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MacLeod v. United States Department of Homeland Security

United States District Court, District of Columbia

September 21, 2017




         Pro se plaintiff William MacLeod is a Canadian national who twice applied to the United States Customs and Border Protection (“CBP”) agency for a “NEXUS card”-a credential that expedites customs processing when one crosses the border between the United States and Canada. CBP denied both of MacLeod's NEXUS applications, and in the instant lawsuit, MacLeod appears to challenge the propriety of those denials. (See Compl., ECF No. 1, ¶¶ 1, 8-10.) MacLeod's complaint also references the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”) (id. ¶¶ 4-7), and contends that MacLeod submitted records requests to the Department of Homeland Security (“DHS”), the Central Intelligence Agency (“CIA”), the National Security Administration (“NSA”), and the General Services Administration (“GSA”), and that those agencies have thus far failed to furnish the requested documents (id.).

         Before this Court at present is a motion that the defendant federal agencies-the CBP, DHS, CIA, NSA, and GSA (collectively “Defendants”)-have filed, seeking outright dismissal of one of the claims in MacLeod's complaint and summary judgment with respect to the others. (See Defs.' Mem. in Support of Mot. to Dismiss & Mot. for Summ. J. (“Defs.' Mem.”), ECF No. 8, at 42-49) (arguing that MacLeod's claim regarding the denial of his NEXUS applications must be dismissed); see also Id. at 17- 19 (maintaining that summary judgment is warranted in favor of GSA and NSA because neither has any record of receiving a FOIA request from MacLeod); id. at 19-42 (contending that DHS does not maintain the records that MacLeod requested, and that MacLeod failed to exhaust his administrative remedies with respect to the CIA's processing-related determination).)[1] For the reasons explained below, this Court finds that MacLeod has conceded to the dismissal of his NEXUS-related claim against CBP, and that each of the other agency defendants has established (for various reasons) that there is no genuine issue of material fact with respect to any of MacLeod's FOIA claims. Consequently, Defendants' omnibus Motion to Dismiss and Motion for Summary Judgment will be GRANTED. A separate Order consistent with this Memorandum Opinion will follow.


         A. The Facts[2]

         1. MacLeod's Applications To The NEXUS Program

         MacLeod is a Canadian national who twice applied to participate in a customs program that “is administered jointly by the [United States] and Canada and provides for expedited travel between the countries for certain pre-approved, low risk travelers.” (Defs.' Mem. at 42; see also Id. at 42-44 (describing the NEXUS program, which is administered jointly with Canada pursuant to 8 U.S.C. § 1753 and is one of CBP's voluntary “Trusted Traveler” programs).) NEXUS cards that facilitate expedited border crossings are “available to persons who pass a comprehensive background check” (Letter from CBP Ombudsman to William MacLeod (Apr. 24, 2015) (“2015 Reconsideration Denial Letter”), Ex. 7 to Defs.' Mem., ECF No. 8-2 at 63), and it is undisputed that criminal convictions or pending criminal charges of any sort are a disqualifying factor (see id.). Notably, CBP's denial of a NEXUS application does not mean that an individual cannot enter the United States from Canada; rather, such individuals simply “will not be permitted to use the NEXUS dedicated lanes” at border checkpoints. (Letter from Supervisor, NEXUS Enrollment Ctr. to William MacLeod (Mar. 27, 2014) (“2014 Denial Letter”), Ex. 6 to Defs.' Mem., ECF No. 8-2 at 60.)

