Crisman v. Department of Justice ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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NANCY CRISMAN, et al., )
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Plaintiffs, )
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v. ) Case No. 12-cv-1871 (TSC)
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DEPARTMENT OF JUSTICE, et al., )
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Defendants. )
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MEMORANDUM OPINION
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 “FISA 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,
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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 DOJ’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
1
Crisman’s appeal of the FBI’s withholding decision was assigned Appeal No. 06-0524. Compl.
¶ 20.
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(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
2
Upon receiving the FISA Alert, the FBI placed it in File 66F-MM-A55222. Compl. ¶ 13.
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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.
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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
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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 pleadings,” it “must still accept all of the factual allegations in the
complaint as true.” Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir.
2005) (citations and internal quotation marks omitted).
III. ANALYSIS
A. Defendants’ First Motion for Summary Judgment
1. Preclusive Effect of Prior Stipulation
As explained above, Crisman entered into a stipulation in Crisman v. Dep’t of Justice,
No. 11-658 (EGS) (D.D.C), in which she agreed not to “bring any further actions seeking to
challenge” (1) the adequacy of the DOJ’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. Stipulation of Dismissal at 1; Compl. ¶ 26. Defendants argue that “[t]o the
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extent that [Plaintiffs’] claims violate the stipulation,” they are precluded by judicial or equitable
estoppel as well as contract law. Defs. First Mem. at 3, 8–9. However, Defendants do not
indicate which claims the stipulation arguably precludes, and therefore have failed to address this
issue with sufficient specificity for the court to decide whether the stipulation has preclusive
effect.3 See, e.g., Wilson v. Dist. of Columbia, 777 F. Supp. 2d 123, 126 (D.D.C. 2011) (failing
to decide an issue on summary judgment where “the parties . . . failed to address [the] issue with
sufficient specificity for the Court to rule”). Thus, based on the record before it, the court cannot
find that judicial or equitable estoppel preclude Plaintiffs’ claims.
2. Claims Regarding the Adequacy of the Agencies’ Searches and Applicability of
Exemptions
In cases involving the adequacy of an agency’s search efforts and the applicability of
exemptions, summary judgment may be based on information provided in the agency’s
supporting declarations. See, e.g., ACLU v. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir.
2011); Students Against Genocide v. Dep’t of State, 257 F.3d 828, 838 (D.C. Cir. 2001). An
agency may prove the reasonableness of its search via the declaration of a responsible agency
official, so long as the declaration is reasonably detailed and not controverted by contrary
evidence or evidence of bad faith. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981) (citations omitted). There is no requirement that an agency search every record system,
but it must conduct a good faith, reasonable search of those systems of records likely to possess
the requested information. See Oglesby v. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The
agency declaration can demonstrate reasonableness by “setting forth the search terms and the
3
In a footnote in their Reply in support of their Second Motion, Defendants state that the
stipulation precludes the claims in Count 12 but fail to provide any argument or evidence to
support this assertion. Defs. Second Reply at 19 n.7.
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type of search performed, and averring that all files likely to contain responsive materials (if such
records exist) were searched.” Id. Once an agency has provided adequate affidavits, the burden
reverts to the plaintiff to demonstrate the lack of a good faith search. Leopold v. Nat’l Sec.
Agency, 196 F. Supp. 3d 67, 72 (D.D.C. 2016). The presumption of good faith “cannot be
rebutted by ‘purely speculative claims about the existence and discoverability of other
documents.’” 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)).
With respect to exemptions, if “an agency’s affidavit describes the justifications for
withholding the information with specific detail, demonstrates that the information withheld
logically falls within the claimed exemption, and is not contradicted by contrary evidence in the
record or by evidence of the agency’s bad faith, then summary judgment is warranted on the
basis of the affidavit alone.” ACLU, 628 F.3d at 619. Ultimately, “an agency’s justification for
invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Id. (quoting
Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). However, an agency’s “affidavits
must show, with reasonable specificity, why the documents fall within [a given] exemption. The
affidavits will not suffice if the agency’s claims are conclusory, merely reciting statutory
standards, or if they are too vague or sweeping.” Hayden v. Nat’l Sec. Agency, 608 F.2d 1381,
1387 (D.C. Cir. 1979) (citations omitted).
