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Ewell v. U.S. Department of Justice

United States District Court, D. Columbia.

January 26, 2016

ERIC EWELL, Plaintiff,

          Eric Ewell, Plaintiff, Pro se, Youngstown, OH USA.

         For United States Department of Justice, Criminal Division, United States Department of Justice, Office of Information Policy, Defendants: Fred Elmore Haynes, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC USA; Rhonda C. Fields, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC USA.


         RANDOLPH D. MOSS, United States District Judge.

         Eric Ewell, who is proceeding pro se in this matter, was charged in the Western District of Pennsylvania with conspiracy to distribute and to possess with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(i). While awaiting trial, Ewell filed a request with the United States Department of Justice under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, seeking documents regarding the wiretap the government used to obtain evidence disclosed to Ewell during discovery in his criminal case. When the Justice Department declined to produce any responsive records or to expedite his administrative appeal, Ewell brought this action under FOIA and the Privacy Act.

         Before the Court are the government's motion for summary judgment, Dkt. 12, and Ewell's motion for leave to amend his complaint, Dkt. 25. Because the government has demonstrated that it conducted a reasonable search for responsive records and that all responsive records were properly withheld under FOIA and the Privacy Act, the Court grants summary judgment to the Justice Department. Because Ewell's motion for leave to amend his complaint would fundamentally alter the nature and scope of this action, would unduly burden the defendant, and is, at least in significant respects, futile, the Court denies that motion.

         I. BACKGROUND

         Eric Ewell was charged in the Western District of Pennsylvania with conspiracy to distribute and to possess with intent to distribute one kilogram or more of heroin in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(i). See United States v. Ewell, No. 13-cr-125 (W.D. Pa. Apr. 30, 2013). In advance of Ewell's detention hearing in June 2013, the government disclosed that it had intercepted and recorded his telephone communications under the authority of a wiretap obtained pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (" Title III" ). See Dkt. 130 at 1, Ewell, No. 13-cr-125 (W.D. Pa. June 27, 2013). In November 2013, Ewell filed a request with the Department of Justice under FOIA and the Privacy Act, seeking " an authentic Department of Justice (DOJ) Office of Enforcement Operation (OEO) copy of the Title III authorization letter(s), memorandums, and any other documents involved in their approval for the electronic surveillance" of several phone numbers that he alleged had been wiretapped. See Dkt. 12-2 at 2 (Cunningham Decl., Ex. A); see also Dkt. 12 at 3 (Defs.' Statement of Material Facts ¶ 1).

         The Justice Department responded to Ewell's FOIA/Privacy Act request in December 2013. The Department informed Ewell that " to the extent responsive records do exist, they are exempt from disclosure pursuant to" Exemption 3 of FOIA, which permits agencies to withhold documents " specifically exempted from disclosure by statute." Dkt. 12-3 at 2 (Cunningham Decl, Ex. B) (citing 5 U.S.C. § 552(b)(3)). For this reason, the Department explained, it " did not conduct a search for records" and would not produce any records responsive to his request. Id. Ewell appealed the Department's denial of his request and sought expedited treatment, Dkt. 12-4 at 2-5 (Cunningham Decl., Ex. C), but, when the Department's Office of Information Policy (" OIP" ) denied his request for expedited treatment, see Dkt. 12-5 at 2 (Cunningham Decl., Ex. D), he filed this action. OIP then informed Ewell that, in light of the pendency of this lawsuit, it was closing his administrative appeal. Dkt. 12-6 at 2 (Cunningham Decl., Ex. E).

         Ewell challenges the adequacy of the Department's search and all of its withholdings. Dkt. 1 at 7 (Compl.). He also requests that, if the Court remands the matter to the Department, that it " provide for expeditious proceeding in this action." Id. After Ewell brought suit, the Department searched two databases: the Office of Enforcement Operations (" OEO" ) " database used to track federal prosecutors' requests for permission to apply for court-authorization to surreptitiously intercept conversations of person[s] allegedly involved in criminal activity under Title III," and " archived emails of [Criminal Division] employees that are maintained by its IT department." Dkt. 12-1 at 4 (Cunningham Decl. ¶ 11). The Department maintains, however, that Ewell is not entitled to any records in response to his request, and it has asserted several additional grounds for nondisclosure that it did not previously assert.

