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Crisman v. Department of Justice

United States District Court, District of Columbia

September 18, 2018

NANCY CRISMAN, et al., Plaintiffs,
v.
DEPARTMENT OF JUSTICE, et al., Defendants.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN, UNITED STATES DISTRICT JUDGE.

         Plaintiffs Nancy Crisman and National Security Counselors (“NSC”) have brought suit against the Department of Justice (“DOJ”), the Board of Governors of the Federal Reserve System (“FRB”), the Department of Homeland Security (“DHS”), and the Office of the Director of National Intelligence (“ODNI”), alleging violations of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et seq., as amended; the Privacy Act, 5 U.S.C. § 552a, et seq.; the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq.; and the Fifth Amendment of the United States Constitution. Before the court are Defendants' First Motion for Summary Judgment (ECF No. 26) and Second Motion for Summary Judgment and to Dismiss (ECF No. 46). Upon consideration of the parties' filings, and for the reasons stated herein, the court will GRANT in part and DENY in part both motions.

         I. BACKGROUND

         A. The Financial Institution Security Association (“FISA”) Alert

         In March 2004, the Financial Institution Security Association (“FISA”) sent a document to the Federal Bureau of Investigations' (“FBI”) Miami field office. ECF No. 1 (Compl.) ¶ 11. The document concerned Plaintiff Crisman and was titled “FIS A Alert Report Form” (hereinafter, “FISA Alert”). Id. It was marked “CONFIDENTIAL, ” and stated “[w]e are looking for any and all information on the above subjects or businesses, including, but not limited to checking or savings accounts, safety deposit boxes, or any other pertinent information where these individuals/businesses may have accounts.” Id. ¶¶ 11-12. Although the FISA Alert was a financial inquiry, the FBI erroneously characterized it as a record pertaining to the Foreign Intelligence Surveillance Act. Id. ¶ 14. Crisman alleges that the mischaracterization resulted in the termination of her employment as a nurse for Corporate Nurse, Inc. (“CNI”), her expulsion from the FRB headquarters, and the subsequent termination of her assignment as a nurse at the FRB headquarters-all of which occurred after the FISA Alert was sent to the FBI. See Id. ¶ 15. Based on her expulsion from the FRB headquarters, Crisman also alleges that the mischaracterization has resulted in her name appearing on “numerous national security and homeland security watch lists which were disseminated to other federal security agencies and DOJ components.” Id. ¶ 14.

         B. Crisman's Original FOIA Request

         In June 2005, Crisman filed a FOIA and Privacy Act request with the FBI, requesting all records about her-including the FISA Alert-from the FBI's Miami Field Office (the “Original Request”). Id. ¶ 17. The FBI refused to produce the FISA Alert, classifying the entire document as “Confidential” and finding that it was entitled to withhold the document under FOIA Exemption (b)(1) and Privacy Act Exemption (j)(2). Id. ¶¶ 18-19. Crisman appealed the FBI's withholding decision, which the Office of Information Policy (“OIP”) affirmed on July 31, 2006.[1] Id. ¶¶ 20-21. On October 8, 2008, after re-reviewing the FISA Alert, the FBI declassified the document in full, releasing a redacted copy of the FISA Alert to Crisman on February 13, 2009. Id. ¶¶ 23-25. The document was redacted to withhold third parties' personally identifiable information pursuant to FOIA Exemptions (b)(6) and (b)(7)(C). Id. ¶ 25.

         In a lawsuit filed on March 31, 2011-Crisman v. Dep't of Justice, No. 11-658 (EGS) (D.D.C)-Crisman challenged, inter alia, the adequacy of the FBI's search for documents responsive to her Original Request. See ECF No. 31-1, Ex. 2 ¶¶ 42-61. On November 8, 2011, in a Stipulation of Dismissal with Prejudice, Crisman agreed not to further challenge (1) the adequacy of the DO J's search for responsive records for the Original Request, or (2) the FBI's invocations of FOIA Exemptions (b)(6) and/or (b)(7)(C) to withhold information from the FISA Alert. Compl. ¶ 26; ECF No. 31-1, Ex. 1 (Stipulation of Dismissal) at 1.

         C. Crisman's Subsequent FOIA and Privacy Act Requests

         Shortly after agreeing to the Stipulation of Dismissal in the first lawsuit, Crisman sent additional requests to the DOJ and other agencies relating to the FISA Alert and the termination of her assignment at the FRB headquarters. Specifically, between December 2011 and June 2012, Crisman sent FOIA and/or Privacy Act requests to four agencies: the DOJ, FRB, DHS, and ODNI. Her requests are set forth below:

. On December 27, 2011, Crisman requested that OIP, a DOJ component, search for: (1) all records pertaining to the classification of the FISA Alert; (2) all records pertaining to the subsequent declassification of the FISA Alert; and (3) all records pertaining to the administrative processing of Appeal No. 06-0524.
. On December 27, 2011, Crisman requested that the FBI, a DOJ component, search for: (1) all records pertaining to the classification of the FISA Alert; (2) all records pertaining to the subsequent declassification of the FISA Alert; and (3) all records pertaining to the administrative processing of the Original Request.
. On December 27, 2011, Crisman sent two additional requests to the FBI, requesting (1) all records in File 66F-MM-A55222 and (2) “all FBI records about her, including cross-references.”[2]
. On January 9, 2012, Crisman submitted a request to the FRB for all records about her dated on or after March 26, 2004.
. On June 13, 2012, Crisman requested that the Justice Management Division (“JMD”), a DOJ component, search for all records created between 2004 and 2009 about her, the Original Request, or Appeal No. 06-0524.

