2016-02-12 DOJ Reply Brief - Rule 52 Motion (Flores v DOJ)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK LOUIS FLORES,

Plaintiff,

v. UNITED STATES DEPARTMENT OF JUSTICE,

Defendant.

Civil Action No. 15-CV-2627 (Gleeson, J.) (Mann, M.J.)

MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS CROSS-MOTION UNDER RULE 52 AND DEMAND FOR SANCTIONS AND PENALTIES

ROBERT L. CAPERS United States Attorney Eastern District of New York Attorney for Defendant 271 Cadman Plaza East, 7th Floor Brooklyn, New York 11201

RUKHSANAH L. SINGH Assistant United States Attorney Of Counsel

Case 1:15-cv-02627-JG-RLM Document 28 Filed 02/12/16 Page 1 of 23 PageID #: 1573

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TABLE OF CONTENTS

Page PRELIMINARY STATEMENT .....................................................................................................1 STATEMENT OF THE CASE ........................................................................................................2 ARGUMENT ...................................................................................................................................2 I. Applicable Legal Standards ................................................................................................3

A. The Standard Under Rule 52 ....................................................................................3

B. The Applicable Standard Under the Freedom of Information Act ..........................3

C. The Courts Inherent Power to Impose Sanctions ...................................................4

II. There Is No Basis For Any Relief Under Rule 52 Of The Federal Rules of Civil Procedure ............................................................................................................................5

A. Plaintiff Provides No Basis For A Finding That The DOJ Lacks Credibility Based On Online Postings .....................................................................6

B. Defendant Did Not Act In Bad Faith Through Pre-Suit Conduct ............................7

C. Defendant Did Not Act In Bad Faith Through Its Search For Records Responsive To Plaintiffs FOIA Request ..............................................................10

D. Defendant Has Not Acted In Bad Faith Throughout This Litigation ....................11

III. Plaintiff Has Not Established Any Basis For The Imposition Of Sanctions or Penalties, Or For The Appointment Of A Monitor ..........................................................17

IV. Plaintiff Is Not Entitled To Relief With Respect To Any Other FOIA Request ..............19 CONCLUSION ..............................................................................................................................19


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TABLE OF AUTHORITIES

Page

Cases Amnesty Intl USA v. Cent. Intelligence Agency, 728 F. Supp. 2d 479 (S.D.N.Y. 2010) ............... 9 Brown v. Fed. Bureau of Investigation, 873 F. Supp. 2d 388 (D.D.C. 2012)................................. 5 Carney v. Dept of Justice, 19 F.3d 807 (2d Cir. 1994) ................................................ 8, 15, 16, 18 Chambers v. NASCO, Inc., 501 U.S. 32 (1991) ........................................................................ 5, 20 Competitive Enter. Inst. v. U.S. Envtl. Prot. Agency, 12 F. Supp. 3d 100 (D.D.C. 2014) ............ 16 Ctr. for Natl Sec. Studies v. U.S. Dept of Justice, 331 F.3d 918 (D.C. Cir. 2003) ..................... 19 Davis v. United States Dept of Homeland Sec., No. 11-CV-203, 2013 WL 3288418

(E.D.N.Y. June 27, 2013) ..........................................................................................................12 Diesel Props S.r.l. v. Greystone Bus. Credit II LLC, 631 F.3d 42 (2d Cir. 2011) .......................... 3 Doe v. Menefee, 391 F.3d 147 (2d Cir. 2004) ................................................................................. 7 Garcia v. U.S. Dept of Justice, 181 F. Supp. 2d 356 (S.D.N.Y. Jan. 14, 2002) .......................... 11 In re N.Y. Times Co. to Unseal Wiretap & Search Warrant Materials, 577 F.3d 401 (2d

Cir. 2009) ...................................................................................................................................19 In re U.S. Dept of Defense, 848 F.2d 232 (D.C. Cir. 1988) ........................................................ 21 Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) ............................ 4 Main Street Legal Serv. v. Natl Sec. Council, -- F.3d --, 2016 WL 305175 (2d Cir. Jan. 26,

