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Jeffrey North v. United States Department of Justice

September 26, 2012

JEFFREY NORTH,
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Jeffrey North, proceeding pro se, filed suit against the Drug Enforcement Administration ("DEA") and several other agencies pursuant to the Freedom of Information Act, 5 U.S.C. § 552. The only remaining claim at issue is Count 1 of the Amended Complaint, which challenges the DEA's Glomar response to several FOIA requests seeking information regarding a purported DEA informant---Gianpaolo Starita---who testified against the Plaintiff during his criminal trial. The Court previously granted summary judgment in favor of the DEA on this count, but vacated that judgment upon the Plaintiff's motion to reconsider. Presently before the Court are a number of motions from both parties. Upon consideration of the parties' pleadings*fn1 and the record before the Court, for the reasons stated below, the Court finds as follows: the DEA's [126] Renewed Motion for Summary Judgment ("DEA's MSJ") is DENIED; the DEA's [127] Motion for Reconsideration of the Court's 2011 Order Requiring Production of Documents is DENIED; the DEA's [128] Motion for In Camera Review of DEA Declaration ("DEA's Mot. for Rvw") is DENIED; Plaintiff's [123] Motion to Allow a Late Submission of Trial Transcripts and Grand Jury Transcripts to the Drug Enforcement Administration for Consideration in its Search for Information ("Pl.'s First Mot. to Allow Late Subm.") is GRANTED as conceded; Plaintiff's [130] Motion to Allow a Late Submission of Additional Transcripts of Grand Jury Testimony of Gianpaolo Starita to the Drug Enforcement Administration ("Pl.'s Second Mot. to Allow Late Subm.") is GRANTED as conceded; Plaintiff's [139] Renewed Motion for Summary Judgment ("Pl.'s MSJ") is GRANTED; and Plaintiff's [141] Motion to Allow Submission of Corrected Pleadings is DENIED AS MOOT.

I. LEGAL STANDARD*fn2

A. Federal Rule of Civil Procedure 54(b)

Under Rule 54(b) of the Federal Rules of Civil Procedure, a district court may revise its own interlocutory orders "at any time before the entry of judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b). Rule 54(b) recognizes the inherent power of the courts to reconsider interlocutory orders "as justice requires." Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C. Cir. 2011). The "as justice requires" standard may be met where the court has patently misunderstood the parties, strayed far afield of the issues presented, or failed to consider a controlling or significant change in the law or facts since the submission of the issue. See Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004). The Court has broad discretion to consider whether relief is "necessary under the relevant circumstances." Lewis v. District of Columbia, 736 F. Supp. 2d 98, 102 (D.D.C. 2010) (internal quotation marks omitted).

B. Federal Rule of Civil Procedure 56 "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party asserting that a fact cannot be or is genuinely disputed must support the assertion by "citing to particular parts of materials in the record," or "showing that the materials cited do not establish the absence or presence of a genuine dispute." Fed. R. Civ. P. 56(c)(1). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion." Fed. R. Civ. P. 56(e). When considering a motion for summary judgment, the court may not make credibility determinations or weigh the evidence; the evidence must be analyzed in the light most favorable to the nonmoving party, with all justifiable inferences drawn in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "If material facts are at issue, or, though undisputed, are susceptible to divergent inferences, summary judgment is not available." Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (citation omitted). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute. See Ass'n of Flight Attendants-CWA v. U.S. Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).

II. DISCUSSION

In response to a FOIA request, [A]n agency may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under a FOIA exception.

Such a response-commonly known as a Glomar response-is proper if the existence vel non of an agency record is itself exempt from disclosure. If, however, the agency has officially acknowledged the existence of the record, the agency can no longer use a Glomar response, and instead must either: (1) disclose the record to the requester or (2) establish that its contents are exempt from disclosure and that such exemption has not been waived.

Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011) (internal citations and quotation marks omitted). "Where an informant's status has been officially confirmed, a Glomar response is unavailable, and the agency must acknowledge the existence of any responsive records it holds." Boyd v. Criminal Div. of U.S. Dep't of Justice, 475 F.3d 381, 380 (D.C. Cir. 2007).

In this case, the DEA issued a Glomar response to Plaintiff's FOIA requests, refusing to confirm or deny the existence of any requested records, alleging that confirming the existence of such records concerning Starita would amount to an "unwarranted invasion of personal privacy," and the records would be exempt from disclosure pursuant to various FOIA exemptions. 9/30/09 Mem. Opin. at 3. The Plaintiff contends that the DEA publicly acknowledged Starita as a DEA informant during the Plaintiff's trial, triggering the "public domain" exception and barring the DEA from employing a Glomar response. For its part, the DEA argues the Plaintiff has not met his burden to show public acknowledgement of Starita as an informant. For the reasons discussed infra, the Plaintiff has the better argument.

The DEA relies almost entirely on Moore v. CIA, 666 F.3d 1330 (D.C. Cir. 2011), in support of its motions for summary judgment and reconsideration. The Moore case concerned FOIA requests to various agencies regarding an individual named Sveinn Valfells, Sr. Id. at 1331. The CIA issued a Glomar response to the request, while the FBI produced a redacted report indicating "T-1, an agency of the U.S. Government which conducts intelligence investigations," provided certain relevant information to the FBI regarding Valfells. Id. at 1332. The report further indicated that the report was designated "Secret" in part because it contained classified information from the CIA. Id. During the course of subsequent litigation, the CIA submitted a declaration indicating the CIA had asked the FBI to redact certain "CIA-originated information" from the report later produced. Id. at 1333. The district court granted summary judgment in favor of the CIA on the basis that the declaration did not amount to a public acknowledgment that the CIA maintained any documents regarding Valfells. The D.C. Circuit affirmed the district court, noting that the declaration "does not identify specific records or dispatches matching Moore's FOIA request. Indeed, because the CIA-originated information was redacted before the FBI released its Report to him, Moore cannot show that the redacted information even relates to Valfells Sr." Id. at 1334.

The DEA's reliance on Moore is misplaced. At no point in its pleadings does the DEA argue that the transcripts submitted by North, if authentic, do not disclose sufficient information to show the DEA has publicly acknowledged Starita as a DEA informant and that the DEA maintains documents responsive to Plaintiff's requests. Rather, the entirety of the DEA's substantive argument is that Plaintiff's submission of transcripts is insufficient because (1) the transcripts were not attached to Plaintiff's initial FOIA request; (2) the transcripts are not authenticated; and (3) the Plaintiff did not provide complete transcripts. The Moore case did not address any issues remotely relevant to the DEA's arguments, and therefore cannot be considered new legal authority requiring reconsideration of the Court's prior Order. The Court is perplexed as to why the DEA requested multiple extensions of time and ultimately took over three months to file a renewed summary judgment motion when the DEA did not perform any additional searches and cites absolutely no legal authority in support of its contention regarding the timing of production and authentication of the transcripts provided by the Plaintiff. To the contrary, several in this Circuit clearly demonstrate the DEA's arguments are incorrect.

In Marino v. Drug Enforcement Administration, 685 F.3d 1076 (D.C. Cir. 2012), the plaintiff filed a FOIA request with the DEA seeking records associated with a specific number from the DEA's Narcotics and Dangerous Drug Information System ("NADDIS"), purportedly associated with a co-conspirator that testified against Marino during his criminal trial. Id. at 1078. The DEA issued a Glomar response, declining to confirm or deny the existence of any requested records. Id. at 1079. After the district court granted summary judgment in favor of the DEA, Marino moved for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b), attaching over 500 pages of unauthenticated trial exhibits and other materials purporting to show the DEA had publicly acknowledged the link between the specified NADDIS number and Marino's co-conspirator. Id. The D.C. Circuit reversed the trial court's denial of Marino's Rule 60(b) motion, ...


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