McGehee v. U.S. Dep't of Justice, Case No. 1:01-cv-01872 (TNM)

• Decision Date: 04 March 2019
• Docket Number: Case No. 1:01-cv-01872 (TNM)
• Citation: 362 F.Supp.3d 14
• Parties: Fielding MCGEHEE et al., Plaintiffs, v. U.S. DEPARTMENT OF JUSTICE, Defendant
• Court: U.S. District Court — District of Columbia

362 F.Supp.3d 14

Fielding MCGEHEE et al., Plaintiffs,

v.U.S. DEPARTMENT OF JUSTICE, Defendant,

Case No. 1:01-cv-01872 (TNM)

United States District Court, District of Columbia.

Signed March 4, 2019

James H. Lesar, Law Office of James H. Lesar, Silver Spring, MD, for Plaintiffs.

Claire M. Whitaker, Jeremy S. Simon, Fred Elmore Haynes, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

In 1998, the Indianapolis Colts drafted Peyton Manning, Britney Spears released her hit single "Baby One More Time," and Fielding McGehee submitted a Freedom of Information ("FOIA") request to the FBI. While the heydays of Mr. Manning and Ms. Spears have come and gone, Mr. McGehee's FOIA request lingers.

In response to Mr. McGehee's requests, the FBI has produced thousands of pages of responsive records, CDs, audio tapes, video tapes, and photographs. After twenty years of negotiation and litigation, the FBI insists that it has satisfied its statutory obligations and that this litigation should be retired. Mr. McGehee and his wife Rebecca Moore (collectively the "Plaintiffs") disagree. Both sides have moved for summary judgment. For the reasons below, the Plaintiffs' motion will be denied, and Government's motion will be granted.

I. BACKGROUND¹

In 1998, the Plaintiffs submitted a FOIA request to FBI Headquarters, beginning their twenty-year quest for information about the victims and investigations of the Jonestown Massacre in Jonestown, Guyana. See McGehee v. U.S. Dep't of Justice , 800 F.Supp.2d 220, 226 (D.D.C. 2011). The Plaintiffs eventually filed a Complaint against the FBI's parent agency, the Department of Justice, alleging that the production that they received from the FBI was inadequate. Id. After years of negotiation, searches, and productions, the parties filed cross-motions for summary judgment. Id. Judge Kessler, who was then overseeing this case, granted in part and denied in part both motions. Id. The court ruled that the FBI's search was adequate. Id. at 230. It also held that the Bureau's application of Exemptions 3, 7(C), 7(D), and 7(E) were proper. Id. at 230–37. But it determined that FBI's Vaughn Index was deficient, so the court could not decide whether the FBI had disclosed all segregable information. Id. at 238. The court did not rule on the FBI's withholdings based on Exemptions 1 and 2 and a sealing order. Id. Instead, the court ordered the Government to file an updated Vaughn Index after it processed the material previously withheld under Exemptions 1 and 2 and a sealing order. Id. at 239.

Processing this material, the FBI discovered and then released more material to the Plaintiffs. Seventeenth Hardy Decl. ("Hardy Decl.") ¶ 15, ECF No. 256-3. Eventually, in 2014, the court ordered the Plaintiffs to "submit a final comprehensive list of document requests" to the FBI. ECF No. 191. In response to the Plaintiffs' list, the FBI conducted additional searches and released more material including photographs, audio tapes, and video tapes. Hardy Decl. ¶ 23.

Both parties have again moved for summary judgment. Pls.' Mot. for Summ. Judgment ("Pls.' Mot."), ECF No. 253; Def.'s Cross-Mot. for Summ. Judgment ("Def.'s Mot."), ECF No. 256.

II. LEGAL STANDARDS

The "vast majority" of FOIA cases are resolved on summary judgment motions. Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). To prevail on a motion for summary judgment, a movant must 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) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is material if it could alter the outcome of the suit under the substantive governing law. Anderson , 477 U.S. at 248, 106 S.Ct. 2505. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

In the FOIA context, an agency is entitled to summary judgment if it establishes "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) (cleaned up), and that each relevant record has been produced or is exempt from disclosure. Students Against Genocide v. U.S. Dep't of State , 257 F.3d 828, 833 (D.C. Cir. 2001). FOIA permits agencies to withhold information that falls under "one of nine specific exemptions, which are construed narrowly in keeping with FOIA's presumption in favor of disclosure." Pub. Citizen, Inc. v. Office of Mgmt. & Budget , 598 F.3d 865, 869 (D.C. Cir. 2010) (citations omitted).

