes, memoranda, briefs, orders, directives, notes, field notes, videos, logs, telephone logs, letters, data files, interoffice memoranda, intraoffice memoranda, interagency communications, requests, etc.
Declaration of Florastine P. Graham ("Graham Decl."), Exhibit ("Ex."), A.*fn1 Plaintiff provided the USMS with his identifying data and specified the areas where the documents were most likely to be located.

  The USMS processed plaintiff's request by searching for records indexed to his name. Id., ¶ 4. The USMS located a file which contained a four-page document entitled, "NOTICE OF INVOCATION OF RIGHTS BY INJURED PARTY, MICHAEL SUSSMAN." Id. Plaintiff had sent this document to the residence of United States District Court Judge Alan Bloch in the Western District of Pennsylvania, and to the office addresses of the Clerk of the United States District Court, the United States Attorney and United States Marshal in that judicial district. Id. The USMS released this document to plaintiff with one deletion, the address of an individual, citing Exemption 6 of FOIA. Id., ¶ 5. The USMS did not locate any other documents responsive to plaintiff's request. Id., ¶ 4.

  On November 7, 2002, plaintiff appealed the USMS's action to the Office of Information and Privacy ("OIP"). Id., ¶ 7. In his appeal, plaintiff contended the USMS records search was inadequate. He identified the following as information not disclosed: a "wanted poster" for Keith Maydak, alleging Michael Sussman as an alias; records of Deputy U.S. Marshal Joseph Morehead's inquiries about plaintiff's business affairs to third parties; subpoenas for plaintiff's business records obtained by Deputy Marshal Morehead; and the records received in response to those subpoenas. Id., Attachment, Nov. 7, 2002 letter. After plaintiff filed the present action, OIP closed its file on plaintiff's administrative appeal. Id., ¶ 8.

  Following this Court's August 3, 2004 Order, the USMS searched Keith Maydak's files for records related or pertaining to plaintiff or that mentioned plaintiff by name. Defendant's Motion for Summary Judgment ("Deft's Mot."), Supplemental Declaration of Shaaron L. Keys ("Keys Decl."), ¶ 3. On February 28, 2005, the USMS informed plaintiff that the agency had located approximately 330 pages of documents responsive to his request. Id., Ex. A. Duplicate copies of certain documents were included. Id. The USMS also informed plaintiff that ten of the pages had originated with other agencies — the United States Postal Service ("USPS"), the Bureau of Citizenship and Immigration Services ("CIS"), and the Federal Bureau of Investigation ("FBI"). Id. The USMS disclosed 81 pages of documents to plaintiff, 80 of them in their entirety and one page withholding the name of a USMS employee pursuant to FOIA Exemption 7 (C). Id. The USMS advised plaintiff that it was still processing his request and would contact him again. Id.

  On March 14, 2005, the USMS informed plaintiff that it had completed the processing of his FOIA request and had located an additional 722 pages of responsive documents. Id., Ex. B. The USMS advised that 123 pages had originated with the Commodities Futures Trading Commission ("CFTC") and the Executive Office for United States Attorneys ("EOUSA") and had been referred to those agencies for disclosure determinations. Id. The USMS disclosed 552 pages of documents to plaintiff, 76 pages in their entirety, 476 pages with information withheld pursuant to Exemptions 2, 3, 7(C), 7(D), and 7(E), and the remaining 47 pages withheld in their entirety pursuant to the same exemptions. Id. On March 18, 2005, the USMS disclosed to plaintiff an additional one-page document that had been inadvertently withheld. Id., Ex. C.

  The agencies that had been referred documents by the USMS provided responses to plaintiff's FOIA request. On August 30, 2005, the EOUSA released to plaintiff 111 pages in full and 10 pages in part, with information withheld pursuant to Exemption 7(C). Defendant's Opposition to Cross Motion for Summary Judgment and Reply to Plaintiff's Opposition to Summary Judgment ("Deft's Opp."), Declaration of John W. Kornmeier ("Kornmeier Decl."), ¶ 5 & Ex. C. The FBI disclosed its one page document in full. Deft's Opp., Ex. B. On April 18, 2005, the CFTC disclosed in full three pages. Id., Ex. C. On March 17, 2005, the USPS withheld in full seven pages pursuant to Exemptions 6 and 7(C). Id., Ex. D. The CIS released one page in its entirety and withheld no material. Id., Ex. E.

  II. Discussion

  Standard of Review

  Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the pleadings on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. Rule 56(c). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the initial burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).

  In considering whether there is a triable issue of fact, the court must draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; see also Washington Post Co. v. United States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). The party opposing a motion for summary judgment, however, "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248. The nonmoving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Moreover, "any factual assertions in the movant's affidavits will be accepted as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion." Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)). The mere existence of a factual dispute by itself, however, is not enough to bar summary judgment. The party opposing the motion must show that there is a genuine issue of material fact. See Anderson, 477 U.S. at 247-48. To be material, the fact must be capable of affecting the outcome of the litigation; to be genuine, the issue must be supported by admissible evidence sufficient for a reasonable trier-of-fact to find in favor of the nonmoving party. See id.; Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987).

  Analysis

  Adequacy of Search

  To obtain summary judgment of the issue of the adequacy of search, an agency must show "viewing the facts in the light most favorable to the requester, that . . . [it] `has conducted a search reasonably calculated to uncover all relevant documents.'" Steinberg v. United States Dep't of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994) (quoting Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail and in a non-conclusory fashion the scope and method of the agency's search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance with the FOIA. Id. at 127. The agency must show that it made a "good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)); see Campbell v. United States Dep't of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998). In determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness. Oglesby, 920 F.2d at 68.

  Because the agency is the possessor of the records and is responsible for conducting the search, the Court may rely on "[a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched." Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (citing Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990); ...


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