i. Counts 1, 4 and 5
Crisman, in electing “to only challenge some of Defendants’ positions” in their First
Motion for Summary Judgment, does not oppose Defendants’ motion with respect to Counts 1, 4
and 5. ECF No. 41 (Pls. First Opp.) at 5–6. She maintains that her position “should not be
construed as a concession of the appropriateness of any agency action left unchallenged.” Id. at
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5. However, “[w]here a party fails to address arguments raised by the opposing party’s motion
for summary judgment, the Court may treat those arguments as conceded.” 4 Comptel v. FCC,
945 F. Supp. 2d 48, 55 (D.D.C. 2013); see also Paleteria La Michoacana, Inc. v. Productos
Lacteos Tocumbo S.A. De C.V., 69 F. Supp. 3d 175, 227 (D.D.C. 2014) (“When a party fails to
address an issue in its opposition brief, the Court may regard that issue as conceded and grant
summary judgment to the moving party.”) (citing Comptel, 945 F. Supp. 2d at 55). Accordingly,
the court finds that Defendants are entitled to summary judgment on Counts 1, 4 and 5.
ii. Count 2 – FBI’s Alleged Constructive Records Denial
In Count 2, Crisman alleges that the FBI has constructively denied her access to records
in response to her December 27, 2011 FOIA and Privacy Act request, which asks 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.” Compl. ¶¶ 33–43; ECF No. 31-1, Ex. 3 (Second
Declaration of David M. Hardy, Second Hardy Decl.) ¶ 16. The FBI initially produced four
pages in response to this request. Compl. ¶ 35; see also Second Hardy Decl. ¶ 12 n.3. Three
months later, the FBI released the FISA Alert. Second Hardy Decl. ¶ 19; see also Compl. ¶ 39.
Crisman filed an administrative appeal with OIP, contesting the adequacy of the FBI’s
search and its redactions to the produced documents. Compl. ¶ 36; Second Hardy Decl. ¶ 13.
On September 25, 2012, OIP remanded the December 27, 2011 request to the FBI “‘for a further
search for additional responsive records.’” Second Hardy Decl. ¶ 21 (quoting Second Hardy
4
Crisman also indicates that she does not oppose Defendants’ motion with respect to Count 3.
See Pls. First Opp. at 6. But, as Crisman points out, “Defendants’ Motion and brief are silent on
Count[] 3,” id. at 4, and therefore Defendants have not demonstrated that they are entitled to
summary judgment on Count 3.
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Decl., Ex. M); see also Compl. ¶ 40. By a letter dated November 21, 2012, the FBI released all
non-exempt material, totaling eight pages, to Crisman. Second Hardy Decl. ¶ 22. An additional
search, “[i]n response to this litigation,” resulted in six additional pages of responsive records.
Id. ¶ 43.
Crisman argues that the FBI’s productions are deficient because the FBI (1) failed to
produce certain relevant documents, and (2) improperly relied on FOIA Exemption (b)(5) to
withhold information. See Pls. First Opp. at 10–13, 17–19. With regard to the first assertion,
Crisman argues that the FBI failed to produce six documents that were “clearly referenced” in
the FBI’s initial production and which she requested on appeal. Id. at 11–13 (detailing the “six
clearly referenced documents”).
However, “mere reference to other files does not establish the existence of documents
that are relevant to [a] FOIA request.” Steinberg v. Dep’t of Justice, 23 F.3d 548, 552 (D.C. Cir.
1994). Crisman asserts that the six cross-referenced documents “are responsive to Count 2,” Pls.
First Opp. at 13, but fails to provide any evidence or information to support this assertion. She
also proffers no evidence demonstrating that the six cross-referenced records—all referenced in
notes that were made at least two years prior to Crisman’s FOIA request—still exist. Absent
such evidence, Crisman’s suggestion that the six records exist and are relevant to her FOIA
request is speculative and does not undermine the reasonableness of the FBI’s search. See, e.g,
Steinberg, 23 F.3d at 552 (finding that “‘mere speculation that as yet uncovered documents may
exist does not undermine the finding that the agency conducted a reasonable search’”) (quoting
SafeCard Servs., Inc., 926 F.2d at 1201); see also Am. Immigration Council (“AIC”) v. Dep’t of
Homeland Sec., 950 F. Supp. 2d 221, 234 (D.D.C. 2013) (finding plaintiff’s suggestion that
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correspondences exist “largely speculative” where there was no evidence demonstrating that the
defendant “saved the meeting minutes” or “retained their correspondence”).
Crisman’s argument that the six cross-referenced documents were “clear and certain”
indications of the existence of additional documents that the FBI could not “in good faith
ignore,” Pls. First Opp. at 12–13, does not convince the court otherwise. None of the cases on
which Crisman relies for this argument hold that cross-references in a responsive document
qualify as “clear and certain” leads, requiring agencies to conduct additional searches. Indeed,
the D.C. Circuit has suggested that the opposite is true. See Steinberg, 23 F.3d at 552 (“[M]ere
reference to other files does not establish the existence of documents that are relevant to [a]
FOIA request. If that were the case, an agency responding to FOIA requests might be forced to
examine virtually every document in its files, following an interminable trail of cross-referenced
documents like a chain letter winding its way through the mail. . . . FOIA clearly does not
impose this burden upon federal agencies.”); see also Morley v. CIA, 508 F.3d 1108, 1121 (D.C.
