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NYC Apparel FZE v. U.S. Customs and Border Protection

April 11, 2007

NYC APPAREL FZE, PLAINTIFF,
v.
U.S. CUSTOMS AND BORDER PROTECTION, DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The plaintiff has filed this lawsuit seeking disclosure of certain records requested pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522 et. seq. (2000). On January 23, 2006, the Court issued a Memorandum Opinion and Order denying without prejudice both parties' motions for summary judgment and directing the defendant to supplement the record and, if necessary, to undertake a new search pursuant to the plaintiff's FOIA request in order to remedy deficiencies identified in its initial factual submissions. Order at 1; see also Memorandum Opinion ("Opinion") at 9-19 (detailing deficiencies). The defendant has now addressed those deficiences to the Court's satisfaction. Defendant's Motion for Summary Judgment ("Def.'s Mot."), Declaration of Shari Suzuki ("Suzuki Decl.") ¶¶ 23-32 (responding to the Court's queries);*fn1 see also Memorandum of Points and Authorities in Support of Defendant's Renewed Motion for Summary Judgment ("Def.'s Mem.") at 10-15 (same). Currently before the Court are the parties' renewed cross-motions for summary judgment.*fn2 Plaintiff's Motion for Summary Judgment ("Pl.'s Mot."); Def.'s Mot. For the reasons set forth below, the Court grants the defendant's motion for summary judgment and denies the plaintiff's motion.

I. Background

The facts of this case have been fully recited in the Court's previous Memorandum Opinion. See Opinion at 1-6. However, it is helpful to review them briefly as they relate to the motions currently before the Court. The following facts are undisputed.

The plaintiff, NYC Apparel FZE ("NYC Apparel"), an exporter of merchandise from the United Arab Emirates ("UAE"), Compl. ¶ 3, claims to have entered into an agreement to ship merchandise from the UAE to Mexico by way of Los Angeles, California. Id. On July 9, 2003, the defendant, the U.S. Customs and Border Protection ("Customs"), seized a container being shipped by the plaintiff through the Los Angeles-Long Beach Seaport and assigned to it Seizure Number 2003-2704-000743. Def.'s Mot., Second Declaration of Robert P. Thierry ("Thierry Decl. II") ¶¶ 3-5;*fn3 Compl. ¶ 7. On July 12, 2003, Customs seized another container being shipped by the plaintiff through the Los Angeles-Long Beach Seaport, assigning to it Seizure Number 2003-2704-000751. Thierry Decl. II ¶¶ 6-8; Pl.'s First Mem., Ex. B (seizure notice) at 1. According to Customs, both shipments were illegal imports bound not to Mexico but to El Paso, Texas. Thierry Decl. II ¶¶ 4, 7; Pl.'s First Mem., Ex. B (seizure notice) at 1.

On September 3, 2003, the plaintiff's counsel sent two letters to Customs' Port Director at the Los Angeles-Long Beach Seaport, requesting, pursuant to the FOIA, all information pertaining to the seizure of the two containers. Compl. ¶ 9; Def.'s First Mem., Ex. C (FOIA request); Def.'s Stmt. ¶ 1. Specifically, the letters stated that the plaintiff sought "all information relied upon by Customs" in connection with the seizures, including "the manuals, guidelines, directives, etc. relied upon by Customs" and "all records and/or information that proves [the] alleged violations in this case." Def.'s First Mem., Ex. C (FOIA request).

On December 19, 2003, Customs' Port Director informed the plaintiff's counsel by letter that a search of the seizure case files had been conducted, that eighty-four pages of documents had been determined to be responsive to the plaintiff's request, and that all responsive documents were exempt from release under the FOIA and were being withheld in their entirety.*fn4 Compl. ¶ 19; Def.'s First Mem., Ex. J (letter from Customs to the plaintiff's counsel, dated December 19, 2003); Def.'s Stmt. ¶ 9. The plaintiff appealed the decision to Customs' FOIA Appeals Officer on January 6, 2004. Compl. ¶ 20; Def.'s First Mem., Ex. K (FOIA appeal); Def.'s Stmt. ¶ 10; Suzuki Decl. ¶ 15. The plaintiff then filed its complaint in this case on December 3, 2004, stating that "pursuant to 5 U.S.C. § 522(a)(6)(C), the failure of Customs to respond to the [FOIA] appeal within the time prescribed by law constitutes a deemed denial" and also the exhaustion of the plaintiff's administrative remedies. Compl. ¶ 25.

By letter dated February 23, 2005, Joanne Roman Stump, Customs' FOIA Appeals Officer in charge of the plaintiff's appeal, affirmed in part the decision of Customs' Los Angeles Port Director.*fn5 Def.'s Stmt. ¶ 11; Pl.'s Stmt. ¶ 2; Suzuki Decl. ¶ 16. Upon review of the record, Ms. Stump determined that the plaintiff was a "third-party FOIA requester . . . [who] is not entitled to get information which is submitted to [Customs] by business submitters as part of the public disclosure that occurs when a FOIA request is processed," but that it was nevertheless appropriate to release thirty-five pages of responsive documents to the plaintiff with redactions pursuant to FOIA exemptions (b)(2), (b)(4), (b)(6), (b)(7)(C), and (b)(7)(E). Def.'s First Mem., Ex. L (letter from Customs to the plaintiff's counsel, dated February 23, 2005) at 2; see also Suzuki Decl. ¶¶ 16, 21; Def.'s First Mem, Ex. 1 (Declaration of Joanne Roman Stump) ("Stump Decl.") ¶¶ 15, 17; Def.'s Stmt. ¶ 11; Pl.'s Stmt. ¶ 2. Ms. Stump further informed the plaintiff that nineteen other pages of responsive documents were to be withheld in full pursuant to FOIA exemptions (b)(2), (b)(4), (b)(5), (b)(6), (b)(7)(A), (b)(7)(C), and (b)(7)(E). Def.'s Stmt. ¶ 11; Suzuki Decl. ¶¶ 16, 21. The remaining thirty pages of the eighty-four pages of responsive documents discovered in the seizure files by Customs were duplicates of pages that had been partially released or withheld in their entirety. Id.

