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Michael Sussman v. United States Marshals Service

September 6, 2011

MICHAEL SUSSMAN, PLAINTIFF,
v.
UNITED STATES MARSHALS SERVICE, DEFENDANT.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

I. Introduction.

Plaintiff, Michael Sussman, brings this action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and Privacy Act, 5 U.S.C. § 552a, against Defendant, the United States Marshals Service (USMS), alleging that Defendant violated the FOIA by improperly withholding requested records about Plaintiff and that Defendant violated the Privacy Act by making improper disclosures of records about Plaintiff to third parties without proper accounting. The Court has summarily adjudicated most of these claims in favor of Defendant in decisions on earlier motions for summary judgment; all that remain are part of Count I-the FOIA claim- and Counts III and VII-the Privacy Act claims. Presently before the Court are Defendant's motion for summary judgment on all remaining counts and Plaintiff's cross-motion for partial summary judgment on Count III. Defendant's motion will be granted in part as to Counts I and III but will be denied in part as to Count VII. Plaintiff's cross-motion will be denied.

II. Background.

In his amended complaint, Plaintiff alleges 16 counts of FOIA and Privacy Act violations. See 1st Am. Compl., ECF No. 7. In August 2004, the Court summarily adjudicated Counts IV through XVI in favor of Defendant in August 2004. See Mem. Op., ECF No. 33. In October 2005, the Court summarily adjudicated all remaining claims also in favor of Defendant. See Sussman v. USMS, No. 03-cv-610, 2005 WL 3213912 (D.D.C. Oct. 13, 2005). Plaintiff appealed those decisions and in July 2007, the Court of Appeals for the District of Columbia Circuit affirmed part of this Court's decision and vacated and remanded the remainder for further proceedings. See Sussman v. USMS,494 F.3d 1106, 1124 (D.C. Cir. 2007). In September 2009, the Court denied cross-motions for summary judgment. See Sussman v. USMS, No. 03-cv-610, 657 F. Supp. 2d 25 (D.D.C. 2009). Most recently, in September 2010, the Court granted in part and denied in part another of Defendant's motions for summary judgment. See Sussman v. USMS, 734 F. Supp. 2d 138 (D.D.C. 2010).

Those opinions lay out the history of this case, which the Court will not belabor here. Suffice it to say that Plaintiff seeks, pursuant to FOIA and the Privacy Act, records in Defendant's possession relating to or referencing himself. Defendant has documents pertaining to Plaintiff because it conducted a threat investigation of Plaintiff after he sent a letter to the home of a federal judge. In addition, some materials responsive to Plaintiff's request appear in records regarding an individual named Keith Maydak, who was a business associate of Plaintiff and who may have used Plaintiff's name as an alias. Plaintiff also brings claims for violation of the Privacy Act's prohibition on Defendant's disclosing information about Plaintiff to third parties and the Privacy Act's requirement that disclosures be accounted for.

All that remains live in this case is part of Count I, which seeks disclosure of records under the FOIA; Count III, which seeks damages under the Privacy Act based alleged disclosures of information about Plaintiff by Defendant to the Federal Bureau of Investigation (FBI); and Count VII, which seeks damages under the Privacy Act based on alleged disclosures of information about Plaintiff by Defendant to members of the public at a Plaintiff's news shop. See 1st Am. Compl. ¶¶ 5--12, 22--31, 83--99. Defendant now moves for summary judgment on those remaining counts. Def.'s 3d Renewed Mot. for Summ. J., ECF No. 104; see Def.'s Mem. in Supp. of 3d Renewed Mot. for Summ. J., ECF No. 104 [hereinafter Def.'s Mem.]. Plaintiff concedes Count I, opposes Defendant's motion as to Counts III and VII, and cross-moves for partial summary judgment on Count III. Pl. Michael Sussman's Mot. for Partial Summ. J., ECF No. 105; see Pl. Michael Sussman's Mem. of L. in Supp. of his Mot. for Partial Summ. J., ECF No. 105 [hereinafter Pl.'s Opp'n & Mem.].*fn1

III. Legal Standard.

A court may grant summary judgment if "the pleadings, depositions, answers to interrogatories, and admission 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 [summary] judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48 (1986); see also Fed. R. Civ. P. 56(c). Only facts which, if disputed, "might affect the outcome of the suit under the governing law" prevent the court from granting summary judgment. Anderson, 477 U.S. at 248. Similarly, disputes over "irrelevant or unnecessary" facts should not be considered. Id. A "genuine" issue is one in which the evidence is such that a reasonable fact-finder could return a verdict for the non-movant. See id; see also Scott v. Harris, 550 U.S. 372, 380 (2007); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006).

