Cooper v. U.S. Dep't of Justice

• Decision Date: 14 March 2016
• Docket Number: Civil Action No. 99-2513 (RBW)
• Citation: 169 F.Supp.3d 20
• Parties: Elwood J. Cooper, Plaintiff, v. United States Department of Justice, et al., Defendants.
• Court: U.S. District Court — District of Columbia

169 F.Supp.3d 20

Elwood J. Cooper, Plaintiff,

v.United States Department of Justice, et al., Defendants.

Civil Action No. 99-2513 (RBW)

United States District Court, District of Columbia.

Signed March 14, 2016

Elwood J. Cooper, Coleman, FL, pro se.

Edward Alkalay, Jane M. Lyons, United States Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON

, United States District Judge

Elwood J. Cooper (“the plaintiff”), proceeding pro se, brings this action against several federal agencies (“the defendants”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012)

. The plaintiff seeks “to obtain all records related to his arrest and prosecution, in the hopes of uncovering documents that he believes will prove that ... his conviction was illegal.” Cooper v. DOJ, No. CIV.A. 99–2513 (RMU), 2005 WL 670296, at *1 (D.D.C. Mar. 22, 2005). Five motions are currently pending before the Court: (1) the defendants' Second Renewed Motion for Summary Judgment (“Second Summary Judgment Motion”); (2) the plaintiff's Second Cross-Motion for Summary Judgment in Opposition to Defendants' Second Renewed Motion for Summary Judgment (“Second Cross-Motion for Summary Judgment”); (3) the defendants' Motion for Extension of Time to File Reply and Opposition to Plaintiff's Second Cross-Motion for Summary Judgment (“Motion for Extension of Time to File Reply Brief”); (4) the plaintiff's Motion for Entry of an Order Granting Cross-Judgment as Conceded or, in the Alternative, Discovery as a Matter of Law and Cause (“Motion to Concede”); and (5) the plaintiff's Motion for Enlargement Out of Time Having Expired (“Motion to Enlarge Time”).¹ Upon careful consideration of the parties' submissions and the entire record in this case, the Court concludes that it must grant in part the defendants' Second Summary Judgment Motion, deny the plaintiff's Second Cross-Motion for Summary Judgment, grant, nunc pro tunc, the defendants' Motion for Extension of Time to File Reply Brief, deny the plaintiff's Motion to Concede, and grant, nunc pro tunc, the plaintiff's Motion to Enlarge Time.²

I. BACKGROUND

Originally filed in September 1999, this case has a long and complicated procedural history. In setting forth the relevant factual and procedural background, the Court draws heavily on prior opinions and orders issued in this case.

The plaintiff is “currently incarcerated at the U.S. Penitentiary in Coleman, Florida, where he is serving a life sentence after being convicted of drug trafficking offenses in the United States District Court for the Southern District of Florida.” Cooper v. DOJ, 890 F.Supp.2d 55, 58 (D.D.C.2012)

(citation omitted). On May 3, 1999, the plaintiff “submitted separate FOIA requests to the Drug Enforcement Administration (“DEA”), the United States Customs Service (“Customs”), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), and the United States Marshals Service (“Marshals Service”).” Id. The plaintiff sought records “concerning his arrest and prosecution.” Id. These agencies processed the plaintiff's request and released to him the documents that they deemed “not subject to various [FOIA] exemptions.” Id.(alteration in original) (internal quotation marks omitted). However, the same agencies released other documents “with redactions corresponding to applicable exemptions” under the FOIA. Id. at 59 (internal quotation marks omitted).

On May 28, 2003, Judge Thomas Penfield Jackson, a former member of this Court, found that the agencies had “fully compiled with their FOIA obligations in responding to [the plaintiff's] requests.” Id.

(internal quotation marks omitted). Therefore, Judge Jackson “granted [the defendants'] motions for summary judgment.” Id. The plaintiff appealed and, on April 23, 2004, “the District of Columbia Circuit vacated Judge Jackson's order and remanded the case to this Court.” Id.(citing Cooper v. DOJ, No. 03–5172, 2004 WL 895748, at *1 (D.C.Cir. Apr. 23, 2004) (per curiam)). The Circuit's decision concerned only “the search for records conducted by the Marshals Service.” Id.

(citation omitted). The Circuit held that the Marshals Service did not comply with the FOIA because it failed to conduct an adequate search for certain “cashier's checks” of whose existence the plaintiff “offer[ed] proof.” Id.(citation omitted).

On remand, “Judge Jackson scheduled a status conference for July 13, 2004.” Id.

