Schotz v. Samuels , 72 F. Supp. 3d 81 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BARRY R. SCHOTZ, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-1811 (BAH)
)
CHARLES E. SAMUELS, JR., )
)
Defendant. )
MEMORANDUM OPINION
This lawsuit, brought pro se by a federal prisoner, arises from the Bureau of Prisons’
(BOP) response to the plaintiff’s request under the Freedom of Information Act (FOIA) for
“documents within and outside his Inmate Central File.” Compl., Ex. A (FOIA Request) at 1, ECF
No. 1. Having released records to the plaintiff, the defendant moves to dismiss under Rule
12(b)(1) of the Federal Rules of Civil Procedure or for summary judgment under Rule 56. Def.’s
Mot. to Dismiss, or in the Alternative, Mot. for Summ. J., ECF No. 13. The plaintiff has opposed
the motion to the extent that BOP limited the search for responsive records to his central file.
He also requests “sanctions” on the basis that defendant’s disclosure of responsive records was
“a direct consequence” of this litigation. Pl.’s Request for Sanctions and Opp’n to Def.’s Mot. to
Dismiss, or in the Alternative, Mot. for Summ. J., ECF No. 15, at 2.
Since there is no genuine dispute regarding the defendant’s treatment of the released
records, and the defendant has demonstrated the adequacy of its search, the Court will grant
1
the defendant’s motion for summary judgment. In addition, the Court will deny the plaintiff’s
motion for sanctions, construed also as a motion for costs.
I. BACKGROUND
In a prolix request BOP received in January 2012, the plaintiff sought records pertaining
to his prison transfers. He requested generally “all . . . documents related to . . . non-voluntary
nearer home transfer consideration, recommendation, and approval within and outside my
Inmate Central File.” Decl. of Beth Ochoa, ECF No. 13-3, Attach. 1 (FOIA Request at 2). The
plaintiff stated: “Outside sources include, but are not limited to, any/all communications by and
between FCC-Tucson Warden Apker, Camp Administrator S.K. Beauchamp, Unit Manager Debra
Baker, Case Manager Arturo Moreno, Counselor Robert Wright, Theresa Talplacido,
Institutional Legal Counsel, Western Region Staff, DSCC, etc.” Id. BOP distilled from the
plaintiff’s narrative requests for: (1) a memorandum from FCC Tucson contained in plaintiff’s
central file regarding his ongoing legal activities, and (2) two categories of documents consisting
of transfer records between October 2005 and October 2011, and housing records pertaining to
the plaintiff’s placement in the Special Housing Unit (SHU) between November 21, 2011 and
December 1, 2011. Ochoa Decl. ¶ 4.
After searching the plaintiff’s central file, BOP assessed a fee of $27.60 to cover the cost
of copying 376 “pages responsive to your request for a copy of your central file.” Id., Attach. 3.
The plaintiff paid the fee on March 24, 2012, without revising the characterization of the
request as seeking documents from his central file. See id., Att. 4. By letter dated March 27,
2012, BOP acknowledged receipt of the payment and informed the plaintiff that it had located
444 responsive pages and was releasing 366 pages completely and 10 pages with redactions.
2
BOP withheld 68 pages in their entirety, 50 of which were the plaintiff’s Presentence
Investigation Report (PSR), Statement of Reasons (SOR), and visitor information. BOP invoked
FOIA exemptions 2, 7(C) and 7(F), see 5 U.S.C. § 552(b), as the bases for withholding that
information. Ochoa Decl., Att. 5.
The plaintiff appealed to the Office of Information Policy (OIP), which, by letter dated
September 19, 2012, affirmed BOP’s withholdings under exemptions 7(C) and 7(F), and
informed the plaintiff that he could not retain a copy of his PSR but could “access [the
document] locally by asking a staff member [at his facility] for an opportunity to review it.” OIP
remanded the plaintiff’s request to BOP “for further processing of certain responsive records”
and a determination of whether “additional records are releasable[.]” Id., Attach. 6. It
informed the plaintiff that he “may appeal any future adverse determination made by BOP,”
that any inquiry about the status of the remand should be addressed “directly” to BOP, and
that he could file a lawsuit if he was dissatisfied. Id.
