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Cooper v. United States Department of Justice

United States District Court, District of Columbia

March 14, 2016




Elwood J. Cooper (“the plaintiff”), proceeding pro se, brings this action against several federal agencies (“the defendants”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012). The plaintiff seeks “to obtain all records related to his arrest and prosecution, in the hopes of uncovering documents that he believes will prove that . . . his conviction was illegal.” Cooper v. DOJ, No. CIV.A. 99-2513 (RMU), 2005 WL 670296, at *1 (D.D.C. Mar. 22, 2005). Five motions are currently pending before the Court: (1) the defendants’ Second Renewed Motion for Summary Judgment (“Second Summary Judgment Motion”); (2) the plaintiff’s Second Cross-Motion for Summary Judgment in Opposition to Defendants’ Second Renewed Motion for Summary Judgment (“Second Cross-Motion for Summary Judgment”); (3) the defendants’ Motion for Extension of Time to File Reply and Opposition to Plaintiff’s Second Cross-Motion for Summary Judgment (“Motion for Extension of Time to File Reply Brief”); (4) the plaintiff’s Motion for Entry of an Order Granting Cross-Judgment as Conceded or, in the Alternative, Discovery as a Matter of Law and Cause (“Motion to Concede”); and (5) the plaintiff’s Motion for Enlargement Out of Time Having Expired (“Motion to Enlarge Time”).[1]Upon careful consideration of the parties’ submissions and the entire record in this case, the Court concludes that it must grant in part the defendants’ Second Summary Judgment Motion, deny the plaintiff’s Second Cross-Motion for Summary Judgment, grant, nunc pro tunc, the defendants’ Motion for Extension of Time to File Reply Brief, deny the plaintiff’s Motion to Concede, and grant, nunc pro tunc, the plaintiff’s Motion to Enlarge Time.[2]


Originally filed in September 1999, this case has a long and complicated procedural history. In setting forth the relevant factual and procedural background, the Court draws heavily on prior opinions and orders issued in this case.

The plaintiff is “currently incarcerated at the U.S. Penitentiary in Coleman, Florida, where he is serving a life sentence after being convicted of drug trafficking offenses in the United States District Court for the Southern District of Florida.” Cooper v. DOJ, 890 F.Supp.2d 55, 58 (D.D.C. 2012) (citation omitted). On May 3, 1999, the plaintiff “submitted separate FOIA requests to the Drug Enforcement Administration (“DEA”), the United States Customs Service (“Customs”), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), and the United States Marshals Service (“Marshals Service”).” Id. The plaintiff sought records “concerning his arrest and prosecution.” Id. These agencies processed the plaintiff’s request and released to him the documents that they deemed “not subject to various [FOIA] exemptions.” Id. (alteration in original) (internal quotation marks omitted). However, the same agencies released other documents “with redactions corresponding to applicable exemptions” under the FOIA. Id. at 59 (internal quotation marks omitted).

On May 28, 2003, Judge Thomas Penfield Jackson, a former member of this Court, found that the agencies had “fully compiled with their FOIA obligations in responding to [the plaintiff’s] requests.” Id. (internal quotation marks omitted). Therefore, Judge Jackson “granted [the defendants’] motions for summary judgment.” Id. The plaintiff appealed and, on April 23, 2004, “the District of Columbia Circuit vacated Judge Jackson’s order and remanded the case to this Court.” Id. (citing Cooper v. DOJ, No. 03-5172, 2004 WL 895748, at *1 (D.C. Cir. Apr. 23, 2004) (per curiam)). The Circuit’s decision concerned only “the search for records conducted by the Marshals Service.” Id. (citation omitted). The Circuit held that the Marshals Service did not comply with the FOIA because it failed to conduct an adequate search for certain “cashier’s checks” of whose existence the plaintiff “offer[ed] proof.” Id. (citation omitted).

On remand, “Judge Jackson scheduled a status conference for July 13, 2004.” Id. (citation omitted). However, none of the parties appeared. Consequently, “Judge Jackson dismissed the case from the bench because the cashier’s checks in dispute had been turned over to [the plaintiff].” Id. (citation and internal quotation marks omitted). On October 28, 2004, “this case was randomly reassigned to Judge Ricardo Urbina, another former member of this Court, ” following Judge Jackson’s retirement. Id. at 60. In March 2005, Judge Urbina denied the plaintiff’s two motions “seeking reconsideration of Judge Jackson’s dismissal order.” Id. (citing Cooper, 2005 WL 670296, at *1-3).

