494 F.3d 1106 (D.C. Cir. 2007), 06-5085, Sussman v. United States Marshals Service

Docket Nº:06-5085.
Citation:494 F.3d 1106
Party Name:Michael SUSSMAN, Appellant v. UNITED STATES MARSHALS SERVICE, Appellee.
Case Date:July 31, 2007
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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494 F.3d 1106 (D.C. Cir. 2007)

Michael SUSSMAN, Appellant



No. 06-5085.

United States Court of Appeals, District of Columbia Circuit.

July 31, 2007

Argued April 5, 2007

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Appeal from the United States District Court for the District of Columbia (No. 03cv00610)

Sean J. Hartigan, pro hac vice, argued the cause for appellant. On the briefs was Michael Sussman, pro se.

Alan Burch, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Laurie Weinstein and Michael J. Ryan, Assistant U.S. Attorneys, entered appearances.

Before: Sentelle, Tatel and Brown, Circuit Judges.


Brown, Circuit Judge:

Citing the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act of 1974, id.§ 552a, Michael Sussman sought the release of various documents maintained by the United States Marshals Service ("Marshals Service" or "USMS"). Sussman also asserted fourteen claims for damages against the Marshals Service predicated on alleged violations of the Privacy Act. The district court granted summary judgment to the Marshals Service on all these claims, and Sussman appealed. For reasons detailed below, we now affirm in part, reverse in part, vacate in part, and remand for further proceedings.


On July 19, 2002, Michael Sussman wrote to the Department of Justice ("DOJ") requesting disclosure, pursuant to FOIA and the Privacy Act, of " any and all records relating to me, mention[ing] me, or otherwise pertaining to me" that were held by any of nine listed agencies, including the Marshals Service. In response to Sussman's letter, the Marshals Service began an investigation. Eventually it announced it had found only one document, a four-page "Notice of Invocation of Rights" Sussman had sent to a judge's home. The Marshals Service disclosed this Notice to Sussman with one redaction, which Sussman has not challenged.

In an administrative appeal, Sussman argued the Marshals Service had performed an inadequate search. As evidence, he cited a "Wanted Poster" it had issued for Keith Maydak, which listed "Michael Sussman" as an alias for Maydak. Sussman further claimed the Marshals Service had investigated him, his businesses, and his associates, so that the Notice could not be the only material it maintained regarding him.

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In March 2003 Sussman changed tactics and filed a complaint in the U.S. District Court for the District of Columbia. Sussman's amended complaint asserted sixteen causes of action. In Counts I and II, Sussman sought disclosure of additional USMS materials pursuant to FOIA, 5 U.S.C. § 552(a)(3), and the Privacy Act, id. § 552a(d)(1), (g)(1)(B), (g)(3)(A). In Count III, Sussman sought damages under the Privacy Act for the Marshals Service's alleged failure to keep an accurate accounting of disclosures it had made during its investigation of him. See id. § 552a(c)(1), (g)(1)(D), (g)(4). In Counts IV through XVI, Sussman sought damages under the Privacy Act for unlawful disclosures the Marshals Service allegedly made regarding him. See id. § 552a(b), (g)(1)(D), (g)(4).

In August 2003, Sussman moved for summary judgment as to Counts I and II. The Marshals Service in turn moved for summary judgment on all sixteen claims ("Def.'s 1st S.J. Memo") but only provided arguments for Counts I and IV through XVI.

On August 3, 2004, the district court granted summary judgment to the Marshals Service on Counts IV through XVI. But the court deemed the Marshals Service's search inadequate and granted summary judgment to Sussman on Count I, ordering the Marshals Service to "file a status report regarding the results of a further search to comply with plaintiff's FOIA request." The court's order left unclear the status of Counts II and III, the merits of which it did not discuss.

In response to the court's order, the Marshals Service renewed its search efforts, now taking into account Sussman's connections to Maydak, as revealed during his administrative appeal. This second search yielded 813 additional pages of documents relating to Sussman. The Marshals Service released 156 pages in full and 477 pages with redactions, and withheld 47 pages in their entirety. Other documents were referred to the agencies that had originally produced them. The Commodity Futures Trading Commission, the U.S. Citizenship and Immigration Services, and the Federal Bureau of Investigation ("FBI") all released in full the documents referred to them. The Executive Office for United States Attorneys ("EOUSA") released 110 pages in full and ten further pages with redactions. The United States Postal Service ("Postal Service") withheld in their entirety the seven pages referred to it.