After sending the February 23, 2005 letter to the plaintiff, Customs filed a motion for summary judgment along with two indexes produced pursuant to Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973). The defendant contended in its motion that its search was adequate to discover all responsive documents, Def.'s First Mem. at 5-8, that it had properly withheld all or part of the responsive documents pursuant to the FOIA exemptions (b)(2), (b)(4), (b)(5), (b)(6), (b)(7)(A), (b)(7)(C), and (b)(7)(E), id. at 8-25, and that it had disclosed all reasonably segregable portions of the documents, id. at 25-26. The plaintiff, by contrast, contended that the defendant's search was not adequate, Pl.'s First Reply at 2-3, that the documents that were discovered had been improperly redacted or withheld under exemptions (b)(2), (b)(4), (b)(5), and (b)(7)(A), Pl.'s First Mem. at 3-9, and that the defendant had not disclosed all reasonably segregable information, id.*fn6

In response to the Court's January 23, 2006 order denying without prejudice both parties' summary judgment motions, Customs undertook an additional search of its databases for documents responsive to the plaintiff's FOIA request. Def.'s Mem. at 9-11; Suzuki Decl. ¶¶ 23-27. As a result of this new search, Customs located ten additional pages of responsive documents, five which were disclosed to the plaintiff and five which were withheld in full.*fn7 Def.'s Mem. at 10; Suzuki Decl. ¶ 26; Supplemental Declaration of Shari Suzuki ("Suzuki Supp. Decl.") ¶¶ 4-9 (discussing newly located documents withheld in full); see also Def.'s Mem., Exs. B (Vaughn index of documents withheld in full) and N (responsive pages disclosed to plaintiff). Customs also disclosed four redacted printouts from the Seized Asset and Case Tracking System ("SEACATS") database that it determined to be "associated with the two pertinent seizures," Suzuki Decl. ¶ 26, although it did "not consider these records as necessarily 'responsive' to [the] [p]laintiff's FOIA request," id. ¶¶ 26-27; see also Def.'s Mem. at 9-10. Customs now contends that "all records that are responsive to [the] [p]laintiff's request for . . . information 'relied upon' by [Customs] or considered 'proof' . . . has been identified, reviewed, and as appropriate released or withheld by [the] [d]efendant." Def.'s Mem. at 11. The parties thus renew their requests for summary judgment.*fn8 Def.'s Mem.; Pl.'s Mem.

II. Standard of Review

Courts will grant a motion for summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions 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. 56(c). When ruling on a Rule 56(c) motion, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must therefore draw "all justifiable inferences" in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). The non-moving party, however, cannot rely on "mere allegations or denials." Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248) (quotation marks omitted). Thus, "conclusory allegations unsupported by factual data will not create a triable issue of fact." Pub. Citizen Health Research Group v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (internal quotation marks and citations omitted). If the Court concludes that "the nonmoving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Moreover, "in ruling on cross-motions for summary judgment, the [C]ourt shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed." Shays v. FEC, 424 F. Supp. 2d 100, 109 (D.D.C. 2006) (citation omitted).

"[The] FOIA requires federal agencies to disclose, upon request, broad classes of agency records unless the records are covered by the statute's exemptions." Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (citation omitted). In a FOIA action, the defendant agency has "[the] burden of demonstrating that the withheld documents [requested by the FOIA requester] are exempt from disclosure." Boyd v. Dep't of Justice, 475 F. 3d 381, 385 (D.C. Cir. 2007) (citation omitted). The Court will grant summary judgment to the government in a FOIA case only if the agency can prove "that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester." Friends of Blackwater v. Dep't of Interior, 391 F. Supp. 2d 115, 119 (D.D.C. 2005) (internal quotation marks and citations omitted). To satisfy its burden and prove that it has fully discharged its FOIA obligations, a defendant agency typically submits a Vaughn index, which provides "a relatively detailed justification" for each withheld document, "specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of [the] withheld document to which they apply." King v. Dep't of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987) (internal quotation marks and footnote omitted); see also Vaughn, 484 F.2d at 827. Thus, in a lawsuit brought to compel the production of documents under the FOIA, "an agency is entitled to summary judgment if no material facts are in dispute and if it demonstrates that each document that falls within the class requested either has been produced . . . or is wholly[, or partially,] exempt [from disclosure]." Students Against Genocide, 257 F.3d at 833 (internal quotation marks and citation omitted).

III. Analysis

A. The Adequacy of the Search

The plaintiff argues that the defendant's search was not reasonable or adequate because Customs did not search its Automated Manifest System ("AMS") for the plaintiff's name as a "shipper" and because an adequate search would have found the plaintiff's name in Customs' "law enforcement systems." Pl.'s Reply at 1-2. The defendant asserts that its search did fulfill the FOIA's requirements because "it was reasonable . . . to search for responsive information by looking within the administrative seizure files . . . the SEACATS ...


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