Cir. 2007) (finding that the CIA’s failure to search for records referenced in responsive
documents did not render the CIA’s search inadequate). Accordingly, given that Crisman’s only
challenge to the reasonableness of the FBI’s search is based on speculation regarding cross-
referenced documents, the court finds that the FBI’s search was adequate.
Crisman also argues that the FBI improperly relied on Exemption (b)(5) to withhold
information on three pages. Exemption (b)(5) allows federal agencies to withhold records if the
requested documents include “inter-agency or intra-agency memorandums 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)(5). In determining whether information was properly withheld under Exemption (b)(5),
a court must ensure that the information satisfies two conditions: “its source must be a
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Government agency, and it must fall within the ambit of a privilege against discovery under
judicial standards that would govern litigation against the agency that holds it.” Dep’t of Interior
v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). The FBI contends that the
redacted information is protected by the deliberative process and attorney work product
privileges.
To justify summary judgment, “a declaration must provide detailed and specific
information demonstrating ‘that material withheld is logically within the domain of the
exemption claimed.’” Campbell v. Dep’t of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (quoting
King v. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)). The court finds that the FBI has
failed to do so here. David Hardy—the Section Chief of the Record/Information Dissemination
Section, Record Management Division of the FBI—states that the withheld information “is
deliberative as it reflects the internal discussion between FBI personnel regarding opinions and
proposed recommendations in the handling of plaintiff’s FOIPA requests.” Second Hardy Decl.
¶ 59. He further states that the redacted “information is predecisional because the FBI evaluated
preliminary opinions and analysis made by FBI personnel which eventually resulted in its
response to plaintiff’s FOIPA request.” Id. He does not address the work product privilege at
all.
Hardy’s generalized, conclusory statements do not aid the court in determining whether
the redacted information provides an “opinion” or “recommendation” regarding Crisman’s FOIA
request, and therefore do not adequately demonstrate that the deliberative process privilege
applies in this case. See Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C.
Cir. 1980) (“The [deliberative process privilege] exemption thus covers recommendations, draft
documents, proposals, suggestions, and other subjective documents which reflect the personal
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opinions of the writer rather than the policy of the agency.”) Indeed, the Declaration does
nothing more than recite the legal standards of the deliberative process privilege, and therefore
cannot justify summary judgment with respect to the FBI’s withholdings under Exemption
(b)(5). See, e.g., Hayden, 608 F.2d at 1387 (emphasizing that an agency’s affidavits will not
suffice if they “are conclusory, merely reciting statutory standards, or if they are too vague or
sweeping”).
In sum, the court finds that the FBI is entitled to summary judgment on the adequacy of
the FBI’s search, but not on its withholding of information under Exemption (b)(5). The court
will order the FBI to submit another declaration that provides more detail regarding the
application of the deliberative process and work product privileges to the information withheld.
iii. Count 6 – FRB’s Alleged Constructive Records Denial
In Count 6, Crisman alleges that the FRB failed to adequately search for records
responsive to her January 9, 2012 FOIA and Privacy Act request, which asked for “all records
about her dated on or after March 26, 2004.” Compl. ¶ 78. In response, the FRB submitted a 15-
page declaration from David G. Caperton—Special Counsel for Oversight Reviews in the Legal
Division of the Board of Governors of the FRB. See ECF No. 31-2, Ex. 5 (Declaration of David
G. Caperton, Caperton Decl.). Caperton explained that the FRB conducted two searches. In the
first, the FRB searched four components of its Management Division—Human Resources,
Health and Employee Relations, Finance and Accounting, and Law Enforcement. Id. ¶¶ 16, 19.
The search resulted in 13 responsive documents. Id. ¶ 8. In response to Crisman’s appeal, the
FRB conducted a second search of the relevant Management Division components. Id. ¶ 21.
The second search revealed no additional documents. Id. ¶ 22–24.
Crisman appears to no longer contest the adequacy of the FRB’s searches. Instead, she
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argues that the FRB should have conducted yet another search based on her claim that FRB
security personnel informed her that they found “something in her FBI file.” Compl. ¶¶ 15–16;
Caperton Decl. ¶ 13. During a June 20, 2012 telephone call, Caperton informed Plaintiff’s
attorney that if he could provide the FRB with the “name of the security person who said
something about the FBI,” and that person still worked at the FRB, “[they] could ask that person
. . . if they have any records related to the incident.” Caperton Decl., Ex. H; Caperton Decl. ¶ 14.
Crisman’s counsel did not provide a name until January 13, 2014, over a year after the
Complaint was filed and almost three years after the FRB conducted its searches. See ECF No.
