United States District Court, N.D. West Virginia, Martinsburg
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
THIRD MOTION FOR SUMMARY JUDGMENT, GRANTING PLAINTIFF'S
CROSS MOTION FOR SUMMARY JUDGMENT AND AWARDING THE PLAINTIFF
M. GROH CHIEF UNITED STATES DISTRICT JUDGE.
matter is currently before the Court on cross motions for
summary judgment. The United States Customs and Border
Protection (“Defendant”) filed its Third Motion
for Summary Judgement on April 10, 2017. ECF No. 61. Dennis
Finbarr Murphy (“Plaintiff”) filed his Motion for
Summary Judgment on April 14, 2017. ECF No. 62. The
Defendant filed a Response on May 5, 2017. ECF No. 64.
Plaintiff, a former security guard at a U.S. Customs and
Border Protection (“CBP”) facility in Harpers
Ferry, West Virginia, filed a FOIA request in February 2015,
seeking documents pertinent to an Equal Employment
Opportunity complaint the Plaintiff had previously filed
against the Defendant. After not receiving a response to his
FOIA request for approximately ten months, the Plaintiff
initiated this lawsuit, seeking an order from this Court
enjoining the Defendant from withholding agency records
responsive to his FOIA request.
August 5, 2016, the Court entered a memorandum opinion and
order denying the Defendant's first motion for summary
judgement, granting the Plaintiff's request for a
Vaughn index and denying without prejudice the
Plaintiff's request for an in camera review. ECF
No. 30. Thereafter, the Defendant filed its answer and a
motion for extension of time to file the Vaughn
index. ECF No. 35. The Court granted the Defendant's
motion in part, allowing the Defendant to have an additional
two weeks in which to file the Vaughn index. On
September 16, 2016, the Defendant filed the Vaughn
index along with a supporting declaration of Sabrina
Burroughs, Director of the FOIA Division at CBP.
September 22, 2016, the Plaintiff filed a second motion
seeking an in camera inspection of documents. ECF
No. 38. On September 29, 2016, the Defendant filed a motion
seeking an extension of time to file its second motion for
summary judgement. ECF No. 39. The Court granted the
Defendant's extension, and the Defendant filed its motion
for summary judgement on October 2, 2016. ECF No. 41. On
October 6, 2016, the Plaintiff filed his response in
opposition. ECF No. 42. On January 23, 2017, the Court
entered an Order denying the Defendant's second motion
for summary judgment and granting the Plaintiff's motion
re-requesting an in camera inspection. ECF No. 44.
January 25, 2017, the Defendant submitted all of the
responsive documents to the Court for an in camera
review. See ECF No. 46. After review and
consideration of the unredacted documents, the Court issued
an Order to Show Cause why certain documents were withheld.
ECF No. 47. The Defendant responded to the Court's Order
on February 27, 2017. ECF No. 51. The Court then Ordered the
Defendant to disclose redacted versions of two pages of
previously withheld documents to the Plaintiff. ECF Nos. 52
March 28, 2017, the Plaintiff filed a motion for
reimbursement of expenses [ECF No. 58], which the Court
denied as being premature. ECF No. 60. Thereafter, the
parties filed the instant summary judgment motions.
Standards of Review
to Rule 56, Summary judgment is appropriate when there is no
genuine dispute as to any material fact and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). A genuine issue exists “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 (1986). Thus, the Court must
conduct “the threshold inquiry of determining whether
there is the need for a trial-whether, in other words, there
are any genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be
resolved in favor of either party.” Id. at
party opposing summary judgment “must do more than
simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). That is,
once the movant has met its burden to show an absence of
material fact, the party opposing summary judgment must then
come forward with affidavits or other evidence demonstrating
there is indeed a genuine issue for trial. Fed.R.Civ.P.
56(c); Celotex, 477 U.S. at 323-35;
Anderson, 477 U.S. at 248. “Conclusory or
speculative allegations do not suffice, nor does a mere
scintilla of evidence in support of [the nonmoving
party's] case.” Thompson v. Potomac Elec. Power
Co., 312 F.3d 645, 649 (4th Cir. 2002) (quotations
omitted). “If the evidence is merely colorable, or is
not significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249 (citations
courts review FOIA determinations de novo. 5 U.S.C.
§ 552(a)(4)(B). Courts should construe FOIA exemptions
narrowly in favor of disclosure. See F.B.I. v.
Abramson, 456 U.S. 615 (1982); Wickwire Gavin, P.C.
v. U.S. Postal Serv., 356 F.3d 588, 591 (4th Cir. 2004).
Further, FOIA determinations are generally resolved at the
summary judgment stage. Hanson v. U.S. Agency for
Int'l Development, 372 F.3d 286, 290 (4th Cir. 2004)
(citing Miscavige v. I.R.S., 2 F.3d 366, 369 (11th
Cir. 1993)). The government agency shoulders the burden of
justifying its actions in response to a FOIA request. 5
U.S.C. § 552(a)(4)(B); see also Willard v.
I.R.S., 776 F.2d 100, 102 (4th Cir. 1985) (“The
agency refusing to release the information bears the burden
of proving that its actions were correct.”). An agency
is entitled to summary judgment if, viewing the facts in the
light most favorable to the Plaintiff, no material facts are
in dispute with regard to the agency's compliance.
Rein v. U.S. Patent and Trademark Office, 553 F.3d
353, 358 (4th Cir. 2009); Wickwire, 356 F.3d at 590.
An agency will prevail on a motion for summary judgment if it
can show that every responsive document has been produced or
is exempt. Carter, Fullerton & Hayes, LLC v.
F.T.C., 601 F.Supp.2d 728, 734 (E.D. Va. 2009).
agency's search must be “reasonably calculated to
uncover all relevant documents.” Ethyl Corp. v.
U.S. E.P.A., 25 F.3d 1241, 1246 (4th Cir. 1994). To
prove the reasonableness of the search an agency has
conducted, it may rely upon “relatively detailed,
nonclusory” affidavits. Carter, Fullerton &
Hayes, LLC, 601 F.Supp.2d at 734 (citing McCoy v.
United States, No. 1:04cv101, 2006 WL 463106 at *5 (N.D.
W.Va. Feb. 24, 2006)) (internal quotation marks omitted).
However, an agency cannot rely on an affidavit that simply
states the search was conducted “consistent with
customary practice and established procedure.”
Ethyl, 25 F.3d at 1246 (citing Oglesby v. U.S.
Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990))
(internal quotation marks omitted). The affidavit must be
“reasonably detailed, setting forth the search terms
and the type of search performed, and averring that all files
likely to contain responsive materials (if such records
exist) were searched” to allow the requesting party to
challenge the adequacy of the search. Id. at 1247
(internal quotation marks omitted).
shall give substantial weight to an agency's affidavit
concerning their determination as to technical feasibility
and reproducibility. 5 U.S.C. § 552(a)(4)(B). Regarding
an agency's claimed exemptions, an affidavit must:
“(1) describe the withheld documents and the
justifications for nondisclosure with reasonably specific
detail; (2) demonstrate that the information withheld falls
logically within the claimed exemption; (3) remain
uncontroverted by either contrary factual evidence in the
record or by evidence of agency bad faith.” Pully
v. I.R.S., 939 F.Supp. 429, 433 (E.D. Va. 1996) (citing
Young v. C.I.A., 972 F.2d 536, 538 (4th Cir. 1992)).
Courts should uphold the agency's position if it
“fairly describes the content of the material withheld
and adequately states its grounds for nondisclosure, and if