When considering a motion for summary judgment, evidence presented by the non-movant is to be believed and all justifiable inferences are to be drawn in the non-movant's favor. See Anderson, 477 U.S. at 255; Adickes v. S.H. Kress & Co., 398 U.S. 144, 158--59 (1970). The non-movant must provide more than mere allegations or denials, but instead must support his assertions with affidavits, declarations, or other competent evidence that set forth specific facts that show there is a genuine triable issue. Fed. R. Civ. P. 56(e); see also Celotex Corp. v. Catrett, 417 U.S. 317, 324. The non-movant must provide evidence that would permit a reasonable fact-finder to find in his favor. See Arrington v. U.S., 473 F.3d 329, 333 (D.C. Cir. 2006). If a non-movant's allegations are "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249--50. The non-movant must have more than a "scintilla of evidence in support of [his] position" to avoid summary judgment. Id. at 252; see also Freedman v. MCI Telecommc'ns Corp., 255 F.3d 840, 845 (D.C. Cir. 2001).

In accordance with the Local Civil Rules of this Court, a party moving for summary judgment must submit a "statement of material facts as to which the moving party contends there is no genuine issue." D.D.C. LCvR 7(h)(1). The non-movant must provide a "separate concise statement of genuine issues setting forth all material facts" as to which the non-movant contends litigation is necessary. Id. When considering a motion for summary judgment, the court may consider the facts set forth in the moving party's statement of material facts to be admitted, unless controverted in the non-movant's statement of genuine issues. Id.; see also Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003).

IV. Analysis.

As to Count I, Defendant claims to have released information previously withheld and Plaintiff concedes that the FOIA claims are no longer at issue. Defendant's motion for summary judgment will therefore be granted as to Count I.

As to Count III, Defendant argues that it is not required to account for disclosures made between the USMS and the FBI because they are one singular agency: the Department of Justice (DOJ). The Court finds that although the USMS and the FBI may be considered separate agencies under the Privacy Act for certain purposes, they may also be considered mere components of a singular agency-DOJ-for the purposes of intra-agency disclosures. Because there is a need-to-know exception to the prohibition on intra-agency disclosures and accounting requirements for such disclosures, Defendant's motion for summary judgment will be granted as to Count III and Plaintiff's cross-motion will be denied.

Finally, as to Count VII, Defendant may be held liable for improper disclosures made from records containing information about Plaintiff even if that information was maintained in the another person's records. Therefore, Defendant's motion will be denied as to Count VII.

A. Defendant's Motion Will Be Granted as to Count I.

An agency generally must disclose any records requested under FOIA unless an exemption or exclusion applies. See § 552. Plaintiff alleges in Count I of his amended complaint that Defendant violated that disclosure obligation by improperly withholding requested records relating to Plaintiff. 1st Am. Compl. ¶¶ 5--12. The Court recently summarily adjudicated most of that count in favor of Defendant, but denied summary judgment in part after finding several improper withholdings of "redacted information [that] is reasonably segregable from that to which an exemption applies." Sussman, 734 F. Supp. 2d at 146--47. The Court directed Defendant to release that further segregable information to Plaintiff. Id.

Defendant claims to have released all further segregable information to Plaintiff in compliance with that order. Def.'s Mem. at 2--3; Def.'s Stmt. of Material Facts in Supp. of 2d Renewed Mot. for Summ. J. ¶ 3, ECF No. 104 [hereinafter Def.'s Facts]; 7th Supp. Decl. ¶¶ 3--4, ECF No. 104-1 [hereinafter 7th Bordley Decl.]. According to Plaintiff, these disclosures "satisfy Plaintiff's requests" such that "[t]he FOIA claims are no longer at issue." ...


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