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Huntington v. United States Department of Commerce

United States District Court, District of Columbia

July 21, 2017

R. DANNY HUNTINGTON, Plaintiff,
v.
UNITED STATES DEPARTMENT OF COMMERCE, Defendant.

          MEMORANDUM OPINION

          JAMES E. BOASBERG, UNITED STATES DISTRICT JUDGE

         An attorney in the field, Plaintiff R. Danny Huntington seeks information about a defunct confidential program of the U.S. Patent and Trademark Office, which is housed in the Department of Commerce. This program - the Sensitive Application Warning System (SAWS) - was used to flag certain patent applications as involving particularly sensitive subject matter. To gain insight into the SAWS Program, Plaintiff filed multiple Freedom of Information Act requests with Commerce and subsequently brought this suit. After a previous round of summary-judgment briefing, in which the Court granted in part and denied in part both sides' motions, Defendant was ordered to resolve several deficiencies in its search.

         Believing it has now fulfilled those obligations, Commerce renews its Motion for Summary Judgment. Plaintiff responds with his own Cross-Motion, arguing that Defendant's actions are still insufficient. The Court concludes that an issue of material fact exists as to whether the government conducted an adequate search within one office, but it finds that the USPTO has otherwise satisfied FOIA's dictates. The Court will, therefore, once again grant in part and deny in part each party's Motion.

         I. Background

         The Court's prior Opinion lays out the full details of this controversy, see Huntington v. U.S. Dep't of Commerce (Huntington I), No. 15-2249, 2017 WL 211301, at *1-3 (D.D.C. Jan. 18, 2017), so they will be only briefly recapped here.

         Traditionally, patent applications submitted to the USPTO are reviewed for compliance with legal requirements that, if met, result in the grant of the patent. See ECF No. 14-4 (Declaration of John Ricou Heaton), ¶¶ 19-20. In 1994, the Office introduced its new SAWS program. Id., ¶ 21. SAWS “allow[ed] patent examiners to alert leadership when a patent might issue on a sensitive matter, ” and the program “was integrated” into the regular patent-application review process. Id. Inclusion in the SAWS program did not determine whether an application would ultimately be granted or denied, see ECF No. 18-1 (Supplemental Declaration of John Ricou Heaton), ¶ 9, but could trigger “an internal quality assurance check.” Heaton Decl., ¶ 22. If it was granted, a report describing the invention and its sensitive nature would be sent to a Technology Center Director, who would decide whether the Commissioner for Patents Office should be notified. Id. 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. (citation omitted). The USPTO retired the SAWS program in March 2015. Id.

         During the first half of 2015, Huntington submitted several FOIA requests to the USPTO seeking records related to SAWS. After Commerce released some documents in part, see ECF No. 11-4, Exh. 2-2 at ¶ 002, and Huntington filed multiple unsuccessful administrative appeals, id., Exhs. 2-3, 2-4, he brought this suit in December 2015, alleging that Defendant had failed to both conduct an adequate search and produce responsive records. See ECF No. 1 (Complaint), ¶¶ 34-43. The USPTO then undertook “a more thorough subsequent search, ” Heaton Decl., ¶ 23, and released 4, 114 pages and five spreadsheets of material, of which one document was redacted in full and 132 pages were redacted in part pursuant to FOIA Exemptions 3, 5, and 6. Id., ¶¶ 44-50.

         Contending that Defendant's search remained inadequate and that certain records were improperly withheld, Huntington moved for summary judgment. See ECF No. 11 (Plaintiff's First Motion for Summary Judgment). Defendant, conversely, believed it had satisfied its FOIA obligations and thus cross-moved for summary judgment. See ECF No. 14-2 (Defendant's First Motion for Summary Judgment). In that round of briefing, there were two issues in dispute: (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.

         The Court concluded that Defendant's search was inadequate for three reasons. First, the agency's account of its search was “facially flawed” because it did not “assert[] that [it had] searched all locations likely to contain responsive documents.” Huntington I, 2017 WL 211301, at *5-6 (quoting Bartko v. DOJ, 167 F.Supp.3d 55, 64 (D.D.C. 2016)). Second, the “description of [Defendant's] search lack[ed] the requisite specificity” because it did “not constitute ‘[a] reasonably detailed' description of ‘the type of search performed.'” Id. at *7 (quoting Oglesby v. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). The descriptions omitted, inter alia, how many laptops and emails were searched, why the locations searched were chosen, and why no paper files had responsive records. Id. Finally, the Court determined that Defendant should have searched the records of the Patent Trial and Appeal Board (PTAB) Chief Judges given evidence suggesting that these judges would have responsive records. Id. at *10.

         As to its withholding, the USPTO initially asserted Exemption 5 with respect to 49 documents. See Def. Mot. at 21; Heaton Decl., ¶ 55. The Court upheld Defendant's reliance on this exemption. Huntington I, 2017 WL 211301, at *11.

         Partially granting and partially denying these first motions for summary judgment, the Court ordered Defendant to: (1) fix the facial deficiency regarding its description of its search, (2) describe its search in further detail, and (3) search the PTAB Chief Judges' records. In response, the USPTO has cured the facial deficiency, explained in more detail the search of various offices, and searched the PTAB Chief Judges' records. Contending that it has carried out the Court's Order and thus fully complied with FOIA, Defendant renews its Motion for Summary Judgment. See ECF No. 22 (Defendant's Second Motion for Summary Judgment). Believing that Defendant's search remains inadequate and that a certain record is still improperly withheld, Huntington renews his Cross-Motion. See ECF No. 23-1 (Plaintiff's Second Motion for Summary Judgment). Both 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.'” DOJ 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

         Bearing some similarity to the last round of briefing, the disputes here center on: (1) the adequacy of the USPTO's search for responsive records, and (2) the validity of its withholding of one ...


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