45 (Defs. First Reply) at 4; see also Pls. First Opp. at 13–14. Crisman cannot rely on this late-
supplied information to argue that the FRB’s search was inadequate or to request another
search.5 Mobley v. CIA, 806 F.3d 568, 582–83 (D.C. Cir. 2015) (finding that “[b]ecause
agencies are not required to perform additional searches once their search is concluded, the court
cannot conclude that the FBI failed to conduct an adequate search”). The court therefore finds
that there is no genuine issue of material fact as to the adequacy of the FRB’s searches and grants
Defendants summary judgment on Count 6.6
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Crisman also requests that the court, if it “agrees with Crisman that FRB’s search was
inadequate,” order the FRB “to take three other records . . . into account when performing a
supplemental search.” Pls. First Opp. at 14 –15. The records are attached to Plaintiffs’
Opposition as exhibits D through F. Having determined that FRB’s search was adequate, the
court will not order the FRB to conduct another search based on these additional records.
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In Count 11, Crisman alleges that the FRB failed to amend “all FRB records identifying her as
a potential national security risk, or otherwise stemming from the FISA Alert” and “all FRB
records documenting her expulsion from the building in April 2004.” Compl. ¶ 125. Caperton
explains that the FRB’s search—which the court has determined was adequate—returned “‘no
records identifying Ms. Crisman as a potential national security risk or pertaining to her alleged
expulsion from the Federal Reserve Building in April 2004.’” Caperton Decl. ¶ 11 (quoting
Caperton Decl., Ex. F). Because there are no records for the FRB to amend, the court finds that
the FRB is also entitled to summary judgment on Count 11.
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iv. Count 9 – DHS’s Alleged Refusal to Search for Records
On December 27, 2011, Crisman submitted a Privacy Act amendment request to DHS, in
which she informed DHS of the erroneously characterized FISA Alert and explained that she had
“reason to believe” that the FISA Alert “led to the creation of an FBI record classifying [her] as a
potential national security risk.” ECF No. 30-1 (Declaration of James V.M.L. Holzer, I, Holzer
Decl.), Ex. A, at 1. She further explained that she had “reason to believe that this information
has been disseminated to other federal agencies, not least of which is DHS.” Id. Accordingly,
she requested that “all DHS records (regardless of location) identifying her as a potential national
security risk, or otherwise stemming from the 2004 ‘FISA Alert,’ be corrected immediately to
reflect the utterly benign nature of that document, and that her name be removed forthwith from
any lists upon which she was placed as a result of this mischaracterization.” Id. In response,
DHS explained that “the limited information provided by [Crisman] was not sufficient for the
agency to conduct an adequate search,” Holzer Decl. ¶ 4, and that it would “undertake a search
for responsive records” once additional information was provided. Holzer Decl., Ex. D, at 1. In
Count 9, Crisman alleges, in part, that DHS’s failure to process Crisman’s request was improper.
The court disagrees.
FOIA does not require an agency to “honor a request that requires ‘an unreasonably
burdensome search,’” Am. Fed’n of Gov’t Emps., Local 2782 v. Dep’t of Commerce, 907 F.2d
203, 209 (D.C. Cir. 1990) (quoting Goland v. CIA, 607 F.2d 339, 353 (D.C. Cir. 1978)), or that
requires the agency “to locate, review, redact, and arrange for inspection a vast quantity of
material.” Am. Fed’n of Gov’t Emps., 907 F.2d at 209. Here, Plaintiffs request that DHS
conduct a search for “all DHS records (regardless of location)” relating to the FISA Alert
without providing information regarding “the type of records [they] are seeking, the DHS
16
component [they] believe created and/or controls the records,” “the precipitating event that
[they] believe warranted the creation of the records,” or “the time period that [they] believe the
records or files were created and compiled.” See Holzer Decl., Ex. D, at 1. While the court
appreciates that Crisman may not have access to some of this information because of the nature
of her request, Crisman has failed to take any steps to narrow her request or assist DHS in its
search.
Indeed, in response to DHS’s request for additional information, Crisman did not suggest
a timeframe for DHS’s search or provide guidance as to the types of records DHS should search
for, but instead assumed that the requested information “is exclusively under the control of DHS
and the FBI.” Holzer Decl., Ex. E, at 1. Thus, to fulfill Crisman’s request, DHS—which does
not maintain a central index of records about individuals—would have to take on the
burdensome task of examining and sifting through numerous records, without guidance as to the
timeframe, location, or likely format of the records Plaintiffs seek. Neither FOIA nor the Privacy
Act require DHS to do so. See, e.g., Assassination Archives & Research Ctr. v. CIA, 720 F.