(citation omitted). However, none of the parties appeared. Consequently, “Judge Jackson dismissed the case from the bench because the cashier's checks in dispute had been turned over to [the plaintiff].” Id.(citation and internal quotation marks omitted). On October 28, 2004, “this case was randomly reassigned to Judge Ricardo Urbina, another former member of this Court,” following Judge Jackson's retirement. Id. at 60. In March 2005, Judge Urbina denied the plaintiff's two motions “seeking reconsideration of Judge Jackson's dismissal order.” Id.(citing Cooper, 2005 WL 670296, at *1–3 ).

“Cooper again appealed the dismissal of his case to the Circuit on March 28, 2005.” Id. at 60

. In September 2005, while the plaintiff's second appeal was pending, “the Marshals Service and DEA made additional documents relating to the cashier's checks available to [him].” Id.(internal quotation marks omitted). “According to the defendants, this release of records resulted from a search by the [Marshals Service] for three cashier's checks [conducted] in response to the Circuit's first remand in April 2004.” Id.(alteration in original) (internal quotation marks omitted). These documents, according to the defendants' counsel, included “eighty-four (84) pages from the [Marshals Service] plus 102 pages referred to the [DEA] for processing.”³ Sept. 2005 Ltr. at 1. The defendants' counsel further stated that “[r]edactions have been made to some of the other documents pursuant to [FOIA Exemptions 2 and 7].” Id.

On December 28, 2005, the Circuit “vacated Judge Jackson's July 13, 2004 dismissal order” and remanded the case for the second time. Cooper, 890 F.Supp.2d at 60 (citing Second Remand Order)

. The Circuit's second remand order instructed that, “[o]n remand, the district court shall reevaluate the adequacy of the United States Marshals Service's ... search for records in general.” Second Remand Order at 1. In so ruling, the Circuit reasoned that the United States Marshals Service's production of “additional records responsive” to the plaintiff's FOIA request during the pendency of his second appeal “cast[ed] even more doubt on the adequacy” of the Marshals Service's initial search. Id. The Circuit further instructed this Court to “address any challenges made by the [plaintiff] to the redactions associated with this production.” Id.

Following the Circuit's second remand, “the parties filed renewed cross-motions for summary judgment.” Cooper, 890 F.Supp.2d at 60

. “On April 20, 2012, this case was randomly reassigned to the undersigned member of the Court upon Judge Urbina's retirement.” Id.

On September 11, 2012, this Court issued an opinion granting in part the defendants' renewed motion for summary judgment. Sept. 2012 Op. Regarding the adequacy of the Marshals Service's search, the Court held that the Marshals Service “demonstrated that its search was reasonable.” Cooper, 890 F.Supp.2d at 64

. However, the Court decided to “defer consideration” of the challenges that the plaintiff made to the defendants' redactions of the documents released during his second appeal. Id. at 65. The Court came to this conclusion because, in part, the defendants justified these redactions on “[FOIA] Exemption 2 [grounds], which protects matters related solely to the internal personnel rules and practices of an agency.” Id. at 64 (internal quotation marks omitted) (citing 5 U.S.C. § 552(b)(2) ). But, the defendants stated that “all components have recently been instructed to review the previous withholdings under Exemption 2” in light of the Supreme Court's decision in Milner v. Dep't of Navy, 562 U.S. 562, 569, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). Id. at 65. In Milner, “the Supreme Court abrogated and narrowed the expansive interpretation of FOIA Exemption 2 advanced by the District of Columbia Circuit in Crooker v. ATF, 670 F.2d 1051, 1073 (D.C.Cir.1981).” Id. at 64. Therefore, the defendants stated that they would “file supplemental information regarding Exemption 2 as it [became] available.” Id. at 65 (internal quotation marks omitted). In view of these developments, the Court deemed it “inappropriate at [that] time to assess the propriety of the Marshals Service's invocation of Exemption 2.” Id. Additionally, because the Marshals Service invoked both Exemptions 2 and 7 for several documents, “the Court ... [deferred] consideration of the Marshals Service's invocation of both exemptions.” Id.

Subsequently, the Court issued a briefing schedule concerning the sole remaining issue, i.e., the “redactions made to the additional documents produced to the plaintiff in September 2005.” June 2013 Order at 10. According to the briefing schedule, the defendants were required to submit their Second Summary Judgment Motion “on or before July 22, 2013,” id. the plaintiff had to file his Second Cross-Motion for Summary Judgment “on or before August 22, 2013,” id. and the defendants had to file their reply brief “on or before September 5, 2013,” id.

On July 22, 2013, the defendants filed their Second Summary Judgment Motion. Defs.' Second Summ. J. Mot. In this filing, in light of Milner

, the defendants expressly abandoned Exemption 2 as a justification for their redactions and “[relied] on only Exemptions 7(C), 7(D), 7(E)[,] and 7(F).” Id. at 3. As a general matter, Exemption 7 protects certain categories of “records or information compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7) (2012).

To support their Second Summary Judgment Motion, the defendants rely on the following declarations: “[1] [the] Supplemental Declaration...