*fn3,The opinion of the court was delivered by: Reggie B. Walton United States District Judge,ELWOOD J. COOPER, PLAINTIFF, v. UNITED STATES DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS." />

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Elwood J. Cooper v. United States Department of Justice

September 11, 2012 *fn3

ELWOOD J. COOPER, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Plaintiff Elwood J. Cooper, proceeding pro se, brings this action against several federal agencies under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2006), seeking the release of "all records related to his arrest and prosecution." Cooper v. DOJ, No. 99-cv-2513, 2005 WL 670296, at *1 (D.D.C. March 22, 2005).*fn1 Currently before the Court are the parties' renewed cross-motions for summary judgment, as well as Cooper's "Motion for Leave of the Court to File Supplemental Pleading and Compel Producdion [sic] of Documents" ("Motion for Leave and to Compel"). Upon consideration of the parties' submissions and the entire record in this case,*fn2 the Court concludes for the following reasons that the defendants' renewed motion for summary judgment must be granted in part and denied in part without prejudice, Cooper's renewed cross-motion for summary judgment must be denied without prejudice, and Cooper's Motion for Leave and to Compel must be granted in part and denied in part.

I. BACKGROUND

The procedural history of this case is long and complicated. The Court will set forth only the background information necessary to resolve the parties' pending motions.

Cooper is a Bahamian citizen currently incarcerated at the U.S. Penitentiary in Coleman, Florida, where he is serving a life sentence after being convicted of drug trafficking offenses in the United States District Court for the Southern District of Florida. See Cooper, 2005 WL 670296, at *1; Defs.' Renewed Facts ¶ 1. On May 3, 1999, he submitted separate FOIA requests to the Drug Enforcement Administration ("DEA"), the United States Customs Service ("Customs"), the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"), and the United States Marshals Service ("Marshals Service"), seeking records concerning his arrest and prosecution. See Defs.' Facts in 01-1074 ¶¶ 1, 5, 9; Defs.' Facts in 99-2513 ¶¶ 1, 10. "Each agency (or sub-agency) named as a defendant . . . processed Cooper's request administratively, and . . . released to him those documents it deem[ed] not subject to various [FOIA] exemptions." Memorandum and Order at 2, Cooper v. DOJ, No. 99-cv-2513 (D.D.C. May 28, 2003) (TPJ).

Other documents were "released with redactions corresponding to applicable exemptions," namely "FOIA exemptions (b)(2) and (b)(7)." Id.

By Memorandum and Order dated May 28, 2003, Judge Thomas Penfield Jackson, a former member of this Court, granted the defendants' motions for summary judgment after finding that they had "fully complied" with their FOIA obligations in responding to Cooper's requests. Id. at 3. On April 23, 2004, the District of Columbia Circuit vacated Judge Jackson's order and remanded the case to this Court. Cooper v. DOJ, No. 03-5172, 2004 WL 895748, at *1 (D.C. Cir. April 23, 2004) (per curiam). The Circuit's decision focused solely on the search for records conducted by the Marshals Service. See id. at *2. Specifically, it found that although the Marshals Service "submitted affidavits detailing the searches they conducted and the FOIA exemptions that applied," which gave rise to a "presumption that the [Marshals Service's] search was adequate," Cooper had submitted countervailing evidence as to the adequacy of the [Marshals Service's] search, repeatedly pointing to cashier's checks that had not been produced. In support, [Cooper] cited the trial testimony of a DEA agent stating that the cash seized in connection with [Cooper's] criminal prosecution was converted into cashier's checks and sent to the [Marshals Service]. Thus, contrary to the district court's conclusion that [Cooper] "insists, without offering any proof, that other documents exist," Mem. Op. at 2, [Cooper] did offer such proof. Moreover, prior to the district court's ruling on summary judgment, [the defendants] indicated that they had not produced a copy of a check that was transferred from the DEA to the [Marshals Service], and offered to submit an additional declaration from [Marshals Service] addressing it.

Id. The Circuit also rejected the defendants' argument that "they did not produce the cashier's checks because [Cooper's] FOIA request did not specifically identify the checks," noting that Cooper's request "sought all records pertaining to his criminal case, and the government has a duty to construe FOIA requests liberally." Id. (citing Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)). The court added that the FOIA obligates agencies "to pursue any 'clear and certain' lead[s] it cannot in good faith ignore." Id. (quoting Kowalczyk v. DOJ, 73 F.3d 386, 389 (D.C. Cir. 1996)). Because the defendants "offered no explanation as to why an adequate search of the [Marshals Service's] records in response to [Cooper's] 1999 FOIA request would not have . . . produced the checks," the Circuit found that the defendants had "not rebutted the evidence presented by [Cooper] that raised a substantial doubt as to the adequacy of the [Marshals Service's] search," and that, consequently, "summary judgment was not appropriate on this issue." Id.

Following the Circuit's remand, Judge Jackson scheduled a status conference for July 13, 2004. Cooper, 2005 WL 670296, at *1. However, "[n]one of the parties appeared," and "Judge Jackson dismissed the case from the bench because the cashier's checks in dispute had been turned over to [Cooper]." Id. Judge Jackson deemed dismissal of the case appropriate because, in his view, the defendants' production of the cashier's checks to Cooper resolved "the factual dispute for which [the] case was remanded." Order, Cooper v. DOJ, No. 99-cv-2513 (D.D.C. July 13, 2004) (TPJ).

Upon Judge Jackson's retirement, this case was randomly reassigned to Judge Ricardo Urbina, another former member of this Court, on October 28, 2004. In March 2005, Judge Urbina denied two of Cooper's motions seeking reconsideration of Judge Jackson's dismissal order. See Cooper, 2005 WL 670296, at *1-*3. Cooper again appealed the dismissal of his case to the Circuit on March 28, 2005. ECF No. 70.

In September 2005, while Cooper's second appeal was pending, the Marshals Service and DEA "made additional documents relating to the cashier's checks available to [Cooper]." Defs.' Renewed Facts ¶ 2. According to the defendants, this release of records "resulted from a search by the [Marshals Service] for three cashier's checks [conducted] in response" to the Circuit's first remand in April 2004. Id. ¶ 3.

On December 28, 2005, the Circuit vacated Judge Jackson's July 13, 2004 dismissal order and remanded the case back to this Court for a second time. Order, Cooper v. DOJ, No. 05-5093 (D.C. Cir. Dec. 28, 2005) (per curiam). The Circuit's remand order provided the following instructions:

On remand, the district court shall reevaluate the adequacy of the United States Marshals Service's . . . search for records in general, as this court's April 23, 2004 remand memorandum instructed. The [Marshals Service's] production during this appeal of additional records responsive to [Cooper's FOIA] request has not rendered this case ready for summary appellate disposition because the production casts even more doubt on the adequacy of the Marshals Service's initial search.

On remand, the district court also shall address any challenges made by [Cooper] to the redactions ...


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