Supp. 217, 219 (D.D.C. 1989) (“FOIA was not intended to reduce government agencies to full-
time investigators.”); see also Sack v. CIA, 53 F. Supp. 3d 154, 165 (D.D.C. 2014) (noting that
seeking “additional guidance from the [FOIA] requester and, when none was provided, clos[ing]
the file” was “a reasonable path” when the requester failed to provide sufficient information
regarding the records sought); SAI v. TSA, 315 F. Supp. 3d 218, 248–49 (D.D.C. 2018) (finding a
plaintiff’s FOIA and Privacy Act request “vastly overbroad” and thus not demanding a “response
commensurate with the request”).
Nonetheless, the court is not inclined to grant Defendants summary judgment, and risk
denying Crisman access to potentially responsive documents, when it appears that neither party
17
has made a concerted effort to come to an agreement on the contours of DHS’s search. Based on
the record, DHS, too, has failed to propose ways to define and narrow the scope of Crisman’s
request. See Holzer Decl., Ex. D at 1 (letter detailing DHS’s need for additional information but
failing to propose DHS components that may contain responsive records). Thus, the court will
deny summary judgment on Count 9 as to DHS’s failure to search for responsive records and
order the parties to meet, confer, and attempt to define and narrow the scope of DHS’s search for
responsive records.
3. Privacy Act Amendment Claims (Counts 7–11, 17)
In Counts 7 through 11, Crisman alleges that the National Security Division (“NSD”) of
the DOJ, the FBI, DHS, ODNI, and the FRB violated the Privacy Act in failing to amend their
records “identifying her as a potential national security risk, or otherwise stemming from the
FISA Alert . . . to reflect the benign nature of [the FISA Alert].” See Compl. ¶¶ 87, 95, 107, 117,
125. Crisman further alleges that NSD, FBI, DHS, and ODNI improperly denied her request that
“her name be removed forthwith from any lists upon which she was placed as a result of [the]
error.” Id. ¶¶ 87–92, 95–103, 107–13, 117–21. Additionally, Crisman alleges that the FRB
improperly refused to amend its records “documenting her expulsion from the building in April
2004 . . . to reflect that this action was solely taken as a result of” the improper classification of
the FISA Alert. Id. ¶ 125. In Count 17, Crisman seeks damages under the Privacy Act for the
“adverse and harmful effects” she has suffered as result of the DOJ’s misclassification of the
FISA Alert. Id. ¶¶ 170, 172. She requests “relief in the form of a declaratory order that DOJ
violated the Privacy Act and an award of damages.” Id. ¶ 172.
18
Crisman voluntarily withdrew her Privacy Act claims in Counts 7, 8, 9, and 10. 7 Pls.
First Opp. at 6 n.8. The only Privacy Act claims remaining are Counts 11—Crisman’s failure to
amend claim against the FRB—and Count 17—a claim for damages stemming from the DOJ’s
failure to properly classify the FISA Alert. As discussed above, this court has found that because
the FRB’s search returned no records “‘identifying Ms. Crisman as a potential national security
risk or pertaining to her alleged expulsion from the Federal Reserve Building in April 2004,’”
Caperton Decl. ¶ 11 (quoting Caperton Decl., Ex. F), there were no documents to amend, and
therefore Defendants are entitled to summary judgment on Count 11.
In Count 17, Crisman alleges that she is entitled to damages under the Privacy Act’s
accuracy provision, 5 U.S.C. § 552a(e)(5), because the FBI failed to follow the procedures of
Executive Order 12958 and its own internal memorandum in classifying the FISA Alert. See
Compl. ¶¶ 165–72. Defendants respond that they are entitled to summary judgment on Count 17
for two reasons. First, that Crisman was aware on February 9, 2009, when she received the
“FISA Alert Report Form,” “of the potential for a Privacy Act claim regarding the proper
classification of the record,” and therefore her November 2012 claim for damages is untimely.
Defs. First Mem. at 37–38. In response, Crisman argues that the FBI “mistakes the nature of the
alleged violation.” Pls. First Opp. at 19. She explains that she is contesting the FBI’s failure to
follow the proper classification procedures detailed in Executive Order 12958 and its own
internal memorandum in classifying the FISA Alert—which she learned about in May 2012—
7
Crisman maintains her claims in Counts 7, 8, 9, and 10 under the APA and the Fifth
Amendment. Additionally, as discussed previously, Crisman also maintains her claims under
Count 9 to the extent they challenge DHS’s failure to search for records responsive to her FOIA
and Privacy Act request.
19
and not the misclassification itself.8 Id. at 20. Therefore, Crisman argues, the two-year time
frame for seeking damages under the Privacy Act did not begin to run until May 2012.