The plaintiff alleges that he “communicated with BOP Western Regional Counsel” on
October 26, 2012, December 10, 2012, and January 2, 2013, about the status of the remanded
portion of his request, and informed counsel on April 25, 2013, about his intention to file a
lawsuit “if compliance with the OIP[’s] [remand] was not timely made” by May 25, 2013.
Compl. at 2.
The plaintiff filed this action on November 19, 2013. Thereafter, BOP released
additional pages by letters dated January 31, 2014, February 19, 2014, and March 5, 2014.
Ochoa Decl. ¶ 11. In total, BOP provided the plaintiff with 396 pages, 26 of which contained
redacted material; BOP withheld 48 pages completely. Id. ¶ 12 & Attach. 10 (Vaughn index).
3
II. LEGAL STANDARD
Federal courts are authorized under the FOIA “to enjoin the agency from withholding
agency records and to order the production of any agency records improperly withheld from
the complainant.” 5 U.S.C. § 552(a)(4)(B). An improper withholding occurs when an agency
withholds information that is not protected by nine exemptions set forth in the statute or fails
to conduct an adequate search for responsive material.
“ ‘FOIA cases typically and appropriately are decided on motions for summary
judgment.’ ” Georgacarakos v. FBI, 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (quoting Defenders
of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). “With respect to the
applicability of exemptions and the adequacy of an agency's search efforts, summary judgment
may be based solely on information provided in the agency's supporting declarations.” Nat’l
Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 133 (D.D.C. 2013) (citations omitted). When an
agency's response to a FOIA request is to withhold responsive records, either in whole or in
part, the agency “bears the burden of proving the applicability of claimed exemptions.” Am.
Civil Liberties Union v. U.S. Dep't of Def. (“ACLU/DOD ”), 628 F.3d 612, 619 (D.C. Cir. 2011). “The
government may satisfy its burden of establishing its right to withhold information from the
public by submitting appropriate declarations and, where necessary, an index of the
information withheld.” Am. Immigration Lawyers Ass'n v. U.S. Dep't of Homeland Sec., 852 F.
Supp. 2d 66, 72 (D.D.C. 2012) (citing Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973)). “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
4
agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone.”
ACLU/DOD, 628 F.3d at 619. “Ultimately, an agency's justification for invoking a FOIA
exemption is sufficient if it appears ‘logical’ or ‘plausible.’ ” Id. (internal quotation marks
omitted) (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009)).
When a requester challenges an agency's response based on the adequacy of the search
performed, “the defending ‘agency must show beyond material doubt . . . that it has conducted
a search reasonably calculated to uncover all relevant documents.’ ” Morley v. CIA, 508 F.3d
1108, 1114 (D.C. Cir. 2007) (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C.
Cir. 1983)). “In order to obtain summary judgment the agency must show that it made a good
faith effort to conduct a search for the requested records, using methods which can be
reasonably expected to produce the information requested.” Oglesby v. U.S. Dep't of Army,
920 F.2d 57, 68 (D.C. Cir. 1990). “Summary judgment may be based on affidavit, if the
declaration sets forth sufficiently detailed information ‘for a court to determine if the search
was adequate.’ ” Students Against Genocide v. Dep't of State, 257 F.3d 828, 838 (D.C. Cir. 2001)
(quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)). Although
“[t]here is no requirement that an agency search every record system[,] . . . the agency cannot
limit its search to only one record system if there are others that are likely to turn up the
information requested.” Oglesby, 920 F.2d at 68. An agency must “explain in its affidavit that
no other record system was likely to produce responsive documents.” Id. Since an adequate
search is established by the “appropriateness” of the search methods employed, not the “fruits
of the search,” the sole fact that documents were not located cannot support a finding of an
inadequate search. Scaff-Martinez v. Drug Enforcement Admin., 770 F. Supp. 2d 17, 21-22
5
(D.D.C. 2011) (quoting Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003);
Boyd v. Criminal Div. of U.S. Dept. of Justice, 475 F.3d 381, 390-91 (D.C. Cir. 2007)).
