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Jesse Skinner v. United States Department of Justice

September 28, 2012

JESSE SKINNER, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

MEMORANDUM OPINION

This matter is before the Court on the Second Renewed Motion for Summary Judgment filed by the Bureau of Alcohol, Tobacco, Firearms and Explosives ("BATFE"). Having carefully considered the motion, the opposition and the reply, and for the reasons stated below, the motion will be granted.

I. BACKGROUND

Plaintiff brought this action under the Freedom of Information Act ("FOIA"). See 5 U.S.C. § 552. The sole matter remaining for resolution in this case is the decision of the United States Citizenship and Immigration Service ("USCIS") to withhold certain information from a one-page document. See Skinner v. U.S. Dep't of Justice, 806 F. Supp. 2d 105, 116 (D.D.C. 2011).*fn1 The document is described as "a printout of information from a Privacy Act system of records commonly referred to as The Enforcement Communications System (formerly, Treasury Enforcement Communications System (TECS))." Mem. of P. & A. in Supp. of Defs.' Renewed Mot. for Summ. J. [Dkt. #55] ("Def.'s Renewed Mot."), Ex. 4 (Decl. of Jill A. Eggleston ("Eggleston Decl.")) ¶ 5. A fuller description of the document, titled "TECS II -- Person/Subject Entry screen printout," is included in the BATFE's Vaughn Index:

The screen print in questions [sic] displays information maintained by the government on Jesse Manuel Skinner in the U.S. Department of Homeland Security DHS/CBP-011 TECS database, such as, name, physical identifiers, social security number, known resident [sic] address and date of birth. Also displayed in the screen print is the strategy for apprehending Skinner; name and duration of posting of the operation under which the apprehension was orchestrated and undertaken; and name of reporting law enforcement officer, individual identification and contact numbers, and computer access codes.

Def. BATFE's Mem. in Supp. of its Second Renewed Mot. for Summ. J. [Dkt. #73] ("BATFE Mem."), Vaughn Index at 1.

The USCIS initially relied in part on Exemptions 2 and 7(E) to redact from the printout "internal computer codes, an unpublicized investigation technique, and the names and employee identification numbers of federal law enforcement officers involved in the matter."

Def.'s Renewed Mot., Eggleston Decl. ¶ 7; see id., Ex. D (Vaughn Index) at 2-3.*fn2 In light of the Supreme Court's ruling in Milner v. Dep't of the Navy, __ U.S. __, __, 131 S. Ct. 1259, 1264-71 (2011), the USCIS now has abandoned its reliance on Exemption 2. It "has reviewed the redactions and determined that [Exemption 7(E)] is equally applicable." BATFE Mem. at 2.

II. DISCUSSION

A. Summary Judgment in a FOIA Case "FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). The Court grants summary judgment if the movant shows that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In a FOIA action to compel production of agency records, the 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 exempt from the [FOIA's] inspection requirements.'" Students Against Genocide v. Dep't of State, 257 F. 3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978)). Summary judgment may be based solely on information provided in an agency's supporting affidavits or declarations if they are relatively detailed and when they describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see Beltranena v. Clinton, 770 F. Supp. 2d 175, 182 (D.D.C. 2011).

Plaintiff's opposition to the BATFE's pending motion discusses only his desire to obtain trial exhibits which had been filed in the United States District Court for the Southern District of Mississippi. See generally Pl.'s Resp. in Opp'n to Def.'s Mot. for Summ. J. [Dkt. #76] ("Pl.'s Opp'n") ¶¶ 3, 5-7, 12-25. According to plaintiff, defendant is "not being forthcoming with all information relevant to this instant case at bar," id. ¶ 12, because an employee of the Drug Enforcement Administration ("DEA") allegedly obtained the trial exhibits from the district court, id. ¶ 12, at a time when plaintiff's motions for release of these exhibits were pending both in the District of Mississippi and the District of Columbia. Id. ¶ 14. All FOIA issues regarding the DEA's response to plaintiff's FOIA request have been resolved. See generally Skinner v. U.S. Dep't of Justice, 744 F. Supp. 2d 185 (D.D.C. 2010). Furthermore, this

Court already has ruled that the United States District Court for the Southern District of Mississippi is not subject to the FOIA, and that any trial exhibits kept there are not agency records responsive to plaintiff's FOIA request to the BATFE. See Order, Skinner v. U.S. Dep't of Justice, No. 09-0725 (D.D.C. filed Jan. 18, 2011). Wholly absent from plaintiff's opposition to the pending motion is any discussion of the BATFE's argument that the USCIS properly withheld TECS access codes under Exemption 7(E).

Ordinarily, the Court may treat as conceded any argument raised in a motion which the opposing party fails to address. See, e.g., Augustus v. McHugh, __ F. Supp. 2d __, __, 2012 WL 2512930, at *4 (D.D.C. July 2, 2012) (where plaintiff's "opposition did not challenge the Secretary's proffered justifications under FOIA for having redacted [information,]" the arguments were "deemed conceded, and summary judgment [was] entered in favor of the Secretary"); People for the Ethical Treatment of Animals v. Nat'l Inst. of Health, 853 F. Supp. 2d 146, 151 (D.D.C. Apr. 10, 2012) ("Plaintiff also did not respond to defendant's arguments with respect to Count I or Count III in its opposition to defendant's motion for summary judgment," and, accordingly, "the Court . . . treat[ed] Count I and II as conceded and . . . dismiss[ed] ...


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