“Cooper again appealed the dismissal of his case to the Circuit on March 28, 2005.” Id. at 60. In September 2005, while the plaintiff’s second appeal was pending, “the Marshals Service and DEA made additional documents relating to the cashier’s checks available to [him].” Id. (internal quotation marks omitted). “According to the defendants, this release of records resulted from a search by the [Marshals Service] for three cashier’s checks [conducted] in response to the Circuit’s first remand in April 2004.” Id. (alteration in original) (internal quotation marks omitted). These documents, according to the defendants’ counsel, included “eighty-four (84) pages from the [Marshals Service] plus 102 pages referred to the [DEA] for processing.”[3] Sept. 2005 Ltr. at 1. The defendants’ counsel further stated that “[r]edactions have been made to some of the other documents pursuant to [FOIA Exemptions 2 and 7].” Id.

On December 28, 2005, the Circuit “vacated Judge Jackson’s July 13, 2004 dismissal order” and remanded the case for the second time. Cooper, 890 F.Supp.2d at 60 (citing Second Remand Order). The Circuit’s second remand order instructed that, “[o]n remand, the district court shall reevaluate the adequacy of the United States Marshals Service’s . . . search for records in general.” Second Remand Order at 1. In so ruling, the Circuit reasoned that the United States Marshals Service’s production of “additional records responsive” to the plaintiff’s FOIA request during the pendency of his second appeal “cast[ed] even more doubt on the adequacy” of the Marshals Service’s initial search. Id. The Circuit further instructed this Court to “address any challenges made by the [plaintiff] to the redactions associated with this production.” Id.

Following the Circuit’s second remand, “the parties filed renewed cross-motions for summary judgment.” Cooper, 890 F.Supp.2d at 60. “On April 20, 2012, this case was randomly reassigned to the undersigned member of the Court upon Judge Urbina’s retirement.” Id.

On September 11, 2012, this Court issued an opinion granting in part the defendants’ renewed motion for summary judgment. Sept. 2012 Op. Regarding the adequacy of the Marshals Service’s search, the Court held that the Marshals Service “demonstrated that its search was reasonable.” Cooper, 890 F.Supp.2d at 64. However, the Court decided to “defer consideration” of the challenges that the plaintiff made to the defendants’ redactions of the documents released during his second appeal. Id. at 65. The Court came to this conclusion because, in part, the defendants justified these redactions on “[FOIA] Exemption 2 [grounds], which protects matters related solely to the internal personnel rules and practices of an agency.” Id. at 64 (internal quotation marks omitted) (citing 5 U.S.C. § 552(b)(2)). But, the defendants stated that “all components have recently been instructed to review the previous withholdings under Exemption 2” in light of the Supreme Court’s decision in Milner v. Dep’t of Navy, 562 U.S. 562, 569 (2011). Id. at 65. In Milner, “the Supreme Court abrogated and narrowed the expansive interpretation of FOIA Exemption 2 advanced by the District of Columbia Circuit in Crooker v. ATF, 670 F.2d 1051, 1073 (D.C. Cir. 1981).” Id. at 64. Therefore, the defendants stated that they would “file supplemental information regarding Exemption 2 as it [became] available.” Id. at 65 (internal quotation marks omitted). In view of these developments, the Court deemed it “inappropriate at [that] time to assess the propriety of the Marshals Service’s invocation of Exemption 2.” Id. Additionally, because the Marshals Service invoked both Exemptions 2 and 7 for several documents, “the Court . . . [deferred] consideration of the Marshals Service’s invocation of both exemptions.” Id.

Subsequently, the Court issued a briefing schedule concerning the sole remaining issue, i.e., the “redactions made to the additional documents produced to the plaintiff in September 2005.” June 2013 Order at 10. According to the briefing schedule, the defendants were required to submit their Second Summary Judgment Motion “on or before July 22, 2013, ” id., the plaintiff had to file his Second Cross-Motion for Summary Judgment “on or before August 22, 2013, ” id., and the defendants had to file their reply brief “on or before September 5, 2013, ” id.

On July 22, 2013, the defendants filed their Second Summary Judgment Motion. Defs.’ Second Summ. J. Mot. In this filing, in light of Milner, the defendants expressly abandoned Exemption 2 as a justification for their redactions and “[relied] on only Exemptions 7(C), 7(D), 7(E)[, ] and 7(F).” Id. at 3. As a general matter, Exemption 7 protects certain categories of “records or information compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7) (2012).