In ruling generally on a motion for summary judgment, the Court must draw all
justifiable inferences in favor of the nonmoving party and shall accept the nonmoving party's
evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court is only
required to consider the materials explicitly cited by the parties, but may on its own accord
consider “other materials in the record.” Fed. R. Civ. P. 56(c)(3). For a factual dispute to be
“genuine,” the nonmoving party must establish more than “[t]he mere existence of a scintilla of
evidence in support of [its] position,” Liberty Lobby, 477 U.S. at 252, and cannot rely on “mere
allegations” or conclusory statements, see Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006);
Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir.
1993); accord Fed.R.Civ.P. 56(e). Rather, the nonmoving party must present specific facts that
would enable a reasonable jury to find in its favor. See, e.g., Fed. R. Civ. P. 56(c)(1). “If the
evidence is merely colorable, or is not significantly probative, summary judgment may be
granted.” Liberty Lobby, 477 U.S. at 249-50 (citations omitted).
III. DISCUSSION
A. Subject Matter Jurisdiction
As an initial matter, the defendant argues that the complaint should be dismissed for
want of subject matter jurisdiction because the plaintiff has named the BOP Director as the
defendant instead of the agency. Def.’s Mem. of P. & A.at 8-9. While it is true that the FOIA
authorizes a cause of action against federal agencies only, Martinez v. Bureau of Prisons, 444
F.3d 620, 625 (D.C. Cir. 2006), “pleadings [in general] must be construed so as to do justice,”
6
Fed. R. Civ. P. 8(e), and pro se filings in particular must be construed liberally. Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Richardson v. U.S., 193 F.3d 545, 548 (D.C. Cir. 1999). In
addition, “[t]he court may not dismiss an action for failure to prosecute in the name of the real
party in interest until, after an objection, a reasonable time has been allowed for the real party
in interest to . . . be substituted into the action.” Fed. R. Civ. P. 17(a)(3).
The Court hereby substitutes the Department of Justice, of which BOP is a component,
as the real party in interest and dismisses the complaint against BOP Director Samuels under
Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Consequently, the
defendant’s motion to dismiss under Rule 12(b)(1) is denied.
B. The Defendant’s Withholdings
The plaintiff contends that summary judgment is unwarranted because “the ONLY time
[BOP’s disclosure] obligation may have been met was AFTER one year of requests from Plaintiff
and this required instant litigation.” Pl.’s Opp’n at 4 (emphasis in original). Nevertheless,
“however fitful or delayed the release of information under the FOIA may be, once all
requested records are surrendered, federal courts have no further statutory function to
perform.” Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982); see Boyd v. Criminal Div. of U.S.
Dept. of Justice, 475 F.3d 381, 388 (D.C. Cir. 2007) (“[B]ecause the report was located in the
work file and subsequently disclosed, the issue is moot for purposes of this FOIA action.”)
(citing Perry); Ctr. for Auto Safety v. EPA, 731 F.2d 16, 19 (D.C. Cir. 1984) (“[O]nce the records
are produced in a FOIA case the substance of the controversy disappears and becomes moot
since the disclosure the suit seeks has already been made.” ) (alterations, internal quotation
marks and citations omitted.). Furthermore, the plaintiff has not questioned the bases of
7
BOP’s redactions, which the Court finds properly justified under FOIA exemptions 7(C) and 7(F).
See Ochoa Decl. ¶ 13-18 & Att. 10 (Vaughn index).
The Court must determine on its own, however, whether BOP has adequately justified
withholding 48 pages of responsive records in their entirety. See Trans-Pacific Policing
Agreement v. United States Customs Service, 177 F.3d 1022, 1027-28 (D.C. Cir. 1999) (requiring
the court to make a so-called segregability finding whether raised by the parties or not). An
agency may properly withhold entire records when the “‘exempt and nonexempt information
are ‘inextricably intertwined,’ such that the excision of exempt information would . . . produce
an edited document with little informational value.’ ” Mays v. DEA, 234 F.3d 1324, 1327 (D.C.
Cir. 2000) (quoting Neufeld v. IRS, 646 F.2d 661, 666 (D.C. Cir. 1981)).
