Rugiero v. U.S. Department of Justice

• Decision Date: 08 December 2002
• Docket Number: No. CIV.97-40520.,CIV.97-40520.
• Parties: Patrick RUGIERO, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, and United States Department of Treasury, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

Page 697

234 F.Supp.2d 697

Patrick RUGIERO, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, and United States Department of Treasury, Defendants.

No. CIV.97-40520.

United States District Court, E.D. Michigan, Southern Division.

December 8, 2002.

David Schoen, Montgomery, AL, for plaintiff.

Charles H. Keen, U.S. Dept. of Justice, Tax Division, Washington, DC, William L. Woodard, U.S. Attorney's Office, Detroit, MI, for defendants.

OPINION AND ORDER

GADOLA, District Judge.

Before the Court is the Government's Supplemental Motion for Summary Judgment. Plaintiff filed a timely Response, and the Government filed a timely Reply Brief. The Court elects to proceed without a hearing. See E.D. Mich. LR 7.1(e)(2). For the reasons set forth below, the Court shall grant the Motion in part and deny the Motion in part.

I. BACKGROUND

This is a Freedom of Information Act ("FOIA") case that evolved out of Plaintiff's 1992 conviction, by a jury of his peers, for distributing cocaine and conspiring to distribute, or possess with intent to distribute, cocaine and heroin. See United States v. Rugiero, 804 F.Supp. 925, 928 (E.D.Mich.1992) (Gadola, J.). The jury also returned a verdict of not guilty to charges of distributing heroin, intimidating a witness, and using a firearm during a violent crime. See id.

Thereafter in 1996, Plaintiff filed a motion, pursuant to 28 U.S.C. § 2255, attacking his sentence that resulted from his conviction. Plaintiffs § 2255 case is current pending, and discovery is proceeding before United States Magistrate Judge Steven D. Pepe. See United States v. Rugiero, 804 F.Supp. 925 (E.D.Mich.1992) (Gadola, J.).

Displeased with the Government's conduct and the progress of discovery in his § 2255 case, Plaintiff filed the present civil action under FOIA, 5 U.S.C. § 552, in 1997 as an alternate means of obtaining information necessary to prosecute his § 2255 case. Plaintiff's FOIA complaint involved eleven counts, nine of which have already been resolved. See Rugiero v. United States Dep't of Justice, 35 F.Supp.2d 977 (E.D.Mich.1998); Rugiero v. United States Dep't of Justice, No. 97-40520, 1999 U.S. Dist. LEXIS 4528, at *1 (E.D.Mich. Mar. 9, 1999); Rugiero v. United States Dep't of Justice, 257 F.3d 534 (6th Cir.2001).

The Sixth Circuit has remanded this case for further proceedings on the two remaining counts, which concern two component agencies of the United States Department of Justice. See Rugiero, 257 F.3d at 551-54. Count IV involves the Executive Office of the United States Attorneys ("EOUSA"), and Count XI involves the Drug Enforcement Administration ("DEA"). The Sixth Circuit's instructions on remand are clear; this Court is to address two questions:

[W]e affirm the judgment of the district court in substantial part, reverse in part, and remand for further proceedings (1) to apply the "confidentiality" standard under [5 U.S.C. §] 552(b)(7)(D) to documents the DEA withheld in Count XI; and (2) to determine the segregability of documents withheld in their entirety by the DEA and the EOUSA, excluding the 821 pages of grand jury materials withheld pursuant to Rule 6(e) [of the Federal Rules of Criminal Procedure] by the latter. On remand, the district court has available all of the tools normally available in FOIA actions to ensure agency compliance with disclosure obligations under the Act.

Id. at 554.

In response to the remand order, the Court held a status conference on February 25, 2002, and the parties agreed to a briefing schedule that resulted in the filing of the Government's present Motion.

II. LEGAL STANDARD

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith 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). Summary judgment is appropriate where the moving party demonstrates that there is no genuine issue of material fact as to the existence of an essential element of the nonmoving party's case on which the nonmoving party would bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Martin v. Ohio Tpk. Comm'n, 968 F.2d 606, 608 (6th Cir.1992).

In considering a motion for summary judgment, the Court must view the facts and draw all reasonable inferences therefrom in a light most favorable to the nonmoving party. See 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). The Court is not required or permitted, however, to judge the evidence or make findings of fact. See id. at 1435-36. The moving party has the burden of showing conclusively that no genuine issue of material fact exists. See id. at 1435.

A fact is "material" for purposes of summary judgment where proof of that fact would have the effect of establishing or refuting an essential element of the cause of action or a defense advanced by the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984). A dispute over a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Accordingly, where a reasonable jury could not find that the nonmoving party is entitled to a verdict, there is no genuine issue for trial and summary judgment is appropriate. See id.; Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir.1993).

Once the moving party carries the initial burden of demonstrating that no genuine issues of material fact are in dispute, the burden shifts to the nonmoving party to present specific facts to prove that there is a genuine issue for trial. To create a genuine issue of material fact, the nonmoving party must present more than just some evidence of a disputed issue. As the Supreme Court of the United States has stated, "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the [nonmoving party's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967)); see also Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Consequently, the nonmoving party must do more than raise some doubt as to the existence of a fact; the nonmoving party must produce evidence that would be sufficient to require submission of the issue to the jury. See Lucas v. Leaseway Multi Transp. Serv., Inc., 738 F.Supp. 214, 217 (E.D.Mich.1990) (Gadola, J.), aff'd, 929 F.2d 701 (6th Cir.1991). "The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. 2505; see also Cox v. Ky. Dep't of Transp., 53 F.3d 146, 150 (6th Cir.1995).

III. ANALYSIS

The Government's Motion presents two issues, which track the Sixth Circuit's remand instructions. The first issue presented is whether summary judgment should be granted relative to Count XI because the DEA properly withheld confidential source information pursuant to 5 U.S.C. § 552(b)(7)(D). For the reasons set forth below, the Court shall grant summary judgment on this issue presented.

The second issue presented is whether summary judgment should be granted relative to Counts IV and XI because the EOUSA and the DEA have met their burden with respect to showing non-segregability of the withheld documents. For the reasons set forth below, the Court shall deny summary judgment on this issue presented.

A. Confidential Source Information

The Sixth Circuit held that the Government properly applied FOIA in exempting certain information from disclosure, pursuant to 5 U.S.C. § 552(b), in all but one situation. That situation was the DEA's application of the FOIA exemption in § 552(b)(7)(D). This FOIA exemption allows the Government to elect to not to disclose

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to disclose the identity of a confidential source.

5 U.S.C. § 552(b)(7)(D) (emphasis added).

The Sixth Circuit set forth the DEA's approach and deficiencies as follows:

In applying the exception in [§] 552(b)(7)(D), ... the DEA's affidavit indicates that the agency withheld information on two types of informants: (1) those assigned an internal "Cooperating Individual Code" after receiving express assurances of confidentiality; and (2) those who received implied assurances of confidentiality pursuant to agency policy, which treats the "circumstances of the interview itself [as] creating an atmosphere in which a promise of confidentiality is understood."

Pursuant to [United States Dep't of Justice v. Landano, 508 U.S. 165, 113 S.Ct. 2014, 124 L.Ed.2d 84 (1993)], the agency properly withheld information on those who received express assurances of confidentiality. In contrast, the affidavit indicates that the DEA has adopted a blanket rule that any informant who has not received an express assurance of confidentiality will be treated as having received an implied promise of confidentiality. Landano does not countenance such a uniform policy, requiring instead that the agency assess confidentiality based on the particular circumstances applicable to each source.

Accordingly, the DEA has applied an incorrect...