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Pejouhesh v. United States Postal Service

United States District Court, District of Columbia

March 26, 2019

HASSAN ALI PEJOUHESH, Plaintiff,
v.
UNITED STATES POSTAL SERVICE, Defendant.

          MEMORANDUM OPINION AND ORDER

          Randolph D. Moss, United States District Judge.

         Plaintiff Hassan Ali Pejouhesh, proceeding pro se, brings this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking records from the U.S. Postal Inspection Service-the U.S. Postal Service's law enforcement division-related to his prosecution and conviction for aiding and abetting bank fraud, possession of stolen mail, and aggravated identity theft. After receiving two requests from Plaintiff, the Postal Service released some records, withheld others, and informed Plaintiff that, pursuant to the U.S. Postal Inspection Service's records retention policy, the Postal Service had destroyed all other responsive records that it once possessed. Plaintiff then brought this suit, challenging the withholdings and the retention policy on a variety of grounds.

         The Postal Service has now moved to dismiss Plaintiff's challenge to the records retention policy for lack of standing and has moved for summary judgment with respect to the adequacy of its search and the lawfulness of its withholdings. Dkt. 16. Although advised by the Court of the need to respond to the Postal Service's motion and cautioned about the consequences of failing to do so, over eight months have now passed since Plaintiff's deadline to respond, and he has failed to file a brief in opposition. Reviewing the record as a whole, albeit without the benefit of Plaintiff's views, the Court concludes (1) that Plaintiff lacks standing to challenge the Postal Inspection Service's records retention policy; (2) that the Postal Service conducted an adequate search for responsive records; and (3) that the Postal Service has justified some, but not all, of its withholdings.

         The Court will accordingly GRANT in part and DENY in part the Postal Service's motion to dismiss and/or for summary judgment.

         I. BACKGROUND

         Because Plaintiff has not responded to Defendant's motion for summary judgment, the Court will treat the Postal Service's uncontested evidence as true.[1] See Fed. R. Civ. P. 56(e)(2); see also Winston & Strawn, LLP v. McLean, 843 F.3d 503, 507 (D.C. Cir. 2010); Local Civ. R. 7(h)(1). Plaintiff was convicted on charges of “aiding and abetting bank fraud, possession of stolen mail, and aggravated identity theft, ” United States. v. Pejouhesh, 603 Fed. App'x 347 (5th Cir. 2015), and he is currently incarcerated the Federal Correctional Institution in Beaumont, Texas. Dkt. 1 at 1 (Compl.).

         In late 2016, Plaintiff submitted a FOIA request to the United States Postal Inspection Service, seeking “arrest warrants, search warrants, . . . warrants and detainers; all data reports, investigative reports, scientific lab reports, and all exploratory records and reports; [and] factual proof of authorized jurisdiction ceded to the Federal Administrative U.S. Attorney's Office from the Governor to the United States as required by law.” Dkt. 16-3 at 3 (Mungin Decl. ¶ 6). In response, the Postal Service conducted a search and located 61 pages of responsive material in its digital records. Id. (Mungin Decl. ¶ 8). It released 23 pages of documents with redactions, citing FOIA Exemptions (b)(6) and (b)(7)(C), and withheld 17 other pages in their entirety pursuant to FOIA Exemptions (b)(6), (b)(7)(C), and (b)(7)(E). Id. Seven documents originated with other agencies and were referred to those agencies for their review and direct response to Plaintiff, and 14 pages were deemed to be duplicative and were not released. Id.

         Believing that more documents existed, Plaintiff then submitted a second FOIA request in March 2017, seeking “the search and seizure warrant for safe deposit box number 241 located at Capital One Bank[, ] [and the] search warrant for his office, home, and his three cars.” Id. at 4-5 (Mungin Decl. ¶ 9). Because Plaintiff had already been “provided with all remaining responsive material in existence which related to the subject of his request, ” the Postal Inspection Service did not conduct an additional search. Id. Plaintiff then filed an administrative appeal on May 1, 2017, and the Postal Service affirmed the initial decision in part and remanded in part. Dkt. 1-1 at 1. With respect to Plaintiff's contention that the Postal Inspection Service should have located additional responsive records, the Postal Service explained, as the Postal Inspection Service had previously advised Plaintiff, that “all hard copy documents and evidence were destroyed when [Plaintiff] exhausted [the] appeals” of his conviction. Id. As a result, “the 23 pages that [he] received were the only remaining documents that relate[d] to [his] request.” Id.

         The destruction of those records, moreover, was proper according to the Postal Service because “[t]he U.S. Postal Inspection Service has a retention policy wherein hardcopy records can be disposed of once the associated case is closed.” Id. at 2.

         With respect to Plaintiff's remaining contentions, the Postal Service concluded that the Postal Inspection Service properly relied on FOIA Exemptions 6 and 7 to withhold or to redact portions of the materials Plaintiff sought. Id. The Postal Service did, however, identify one error that the Postal Inspection Service had made: It declined to release 14 pages of responsive records on the ground that those pages were “duplicative of records that” had already been released to Plaintiff; on further review, however, the Postal Service concluded that the records were not in fact duplicative. Id. at 2-3. As the Postal Service explained, although the records at issue were “mostly comprised of information that is identical to the information contained in [the] records that [had been] released to” Plaintiff, they were “only substantially similar records and not duplicate records.” Id. The Postal Service, accordingly, remanded Plaintiff's “request for further processing with regard to [those] 14 pages.” Id. at 3.

         Plaintiff then initiated this suit, “appealing [that] final decision” and challenging the Postal Inspection Service's retention policy as violative of FOIA and his rights to “due process.” Id. at 1, 5 (Compl.).[2] In addition to seeking injunctive and declaratory relief, he seeks damages on his FOIA and due process claims. Id. at 8 (Compl.) The Postal Service has moved to dismiss Plaintiff's challenge to the retention policy for lack of standing, and it has moved for summary judgment on Plaintiff's remaining claims. See Dkt. 16. As noted above, notwithstanding the Court's caution and the passage of over a year from the time the Postal Service filed its motion, Plaintiff has not responded to the motion.

         II. ANALYSIS

         The Postal Service's motion breaks down into two parts: It first argues that Plaintiff lacks standing to challenge the Postal Inspection Service's records retention policy, and it then argues that Plaintiff's remaining claims fail based on the uncontested facts.

         A. Policy and Practice Claim

         Plaintiff's principal challenge is directed at the Postal Inspection Service's records retention policy, which allows for the destruction of records relating to an investigation “once the associated case is closed.” Dkt. 1-1 at 2. According to Plaintiff, this policy “precludes disclosure under” FOIA, and it violates the due process rights of the subjects of those investigations, who receive no notice prior to the destruction of the records and who may need the records for, among other things, seeking “post-conviction relief.” Dkt. 1 at 4-5, 8 (Compl.). The ...


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