Upon completing its disclosures, the Marshals Service again moved for summary judgment on all outstanding claims [1] ("Def.'s 2nd S.J. Mot."), asking the court to "dismiss this case with prejudice with regard to everything but the documents referred to other agencies." It argued its search was now adequate under FOIA and all its decisions to withhold or redact materials were proper under the exemptions to FOIA set forth at 5 U.S.C. § 552(b). In support of this contention, the Marshals Service supplied a declaration from Shaaron L. Keys ("Keys Declaration"), including a table listing twenty-five categories of documents released with redactions ("Redacted Categories 1-25") and four categories of documents withheld in their entirety ("Withheld Categories 1-4"). The Marshals Service again presented no arguments concerning Counts II and III.

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Sussman opposed this motion and filed a cross-motion for summary judgment as to Counts I and II ("Pl.'s 2nd S.J. Br."). In support of his cross-motion, Sussman presented a signed declaration from Maydak, who announced, "I do not object to the disclosure of information about me to Sussman." Supple-mental Declaration of Keith Maydak ¶ 7 ("Supp. Maydak Decl.").

In a memorandum opinion issued October 31, 2005, the court refused to address Sussman's Count II arguments, stating it had "granted summary judgment on the Privacy Act claim in its August 3, 2004 order." As neither motion addressed Count III, and Counts IV through XVI were dismissed by the August 3, 2004 opinion, the court focused exclusively on Count I.

The court first held the Marshals Service's second search was adequate under FOIA and found all the claimed FOIA exemptions properly invoked. Going beyond the Marshals Service's motion for summary judgment, the court also reviewed the actions of the EOUSA and the Postal Service in withholding materials from Sussman. The court held that the EOUSA had properly redacted ten pages. The court likewise upheld the Postal Service's decision to withhold seven pages, on the ground Sussman had failed to raise any arguments against that decision.

The accompanying order stated that " judgment is entered in favor of defendant, " and " this is a final appealable order." We read this language as granting summary judgment to the Marshals Service on Counts II and III.

Sussman filed a timely motion for reconsideration, contesting the court's handling of several FOIA exemptions and arguing he had not forfeited his challenge to the withholding of the Postal Service materials. In its ruling on this motion, the court rejected Sussman's exemption arguments and addressed the Postal Service materials on the merits for the first time.

The Postal Service had first informed Sussman of its decision to withhold the seven pages in a letter dated March 17, 2005, in which it asserted FOIA Exemptions 6 and 7(C) as grounds. Sussman filed an administrative appeal of that decision on March 28, and the Postal Service affirmed its initial decision in a letter sent May 3, 2005, now citing Exemption 7(A), as well. The Marshals Service never officially invoked FOIA exemptions to explain its own failure to release the materials, instead relying on its referral of the materials to the Postal Service as effectively shifting the final responsibility to the latter agency.

The district court reviewed the Postal Service's arguments and found them all valid. On this basis, it "conclude[d] that defendant [i.e., the Marshals Service] has withheld records exempt under FOIA's provisions, " and it denied Sussman's motion for reconsideration.


Sussman appealed the district court's rulings as to all sixteen of his claims.2 We granted the Marshals Service's motion for summary affirmance in part and therefore now need decide only the following: (1) whether the Marshals Service's invocation of FOIA Exemptions 2, 3, 5, 7(A), 7(C), and 7(E) as grounds for withholding and redacting documents was proper; (2) whether the Marshals Service could properly withhold the documents referred to the Postal Service; and (3) whether the district court was right to grant summary judgment to the Marshals Service as to Counts II through XVI. We review the district court's decisions on summary judgment

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motions in FOIA and Privacy Act cases de novo. Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006); McCready v. Nicholson, 465 F.3d 1, 7 (D.C. Cir. 2006). Summary judgment is proper only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).


We first address Count I as it relates to the Marshals Service's treatment of Redacted Categories 1-25 and Withheld Categories 1-4.

According to 5 U.S.C. § 552(b), FOIA's...

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