The defendant’s declarant avers that “[a]ll reasonably segregable material located in
Plaintiff’s Central File has been produced.” Ochoa Decl. ¶ 19. The declarant refers to the
Vaughn index, which sets out the reasons why four pages were withheld in full under
exemptions 7(C) and 7(F), see Vaughn index (Docs. 2(h) and 5(b)), and why 44 pages comprising
the plaintiff’s PSR and SOR (Doc. 1) were withheld. For safety reasons, the plaintiff could not
retain his PSR and SOR but could access those documents by reviewing them in accordance
with BOP policy. See id., Doc. 1 (quoting Prog. Statement 1351.05) (citing U.S. Dep’t of Justice v.
Julian, 486 U.S. 1 (1988)). Hence, to the extent that the PSR and SOR are documents even
responsive to the plaintiff’s request, the Court finds that no improper withholding has occurred
with regard to those documents. See Martinez v. Bureau of Prisons, 444 F.3d 620, 625 (D.C. Cir.
2006) (“FOIA does not entitle [requester] to have copies of his PSRs” as long as he is “afforded a
meaningful opportunity to review his PSR and to take notes on them. . . . Moreover, the BOP
8
Program Statement 1351.05 p.15 . . . sets forth reasons, based on concerns about inmate safety
. . . that a court would be loath to second-guess.”) (citations omitted).
The Court further finds that BOP properly justified withholding a one-page injury
assessment of a third-party inmate involved in a physical altercation with plaintiff (Doc. 2(h))
under exemptions 7(C) and 7(F), and three pages of National Crime Information Center
Printouts containing third-party visitor information (Doc. 5(b)) under exemption 7(C). 1 “As a
result of [e]xemption 7(C), FOIA ordinarily does not require disclosure of law enforcement
documents (or portions thereof) that contain private information.” Blackwell v. FBI, 646 F.3d
37, 41 (D.C. Cir. 2011) (citing cases). Moreover, exemption 7(F) “affords broad protection to
the identities of individuals mentioned in law enforcement files . . ., including any individual
reasonably at risk of harm.” Quinto v. U.S. Dep’t of Justice, 711 F. Supp. 2d 1, 8 (D.D.C. 2010)
(citations and internal quotation marks omitted).
Because the plaintiff has completely failed to come forward with any evidence to rebut
the defendant’s properly supported justifications for withholding information, the Court will
grant summary judgment to the defendant on this aspect of the complaint.
C. The Defendant’s Search
Upon receiving the plaintiff’s FOIA request, BOP’s Central Office forwarded it to the
Western Regional Office for processing since the plaintiff was incarcerated at the Federal
Correctional Institution in Safford, Arizona. Ochoa Decl. ¶ 5. The regional office requested a
1
FOIA exemption 7 protects from disclosure records or information compiled for law
enforcement purposes to the extent that production could result in certain listed harms.
Exemption 7(C) exempts from disclosure such information that “could reasonably be expected
to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Exemption
7(F) exempts from disclosure such information that “could reasonably be expected to endanger
the life or physical safety of any individual.” Id., § 552(b)(7)(F).
9
complete copy of the plaintiff’s central file from FCI Safford and, following a search, produced
responsive records. Id.
The plaintiff contends that his request “clearly and unambiguously identifies various
sources other than [his] Inmate Central” file and, thus, questions the reasonableness of the
defendant’s interpretation of his request as seeking documents only from his central file. See
Pl.’s Opp’n at 5, n.5A. The plaintiff states that he had identified the following other sources:
the Designation Sentence and Computation Center located in Grand Prairie, Texas; Special
Investigative Services at the Federal Correctional Complex in Tucson, Arizona; and BOP’s Central
Office. See Pl.’s Statement of Material Facts Not in Genuine Dispute ¶ 1. He has not cited,
however, where in the FOIA request--which is neither clear nor unambiguous--the list of
sources appears. In the request, the plaintiff states that “[o]utside sources include . . . any/all
communications by and between FCC-Tucson Warden Apker, Camp Administrator S.K.