The Privacy Act permits complainants to bring actions “within two years from the date
on which the cause of action arises.” 5 U.S.C. § 552a(g)(5). A cause of action arises under the
Privacy Act when “the plaintiff knows or should know of the alleged violation.” Tijerina v.
Walters, 821 F.2d 789, 798 (D.C. Cir. 1987) (citation omitted). Here, Crisman maintains that
she did not learn “that FBI had actually improperly classified the ‘FISA Alert’ by not following
the governing Executive Order or DOJ regulations” until May 2012. Pls. First Opp. at 20.
Defendants have not offered any evidence or information to suggest otherwise. Given that
Plaintiffs filed their Complaint on November 19, 2012—less than six months after Crisman
learned of the FBI’s allegedly improper conduct—the court finds that Crisman’s claim for
damages under the Privacy Act is not time-barred.
Second, Defendants argue that Crisman is not entitled to relief on Count 17 because
DOJ’s records are exempt from the accuracy and amendment provisions of the Privacy Act.
Defendants explain that “[t]he Privacy Act allows an agency’s Director to promulgate
regulations that exempt any system of records within the agency from” certain provisions of the
Privacy Act. Defs. First Mem. at 39 (citing 5 U.S.C. § 552a(j)(2)). In his declaration, Hardy
points out that all records that are a part of the FBI’s Central Records System, including the
FISA Alert, are exempt from disclosure under the Privacy Act, as prescribed by 28 C.F.R.
§ 16.96. Second Hardy Decl. ¶53. Pursuant to 28 C.F.R. § 16.96, the FISA Alert is also exempt
from the Privacy Act’s accuracy provisions—5 U.S.C. § 552a(e)(5) and 5 U.S.C. §
8The FBI released the FISA Alert with declassification markings to Crisman on May 31, 2012.
See Second Hardy Decl. ¶¶ 19–20.
20
552a(g)(1)(C)—which require agencies to maintain any record concerning an individual “with . .
. accuracy, relevance, timeliness, and completeness.” 5 U.S.C. § 552a(e)(5); see also 5 U.S.C. §
552a(g)(1)(C). Accordingly, the FBI’s regulations prohibit Crisman from advancing a Privacy
Act amendment or accuracy claim against it, and therefore the court will grant summary
judgment on Count 17.
B. Defendants’ Second Motion for Summary Judgment and to Dismiss
In their Second Motion for Summary Judgment and to Dismiss, Defendants seek
dismissal or summary judgment on Counts 7 through 10, 9 in which Crisman seeks, pursuant to
the Privacy Act, APA and the Fifth Amendment, the removal of her name from any watch list on
which she was placed following the mischaracterization of the FISA Alert. See Compl. ¶¶ 87,
95, 107, 117. As discussed above, Crisman voluntarily withdrew her claims under the Privacy
Act amendment provisions in response to Defendants’ First Motion for Summary Judgment. See
Pls. First Opp. at 6 n.8. In their Second Motion, Defendants request the dismissal of Counts 7
through 10 in their entirety, challenging Crisman’s allegations under the APA and Fifth
Amendment. ECF No. 46 (Defs. Second Mot.) at 1.
9
Both parties reference Count 11 in their briefs. See, e.g., Defs. Second Reply at 4 (titling a
subsection of their brief “Plaintiff’s Claims 7-11 are not Actionable and Should Be Dismissed”);
ECF No. 50 (Pls. Second Opp.) at 16 n.8 (“While it is not explicitly stated, Defendants’ standing
argument appears to only apply to Counts 7-11.”). The court has already granted summary
judgment on Count 11 with respect to Crisman’s claims under the Privacy Act. See supra at 15
n.6. Moreover, in Count 11, Crisman does not allege violations under the APA or the Fifth
Amendment—the focal points of Defendants’ second motion. Defs. Second Mot. at 1 (noting
that the second motion “focuses primarily on additional claims advanced under the
Administrative Procedure Act and the Fifth Amendment to the U.S. Constitution”). Therefore,
the court will not address Count 11 in its analysis of Defendants’ second motion.
21
1. Standing
Defendants first argue that Crisman’s amendment claims should be dismissed pursuant to
Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Defs. Second
Reply at 8. Specifically, Defendants argue that Crisman fails to “articulate any injury—actual,
threatened, or imminent—entitling [her] to relief,” and therefore lacks standing to bring the APA
and Fifth Amendment claims alleged in Counts 7 through 10. Defs. Second Mem. at 2. The
court agrees.
Under Article III of the United States Constitution, a federal court cannot consider the
merits of a claim until the party seeking to invoke the jurisdiction of the court can establish the
requisite standing to sue. Whitmore v. Arkansas, 495 U.S. 149, 154–55 (1990). To do so, a
plaintiff “must have suffered or be imminently threatened with a concrete and particularized
‘injury in fact’ that is fairly traceable to the challenged action of the defendant and likely to be
redressed by a favorable decision.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572
U.S. 118, 125 (2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). When
injunctive or declaratory relief is sought, a plaintiff “must show he is suffering an ongoing injury
or faces an immediate threat of [future] injury.” Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir.
