Nyc Apparel v. U.S. Customs and Border Protection

• Citation: 484 F.Supp.2d 77
• Decision Date: 11 April 2007
• Docket Number: Civil Action No. 04-2105 (RBW).
• Parties: NYC APPAREL FZE, Plaintiff, v. U.S. CUSTOMS AND BORDER PROTECTION, Defendant.
• Court: U.S. District Court — District of Columbia

484 F.Supp.2d 77

NYC APPAREL FZE, Plaintiff, v. U.S. CUSTOMS AND BORDER PROTECTION, Defendant.

Civil Action No. 04-2105 (RBW).

United States District Court, District of Columbia.

April 11, 2007.

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Peter S. Herrick, Miami, FL, for Plaintiff.

Rhonda C. Fields, United States Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

WALTON, District Judge.

The plaintiff has filed this lawsuit seeking disclosure of certain records requested pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522 et. seq. (2000). On January 23, 2006, the Court issued a Memorandum Opinion and Order denying without prejudice both parties' motions for summary judgment and directing the defendant to supplement the record and, if necessary, to undertake a new search pursuant to the plaintiff's FOIA request in order to remedy deficiencies identified in its initial factual submissions. Order at 1; see also Memorandum Opinion ("Opinion") at 9-19 (detailing deficiencies). The defendant has now addressed those deficiencies to the Court's satisfaction. Defendant's Motion for Summary Judgment ("Def.'s Mot."), Declaration of Shari Suzuki ("Suzuki Decl.") ¶¶ 23-32 (responding to the Court's queries);¹ see also Memorandum of Points and Authorities in Support of Defendant's Renewed Motion for Summary Judgment ("Def.'s Mem.") at 10-15 (same). Currently before the Court are the parties' renewed cross-motions for summary judgment.² Plaintiff's Motion for Summary Judgment ("Pl.'s Mot.") Def.'s Mot. For the reasons set forth below, the Court grants the defendant's motion for summary judgment and denies the plaintiff's motion.

I. Background

The facts of this case have been fully recited in the Court's previous Memorandum Opinion. See Opinion at 1-6. However, it is helpful to review them briefly as they relate to the motions currently before the Court. The following facts are undisputed.

The plaintiff, NYC Apparel FZE ("NYC Apparel"), an exporter of merchandise from the United Arab Emirates ("UAE"), Compl. ¶ 3, claims to have entered into an agreement to ship merchandise from the UAE to Mexico by way of Los Angeles, California. Id. On July 9, 2003, the defendant, the U.S. Customs and Border Protection ("Customs"), seized a container being shipped by the plaintiff through the Los Angeles-Long Beach Seaport and assigned to it Seizure Number 2003-2704-000743. Def.'s Mot., Second Declaration of Robert P. Thierry ("Thierry Decl. II") ¶¶ 3-5;³ Compl. ¶ 7. On July 12, 2003, Customs seized another container being shipped by the plaintiff through the Los Angeles-Long Beach Seaport, assigning to it Seizure Number 2003-2704-000751. Thierry Decl. II ¶¶ 6-8; Pl.'s First Mem., Ex. B (seizure notice) at 1. According to Customs, both shipments were illegal imports bound not to Mexico but to El Paso, Texas. Thierry Decl. II ¶¶ 4, 7; Pl.'s First Mem., Ex. B (seizure notice) at 1.

On September 3, 2003, the plaintiff's counsel sent two letters to Customs' Port Director at the Los Angeles-Long Beach Seaport, requesting, pursuant to the FOIA, all information pertaining to the seizure of the two containers. Compl. ¶ 9; Def.'s First Mem., Ex. C (FOIA request); Def.'s Stmt. ¶ 1. Specifically, the letters stated that the plaintiff sought "all information relied upon by Customs" in connection with the seizures, including "the manuals, guidelines, directives, etc. relied upon by Customs" and "all records and/or information that proves [the] alleged violations in this case." Def.'s First Mem., Ex. C (FOIA request).

On December 19, 2003, Customs' Port Director informed the plaintiff's counsel by letter that a search of the seizure case files had been conducted, that eighty-four pages of documents had been determined to be responsive to the plaintiff's request, and that all responsive documents were exempt from release under the FOIA and were being withheld in their entirety.⁴ Compl. ¶ 19; Def.'s First Mem., Ex. J (letter from Customs to the plaintiff's counsel, dated December 19, 2003); Def.'s Stmt. ¶ 9. The plaintiff appealed the decision to Customs' FOIA Appeals Officer on January 6, 2004. Compl. ¶ 20; Def.'s First Mem., Ex. K (FOIA appeal); Def.'s Stmt. ¶ 10; Suzuki Decl. ¶ 15. The plaintiff then filed its complaint in this case on December 3, 2004, stating that "pursuant to 5 U.S.C. § 522(a)(6)(C), the failure of Customs to respond to the [FOIA] appeal within the time prescribed by law constitutes a deemed denial" and also the exhaustion of the plaintiff's administrative remedies. Compl. ¶ 25.