To support their Second Summary Judgment Motion, the defendants rely on the following declarations: “[1] [the] Supplemental Declaration of William E. Bordley, [hereinafter, “the first supplemental Bordley declaration”], [2] the Supplemental Declaration of Leila I. Wassom [hereinafter, “the supplemental Wassom declaration”] . . ., [3] the Second Supplemental Declaration of William E. Bordley [hereinafter, “the second supplemental Bordley declaration”], and [4] the Declaration of William C. Little, Jr. [hereinafter, “the Little declaration”] . . . .” Defs.’ Second Summ. J. Mot. at 1. These declarations provide necessary background information regarding the plaintiff’s FOIA requests and the defendants’ responses to them.

Bordley is the Marshals Service’s “Associate General Counsel and Freedom of Information/Privacy Act Officer.” First Supp. Bordley Decl. ¶ 1. His first supplemental declaration discusses, inter alia, the eighty-four documents that the Marshals Service produced to the plaintiff in September 2005. See id. ¶ 10. According to the declaration, the Marshals Service applied Exemption 2 to these documents to redact “case numbers used by investigative agencies to link particular asset records with ongoing investigation or litigation.” Id. ¶ 11. Additionally, regarding the same documents, the declaration states that the Marshals Service relied on Exemption 7(C) “to withhold the names and telephone numbers [of] law enforcement officers and other government employees and third-party individuals.” Id. ¶ 12. However, the second supplemental Bordley declaration states that, on August 28, 2012, the Marshals Service “made a supplemental release of . . . [documents] consisting of the administrative markings and internal case numbers that were previously withheld pursuant to Exemption 2.” Second Supp. Bordley Decl. ¶ 3. According to Bordley, the Marshals Service took this action “in light of the Supreme Court decision in Milner.” Id. ¶ 2.

Wassom is a DEA “Paralegal Specialist” who reviews FOIA “requests received by [the] DEA.” Supp. Wassom Decl. ¶¶ 1-2. The supplemental Wassom declaration discusses, inter alia, the 102 documents made available to the plaintiff while his second appeal to the Circuit was pending. Id. ¶¶ 7-8. Wassom states that several of these documents “contain ‘violator identifiers’ consisting of G-DEP (Geographical Drug Enforcement Program) codes.”[4] Id. ¶ 38. She further states that G violator codes “are assigned to all DEA cases at the time the case file is opened and indicate the classification of the violator, the types and amount of suspected drugs involved, the priority of the investigation and the suspected location and scope of criminal activity.” Id. ¶ 39. Wassom adds that, pursuant to Exemption 2, the DEA “withheld” the G violator codes on “a few” of these documents. Id. ¶¶ 38, 40. Beyond that, the declaration cites Exemption 7 to justify the redaction of the “identities of DEA Special Agents, other Federal, state/local law enforcement officers, and attorneys.” Id. ¶ 46; see also ¶¶ 43-45, 47-49, 55-58. In the same declaration, Wassom also relies on Exemption 7 to support the decision to withhold “in their entirety” a handful of documents containing “information about a confidential source and his/her drug-related interaction with third parties.” Id. ¶¶ 53-54.

The last declarant, Little, is a DEA “attorney whose primary responsibilities are matters involving [FOIA] . . . litigation in which [the] DEA is an interested party.” Little Decl. ¶ 3. Little states that, in its September 11, 2012 Order, the Court directed “the review of withholding in this case pursuant to FOIA Exemption [2].” Id. ¶ 10. In response to the order, Little declares that the “DEA is no longer asserting FOIA Exemption [2] and is asserting FOIA Exemption [7] to withhold violator codes, ” id. ¶ 11, which the Little declaration states includes “NADDIS numbers, ”[5] id. ¶ 15. According to Little, “[N violator codes] are multi-digit numbers assigned to drug violators and suspected drug violators known to [the] DEA and entities that are of investigative interest.” Id. ¶ 19. Little further declares that the violator codes[6] “are part of [the] DEA’s internal system of identifying information and individuals in furtherance of [the] DEA’s enforcement responsibilities, ” and that “[t]hese numbers and codes reflect procedures prescribed by the DEA Agents Manual.” Id. ¶ 16. Little then generally asserts that the violator codes fall under Exemption 7 because releasing them would “thwart the DEA’s investigative and law enforcement efforts.” Id. ¶ 20. More specifically, Little declares that:

The release of [G violator codes] would help identify priority given to narcotic investigations, types of criminal activities involved, and violator ratings. Suspects could decode this information and change their pattern of drug trafficking in an effort to respond to what they determined [the] DEA knows about them or avoid detection and apprehension and create excuses for suspected activities. . . .
[N violator codes] . . . are unique and personal to the individual to whom the number applies. Because of the manner in which [N violator codes] are assigned and methods for which they are used, release of the information could allow violators to avoid apprehension, and could place law enforcement personnel or informants in danger, since many details of a DEA investigation would be disclosed. If these details of DEA investigations were known, violators would be aware of how to respond in different situations where detection and/or apprehension are eminent. They would be able to respond in a manner that would help them avoid detection and arrest.

