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Calvert v. United States

August 24, 2009

NORMAN B. CALVERT, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document No.: 9

MEMORANDUM OPINION

DENYING THE DEFENDANT'S MOTION TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT

I. INTRODUCTION

The pro se plaintiff commenced this civil action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking to compel the production of a signature sample from a Federal Bureau of Investigation ("FBI") Special Agent. He challenges the defendant's refusal to process the request without the agent's authorization. The defendant moves to dismiss under Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure or for summary judgment under Rule 56.*fn1 Upon consideration of the parties' submissions and the entire record, the court denies the defendant's motion.

II. FACTUAL & PROCEDURAL BACKGROUND

By letter dated August 10, 2007, the plaintiff requested from the FBI "a specimen of FBI Special Agent Anthony John Nelson's signature, for the specific purpose of making a comparison with the signature that appears on [the criminal] complaint" sworn against the plaintiff on March 1, 1994, in the Eastern District of New York. Def.'s Mot., Attach. 1 ("Hardy Decl.") & Ex. A. By letter dated January 22, 2008, the FBI responded to the plaintiff's request, asking that he submit a privacy waiver from Special Agent Nelson. Id., Ex. B. In its response, the FBI informed the plaintiff that without the waiver, any responsive records would be exempt from disclosure under FOIA exemptions 6 and 7(C) set forth at 5 U.S.C. § 552(b), but also stated that "[t]his response should not be considered an indication of whether [responsive records] exist in FBI files." Hardy Decl.; Def.'s Mot., Ex. B. By letter dated January 30, 2008, the plaintiff enclosed "a facsimile of that Privacy Waiver and Certification of Identity" and sought the FBI's assistance with obtaining Nelson's privacy waiver. Id., Ex. C. The FBI responded with a letter dated February 26, 2008, in which it reiterated the need for a privacy waiver or proof of Nelson's death prior to processing the plaintiff's FOIA request, and the fact that it could neither confirm nor deny the existence of responsive records. Id., Ex. D. By letter of March 5, 2008, the plaintiff renewed his request for Nelson's signature, id., Ex. E, to which the defendant responded by letter dated March 28, 2008, in the same manner as before, id., Ex. F.

The plaintiff lodged an appeal with the Department of Justice's Office of Information and Privacy ("OIP") by letter dated April 5, 2008, challenging the "three identical replies" he had received from the FBI. Id., Ex. G. The OIP affirmed the FBI's determination by letter dated August 15, 2008. It explained that "[w]ithout consent, proof of death, official acknowledgment of an investigation, or an overriding public interest, confirming or denying the existence of law enforcement records concerning an individual could reasonably be expected to constitute an unwarranted invasion of personal privacy" under FOIA exemption 7(C). Id., Ex. I. The plaintiff commenced this civil action on September 29, 2008. See generally Compl. The defendant filed the instant motion on November 17, 2008. See Def.'s Mot. On December 19, 2008, the defendant filed a reply to the plaintiff's opposition attaching a letter in opposition to its motion that was apparently mailed directly and only to the United States Attorney's office. Def.'s Reply, Ex. 1. The defendant substantively responds to the arguments raised in the plaintiff's opposition and, thus, the court treats the opposition as having been properly filed.

III. ANALYSIS

A. Legal Standard for a Motion for Summary Judgment*fn2

Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.

In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted).

An agency's disclosure obligations under the FOIA are triggered by its receipt of a properly submitted request that "reasonably describes [the requested] records" and "is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed." 5 U.S.C. ยง 552(a)(3)(A). The FOIA mandates full public disclosure of agency records unless the requested records "fall squarely" within one or more of the nine statutory exemptions. Wash. Post Co. v. Dep't of Agric., 943 F. Supp. 31, 33 (D.D.C. 1996) (quoting Burka v. Dep't of Health & Human Servs., 87 F.3d 508, 515 (D.C. Cir. 1996)). Because the disclosure of government records is presumed, FOIA exemptions are to be narrowly construed in favor of disclosure. United States Dep't of Justice v. Landano, 508 U.S. 165, 181 (1993). The court may award summary judgment solely on the information provided in agency affidavits or declarations that describe "the justifications for nondisclosure with reasonably specific detail... and are not ...


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