2016) ........................................................................................................................................... 4 Maynard v. Cent. Intelligence Agency, 986 F.2d 547 (1st Cir. 1993) .......................................... 20 McDonnell v. United States, 4 F.3d 1227 (3d Cir. 1993) ............................................................. 10 Meeropol v. Meese, 790 F.2d 942 (D.C. Cir. 1986) ..................................................................... 15 Nolen v. Rumsfeld, 535 F.2d 890 (5th Cir. 1976) ........................................................................... 4 OMeara v. Internal Revenue Serv., 142 F.3d 440, 1998 WL 123984 (7th Cir. Mar. 17,

1998) ............................................................................................................................................4 Peralta v. United States Attorneys Office, 136 F.3d 169 (D.C. Cir. 1998) ................................... 9 Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002) ........................ 10 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ..................................................... 19 SafeCard Serv., Inc. v. Sec. Exch. Commn, 926 F.2d 1197 (D.C. Cir. 1991) .............................. 11 Schlabach v. Internal Revenue Serv., No. CS-96-361, 1996 WL 887472 (E.D. Wash.

Nov. 5, 1996) ...............................................................................................................................5 Simon v. United States, 587 F. Supp. 1029 (D.D.C. 1984) ........................................................... 11 U.S. Dept of Justice v. Tax Analysts, 492 U.S. 136 (1989) ........................................................... 4 United States v. Apple Inc., 992 F. Supp. 2d 263 (S.D.N.Y. 2014), affd, 787 F.3d 131 (2d

Cir. 2015) .............................................................................................................................. 20 United States v. Seltzer, 227 F.3d 36 (2d Cir. 2000) .................................................................. 5, 6 United States v. Yonkers Bd. of Educ., 29 F.3d 40 (2d Cir. 1994) ................................................ 21 West v. Goodyear Tire & Rubber, Co., 167 F.3d 776 (2d Cir. 1999) ........................................... 10


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Statutes 28 U.S.C. 1746 ........................................................................................................................... 16 28 U.S.C. 636(b)(1) ..................................................................................................................... 7 5 U.S.C. 552(a)(3) ...................................................................................................................... 10 5 U.S.C. 552(a)(3)(A) ........................................................................................................ 3, 4, 13 5 U.S.C. 552(a)(4) ...................................................................................................................... 10 5 U.S.C. 552(a)(4)(B) .......................................................................................................... 4, 6, 8

Rules Fed. R. Civ. P. 52 .................................................................................................................... 3, 6, 7 Fed. R. Civ. P. 53(a)(1) ................................................................................................................. 21 Fed. R. Civ. P. 56 .................................................................................................................... 3, 6, 7 Fed. R. Civ. P. 72(a) ....................................................................................................................... 7 Fed. R. Evid. 401 ............................................................................................................................ 7 Fed. R. Evid. 402 ............................................................................................................................ 7 Fed. R. Evid. 403 ............................................................................................................................ 7 Fed. R. Evid. 802 ............................................................................................................................ 7 Fed. R. Evid. 901 ............................................................................................................................ 7 L. Civ. R. 6.3 ................................................................................................................................... 7

Regulations 28 C.F.R. 16.1(b)(5) ................................................................................................................... 10 28 C.F.R. 16.3(b) ....................................................................................................................... 12 28 C.F.R. 16.9 ............................................................................................................................ 10

Other Authorities http://www.justice.gov/oip/available-documents-all-doj-components ......................................... 13 http://www.justice.gov/oip/oip-foia-%C2%A0-major-information-system ................................... 9 http://www.justice.gov/usao/resources/foia-library ...................................................................... 13 Model R. of Prof. Conduct 3.3(d) ................................................................................................. 18


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PRELIMINARY STATEMENT

Defendant Department of Justice (Defendant or DOJ) respectfully submits this

memorandum of law in opposition to the cross-motion under Rule 52 and demand for sanctions

and penalties filed by Plaintiff Louis Flores (Plaintiff) on January 5, 2016. Dkt. Nos. 25-26.

This action, which is brought under the Freedom of Information Act (FOIA), 5 U.S.C. 552,

challenges the response by the Executive Office for the United States Attorneys (EOUSA) to

Plaintiffs FOIA request, which sought documents relating to the prosecution of Daniel Choi and

the prosecution of activists.

On November 23, 2015, Defendant moved for summary judgment in this action, pursuant

to the Courts November 9, 2015 Memorandum and Order. See Dkt. Nos. 19, 20. On January 5,

2016, Plaintiff opposed Defendants motion for summary judgment, cross-moved for partial

summary judgment, and cross-moved under Rule 52 and demanded sanctions and penalties.