         The matter is before the Court on the Department's motion for summary judgment. See Dkt. 12. The Department argues that it conducted an adequate search for responsive records; that it properly withheld all responsive records under the Privacy Act and FOIA Exemptions 3, 5, 6, and 7(C); and that it properly denied Ewell's request for expedited treatment. Id. It supports its motion with a declaration by John E. Cunningham III, a trial attorney assigned to the Criminal Division's FOIA and Privacy Act Unit, see Dkt. 12-1 (Cunningham Decl.), and a 208-page Vaughn index detailing the withheld records and the reasons they were withheld, see Dkt. 12-7 (Cunningham Decl., Ex. H); Vaughn v. Rosen, 484 F.2d 820, 157 U.S.App.D.C. 340 (D.C. Cir. 1973). Ewell has also moved for leave to file an amended complaint. See Dkt. 25. Ewell's amended complaint would include new claims under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); the Federal Tort Claims Act, 28 U.S.C. § 1346; the remedial provisions of Title III, 18 U.S.C. § 2520; and 42 U.S.C. § 1985(3). Id. at 2. The proposed amended complaint would also add new defendants, including the Drug Enforcement Administration (" DEA" ) and several of its agents, as well as various members of the U.S. Attorney's Office for the Western District of Pennsylvania. Id. at 3. Both motions are opposed. See Dkts. 16, 27.


         The Freedom of Information Act is premised on the notion that an informed citizenry is " vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). The Act embodies a " general philosophy of full agency disclosure." U.S. Dep't of Defense v. FLRA, 510 U.S. 487, 494 (1994), 114 S.Ct. 1006, 127 L.Ed.2d 325 (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)). It thus mandates that an agency disclose records on request, unless they fall within one of nine exemptions. " These exemptions are 'explicitly made exclusive' and must be 'narrowly construed.'" Milner v. Dep't of Navy, 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (quoting EPA v. Mink, 410 U.S. 73, 79, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), and FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982)). As explained further below, the present dispute turns on the meaning and application of Exemptions 3 and 5. Exemption 3 protects records that are " specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3). And Exemption 5 protects " inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." Id. § 552(b)(5). It exempts " those documents, and only those documents, normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975).

         The Privacy Act " safeguards the public from unwarranted collection, maintenance, use and dissemination of personal information contained in agency records . . . by allowing an individual to participate in ensuring that his records are accurate and properly used, and by imposing responsibilities on federal agencies to maintain their records accurately." Mobley v. CIA, 806 F.3d 568, 585 (D.C. Cir. 2015) (quoting Bartel v. FAA, 725 F.2d 1403, 1407, 223 U.S.App.D.C. 297, 233 U.S.App.D.C. 297 (D.C. Cir. 1984)). Under the Privacy Act, any agency that maintains a " system of records" must provide information about a person to that person upon request. 5 U.S.C. § 552a(d)(1). But an agency may promulgate regulations " to exempt any system of records within the agency" from such a request, provided that the system meets certain criteria. Id. § 552a(j). This is because " [t]he Privacy Act--unlike [FOIA]--does not have disclosure as its primary goal." See Henke v. U.S. Dep't of Commerce, 83 F.3d 1453, 1456, 317 U.S.App.D.C. 405 (D.C. Cir. 1996).

         FOIA cases are typically resolved on motions for summary judgment under Federal Rule of Civil Procedure 56. See, e.g., Beltranena v. U.S. Dep't of State, 821 F.Supp.2d 167, 175 (D.D.C. 2011). To prevail on a summary judgment motion, the moving party must demonstrate that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In a FOIA action, the agency may meet its burden by submitting " relatively detailed and non-conclusory" affidavits or declarations, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200, 288 U.S.App.D.C. 324 (D.C. Cir. 1991) (quotation marks and citation omitted), and an index of the information withheld, Vaughn, 484 F.2d at 827-28; Summers v. Dep't of Justice, 140 F.3d 1077, 1080, 329 U.S.App.D.C. 358 (D.C. Cir. 1998). An 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] section requirements." Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833, 347 U.S.App.D.C. 235 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352, 197 U.S.App.D.C. 25 (D.C. Cir. 1978)). The Court reviews the agency's decision de novo, and the agency bears the burden of sustaining its action. 5 U.S.C. § 552(a)(4)(B).


         A. The Department's Motion ...

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