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Huntington v. U.S. Department of Commerce

United States District Court, District of Columbia

January 18, 2017

R. DANNY HUNTINGTON, Plaintiff,
v.
U.S. DEPARTMENT OF COMMERCE, Defendant.

          MEMORANDUM OPINION

          JAMES E. BOASBERG United States District Judge

         Plaintiff R. Danny Huntington, an intellectual-property attorney, wants to know more about a recently scrapped confidential program of the U.S. Patent and Trademark Office (USPTO) to flag certain patent applications as involving particularly sensitive subject matter. He believes that applications pulled into the secret program's ambit were kept pending far longer than those permitted to proceed normally. See ECF No. 11-2 (Declaration of R. Danny Huntington), ¶ 17. In pursuit of his suspicions, Huntington submitted several Freedom of Information Act requests to the USPTO, a component of Defendant U.S. Department of Commerce. After the USPTO searched for responsive records, produced some, and withheld others, Plaintiff administratively appealed and eventually filed suit here. Both sides now move for summary judgment. The Court concludes that an issue of material fact exists as to whether Defendant conducted adequate searches, but it finds that the USPTO did appropriately withhold responsive documents under FOIA Exemption 5. The Court will, therefore, largely deny each party's Motion.

         I. Background

         In the typical process, a patent application submitted to the USPTO is assigned to a patent examiner in one of nine Technology Centers, each of which deals with a particular area of technology. See ECF No. 14-4 (Declaration of John Ricou Heaton), ¶ 19. The patent examiner assesses the application and reviews it for compliance with legal requirements. Id. If they are met, the USPTO will grant the patent by issuing a Notice of Allowance. Id., ¶¶ 19-20.

         In 1994, the Office introduced a new program called the Sensitive Application Warning System (SAWS), which “allow[ed] patent examiners to alert leadership when a patent might issue on a sensitive matter.” Id., ¶ 21. The SAWS program “was integrated” into the regular patent-application review process: upon receiving an application for review, a patent examiner considered whether it should be included in the program based on “subject matter criteria” that varied by Technology Center. Id. Such criteria included, for example, whether the application “would potentially generate unwanted media coverage”; had “pioneering scope”; was “[s]illy or extremely basic”; posed a danger to individuals, the environment, or national security; “appear[ed] to violate the laws of chemistry or physics”; involved “[c]ontroversial, [i]llegal, objectionable, or derogatory subject matter”; or specifically invoked race. See ECF No. 11-4, Exh. 2-3 at B-89.

         Inclusion in the SAWS program did not itself determine whether a patent application would ultimately be granted or denied. See ECF No. 18 (Supplemental Declaration of John Ricou Heaton), ¶ 9. It could, however, trigger “an internal quality assurance check, ” which would be conducted using “the same substantive standards of patentability as all other applications.” Heaton Decl., ¶ 22. If an application referred to the SAWS program was ultimately granted by a patent examiner, before a Notice of Allowance would be mailed to the applicant, the USPTO would prepare a SAWS report that described the invention and explained why the application was considered sensitive. Id. The report would be forwarded to a Technology Center Director, who would decide whether the Commissioner for Patents Office should be notified. Id., ¶¶ 19, 22. That an application had been flagged for SAWS review was never disclosed to the applicant or the public, as the agency believed that doing so risked coloring the public's view of the application and giving rise to “unjustified inferences as to the issued patent's strength and weakness.” Id., ¶ 22 (citation omitted).

         The USPTO retired the SAWS program in March 2015. Id. Approximately 0.04% of the total number of patent applications filed were referred to the SAWS program during its operation. Id., ¶ 21.

         During the first half of 2015, Huntington submitted several FOIA requests to the USPTO seeking records related to the SAWS program. He submitted the first such request - assigned Request No. F-15-00107 and referred to by the parties as R1 - in February 2015. See ECF No. 11-4, Exh. 2-1. That request sought: (1) the biannual SAWS update, including documents relating to any SAWS procedures and statutory bases for the program; (2) documents “directing, instructing, or specifying the action(s) to be taken upon receiving a notification that ‘an allowance of a SAWS application is mistakenly mailed prior to the SAWS report'”; (3) information pertaining to complete SAWS reports; and (4) information pertaining to forwarded, non-forwarded, and removed SAWS reports. Id. In response, the USPTO released to Plaintiff 118 pages of responsive documents, some portions of which were redacted pursuant to Exemption 5. Id., Exh. 2-2 at ¶ 002. Huntington then filed an administrative appeal, which the USPTO denied. Id., Exhs. 2-3, 2-4.