Id. ¶¶ 20-21.

On August 22, 2013, the plaintiff submitted his Second Cross-Motion for Summary Judgment by mailing it through the prison mail system. Pl.’s Second Cross-Mot. for Summ. J.; see also Defs.’ Mot. Ext. Time to File Reply Br. (“Defs.’ Mot. Ext. Time Reply”) at 1; Pl.’s Mot. to Concede at 3. However, the defendants did not receive the plaintiff’s Second Cross-Motion for Summary Judgment until sometime around September 13, 2013, Defs.’ Mot. Ext. Time Reply at 1; Pl.’s Mot. to Concede at 3, which was after the filing deadline of September 5, 2013 by which the defendants had to oppose the plaintiff’s Second Cross-Motion for Summary Judgment and reply in support of their own Second Summary Judgment Motion. The defendants then sought an extension of time to file their reply brief, Defs.’ Mot. Ext. Time Reply, requesting that the Court extend the deadline for filing their reply brief to “October 7, 2013, ” so that they would have “a reasonable amount of time to prepare an appropriate reply, ” id. at 1.

On September 27, 2013, the plaintiff filed his Motion to Concede. Pl.’s Motion Concede. In this motion, the plaintiff sought the entry of an order granting his Second Cross-Motion for Summary Judgment “as conceded” under Local Civil Rule 7(b). As support for this request, the plaintiff asserted that the defendants “failed to file a timely reply” to his Second Cross-Motion for Summary Judgment. Id. at 1.

On October 2, 2013, the defendants filed their Motion to Stay, Defs.’ Mot. Stay, in which their counsel represented that “Department of Justice attorneys and employees of the [Marshals Service] and the [DEA]” were “prohibited from working” on FOIA matters due to the lapse of government appropriations. Id. at 1-2. Therefore, the defendants requested that “all current deadlines for the parties be extended commensurate with the duration of the lapse in appropriations.” Id. at 2. The defendants further asked the Court to refrain from “setting any automatic deadlines” so that they could “make sure that necessary coordination and review [could] be accomplished in the wake of the current [government] shutdown.” Id. at 2-3. In an order entered on October 7, 2013, the Court granted the Motion to Stay, Oct. 7, 2013 Order, [7]ordering that “all deadlines in this case shall be extended for a period commensurate with the duration of the lapse in appropriations, ” id. Without notifying the Court that the lapse in appropriations had ended, the defendants filed their reply brief on October 27, 2013.

After the defendants filed the reply brief, no action was taken in the case for approximately 1.5 years.[8] Then, on May 15, 2015, the Court issued a minute order directing the parties to file a status report “advising the Court as to whether the case should be reopened and whether the pending motions are still valid or have been resolved and thus are moot.” May 2015 Minute Order. The defendants responded to the Court’s minute order on May 29, 2015, stating that they were “unaware of any developments in this case . . . that would render the pending motions moot.” Defs.’ Stat. Rep. at 1.

On June 4, 2015, the plaintiff filed his Motion to Enlarge Time, Pl.’s Mot. to Enlarge Time, asking that the Court extend the deadline to file “his status report as to whether this case should be reopened” to June 15, 2015, id. at 1. Approximately one month later, while his Motion to Enlarge Time was pending, the plaintiff filed his status report. Pl.’s Stat. Rep.


“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) (citations omitted). Courts will grant summary judgment to an agency as the movant if it shows that there is no genuine dispute as to any material fact and if the agency is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). More specifically, 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. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)).

Summary judgment in a FOIA case may be based solely on information provided in an agency’s supporting affidavits or declarations if they are “relatively detailed and non-conclusory, ” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation and internal quotation marks omitted), and when they “[d]escribe 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 [or] by evidence of agency bad faith, ” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “To successfully challenge an agency’s showing that it compiled with the FOIA, the plaintiff must come forward with ‘specific facts’ demonstrating ...

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