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Davidson v. United States Department of State

United States District Court, District of Columbia

August 31, 2017

LAWRENCE U. DAVIDSON, III, Plaintiff,
v.
UNITED STATES DEPARTMENT OF STATE, et al, Defendants. Re Document No. 33

          MEMORANDUM OPINION

          RUDOLPH CONTRERAS United States District Judge

         Granting Defendants' Motion for Summary Judgment

         I. INTRODUCTION

         Pro se plaintiff Lawrence U. Davidson, III is the sole proprietor of Export Strategic Alliance, a company that attempted to collect on an unpaid invoice for services it rendered to Libya's former government. Mr. Davidson claims that he asked Defendant, the United States Department of State, [1] to help him collect on that invoice, but that it refused. He then submitted Freedom of Information Act ("FOIA") requests to the Department relating to information about how the Department had handled Mr. Davidson's previous communications with the Department. Dissatisfied with the Department's response to his requests, Mr. Davidson brought this suit. The Department previously moved for summary judgment, and the Court granted it in part and denied it in part.

         The Department now renews its motion for summary judgment on Mr. Davidson's remaining FOIA claims. The Court holds that the Department conducted an adequate search of its record system. The Department has also provided an updated Vaughn index fully explaining its withholdings-including the forty withheld documents left unexplained in its first Vaughn index. Because no genuine issue of material fact remains with respect to the adequacy of the Department's search and the appropriateness of its withholdings, the Court grants the Department's motion for summary judgment.

         II. BACKGROUND[2]

         A. Factual Background

         Plaintiff Lawrence U. Davidson, III, is a U.S. citizen and the sole proprietor of Export Strategic Alliance (“ESA”), a company that allegedly contracted with the former government of Libya to deliver medicines valued at $70 million and 12 million metric tons of foodstuffs valued at $4.5 billion. Compl. ¶ 7, ECF No. 1. Mr. Davidson further alleges that, in consideration for the delivery, Libya promised to pay Mr. Davidson $28 million, which remained unpaid as of the date this case commenced. Id.

         According to the complaint, in November 2011, Mr. Davidson sought payment from the former government of Libya and its successor entities within the Temporary Financing Mechanism, the National Transitional Council/Government, and current government of Libya, as well as the Libyan Embassy in Washington, D.C., by submitting a detailed invoice via letter, fax, and email. Compl. ¶ 23. According to Mr. Davidson, he received no response. Id. In September 2012, Mr. Davidson turned to the Department, hoping for assistance through diplomatic channels. Compl. ¶ 24. Mr. Davidson alleges that he submitted requests for “commercial diplomacy, or in the alternative a ‘Letter d'Marche, '” which is a formal diplomatic communication. Compl. ¶ 26. Mr. Davidson further claims that his efforts to obtain assistance from the Department were also unsuccessful. See Compl. ¶¶ 24-35 (alleging that “[t]he vast majority of [Mr. Davidson's] telephone calls went unacknowledged or returned”).

         From October 2013 to February 2014, Mr. Davidson claims he submitted three nearly identical versions of his FOIA request to the Department, seeking information on how the Department had handled his previous communications with it. See Compl.[3] ¶ 52; see also Answer Ex. 1, ECF No. 8-1 at 1-2[4] (reproducing Mr. Davidson's first FOIA request); Answer Ex. 3, ECF No. 8-1, at 4 (reproducing Mr. Davidson's second FOIA request); Answer Ex. 5, ECF No. 8-1, at 7-8. In his FOIA request, Mr. Davidson sought “all documents or communications . . . wherein the issue either specifically or by implication is Lawrence U. Davidson, III d/b/a Export Strategic Alliance . . . for the period beginning June 30, 2009.” Answer Ex. 1, at 1. Mr. Davidson's request also placed “particular emphasis” on certain records: (1) “[i]nvestigations conducted by the Bureau of Diplomatic Security, ” (2) “[c]onsular [a]ssistance given to U.S. [c]itizens in Libya, ” and (3) communications with or from certain entities that mentioned Mr. Davidson or his company in their text. Id. For the third category, the U.S. Embassy in Libya was among the entities whose communications Mr. Davidson sought. See Answer Ex.1, at 1-2.

         B. Procedural History

         Mr. Davidson filed suit in this Court in August 2014, asking for monetary damages, injunctive relief directing the Department to provide “commercial diplomacy, ” and declaratory judgment directing the Department to comply with his FOIA request. See Compl. at 16-17. On July 17, 2015, this Court dismissed claims for all relief not available under FOIA. See Davidson v. United States Dep't of State, 113 F.Supp.3d 183, 197 (D.D.C. 2015).

