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Coleman v. Drug Enforcement Administration

United States District Court, D. Columbia

September 29, 2015

John J. Coleman, Plaintiff,
v.
Drug Enforcement Administration, Defendant

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[Copyrighted Material Omitted]

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          For JOHN B. COLEMAN, Plaintiff: Daniel J. Stotter, LEAD ATTORNEY, STOTTER & ASSOCIATES LLC, Corvallis, OR.

         For DRUG ENFORCEMENT ADMINISTRATION, Defendant: Rhonda Lisa Campbell, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

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         MEMORANDUM OPINION AND ORDER

         Amit P. Mehta, United States District Judge.

         I. INTRODUCTION

         In this Freedom of Information Act (" FOIA" ) case, Defendant Drug Enforcement Administration (" DEA" ) produced over 1,900 pages of documents to Plaintiff John J. Coleman. Plaintiff filed this suit to challenge two aspects of the DEA's response. First, he contends that the

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DEA's search was deficient in multiple respects and thus not reasonably calculated to produce all responsive records. He asks the court to compel the DEA to broaden its search and to look for more responsive records. Second, he asserts that the DEA wrongfully denied him a statutory fee waiver. Although the agency ultimately decided not to charge him a fee for the records that it produced, Plaintiff nevertheless seeks a declaration from the court that the DEA's decision to deny him a fee waiver was unlawful under FOIA.

         Both parties have moved for summary judgment under Federal Rule of Civil Procedure 56. For the reasons set forth below, the court holds that the DEA did not conduct an adequate search in response to Plaintiff's request because it failed to search the office of the Deputy Assistant Administrator of the Office of Diversion Control, an office likely to contain responsive records. In all other respects, the DEA's search was reasonable. In addition, because Plaintiff has not established that the DEA's decision to deny him a fee waiver is likely to cause him future injury, the court denies Plaintiff's request for declaratory relief on the ground that Plaintiff lacks standing. The parties' cross motions for summary judgment thus are both granted in part and denied in part.

         II. BACKGROUND

         Plaintiff John J. Coleman is the president of Drug Watch International, an organization dedicated to drug abuse prevention and education. Pl.'s Mot. for Summ. J., ECF No. 19, at 1 [hereinafter Pl.'s Mot.]. Plaintiff previously worked at the DEA for 33 years, rising to the level of Assistant Administrator for Operations before he retired. Decl. of John Coleman, ECF No. 19-2, ¶ ¶ 3, 5 [hereinafter Coleman Decl.].

         On October 25, 2012, Plaintiff submitted a FOIA request to the DEA seeking the disclosure of nine categories of documents relating to the proposed reclassification of carisoprodol[1] as a Schedule IV drug, as well as the rescheduling of hydrocodone.[2] Def.'s Mot. for Summ. J. [hereinafter Def.'s Mot.], Ex. A, ECF No. 17-4, at 2-3 [hereinafter FOIA Request]. He also sought a public-interest fee waiver. See FOIA Request.[3] Plaintiff argued that disclosure was in the public interest because he intended " to write about how the government drug regulatory agencies schedule controlled substances and how petitions for doing so are handled by the respective federal agencies[.]" Id. at 2.

         The DEA acknowledged receipt of Plaintiff's FOIA request on November 29, 2012. However, it determined that Plaintiff's request was for commercial rather than public-interest use and denied his fee waiver request. Decl. of Katherine Myrick, ECF No. 17-3, ¶ 8 [hereinafter Myrick Decl.]. On February 5, 2013, Plaintiff filed an appeal to the Department of Justice's

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Office of Information Policy (" OIP" ) contesting the DEA's fee decision. He also complained that the fee determination was rendered more than 20 working days after its receipt, in violation of the statutory 20-working day limit for responding to such requests. Id. ¶ 9. On September 11, 2013, the OIP remanded the decision to the DEA for reconsideration of the fee waiver request, id. ¶ 11, whereupon the DEA again denied Plaintiff's fee waiver, id. ¶ 12. Plaintiff again appealed the fee waiver denial, but no formal decision issued before Plaintiff filed this suit on February 26, 2014. Id. ¶ ¶ 13-15.

         As to Plaintiff's records request, the DEA initially did not process any documents because of the pending fee waiver dispute. Id. ¶ 18. Although the DEA never answered Plaintiff's second appeal, the agency decided that it could not deny Plaintiff a fee waiver because it had not responded to his fee request in a timely manner. Id. Thereafter, the DEA commenced a search for responsive records. Id. The DEA's FOIA Unit reviewed records found in two offices: the Office of Diversion Control and the Office of Chief Counsel. Id. ¶ ¶ 17-20. On October 17, 2014, eight months after Plaintiff filed suit, the DEA released 1,906 pages of responsive records without assessing a fee. Id. ¶ 16. It also released another 79 pages on November 3, 2014, again without assessing a fee. Id. [4]

         III. DISCUSSION

         A. Legal Standard

         Most FOIA cases are appropriately resolved on a motion for summary judgment. Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527, 395 U.S.App.D.C. 155 (D.C. Cir. 2011). " To prevail on summary judgment . . . the defending 'agency must show beyond material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant documents.'" Morley v. CIA, 508 F.3d 1108, 1114, 378 U.S.App.D.C. 411 (D.C. Cir. 2007) (quoting Weisberg v. DOJ, 705 F.2d 1344, 1351, 227 U.S.App.D.C. 253 (D.C. Cir. 1983)). To carry its burden, the agency may submit a " reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched." Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68, 287 U.S.App.D.C. 126 (D.C. Cir. 1990). Production of such an affidavit allows a requester to challenge, and a court to assess, the adequacy of the search performed by the agency. Id. " Agency affidavits enjoy a presumption of good faith, which will withstand purely speculative claims about the existence and discoverability of other documents." Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771, 224 U.S.App.D.C. 1 (D.C. Cir. 1981). Summary judgment based on affidavits is not warranted, however, if the affidavits are " controverted by either contrary evidence in the record [or] by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738, 211 U.S.App.D.C. 135 (D.C. Cir. 1981) (citations omitted).

         B. Adequacy of the Search

         The first issue before the court is whether the DEA performed an adequate search. The DEA contends that it conducted an adequate search reasonably designed to locate responsive records and that it adequately described that search in the agency's affidavits. Plaintiff disagrees, arguing that: (1) the search was unreasonably restricted to only ...


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