         MacLeod submitted his first NEXUS application via DHS's website “[s]ometime on or before March 27, 2014[.]” (Defs.' Mem. at 43.) MacLeod disclosed two relevant facts on this application form: (1) that he had been convicted in Canada of “Utter[ing] Threat Intent Of Bodily Harm or Death contrary to Section 264.01(a) of the Criminal Code (Canada)[, ]” and (2) that he had not been pardoned for that crime. (Global Enrollment Sys. Application, Ex. 5 to Defs.' Mem., ECF No. 8-2 at 57.) CBP denied MacLeod's application by letter dated March 27, 2014, on the grounds that MacLeod did “not meet the program eligibility requirements” as a result of this criminal conviction. (2014 Denial Letter.) Thereafter, in September of 2014, and presumably in conjunction with an appeal of this initial denial, CBP requested that MacLeod provide the agency with copies of court records showing that he had been acquitted of the criminal conviction that he had disclosed. (See Pl.'s Opp'n to Defs.' Mot. (“Pl.'s Opp'n”), ECF No. 13, at 32, 60.) As of October 3, 2014, CBP had not received the requested documents, and on October 6, 2014, CBP issued MacLeod another letter denying this NEXUS application. (See Id. at 60-61.)[3] MacLeod sought reconsideration of this denial, and on April 24, 2015, CBP affirmed its initial decision. (See 2015 Reconsideration Denial Letter.)[4]

         MacLeod reapplied for the NEXUS program “[s]ometime on or before November 20, 2015.” (Defs.' Mem. at 44). In response to the same application question regarding whether he had “ever been convicted of an offense in any country for which [he has] not received a pardon, ” MacLeod responded, “No.” (Global Enrollment Sys. Application, Ex. 8 to Defs.' Mem., ECF No. 8-2 at 69.). CBP again denied MacLeod's application on the grounds that he did “not meet the program eligibility requirements[, ]” without providing any further comment. (Letter from Supervisor, NEXUS Enrollment Ctr. to William MacLeod (Nov. 20, 2015) (“2015 Denial Letter”), Ex. 9 to Defs.' Mem., ECF No. 8-2 at 71.) MacLeod does not allege that he appealed this denial determination.

         2. MacLeod's Freedom Of Information Act Requests

         Meanwhile, in this same timeframe and in an effort that appears to have nothing to do with MacLeod's quest for a NEXUS card, MacLeod allegedly sought records from various federal agencies. (See Compl. ¶¶ 4-7 (alleging that he requested information from the CIA, NSA, GSA, and DHS.) Only DHS and CIA have a record of receiving any FOIA request from MacLeod. (See Defs.' Mem. at 17-18.)

         a. Department of Homeland Security

         On April 14, 2014, the Privacy Office of DHS received a letter from MacLeod, which it construed as a FOIA request. (See Ex. A to Decl. of Kevin L. Tyrrell (“Tyrrell Decl.”), ECF No. 8-2 at 19.) In its entirety, the letter stated:


I am currently inquiring on getting a Diplomatic Status card, as I am within the Canadian Government as an MP of Parliament.
I would like to know the costs, timeframe, and other necessities as per.
I would also like to have the forms and books disclosed to [me at my address.]
I would furthermore like to discuss this in a meeting at the Embassy in Toronto.
Thank you
William Dale MacLeod

(Id.) The DHS Privacy Office determined that it did not have any responsive records in its control, but that DHS's Office of United States Citizenship and Immigration Services (“USCIS”) and United States Visitor and Immigration Status Indicator Technology (“US-VISIT”) might have the requested information; therefore, the Privacy Office transferred MacLeod's letter to USCIS and US-VISIT for processing and a response. (See Tyrrell Decl., ECF No. 8-2 at 13, ¶ 9.) At the time MacLeod filed his complaint in October of 2015, DHS had not responded to MacLeod with a final determination on the FOIA request, but the agency has subsequently represented that “the requested records are not within the purview of DHS [at all], but are instead within the purview of the United States Department of State[.]” (Id. at 14, ¶ 13; see also infra Sec. III.B.2.)

         b. Central Intelligence Agency

         By letter dated August 28, 2014, MacLeod submitted a FOIA request to the CIA seeking seven categories of information, as follows:

1. Information in MacLeod's name;
2. Information relating to the Cold War;
3. Information relating to “CIA and NSA involvement with Russia”;
4. Information relating to “United States Involvement with Ukraine and Russia ...

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