Beauchamp, Unit Manager Debra Baker, Case Manager Arturo Moreno, Counselor Robert
Wright, Theresa Talplacido, Institutional Legal Counsel, Western Region Staff, DSCC, etc..” FOIA
Req. at 2 (emphasis supplied). This description is puzzling because any communications among
what appears to be BOP employees could not possibly constitute “outside sources.”
Regardless, the defendant’s declarant has reasonably explained that a search of the
plaintiff’s central file was likely “to locate and provide all [responsive] documents” because it is
the location where the requested documents are routinely maintained. Ochoa Decl. ¶ 6.
According to the declarant, the “[d]ocumentation of transfers and transfer requests is
maintained in Section Two of the Central File,” which staff members consult when considering
and effectuating an inmate’s transfer; records pertaining to the special housing unit are
10
maintained in Section Four of the Central File; and “the Copouts [inmate requests to staff
members] . . .are maintained in Section Six of the Central File.” Id.
The plaintiff’s “other sources” assertion is not supported by facts establishing the
existence of a “record system [beyond that of his central file] that [is] likely to turn up the
information requested.” Oglesby, 920 F.2d at 68. Indeed, “[a]n Inmate Central File contains,
among other things, an inmate's . . . custody classification form, and his security designation
form. . . . Custody classification is the review process to assign a custody level based on an
inmate's criminal history, instant offense, and institutional adjustment.” Jennings v. Fed.
Bureau of Prisons, 657 F. Supp. 2d 65, 67 (D.D.C. 2009) (citing BOP Program Statements
5800.11, 5100.08) (other citations, internal quotation marks, and alteration omitted).
Furthermore, the plaintiff has not identified any documents he believes exist (and where) that
were not produced. See Iturralde, 315 F.3d at 315-16 (examining “certain circumstances
[when] a court may place significant weight on the fact that a records search failed to turn up a
particular document in analyzing the adequacy of a records search”); Valencia-Lucena v. U.S.
Coast Guard, 180 F.3d 321, 327 (D.C. Cir. 1999) (finding genuine issue presented by the
agency’s “failure to search the center it had identified as a likely place where the requested
documents might be located[.]”)
The plaintiff has proffered no evidence to call into question the adequacy of the
defendant’s search for responsive records. Therefore, the Court will grant summary judgment
to the defendant on this aspect of the complaint as well.
11
D. The Plaintiff’s Motion for Sanctions
Courts have the inherent power to impose sanctions “to achieve the orderly and
expeditious disposition of cases.” Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (internal
quotation marks omitted). “While other sanctioning mechanisms exist, such as Fed. R. Civ. P.
11 and 28 U.S.C. § 1927, their availability does not preclude the court from exercising its
inherent power.” Priority One Servs., Inc. v. W & T Travel Servs., LLC, 987 F. Supp. 2d 1, 4
(D.D.C. 2013) (citations and footnotes omitted). “Egregious misconduct may warrant the
extreme sanction of total dismissal, but for lesser wrongdoing a court may assess attorney's
fees and costs.” Id. (citations omitted). “To impose monetary sanctions against a party under
its inherent power,” a court must find that the moving party has shown by “clear and
convincing evidence” that the opposing party has “acted in bad faith, vexatiously, wantonly, or
for oppressive reasons.” Id. (citations and internal quotation marks omitted). “[N]egligent,
even sloppy, performance” will not suffice. Id. at 4-5 (quoting United States v. Wallace, 964 F.
2d 1214, 1219 (D.C. Cir. 1992)) (internal quotation marks omitted).