2011) (citations omitted). Past injuries do not themselves “‘show a present case or controversy
regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.’”
Veitch v. England, 471 F.3d 124, 133 (D.C. Cir. 2006) (quoting City of Los Angeles v.
Lyons, 461 U.S. 95, 102 (1983)).
Crisman alleges that “[u]pon information and belief, the FBI Miami Field Office . . .
placed [her] on numerous national security and homeland security watch lists which were then
disseminated to other federal security agencies and DOJ components.” Compl. ¶ 14. However,
22
she also “admits . . . that there is a chance that her name was not placed on a watchlist in 2004.”
Pls. Second Opp. at 4 n.2. Crisman does not allege that the dissemination of these lists has
resulted in “ongoing injury,” such as the inability to travel or recurring, intrusive delays while
traveling. Nor does she allege that there is a threat that such harms will occur in the immediate
future. Rather, she asserts that after allegedly being placed on a watch list in 2004, her
“belongings were searched,” “she was escorted out of FRB Headquarters,” “[h]er contract was
terminated” and “she was subsequently fired by CNI.” Compl. ¶ 15. She also argues that due to
her alleged placement on a watch list, she was required to undergo “extra screening” both times
she traveled by air since 2004, once in March 2009 and again in August 2011. Pls. Second Opp.
at 12; ECF No. 50-4 (Pls. Second Opp., Ex. D) ¶¶ 8–9. All of these alleged harms—the search,
contract termination, job termination, and “extra screenings”— occurred at least a year before
Plaintiffs filed their Complaint, and are therefore not sufficiently “imminent” or “ongoing” to
demonstrate that “a present case or controversy” exists. Veitch, 471 F.3d at 133.
Moreover, even if Crisman’s alleged harms were imminent and ongoing, she has failed to
demonstrate that these harms are “fairly traceable” to her alleged placement on a watch list. As
noted above, Crisman is herself unsure of whether her name was actually placed on a watch list,
and makes her assertion based on “information and belief.” Compl. ¶ 14; see also Pls. Second
Opp. at 4 n.2. Despite this concession, Crisman maintains that her “name was entered into a
watch list—possibly [Violent Gang and Terrorist Organizations File] VGTOF, possibly the
[Terrorist Screening Database] TSDB—by an FBI agent in the Miami Field Office in March or
April 2004.” Pls. Second Opp. at 9.
Crisman’s main argument in support of this assertion is that because she was escorted out
of FRB headquarters due to “something in her FBI file,” her name must have been placed on a
23
watch list. Id. at 11. However, aside from quoting from a standard notice relating to the VGTOF
and TSDB watch lists that FRB Security “would likely have read,” id. at 11–12, Crisman
provides no evidence establishing that the “something in her FBI file” was a notice or other
evidence indicating that her name was placed on a watch list.
Crisman further argues that there are three additional events demonstrating her placement
on a watch list: (1) the FRB’s Assistant Director of Human Resources’ indication that Crisman
had been “Removed, Based on Suitability or Security Determination,” (2) the fact that she was
“singled out for extra screening” at the airport, and (3) DOJ’s observation that the “FBI’s
procedures for tracking and removing names from the TSDB were far from optimal.” Id. 12–14.
But again, Crisman fails to provide any evidence clearly connecting these events to her name
being placed on a watch list.10 See, e.g., Pls. Second Opp. at 12 (arguing that “being singled out
for extra screening” is “consistent with”—not indicative of— “placement on the Transportation
Security Administration (“TSA”) Selectee List or Expanded Selectee List”).
This court cannot rely on Crisman’s speculative and conclusory assertions to find that the
FISA Alert led to her placement on a watch list, let alone that her alleged harms are “fairly
traceable” to such placement or to the FISA Alert. Winpisinger v. Watson, 628 F.2d 133, 139
(D.C. Cir. 1980) (finding no standing where the court “would have to accept a number of very
10
On September 9, 2014, Plaintiffs filed a Motion for Leave to File Additional Exhibits. ECF
No. 52. The court will grant Plaintiffs’ motion. However, Plaintiffs’ first additional exhibit—
Exhibit I—does not alter the court’s analysis regarding whether Crisman has established that she
was placed on a watch list. Exhibit I is a document Plaintiffs believe “demonstrates that [the 66F
files designation] was used for watch list issues in May 2003.” ECF No. 52 at 1. Plaintiffs
appear to argue that this fact coupled with the fact that the FISA Alert was designated as a 66F
file, Compl. ¶ 13, supports their argument that Crisman’s name was placed on a watch list in
2004. But, absent evidence demonstrating that the FISA Alert was designated a 66F file because
Crisman was placed on a watch list, the court does not find that such a designation establishes
her placement on a list.
