United States District Court, District of Columbia
R. DANNY HUNTINGTON, Plaintiff,
UNITED STATES DEPARTMENT OF COMMERCE, Defendant.
E. BOASBERG, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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
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.
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.
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.
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).
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.
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 ...