By letter dated February 23, 2005, Joanne Roman Stump, Customs' FOIA Appeals Officer in charge of the plaintiff's appeal, affirmed in part the decision of Customs' Los Angeles Port Director.⁵ Def.'s Stmt. ¶ 11; Pl.'s Stmt. ¶ 2; Suzuki Decl. ¶ 16. Upon review of the record, Ms. Stump determined that the plaintiff was a "third-party FOIA requester ... [who] is not entitled to get information which is submitted to [Customs] by business submitters as part of the public disclosure that occurs when a FOIA request is processed," but that it was nevertheless appropriate to release thirty-five pages of responsive documents to the plaintiff with redactions pursuant to FOIA exemptions (b)(2), (b)(4), (b)(6), (b)(7)(C), and (b)(7)(E). Def.'s First Mem., Ex. L (letter from Customs to the plaintiff's counsel, dated February 23, 2005) at 2; see also Suzuki Decl. ¶¶ 16, 21; Def.'s First Mem, Ex. 1 (Declaration of Joanne Roman Stump) ("Stump Decl.") ¶¶ 15, 17; Def.'s Stmt. ¶ 11; Pl.'s Stmt. ¶ 2. Ms. Stump further informed the plaintiff that nineteen other pages of responsive documents were to be withheld in full pursuant to FOIA exemptions (b)(2), (b)(4), (b)(5), (b)(6), (b)(7)(A), (b)(7)(C), and (b)(7)(E). Def.'s Stmt. ¶ 11; Suzuki Decl. ¶¶ 16, 21. The remaining thirty pages of the eighty-four pages of responsive documents discovered in the seizure files by Customs were duplicates of pages that had been partially released or withheld in their entirety. Id.

After sending the February 23, 2005 letter to the plaintiff, Customs filed a motion for summary judgment along with two indexes produced pursuant to Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.Cir.1973). The defendant contended in its motion that its search was adequate to discover all responsive documents, Def.'s First Mem. at 5-8, that it had properly withheld all or part of the responsive documents pursuant to the FOIA exemptions (b)(2), (b)(4), (b)(5), (b)(6), (b)(7)(A), (b)(7)(C), and (b)(7)(E), id. at 8-25, and that it had disclosed all reasonably segregable portions of the documents, id. at 25-26. The plaintiff, by contrast, contended that the defendant's search was not adequate, Pl.'s First Reply at 2-3, that the documents that were discovered had been improperly redacted or withheld under exemptions (b)(2), (b)(4), (b)(5), and (b)(7)(A), Pl.'s First Mem. at 3-9, and that the defendant had not disclosed all reasonably segregable information, id.⁶

In response to the Court's January 23, 2006 order denying without prejudice both parties' summary judgment motions, Customs undertook an additional search of its databases for documents responsive to the plaintiff's FOIA request. Def.'s Mem. at 9-11; Suzuki Decl. ¶¶ 23-27. As a result of this new search, Customs located ten additional pages of responsive documents, five which were disclosed to the plaintiff and five which were withheld in full.⁷ Def.'s Mem. at 10; Suzuki Decl. ¶ 26; Supplemental Declaration of Shari Suzuki ("Suzuki Supp. Decl.") ¶¶ 4-9 (discussing newly located documents withheld in full); see also Def.'s Mem., Exs. B (Vaughn index of documents withheld in full) and N (responsive pages disclosed to plaintiff). Customs also disclosed four redacted printouts from the Seized Asset and Case Tracking System ("SEACATS") database that it determined to be "associated with the two pertinent seizures," Suzuki Decl. ¶ 26, although it did "not consider these records as necessarily `responsive' to [the][p]laintiff's FOIA request," id. ¶¶ 26-27; see also Def.'s Mem. at 9-10. Customs now contends that "all records that are responsive to [the][p]laintiff's request for ... information `relied upon' by [Customs] or considered `proof ... has been identified, reviewed, and as appropriate released or withheld by [the][d]efendant." Def.'s Mem. at 11. The parties thus renew their requests for summary judgment.⁸ Def.'s Mem.; Pl.'s Mem.

II. Standard of Review

Courts will grant a motion for summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When ruling on a Rule 56(c) motion, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). The Court must therefore draw "all justifiable inferences" in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-moving party, however, cannot rely on "mere allegations or denials." Burke v. Gould, 286 F.3d 513, 517 (D.C.Cir.2002) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505) (quotation marks omitted). Thus, "conclusory allegations unsupported by factual data will not create a triable issue of fact." Pub. Citizen Health Research Group v. FDA, 185 F.3d 898, 908 (D.C.Cir.1999) (internal quotation marks and citations omitted). If the Court concludes that "the nonmoving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then the moving party is...