24
speculative inferences and assumptions in an endeavor to connect the alleged injury with [the
challenged conduct]”); see also Am. Sports Council v. Dep’t of Educ., 850 F. Supp. 2d 288, 292
(D.D.C. 2012) (“A ‘mixture of speculation and conclusory assertion . . . does not satisfy the
Supreme Court’s requirement for specific, concrete facts demonstrating injury, and particularized
allegations of fact.’”) (quoting Block v. Meese, 793 F.2d 1303, 1308 (D.C. Cir. 1986)).
Accordingly, the court finds that Crisman lacks standing to advance her Fifth Amendment and
APA claims alleged in Counts 7 through 10, and that the claims are therefore dismissed. 11
2. Defendants’ Additional Arguments
Defendants also argue that Counts 7 through 10, to the extent they advance claims under
the Fifth Amendment and APA, should be dismissed for their failure to state a claim. Having
determined that Crisman lacks standing to bring her Fifth Amendment and APA claims raised in
Counts 7 and 10, the court need not address these additional arguments.
3. Plaintiffs’ Remaining Claims
In Counts 12 through 16, Plaintiffs allege that the FBI failed to follow the procedures of
Executive Order 12958 and its own internal memorandum when classifying the FISA Alert. See
Compl. ¶¶ 131–72. Although Defendants purport to address Counts 12, 13 and 15 in their
second motion, they have not provided argument with regard to these counts. 12 See Defs. Second
Reply at 16 (titling a subsection of its reply brief “The Complaint Does Not State an APA Claim
(Counts 7-10, 12-16)” but failing to address why summary judgment or dismissal is warranted on
11
As discussed previously, Count 9 survives Defendants’ motions to the extent that Defendants
are required to meet, confer, and attempt to define and narrow the scope of DHS’s search for
records responsive to Plaintiffs’ FOIA and Privacy Act request.
12
As stated previously, Defendants assert that the stipulation precludes the claims in Count 12
but fail to provide any argument or evidence to support this assertion. Defs. Second Reply at 19
n.7.
25
Counts 12, 13 and 15). In light of Defendants’ failure to provide a basis for their motion, the
court will deny summary judgment and dismissal on Counts 12, 13 and 15.
Defendants do address Counts 14 and 16, which allege violations under the APA, arguing
that summary judgment should be granted on those counts because “FOIA provides for review”
of Plaintiffs’ claims, and therefore “Plaintiff may not seek review under the more generalized
provisions of the APA.” Defs. Second Reply at 18 (noting that the APA, at 5 U.S.C. § 704,
provides that judicial review is warranted under the APA only when “there is no other adequate
remedy” in a court); see also id. at 18 n.6 (“APA relief in FOIA cases suggests that the breadth
of the relief available under FOIA may leave little need for reliance on the APA as a remedial
measure.”). Plaintiffs do not dispute that their allegations under the APA can be brought under
FOIA, alleging the APA violations in Counts 14 and 16 only “as alternatives to the FOIA
arguments made in Counts 13 and 15, respectively.” Pls. Second Opp. at 23; see also Payne
Enters., Inc. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988) (“FOIA imposes no limits on
courts’ equitable powers in enforcing its terms,” and where an agency’s actions in response to a
FOIA request “violate the intent and purpose of the FOIA . . . the courts have a duty to prevent
these abuses.”) (citation omitted); Mutitt v. United States Cent. Command, 813 F. Supp. 2d 221,
229 (D.D.C. 2011) (“[W]here a plaintiff challenges an alleged pattern and practice of violating
procedural requirements of FOIA in connection with the processing of the plaintiff’s FOIA
requests[,] the Court has the power under FOIA and Payne to provide the requested declaratory
and injunctive remedies.”). Given that the APA claims advanced in Counts 14 and 16 are
properly brought under FOIA in Counts 13 and 15, the court will grant summary judgment on
Counts 14 and 16.
26
IV. CONCLUSION
For the foregoing reasons, Defendants’ First Motion for Summary Judgment and Second
Motion for Summary Judgment and to Dismiss will be GRANTED in part and DENIED in part.
The court will grant Defendants summary judgment on and/or dismiss Counts 1, 4, 5, 6, 7, 8, 10,
11, 14, 16 and 17. The court will deny summary judgment as to Counts 3, 12, 13 and 15. The
court will grant in part and deny in part summary judgment on Counts 2 and 9.
A corresponding order will issue separately.
Date: September 18, 2018
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
27