         Compl. ¶¶ 28, 34, 51, 57, 67, 78. Based on her belief that the mischaracterization of the FISA Alert resulted in her placement on national security and homeland watch lists, Crisman also submitted Privacy Act amendment requests requesting that all four agencies correct all records “identifying her as a potential national security risk, or otherwise referencing the FISA Alert . . . to reflect the benign nature of that document.” Id. ¶¶ 87, 95, 107, 117, 125. She further requested that the DOJ, DHS, and ODNI remove her name “forthwith from any lists upon which she was placed as a result of this error, ” id. ¶¶ 87, 95, 107, 117, and that the FRB amend any records “documenting her expulsion from the building in April 2004 .” Id. ¶ 125.

         D. Plaintiffs' Allegations in the Current Case

         In the case before this court, Plaintiffs allege, in a seventeen-count Complaint, that the DOJ, FRB, DHS, and ODNI failed to comply with FOIA, the Privacy Act, the APA, and/or the Fifth Amendment in responding to Crisman's FOIA and/or Privacy Act requests. In Counts 1 through 5, Crisman alleges that the DOJ constructively or affirmatively denied her access to certain records related to her, the FISA Alert and the Original Request in violation of FOIA and/or the Privacy Act. Compl. ¶¶ 27-76. In Count 6, Crisman alleges that the FRB violated FOIA and the Privacy Act by constructively denying her access to records responsive to her request for “all records about her dated on or after 26 March 2004.” Id. ¶¶ 77-85. Crisman alleges in Counts 7 through 11 that the DOJ, DHS, ODNI, and FRB violated the Privacy Act, APA, and/or the Fifth Amendment by refusing to amend (1) records indicating that she was a national security risk, and/or (2) any watch list upon which she has been placed. Id. ¶¶ 86-130. In Counts 12 through 16, Plaintiffs allege FOIA and APA violations related to the DOJ's classification and withholding of the FISA Alert. Id. ¶¶ 131-164. Lastly, in Count 17 Crisman seeks damages to compensate her for the “adverse and harmful effects” she has suffered because of the DOJ's improper classification of the FISA Alert. Id. ¶¶ 165-172.

         In their motions for summary judgment on all claims, Defendants maintain that they have complied with their obligations under FOIA, the Privacy Act, the APA, and the Fifth Amendment in responding to Crisman's FOIA and Privacy Act requests, and that there is no evidence in the record indicating that Crisman was placed on a watch list.

         E. Defendants' Current Motions for Summary Judgment

         On December 3, 2013, Defendants filed their First Motion for Summary Judgment as to Crisman's records denial claims (alleged in Counts 1 through 6) and Privacy Act damages claim (alleged in Count 17). ECF No. 26-1 (Defs. First Mem.) at 8-37. That motion also seeks partial summary judgment on Crisman's Privacy Act amendment claims (alleged in Counts 7 through 11). Id. at 37-39. On June 10, 2014, Defendants filed a Second Motion for Summary Judgment and to Dismiss as to Crisman's APA and Fifth Amendment claims in Counts 7 through 10. See ECF No. 46-1 (Defs. Second Mem.) at 2-10. Defendants also move for summary judgment on Plaintiffs' claims under the APA in Counts 14 and 16. See ECF No. 56 (Defs. Second Reply) at 16-19.

         II. LEGAL STANDARD

         A. Summary Judgment

         Summary judgment is appropriate where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A fact is material if “a dispute over it might affect the outcome of a suit under governing law; factual disputes that are ‘irrelevant or unnecessary' do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue is genuine if “‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Id. (quoting Anderson, 477 U.S. at 248). The party seeking summary judgment “bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified.” Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (citing Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir. 1980)).

         FOIA cases are “typically and appropriately . . . decided on motions for summary judgment.” Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F.Supp.2d 123, 130 (D.D.C. 2011) (internal quotation marks and citation omitted). Upon an agency's request for summary judgment on the grounds that it has fully discharged its FOIA obligations, all underlying facts and inferences are analyzed in the light most favorable to the FOIA requester; only after an agency proves that it has fully discharged its FOIA obligations is summary judgment appropriate. Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C. 1996) (citations omitted).

         B. Motion to Dismiss

         When deciding a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a court has “an affirmative obligation ‘to consider whether the constitutional and statutory authority exist'” for it to consider the claims. James Madison Ltd. v. Ludwig,82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v. Nat'l Academy of Scis,974 F.2d 192, 196 (D.C. Cir. 1992)). In analyzing whether a plaintiff has standing at the dismissal stage, the court “must assume that [the plaintiff] states a valid legal claim.” Info. Handling Servs., Inc. v. Def Automated Printing Servs.,338 F.3d 1024, 1029 (D.C. Cir. 2003) (citations omitted). The party claiming subject matter jurisdiction bears the burden of proving that it exists, Khadr v. United States,529 F.3d 1112, 1115 (D.C. Cir. 2008), and while “the district court may consider materials outside the ...


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