United States District Court, District of Columbia
LAWRENCE U. DAVIDSON, III, Plaintiff,
UNITED STATES DEPARTMENT OF STATE, et al, Defendants. Re Document No. 33
RUDOLPH CONTRERAS United States District Judge
Defendants' Motion for Summary Judgment
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,  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.
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.
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.
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
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. ¶ 52; see also Answer Ex. 1,
ECF No. 8-1 at 1-2 (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,
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.
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.
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
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
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.
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.” 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.
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,  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.
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).
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).
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).