Gordon v. Courter

Decision Date31 July 2015
Docket NumberCivil Action No. 14–1382 (CKK)
Citation118 F.Supp.3d 276
Parties Juan Gordon, Plaintiff v. Kenneth Courter, et al., Defendants
CourtU.S. District Court — District of Columbia

Juan Gordon, Youngstown, OH, pro se.

Jesse Dyer Stewart, Laura Emily Jennings, U.S. Attorney's Office for the District of Columbia, Rafique O. Anderson, United States Capitol Police, Washington, DC, for Defendants.


COLLEEN KOLLAR–KOTELLY, United States District Judge

Plaintiff Juan Gordon, who is proceeding pro se, submitted a Freedom of Information Act ("FOIA") request to the Criminal Division of the U.S. Department of Justice ("DOJ") seeking a copy of the "Title III authorization memorandums for electronic surveillance" of a telephone number associated with a phone used by Plaintiff. Dissatisfied with DOJ's refusal to search for responsive documents pursuant to 5 U.S.C. § 552(b)(3), Plaintiff filed suit against the agency on August 13, 2014. Presently before the Court are Defendants' [6] Motion for Summary Judgment and Plaintiff's [18] Motion to Amend Complaint . Upon consideration of the pleadings,1 the relevant legal authorities, and the record as a whole, the Court GRANTS Defendants' [6] Motion for Summary Judgment and DENIES Plaintiff's [18] Motion to Amend Complaint. The Court finds that Defendants have satisfied the requirements of both FOIA and the Privacy Act. The Court also concludes that Plaintiff's proposed Amended Complaint would cause undue delay, fundamentally alter the nature of the suit, and likely be futile.


Plaintiff Juan Gordon is awaiting trial on a federal indictment charging him with two drug-related charges. Sprung Decl. ¶ 6. By letter dated January 7, 2014, Plaintiff submitted a FOIA request for:

[A]n authentic Department of Justice (DOJ) Criminal Division Office of Enforcement Operation (OEO) copy of the Title III authorization memorandums, and all other documents tied to the approval of these memorandums for the electronic surveillance for the following telephone numbers that I am alleged to have had my private conversations intercepted, monitored and disclosed over: (412) 586–8769.

Sprung Decl., Ex. A. Plaintiff was not the registered subscriber of this number. Sprung Decl. ¶ 6. In a letter dated February 18, 2014, the Criminal Division responded to Plaintiff, informing him that, to the extent that any responsive records existed, they were exempt from disclosure pursuant to 5 U.S.C. § 552(b)(3) ("Exemption 3"). Id. ¶ 7. Exemption 3 exempts from FOIA disclosure records that are "specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3). DOJ explained that the specific statute exempting the records from FOIA disclosure is Title III of the Omnibus Crime Control and Safe Streets Act ("Title III"), 18 U.S.C. §§ 2510 –2521, and informed Plaintiff of his right to appeal the decision to DOJ's Office of Information and Policy ("OIP"). Sprung Decl. ¶ 7.

On March 18, 2014, Plaintiff appealed the decision to OIP. Id. at ¶ 8. On July 8, 2014, OIP affirmed the determination to withhold records, but on modified grounds.Id. at ¶ 9. OIP stated that the records requested were exempt from disclosure under Exemption 5's work product and deliberative process privileges and Exemptions 6 and 7(C)'s personal privacy protections. Id. Still contending that DOJ's response to Plaintiff's request did not comply with FOIA or the Privacy Act, see Compl. ¶ 11, Plaintiff filed this action on August 13, 2014. See Compl. 1.2 While this suit was pending, DOJ conducted a search of two records systems and located responsive records. See Defs.' Mot. 4. The agency ultimately released in full 420 pages and withheld in full approximately 903 others. See Sprung Decl. ¶ 37. DOJ then moved for summary judgment.

Following briefing on Defendant's Motion for Summary Judgment, Plaintiff filed a motion for leave to amend his complaint, seeking to add additional defendants and to add several claims—pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ; the Federal Tort Claims Act ("FTCA"); 42 U.S.C. § 1985(3) ; and 18 U.S.C. § 2520 —as well as seeking monetary damages. Mot. to Am. 2, 19 ¶ F. Defendant opposes that motion.

