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Brewer v. United States Department of Justice

United States District Court, N.D. Texas, Dallas Division

July 30, 2019

STEVEN BREWER, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE. [1]

         Before the Court are Defendants' Motion for Summary Judgment, filed December 20, 2018 (doc. 43), and Plaintiff's Combined Cross-Motion for Partial Summary Judgement and Opposition to the Defendants' Motion for Summary Judgement, filed February 6, 2019 (doc. 49). Based on the relevant filings, evidence, and applicable law, the defendants' motion should be GRANTED, and the plaintiff's motion should be DENIED.

         I. BACKGROUND [2]

         Steven Brewer (Plaintiff), a federal inmate, brings this pro se lawsuit under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), and the Privacy Act, 5 U.S.C. § 552a, against the United States Department of Justice (DOJ), the Executive Office for United States Attorneys (EOUSA), and the National Personnel Records Center (NPRC) (collectively, Defendants). (See docs. 3; 32 at 1, 3.)[3] He seeks “full disclosure and release of agency records and information improperly withheld from [him] by [Defendants] as part of [his FOIA] requests, ” declaratory relief, preliminary and permanent injunctive relief, and other “appropriate” relief. (doc. 32 at 1-2.)

         A. Requests to the EOUSA

         Between September 9, 2017 and January 24, 2018, Plaintiff submitted three separate information requests to the EOUSA under the FOIA and the Privacy Act for appointment affidavits and copies of the previous and current assignment/postings for several attorneys in the United States Attorney's Office (USAO) for the District of Arizona who were involved in prosecuting and convicting him for conspiracy to commit wire fraud and money laundering. (doc. 45 at 5-6, 8, 10-11, 18, 20-22, 36, 53, 138; doc. 51 at 203.) The EOUSA's FOIA staff acknowledged each of these three requests, and assigned request numbers EOUSA-2018-000030, FOIA-2018-001598, and FOIA-2018-002675. (doc. 45 at 5, 8, 10, 24, 41, 56.) In response to these three requests, the EOUSA's FOIA staff requested that the EOUSA's human resources staff search for all records responsive to Plaintiff's requests, and forward all responsive records except those to which a blanket exemption may be claimed to the FOIA staff. (Id. at 6-11.) After the search, the EOUSA mailed Plaintiff copies of Appointment Affidavits for all but two attorneys, along with letters informing him that it did not possess any records for those two attorneys. (Id. at 6-11, 24-26, 41-45, 56-62.)[4] The signatures and locations of previous and current assignments and postings were redacted from the Appointment Affidavits on privacy grounds under 5 U.S.C. §§552(b)(6), (b)(7)(c). (Id.)

         During this time, Plaintiff also requested the same documents for attorneys in the USAO for the Northern District of Texas who were also involved in his criminal prosecution. (Id. at 7-8, 28; doc. 51 at 203.) This request was assigned request number FOIA-2018-001063, and after conducting a search of its records, the EOUSA mailed Plaintiff a letter informing him that it did not possess any records responsive to his request. (doc. 45 at 7-8, 33-34.) Plaintiff then sent a final request to the EOUSA for the same documents for two of the attorneys, but he did not designate which USAO employed those attorneys. (Id. at 9-10, 47.) This request was assigned request number FOIA-2018-002272, and the EOUSA subsequently mailed Plaintiff a letter informing him that it did not possess any records responsive to this final request. (Id. at 9-10, 50-51.)

         B. Requests to the NPRC

         On February 26, 2018, Plaintiff submitted ten information requests to the NPRC under the FOIA and the Privacy Act, also requesting documents pertaining to appointments by the United States Attorney General for several attorneys employed or formerly employed by the USAOs for the District of Arizona and the Northern District of Texas who were involved in his criminal prosecution, as well as appointment affidavits and copies of the previous and current assignment/postings for the attorneys. (Id. at 77-80, 90-99; doc. 51 at 203.)[5]

         On March 22, 2018, Plaintiff mailed a letter to the NPRC's Civil Personnel Records Center, and on March 26, 2018, he mailed two letters to the NPRC's facility located in St. Louis, Missouri. (doc. 45 at 78-79, 101-103.) All three letters were titled as “FOIA Request Appeal”. (Id.) These letters were nearly identical to the FOIA and Privacy Act requests Plaintiff previously sent to the NPRC, except that they did not include requests for information for one of the attorneys. (Id.)

         On March 28, 2018, the NPRC responded to Plaintiff's requests seeking additional information to allow it to perform a better search for responsive records. (Id. at 79, 105-15.) Plaintiff did not respond. (Id. at 79.) The NPRC's search discovered records for some attorneys, but no records were found for the other individuals because the remaining individuals were current federal employees, and the NPRC only holds records for former federal personnel. (Id.) On December 19, 2018, the NPRC sent Plaintiff a supplemental response notifying him that it only held records for those former employees, and included the Appointment Affidavits for those employees. (Id. at 80, 117-21, 147-64.)

         Defendants now move for summary judgment on Plaintiff's FOIA and Privacy Act claims, and Plaintiff cross-moves for partial summary judgment in his favor. (docs. 43-44, 49-50.)

         II. DEFENDANTS' SUMMARY JUDGMENT MOTION

         Defendants' move for summary judgment on Plaintiff's FOIA and Privacy Act claims on grounds that they have performed an adequate search for documents responsive to his FOIA and Privacy Act requests and have produced all non-exempt records pertaining to those requests. (doc. 44 at 17.)

         Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In a FOIA and Privacy Act case, a defending agency has the burden to sustain its action and show that it acted in accordance with the statutes. See Batton v. Evers, 598 F.3d 169, 175 (5th Cir. 2010) (FOIA); Cooper Cameron Corp. v. U.S. Dep't of Labor, OSHA, 280 F.3d 539, 543 (5th Cir. 2002) (FOIA); Chambers v. U.S. Dep't of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009) (FOIA and Privacy Act). To meet its summary judgment burden, the agency must demonstrate that its search for the requested material was adequate and that any withheld material is exempt from disclosure. See Cooper Cameron, 280 F.3d at 543 (FOIA); Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (FOIA); Sussman v. U.S. Dep't of Justice, No. 03 Civ. 3618 (DRH) (ETB), 2006 WL 2850608, at *2 (E.D. N.Y. Sept. 30, 2006) (FOIA and Privacy Act). Once the agency meets its burden, the burden shifts to the plaintiff to “prevent summary judgment by introducing evidence that creates a genuine dispute as to the adequacy of the search.”[6]Negley v. F.B.I., 589 Fed.Appx. 726, 730 (5th Cir. 2014); see Founding Church of Scientology of Wash., ...


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