         After the Department asserted that it had completed its production of responsive documents in October 2015, it filed a motion for summary judgment. See Def.'s Mot. Summ. J., ECF No. 25. The Court denied the Department's motion with respect to the adequacy of its search and the withholding of documents, in full or in part, the basis for which was inexplicably omitted from its first Vaughn index, but granted summary judgment with respect to the withholdings that were detailed in its first Vaughn index. See Davidson, 206 F.Supp.3d at 185.

         In its September 2, 2016 opinion, the Court also explained in detail the requirements that the Department must meet to prevail on any renewed motion for summary judgment. With respect to the adequacy of the Department's search, the Court stated that:

the Department must address how its search accounts for the possibility of responsive documents relating (1) to former United States Ambassador to Libya Gene Cretz, (2) to communications with staff at the United States Embassy in Libya, (3) to an investigation conducted by “F.B.I. Special Agent R. Godfrey, ” and (4) to passport records.

Davidson, 206 F.Supp.3d at 192 (foonote and internal citation omitted). As for the Vaughn index, the Court stated that the Department must “account[] for all of the documents withheld in part or in full and . . . describe[] the exemptions claimed for those withholdings.” Davidson, 206 F.Supp.3d at 194.

         After providing a supplemental declaration and a supplemental Vaughn index, the Department renewed its motion for summary judgment, which is at issue here. See Def.'s Mem. Supp. Suppl. Mot. Summ. J. (“Mot. Summ. J.”), at 1-3, ECF No. 33. The Department asserts that it located 159 documents in response to Mr. Davidson's request. Of the 159 documents, the Department “released 34 documents in full, released 103 documents in part, and withheld 22 documents in full.”[5] Def's Supplemental Statement of Undisputed Material Facts (“Def.'s Suppl. Statement”) ¶ 15, ECF No. 33-1; see also Stein Suppl. Decl. (“Stein Suppl. Decl.”) ¶ 18, ECF No. 33-2. To justify its withholdings, the Department invokes Exemption (d)(5) of the Privacy Act of 1974, 5 U.S.C. § 552a, as well as FOIA Exemptions 5 and 6, 5 U.S.C. §§ 552(b)(5), (6). See Mot. Summ. J. at 16- 26.

         In response, Mr. Davidson: (1) challenges the adequacy of the Department's search, noting that the searches limited to name or “specific parameters” were inadequate, see Third Mem. Opp'n Mot. Summ. J. (“Pl.'s Opp'n”) at 3-4, [6] ECF No. 39, (2) objects to the Vaughn index on the grounds that it “does not actively follow the guidelines established in [Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)], ” see Pl.'s Opp'n at 2; and, (3) contends that the Department's redactions under FOIA Exemption 6 “constitute[] evidence of intentional failure to comply with the F.O.I. statutory authority [sic], ” see Id. at 3. The Court reviews the legal standard for summary judgment motions in FOIA cases before evaluating the merits of the parties' arguments.

         III. LEGAL STANDARD

         “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). Summary judgment is appropriate when “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 “material” fact is one 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 there is enough evidence for a reasonable jury to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380 (2007).

         The principal purpose of summary judgment is to streamline litigation by disposing of factually unsupported claims or defenses and determining whether there is a genuine need for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The movant bears the initial burden of identifying portions of the record that demonstrate the absence of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the non-movant must point to specific facts in the record that reveal a genuine issue that is suitable for trial. See Celotex, 477 U.S. at 324. In considering a motion for summary judgment, a court must “eschew making credibility determinations or weighing the evidence, ” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the light most favorable to the non-movant, see Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions offered without any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).

         When assessing a summary judgment motion in a FOIA case, a court makes a de novo assessment of whether the agency has properly withheld the requested documents. See 5 U.S.C. § 552(a)(4)(B); Judicial Watch, Inc. v. U.S. Dep't of Homeland Sec., 598 F.Supp.2d 93, 95 (D.D.C. 2009). To prevail on a motion for summary judgment, “the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable or is wholly exempt from the Act's inspection requirements.” Weisberg v. U.S. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980) (internal quotation marks omitted) (quoting Nat'l Cable Television Ass'n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)). To meet its burden, a defendant may rely on declarations that are reasonably detailed and non-conclusory. See Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Labor, 478 F.Supp.2d 77, 80 (D.D.C. 2007) (“[T]he Court may award summary judgment solely on the basis of information provided by the department or agency in declarations when the declarations describe ‘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 nor by evidence of agency bad faith.'” (quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981))). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)). Generally, a reviewing court should “respect the expertise of an agency” and not “overstep the proper limits of the judicial role in FOIA review.” Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1388 (D.C. Cir. 1979).

         IV. ...


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