Whether the plaintiff is requesting a favorable judgment, litigation costs or both as
sanctions is unclear, but the Court finds that he is entitled to neither. In support of his request
for sanctions, the plaintiff contends that the defendant does not dispute (1) that it “sat silent”
when he requested a status on OIP’s remand of his request to the agency for a further search,
(2) “that compliance to produce these records are . . . required [under the FOIA],” and (3) that
“on three occasions [while processing the request] the source of compliance failed to
reasonably comply with the otherwise detailed request, and other documents appeared to be
responsive.” Pl.’s Opp’n at 6. In addition, the plaintiff seems to contend that the defendant
12
was required to provide a Vaughn index during the administrative process. See Pl.’s Reply to
Defs.’ Opp’n to Pl.’s Mot. for Sanctions, ECF No. 19, at 1. This is incorrect. A Vaughn index,
created by judicial fiat (not the FOIA), is a suggested mechanism to assure “adequate adversary
testing” of the government’s claimed exemptions and to assist the court in assessing the
government’s position during litigation. Vaughn, 484 F.2d at 828. During the administrative
process, “[a]n agency is not required to produce a Vaughn index—which district courts typically
rely on in adjudicating summary judgment motions in FOIA cases.” Citizens for Responsibility &
Ethics in Washington v. Fed. Election Comm'n, 711 F.3d 180, 187, n.5 (D.C. Cir. 2013) (quoting
Schwarz v. U.S. Dep't of Treasury, 131 F. Supp. 2d 142, 147 (D.D.C. 2000) aff'd, No. 00-5453,
2001 WL 674636 (D.C. Cir. May 10, 2001) (other citations omitted); see also Judicial Watch, Inc.
v. Clinton, 880 F. Supp. 1, 11 (D.D.C. 1995) aff'd, 76 F.3d 1232 (D.C. Cir. 1996) (“Agencies need
not provide a Vaughn Index until ordered by a court after the plaintiff has exhausted the
administrative process”); Brown v. U.S. Dep’t of Justice, 734 F. Supp. 2d 99, 104 (D.D.C. 2010)
(“There is no requirement in [FOIA] that documents released by an agency in response to a . . .
request be bates-stamped or otherwise numbered”) (quoting 5 U.S.C. § 552 (a)(3)(A)).
The record shows that BOP processed and released the majority of responsive
documents in March 2012--three months after its receipt of the request. Although additional
records were released during the course of litigation, the plaintiff has pointed to nothing in the
record to support a finding that the defendant has acted in bad faith or for oppressive reasons.
To the contrary, OIP remanded the FOIA request for additional processing. The fact that the
agency did not respond to the plaintiff’s status requests prior to this lawsuit is immaterial to the
13
issue at hand. The foregoing reasoning applies equally to the extent that the plaintiff is seeking
sanctions directly under the FOIA, see 5 U.S.C. § 552(a)(4)(F).
E. The Plaintiff’s Motion for Costs
In a pro se action, the FOIA permits a district court to “assess against the United States .
. . litigation costs reasonably incurred in any case . . . in which the [pro se plaintiff] has
substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). A party substantially prevails if he “has
obtained relief through either . . . a judicial order . . . or . . . a voluntary or unilateral change in
position by the agency, if the complainant's claim is not insubstantial.” 5 U.S.C. §
552(a)(4)(E)(ii).
In exercising its discretion to award costs, a court considers: “(1) the public benefit
derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the
plaintiff's interest in the records; and (4) the reasonableness of the agency's withholding of the
requested documents.” Davy v. CIA, 550 F.3d 1155, 1159 (D.C. Cir. 2008) (citations omitted).
“[A]lthough the Circuit has instructed that no particular factor should be given disproportionate
weight, in some circumstances the final factor may be dispositive. Specifically, the D.C. Circuit
has made clear that ‘[ i] f the Government's position is correct as a matter of law, that will be
dispositive. If the Government's position is founded on a colorable basis in law, that will be
weighed along with other relevant considerations in the entitlement calculus.’ ” Dorsen v.
United States Sec. & Exch. Comm'n, No. 13-0288, 2014 WL 576100, at *5 (D.D.C. Feb. 14, 2014)
(quoting Davy, 550 F.3d at 1162) (other citations omitted). Since the plaintiff has not contested
the defendant’s claimed exemptions and the Court has found them properly supported, any
request for litigation costs is denied.
14
IV. CONCLUSION
For the foregoing reasons, the defendant’s motion for summary judgment is granted
and the plaintiff’s motion for sanctions is denied. A separate Order accompanies this
Memorandum Opinion.
/s/Beryl A. Howell
UNITED STATES DISTRICT JUDGE
DATE: October 30, 2014
15