A. Motion for Summary Judgment

Congress enacted FOIA to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (citation and internal quotation marks omitted). Congress remained sensitive to the need to achieve balance between these objectives and the potential that "legitimate governmental and private interests could be harmed by release of certain types of information." Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C.Cir.1992) (en banc) (citation and internal quotation marks omitted). To that end, FOIA "requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material." Milner v. Dep't of Navy, 562 U.S. 562, 564–66, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). Ultimately, "disclosure, not secrecy, is the dominant objective of the Act." Rose, 425 U.S. at 361, 96 S.Ct. 1592. For this reason, the "exemptions are explicitly made exclusive, and must be narrowly construed." Milner, 562 U.S. at 565, 131 S.Ct. 1259 (citations and internal quotation marks omitted).

When presented with a motion for summary judgment in this context, the district court must conduct a de novo review of the record, which requires the court to "ascertain whether the agency has sustained its burden of demonstrating that the documents requested ... are exempt from disclosure under the FOIA." Multi Ag Media LLC v. Dep't of Agriculture, 515 F.3d 1224, 1227 (D.C.Cir.2008) (citation omitted). The burden is on the agency to justify its response to the plaintiff's request. 5 U.S.C. § 552(a)(4)(B). "An agency may sustain its burden by means of affidavits, but only if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Multi Ag Media, 515 F.3d at 1227 (citation omitted). "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." Am. Civil Liberties Union v. Dep't of Defense, 628 F.3d 612, 619 (D.C.Cir.2011) (citations omitted). "Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the exemption are likely to prevail." Ancient Coin Collectors Guild v. Dep't of State, 641 F.3d 504, 509 (D.C.Cir.2011) (citation omitted). Summary judgment is proper when the pleadings, the discovery materials on file, and any affidavits or declarations "show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

B. Motion to Amend

Under the Federal Rules of Civil Procedure, a party may amend its pleadings once as a matter of course within twenty-one days after service or within twenty-one days after service of a responsive pleading. Fed.R.Civ.P. 15(a)(1). Where, as here, a party seeks to amend its pleadings outside that time period, they may do so only with the opposing party's written consent or the district court's leave. Fed.R.Civ.P. 15(a)(2). The decision whether to grant leave to amend a complaint is within the discretion of the district court, but leave should be freely given unless there is a good reason to the contrary. Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C.Cir.1996).

"When evaluating whether to grant leave to amend, the Court must consider (1) undue delay; (2) prejudice to the opposing party; (3) futility of the amendment; (4) bad faith; and (5) whether the plaintiff has previously amended the complaint." Howell v. Gray, 843 F.Supp.2d 49, 54 (D.D.C.2012) (citing Atchinson v. District of Columbia, 73 F.3d 418 (D.C.Cir.1996) ); see also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). With respect to an amendment causing undue delay, "[c]ourts generally consider the relation of the proposed amended complaint to the original complaint, favoring proposed complaints that do not ‘radically alter the scope and nature of the case.’ " Smith v. Cafe Asia, 598 F.Supp.2d 45, 48 (D.D.C.2009) (citation and internal quotations omitted). With respect to an amendment being futile, "a district court may properly deny a motion to amend if the amended pleading would not survive a motion to dismiss." In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 218 (D.C.Cir.2010).


In seeking summary judgment, DOJ argues that it conducted an adequate search under both FOIA and the Privacy Act, properly withheld records under certain FOIA and Privacy Act exemptions, and has no obligation to further segregate withheld material. In response, Plaintiff argues that the agency's search was inadequate, that DOJ improperly applied the relevant exemptions, and that DOJ has failed to release the parts of responsive records not properly withheld under one of the disclosure exemptions. In opposing Plaintiff's Motion to Amend Complaint, DOJ argues that the proposed amended complaint will cause undue delay, fundamentally alter the scope of the suit, and likely be futile. The Court will address these arguments in turn.

A. Adequacy of FOIA Search

The adequacy of an agency's search for records in response to a FOIA request is measured by a standard of reasonableness and depends on the individual circumstances of each case....

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