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Borda v. U.S. Department of Justice

United States District Court, District of Columbia

March 31, 2018




         This matter is currently before the Court on Defendant Department of Justice's third motion for summary judgment, Dkt. 40, and Plaintiff Christian Borda's motion for leave to file a second amended complaint, Dkt. 44. Borda seeks disclosure under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, of records pertaining to grand jury proceedings within this district, as well as records relating to his 2010 conviction for conspiracy to commit a narcotics offense. For the reasons explained below, the Court will GRANT Defendant's motion for summary judgment and will DENY Borda leave to file a second amended complaint.

         I. BACKGROUND

         The underlying facts of this case have been relayed in the Court's previous opinions. See Borda v. Exec. Office for the U.S. Attorney (“Borda I”), 125 F.Supp.3d 196 (D.D.C. 2015); Borda v. U.S. Dep't of Justice, Criminal Division (“Borda II”), 245 F.Supp.3d 52 (D.D.C. 2017). In brief: Borda made three FOIA requests in 2013. Borda II, 245 F.Supp.3d at 55. The Executive Office for United States Attorneys (“EOUSA”) did not respond, and Borda filed suit.

         Id. EOUSA then conducted an initial search, revealing no responsive records, Dkt. 28-3 at 3-4 (Cunningham Decl. ¶ 8), and moved for summary judgment, Dkt. 10. Borda did not oppose EOUSA's motion, instead moving to amend his complaint. Dkt. 20. The Court denied the motion for summary judgment because no other components of the Department of Justice had conducted searches, and the Court granted Borda's motion for leave to amend his complaint. See Borda I, 125 F.Supp.3d at 199-200. After Borda filed his amended complaint (adding a challenge to an EOUSA response to a 2015 records request), Dkt. 22, EOUSA forwarded his inquiries to the Criminal Division of the Department of Justice. The Criminal Division performed a search, released some responsive records to Borda while withholding others, Dkt. 28-3 at 5-7 (Cunningham Decl. ¶¶ 13-17), and EOUSA then filed another motion for summary judgment, Dkt. 28.

         In Borda II, the Court substituted the Department of Justice as the proper defendant, 245 F.Supp.3d at 52 n.1, and granted in part and denied in part the Department's motion for summary judgment, id. at 63. The Court held that summary judgment was inappropriate as to one aspect of the adequacy of the search and as to whether the Department had properly applied Exemption 7(D) to four sealed plea agreements. With respect to the former, “[t]he Department ha[d] not adequately explained how its decision to consolidate Borda's four FOIA requests into a single ‘search request'-to the exclusion of at least some of Borda's specific search terms, see Dkt. 31 at 5-was ‘reasonably calculated to uncover all relevant documents.'” Borda II, 245 F.Supp.3d at 59 (quoting DeBrew v. Atwood, 792 F.3d 118, 122 (D.C. Cir. 2015)). The Court noted in particular that “Borda's request for ‘all grand jury records in the public domain' related to his case appears to sweep more broadly than the five fact-specific search terms the Criminal Division included in its synthesized search request.” Id. The Court, accordingly, denied summary judgment on “this limited issue, and . . . permit[ted] the Department to file a renewed motion that either explains how the prior search encompassed all of the relevant search terms or indicates that the Department has engaged in a further search for possibly responsive records.” Id. With respect to the four plea agreements, the Court held that “the Department ha[d] not explained how Exemption 7(D)-or any other exemption-permits it to withhold the agreements in their entirety. . . . Nor ha[d] the Department shown that it [was] impractical to segregate the non-exempt material from the material that [was] exempt.” Id. at 62. Although the Department had also argued that the plea agreements were exempt from disclosure because they were sealed, the Court observed that “sealed documents are not categorically exempted from disclosure under FOIA, ” and thus, “if the Department intends to rely on the sealed-status of the records in its renewed motion, it will need to demonstrate that the seal was issued ‘with the intent to prohibit the [Department] from disclosing the [plea agreements] as long as the seal remains in effect.'” Id. at 63 n.8 (quoting Morgan v. U.S. Dep't of Justice, 923 F.2d 195, 198 (D.C. Cir. 1991)). The Court also ordered the Department to produce the disputed plea agreements for in camera review. Id. at 63.

         On June 9, 2017, the Department moved for summary judgment (the third such motion filed by the government in this case) and produced (1) a supplemental declaration describing the additional search efforts undertaken in response to Borda II and the rationale for withholding in full the eleven responsive documents those efforts produced; (2) correspondence with the district court judges who sealed the plea agreements that previously had been withheld in full; and (3) the plea agreements themselves for in camera review. See Dkt. 40. The Court then advised Borda of the consequences of failing to respond to the motion for summary judgment and ordered him to file a response on or before July 24, 2017. See Dkt. 41. Borda moved for an extension of time to respond on July 28, 2017, Dkt. 43, which the Court granted, Minute Order (Aug. 3, 2017). On August 17, 2017, Borda filed a second motion for leave to amend his complaint. See Dkt. 44. The Court again instructed Borda of the consequences of not responding to Defendant's motion for summary judgment and specifically “cautioned” him “that he should not assume that his [motion to amend] will be granted.” Minute Order (Sept. 5, 2017). Borda still has not filed a response.


         A. Motion to Amend

         A party may amend its complaint “once as a matter of course within . . . 21 days after serving it, . . . 21 days after service of a responsive pleading[, ] ¶ 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.R.Civ.P. 15(a)(1). Thereafter, a party may only amend “with the opposing party's written consent or the court's leave.” Fed R. Civ. P. 15(a)(2). Although courts “should freely give leave [to amend] when justice so requires, ” id., that latitude does not extend to cases involving “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment, ” Foman v. Davis, 371 U.S. 178, 182 (1962).

         B. Motion for Summary Judgment

         The Freedom of Information Act is premised on the notion that an informed citizenry is “vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). It thus mandates that an agency disclose records on request, unless they fall within one of nine exemptions. “These exemptions are explicitly made exclusive and must be narrowly construed.” Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011) (internal quotation marks and citation omitted). As relevant here, Exemption 3 protects information “specifically exempted from disclosure by statute . . . if that statute . . . requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or . . . establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). Exemption 5 covers “inter-agency or intra-agency memorand[a] or letters that would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(3).

         FOIA cases are typically resolved on motions for summary judgment under Federal Rule of Civil Procedure 56. See, e.g., Shapiro v. U.S. Dep't of Justice, 153 F.Supp.3d 253, 268 (D.D.C. 2016). To prevail on a summary judgment motion, the moving party must demonstrate that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In a FOIA action, the agency may meet its burden by submitting “relatively detailed and non-conclusory” affidavits or declarations, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)), and an index of the information withheld, Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973); Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). The Court reviews the agency's decision de novo, and the agency bears the burden of sustaining its action. 5 U.S.C. § 552(a)(4)(B).

         III. ...

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