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Huntington v. U.S. Department of Commerce

United States District Court, District of Columbia

January 31, 2018

R. DANNY HUNTINGTON, Plaintiff,
v.
U.S. DEPARTMENT OF COMMERCE, Defendant.

          MEMORANDUM OPINION

          JAMES E. BOASBERG UNITED STATES DISTRICT JUDGE

         Plaintiff R. Danny Huntington has been on a quest to uncover everything he can about a confidential U.S. Patent and Trademark Office program called the Sensitive Application Warning System (SAWS). The program, which the USPTO recently abandoned, was used to flag certain patent applications involving particularly sensitive subject matter. Seeking to learn more about SAWS, Plaintiff filed multiple Freedom of Information Act requests with the USPTO, a component of Defendant U.S. Department of Commerce. After a search and the production of some, but not all, relevant documents, Huntington brought this suit.

         In the second of two prior Opinions, this Court ordered Defendant to resolve one remaining area of deficiency in its search. Commerce has now filed a Second Renewed Motion for Summary Judgment claiming that it has adequately done so. The Court agrees; as it finds that the USPTO has satisfied FOIA's dictates, it will grant summary judgment in Defendant's favor. Having successfully obtained another 67 pages of records in this round, Plaintiff's expedition - at least via this lawsuit - is finally finished.

         I. Background

         The Court's first Opinion in this matter lays out the full details of the controversy, see Huntington v. U.S. Dep't of Commerce (Huntington I), 234 F.Supp.3d 94, 98-100 (D.D.C. 2017), so they are only briefly summarized here.

         In 1994, the USPTO implemented the SAWS program “to allow patent examiners to alert leadership when a patent might issue on a sensitive matter.” See ECF No. 14-4 (Declaration of John Ricou Heaton), ¶ 21. This alert triggered an internal quality-assurance check, see ECF No. 18-1 (Supplemental Declaration of John Ricou Heaton), ¶ 22, which could affect whether an application was ultimately granted or denied. See Heaton Decl., ¶ 9. If the patent was issued, then a SAWS report - describing the invention and its sensitive nature - would be generated and, depending on the issue, sent up the chain of command. Id. SAWS reports were also sent to the Patent Trial and Appeal Board (PTAB) as part of the appeals process. See Huntington I, 234 F.Supp.3d at 108. The USPTO abandoned the 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 initially released some documents, see ECF No. 11-4, Exh. 2-2 at ¶ 002, Huntington filed multiple unsuccessful administrative appeals, id., Exhs. 2-3, 2-4, and then 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. In response, the USPTO 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., ¶ 50.

         Claiming that Defendant's search was inadequate and that certain records were improperly withheld, Huntington moved for partial summary judgment. See ECF No. 11 (Pl. First MSJ). Commerce, conversely, believed it had satisfied its FOIA obligations and thus cross-moved for summary judgment. See ECF No. 14-2 (Def. First MSJ). Partially granting and partially denying these motions, the Court ordered Defendant to (1) fix the facial deficiency in its search description, (2) describe its search in further detail, and (3) search the PTAB Chief Judges' records. Huntington I, 234 F.Supp.3d at 104-05, 108-09. The Court, however, upheld all of Defendant's withholdings. Id. at 110. In response, the USPTO cured the facial deficiency, explained in more detail the search of various offices, and searched the PTAB Chief Judges' records - releasing an additional 25 pages of documents, of which four documents were redacted in part. See ECF No. 22-2 (Second Supplemental Declaration of John Ricou Heaton), ¶ 8.

         Contending that it had carried out the Court's Order and thus fully complied with FOIA, Defendant renewed its summary-judgment motion. See ECF No. 22 (Def. Second MSJ). Believing that Defendant's search was still inadequate and that certain records continued to be improperly withheld, Plaintiff renewed his Cross-Motion as well. See ECF No. 23-1 (Pl. Second MSJ). Once again, the Court partially granted and partially denied both motions. See Huntington v. U.S. Dep't of Commerce (Huntington II), 266 F.Supp.3d 264 (D.D.C. 2017). The Court found that the USPTO had generally satisfied its Order but that its search remained wanting inasmuch as it had failed to search the files of PTAB Administrative Patent Judges (APJs) in addition to those of Chief Judges. See id. at 274-75.

         The Court thus ordered Defendant to either: (1) submit an additional declaration describing in detail the search of certain APJs' records and a sufficient explanation of why more APJs' files were not searched, or (2) search all APJs' SAWS-related records and provide a description thereof. Id. at 275. In response, the USPTO selected door number two, as will be detailed below. Maintaining that it has now carried out the Court's Order and thus fully complied with FOIA, Defendant files yet another Motion for Summary Judgment. See ECF No. 32 (Def. Second Renewed MSJ). Rejoining that Defendant's search remains inadequate, Huntington renews his Cross-Motion as well. See ECF No. 33 (Pl. Second Renewed MSJ). 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. ...


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