         In April 2015, Huntington submitted three additional FOIA requests. See ECF No. 11-5, Exhs. 3-1, 3-2, 3-3. The USPTO consolidated them into one request, assigned Request No. F-15-00190. See Heaton Decl., ¶ 9-10. The first portion (R3) sought certain information on patent applications designated, flagged, or grouped under the SAWS program, including their filing dates. See ECF No. 11-5, Exh. 3-1. (The identifier R2 never appears in the record.) The second portion (R4) sought “manuals, instructions, training material, screen-shots, or records” relating to “the ‘flagging' and ‘unflagging' of SAWS Applications” and “the exportation of data or generation of reports pertaining to SAWS Applications”; “records, reports, or emails providing summary reports . . . on SAWS applications by Technology Centers”; and, separated by Technology Center, information on SAWS applications for applicants claiming micro-entity, small-entity, and large-entity status. Id., Exh. 3-2. Finally, the third portion (R5) sought “all communication records concerning Kimberly Jordan becoming the Board [of Patent Appeals'] SAWS Point of Contact”; “all communications, letters, memoranda, or emails concerning the SAWS program sent to the Board's personnel including to Administrative Patent Judges . . . since 1994 which contain any alerts to the SAWS program or explanations or instructions for how APJs should use or consider SAWS flag information or the SAWS memoranda”; and “all post-decisional communications, letters, memoranda, or emails concerning the retirement of the SAWS program or instructions . . . of tasks and procedures for terminating or winding down the SAWS program.” Id., Exh. 3-3.

         Upon receiving Request No. F-15-00190, the USPTO informed Huntington that the processing fees would be approximately $5, 307.55. Id., Exh. 3-4 at 1. Plaintiff pledged to pay $250 to cover the cost of R3 and asked for a breakdown of the fees for R4 and R5. Id., Exh. 3-6. In July 2015, the USPTO issued a final response letter to Huntington for R3, explaining that it had located responsive records but was withholding them in full pursuant to Exemption 5. Id., Exh. 3-8. Plaintiff filed an administrative appeal, which was denied. Id., Exhs. 3-9, 3-10. He then sent another letter to the USPTO's FOIA Office, explaining that he remained interested in his R4 and R5 requests. Id., Exh. 3-11. The USPTO subsequently designated those requests No. F-16-00037. See ECF No. 1 (Complaint), ¶ 32.

         After several months of back-and-forth correspondence between the parties, Plaintiff filed the present action in December 2015, alleging Defendant had failed both to conduct an adequate search and to produce responsive records. See Complaint, ¶¶ 34-43. The USPTO then undertook “a more thorough subsequent search, ” Heaton Decl., ¶ 23, and, via six different response letters, released 4, 114 pages and five spreadsheets of material, of which one document was redacted in full and 132 pages of 59 documents were redacted in part pursuant to Exemptions 3, 5, and 6. Id., ¶¶ 44-50.

         Contending that Defendant's search remains inadequate and that certain records were still improperly withheld, Huntington moved for summary judgment. See ECF No. 11 (Pl. Mot.). Defendant, conversely, believes it has satisfied its FOIA obligations and thus cross-moved for summary judgment. See ECF No. 14 (Def. Mot.). Those Motions are now ripe.

         II. Legal Standard

         Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In the event of conflicting evidence on a material issue, the Court is to construe the conflicting evidence in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).

         FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they “describe 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.” Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation omitted). “Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action' and directs the district courts to ‘determine the matter de novo.'” Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).

         III. Analysis

         Congress enacted FOIA in order “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (quotation marks and citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted). The statute provides that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See id. § 552(a)(4)(B); Reporters Comm., 489 U.S. at 754-55. “At all times courts must bear in mind that FOIA mandates a ‘strong presumption in favor of disclosure.'” Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep't of State v. Ray, 502 U.S. 164, 173 (1991)).

         In the course of their briefing, the parties have helpfully narrowed the issues in this dispute to two: (1) the adequacy of the USPTO's search for responsive records, and (2) the propriety of its withholding certain records in whole or in part pursuant to Exemption 5. In other words, Plaintiff no longer challenges the applicability of Exemptions 3 or 6 to any of the records at issue. Compare Pl. Mot. at 1 n.1, with ECF No. 15 (Pl. Opposition) at 1 n.1. In addition, the Court considers only the specific challenges Plaintiff raises to Defendant's search.

         Although the Department of Commerce also contends that it is not the proper Defendant in this action, and that Huntington should instead have sued the USPTO, it only raised that argument in a brief footnote and failed to discuss it in its Reply. See Def. Mot. at 1 n.1. The Court thus considers the issue forfeited. Gold Reserve Inc. v. Bolivarian Republic of Venezuela, 146 F.Supp.3d 112, 126-27 (D.D.C. 2015) (holding “obliquely” raising issue in footnote insufficient to surmount waiver threshold); see also Hutchins v. Dist. of Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999) (en banc) (explaining courts “need not consider cursory arguments made only in a footnote”); Johnson v. Panetta, 953 F.Supp.2d 244, 250 (D.D.C. ...


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