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Elkins v. Federal Aviation Administration

United States District Court, D. Columbia.

May 12, 2015

DAVID J. ELKINS, Plaintiff,
v.
FEDERAL AVIATION ADMINISTRATION, Defendant

DAVID J. ELKINS, Plaintiff, Pro se, St. Petersburg, FL.

For FEDERAL AVIATION ADMINISTRATION, Defendant: Damon William Taaffe, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge.

On May 27, 2014, pro se Plaintiff David Elkins observed a plane circling his house in St. Petersburg, Florida. As this was not a novel event, Elkins believed he had become the subject of aerial surveillance by law enforcement. In an effort to uncover the identity of the plane's operator, Plaintiff submitted two Freedom of Information Act requests to the Federal Aviation Administration, seeking records pertaining to this flight. In response to these requests, the FAA conducted a search and released to him a number of documents in full and others in part. Dissatisfied with both the FAA's search efforts and its withholdings, Elkins filed this suit in October 2014. The FAA now moves for summary judgment on the grounds that Plaintiff failed to exhaust his administrative remedies and that it provided all the responsive, non-exempt documents that it could locate. Plaintiff opposes and separately moves for discovery. The Court will grant Defendant's Motion in part and deny it in part, but ultimately concludes that no discovery is warranted.

I. Background

By now, Elkins is a frequent filer of FOIA requests with the FAA. See Elkins v. Fed. Aviation Admin., No. 14-476, 65 F.Supp.3d 194, 2014 WL 4243152, at *1 (D.D.C. Aug. 28, 2014). Since 2005, he has submitted several requests to the agency seeking records pertaining to aircraft he has observed flying overhead. See id. He believes that the government is seeking to intimidate him via surveillance. See Compl. at 6. Elkins claims that the requested information will shed light on " on-going, long term, illegal, unwarranted surveillance, specifically focusing on the plaintiff for his continued use of the Freedom of Information Act." Id. This suit concerns two discrete FOIA requests: Request No. 2014-9669ES, submitted on May 27, 2014, which seeks documents pertaining to the flight he witnessed on that same day, and Request No. 2015-1941, submitted on September 15, 2014, which seeks records of communications between the FAA and other government agencies.

In 2014-9669ES, Plaintiff requested the following records related to a " high wing Cessna type aircraft" circling a " certain location between 8 [AM] and 10 [AM] on May 27, 2014" :

1. Name of law enforcement agency operating the aircraft;
2. Radar plot of aircraft[; ]
3. All records presented to the FAA showing probable cause or warrants to conduct surveillance[; ]
4. All communications between the U.S. Department of Justice and the FAA concerning this flight and past flights[; ]
5. All records of the U.S. Department of Justice requesting that the FAA deny the requestor's request;
6. N-number of the aircraft;
7. All records of Mode S attached to the aircraft; and
8. Inflight communications between the aircraft and Tampa Airport Traffic Control or Miami Airport Traffic Control.

Compl., Exh. 3 (FOIA Appeal 2014-009669A). He received a response on July 10, 2014, stating that the FAA could locate only two records and that they were being withheld pursuant to FOIA Exemption 7(E). See id. These two documents are: (1) a radar plot of the aircraft in question and (2) an FAA Order containing beacon codes and call signs of various types of aircraft. See id. at 2.

Next, in 2015-1941, Plaintiff requested that the FAA provide the following records:

1. All communications between the FAA SHMS [Security and Hazardous Materials Safety Division] and the DEA or FBI or DOJ, DHS, EOUSA, Department of Homeland Security, concerning the requestor David Elkins and it's [ sic ] investigation and surveillance[; ]
2. All records of the FAA SHMS when this investigation began, year, date, month[; ]
3. All records of agreements between the FAA and DEA or DOJ, EOUSA, DHS, to withhold determination of ...

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