The FBI "bears the burden of establishing that a claimed exemption applies." Citizens for Resp. & Ethics in Wash. v. U.S. Dep't of Justice , 746 F.3d 1082, 1088 (D.C. Cir. 2014). It can carry this burden "by submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, or both, to demonstrate that [it] has analyzed carefully any material withheld and provided sufficient information as to the applicability of an exemption to enable the adversary system to operate." Brennan Ctr. for Justice v. U.S. Dep't of State , 296 F.Supp.3d 73, 80 (D.D.C. 2017). If this information "is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of the documents." ACLU v. U.S. Dep't of Defense , 628 F.3d 612, 626 (D.C. Cir. 2011). In other words, "[u]ncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the exemption are likely to prevail." Ancient Coin Collectors Guild v. U.S. Dep't of State , 641 F.3d 504, 509 (D.C. Cir. 2011).

III. ANALYSIS

In July 2018, the Court set a briefing schedule which required the Plaintiffs to file their Opposition to FBI's Motion for Summary Judgment by December 15, 2018. Minute Order of July 26, 2018. The Court later granted the Plaintiffs' motion for extension of time, allowing them to file on or before January 4, 2019. Minute Order of Dec. 12, 2018. And again, the Court moved the deadline, allowing the Plaintiffs to file on or before January 31, 2019. Minute Order of Jan. 4, 2019. The January 31 deadline passed with no filing from the Plaintiffs. Minute Order of Feb. 5, 2019. So the Court issued a show-cause order. Id. After the Plaintiffs asked for more time to respond to the Court's show-cause order, the Court set a revised briefing schedule, warning the parties that further extensions would be disfavored. See ECF No. 264.

The Plaintiffs' Opposition was due February 28, 2019, but no brief was ever filed. The Plaintiffs have not received—or even asked for—an extension of time. Instead, they have submitted a "Notice of Filing" in which they merely notify the Court of computer trouble and that they intend file their Opposition "within a week" after Plaintiffs' counsel returns from Singapore.² Notice of Filing, ECF No. 265. This is unacceptable.

District courts enjoy broad discretion when deciding case management and scheduling matters. See, e.g., In re Vitamins Antitrust Class Actions , 327 F.3d 1207, 1210 (D.C. Cir. 2003) ; McSheffrey v. Exec. Office for U.S. Attorneys , No. 00-5268, 2001 WL 674640, at *1 (D.C. Cir. May 4, 2001). The Court, not the parties, sets the briefing schedule, and a party cannot unilaterally alter it. The Court will thus rule on these motions now, making an independent evaluation under Rule 56. See Winston & Strawn, LLP v. McLean , 843 F.3d 503, 505 (D.C. Cir. 2016).

A. The FBI's Search Was Adequate.

"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).

In their motion for summary judgment, the Plaintiffs ask this Court to order the FBI to "review and process for release all records of the San Francisco Field Office that were transferred to the FBI Headquarters Civil Litigation Division." Pls.' Mot. at 21. According to the Plaintiffs, the FBI Headquarters had these San Francisco documents when the Plaintiffs submitted their FOIA requests, but the FBI has not produced them. Id. at 17–19.

The Court agrees with the Government that this argument is speculative. The Plaintiffs offer no evidence that the San Francisco documents were at the FBI Headquarters when they submitted their FOIA requests. In response, the FBI submitted a declaration (the seventeenth in this case, to be exact) from David M. Hardy, Section Chief of the Record/Information Dissemination Section, Information Management Division at the FBI. See Hardy Decl. ¶ 1. Mr. Hardy's declaration explains why the documents were not at the FBI Headquarters when the Plaintiffs made their request. Hardy Decl. ¶ 33. These records were sent from San Francisco to FBI Headquarters for a limited purpose and then returned to San Francisco. Id. The declaration explains that "the FBI did not locate the 262 volumes described ... in its numerous and extensive searches" of the FBI Headquarters. Id.

"Generally, the FBI is not obligated to undertake a search of its field office's records where a plaintiff's request is submitted directly to [FBI Headquarters]." Kidder v. FBI , 517 F.Supp.2d 17, 25 (D.D.C. 2007). At the time, FOIA regulations required the Plaintiffs to submit their requests to the field offices that they believed had the responsive records. See 28 C.F.R. § 16.3(a). This "regulation by nature generally aims to promote an agency's ability to respond to requests in an efficient manner." Clemente v. FBI , 867 F.3d 111, 119 (D.C. Cir. 2017). The Plaintiffs did not submit a request to the San Francisco office; they submitted a request to FBI Headquarters. Under the regulation at...