See Dkt. Nos. 24-26.1

In his motion, Plaintiff asks the Court to find that the DOJ lacks credibility in this action

and must immediately take steps to comply with FOIA[;] impose sanctions and penalties of not

less than $1,000,000 on the DOJ based on an alleged pattern and practise (sic) of denying

FOIA requests; appoint a monitor to supervise DOJs FOIA compliance; enter a Deferred

Sanctions Agreement; and refer misconduct to relevant bar associations or other regulatory

bodies. See Memorandum in Support of Plaintiffs Cross Motion Under Rule 52 and Demand

for Sanctions and Penalties (Plaintiffs Memorandum) at 43-44. Plaintiff also seeks to have

the Court compel Defendant to respond to a new FOIA request that is not the subject of this

action. See Pl. Mem. at 1; Plaintiffs Notice of Motion.

1 Defendant is filing a separate opposition to Plaintiffs cross-motion for partial summary

judgment concerning the response to Plaintiffs FOIA request to EOUSA dated April 30, 2013.


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As shown below, Plaintiff is not entitled to any of the relief that he seeks.

STATEMENT OF THE CASE

Defendant respectfully refers the Court to, and incorporates by reference herein, the facts

set forth in the Declaration of Karin Kelly dated September 30, 2015 (Kelly Decl.) (Dkt. No.

20-6), the Declaration of Princina Stone dated September 30, 2015 (Stone Decl.) (Dkt. No. 20-

5), and the Declaration of Assistant U.S. Attorney Rukhsanah L. Singh dated November 23,

2015 (Singh Decl.), and exhibits annexed thereto, (Dkt. No. 20-4), which were submitted in

support of Defendants Motion for Summary Judgment.

Defendant also respectfully refers the Court to, and incorporates by reference herein, the

facts set forth in Defendants Reply Statement of Undisputed Material Facts Pursuant to Local

Civil Rule 56.1 (56.1 Reply Stmt. __) and the Declaration of Assistant U.S. Attorney

Rukhsanah L. Singh in Opposition to Plaintiffs Cross-Motion Under Rule 52 and Demand for

Sanctions and Penalties, dated February 12, 2015 (Singh Reply Decl.), which are being filed

simultaneously with this memorandum of law and Opposition to Plaintiffs Cross-Motion for

Summary Judgment. Additional facts that relate to the specific arguments raised by Plaintiff in

his Cross-Motion under Rule 52 and Demand for Sanctions and Penalties are discussed within.

ARGUMENT

This Court should deny Plaintiffs Cross-Motion under Rule 52 and Demand for

Sanctions and Penalties. First, Rule 52 is inapplicable, and, even if it were, there is no basis for

Plaintiffs proposed findings of fact that Defendant lacks credibility. See Pl. Mem. at 11-12,

14-44. Second, Plaintiff is not entitled to sanctions or penalties. The FOIA does not authorize

sanctions as a remedy, and Plaintiff has not shown any conduct that would warrant the

imposition of sanctions or penalties.


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I. APPLICABLE LEGAL STANDARDS

A. The Standard Under Rule 52

Rule 52 of the Federal Rules of Civil Procedure relates to findings and conclusions of the

Court. See Fed. R. Civ. P. 52. In relevant part, Rule 52 provides that a court must set forth

findings and conclusions when granting or refusing an interlocutory injunction and when an

action is tried on the facts without a jury or with an advisory jury, but it need not do so when

ruling on a motion under Rule 12 or 56. See Fed. R. Civ. P. 56(a)(1)-(3).

Plaintiff appears to be relying on Rule 52(a)(6); he argues that the Court should consider

the credibility of the DOJ before allowing the findings in each of its Omnibus Order and

Memorandum and Order, respectively . . . and to make a determination about the DOJs

misconduct and misrepresentations in this case and order sanctions and penalties . . . . Pl. Mem.

at 11-12. Rule 52(a)(6) provides that [f]indings of fact, whether based on oral or other

evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due

regard to the trial courts opportunity to judge the witnesses credibility. Fed. R. Civ. P.

52(a)(6). The clearly erroneous standard applies whether the findings are based on witness

testimony, or on documentary evidence, or on inferences from other facts. Diesel Props S.r.l. v.

Greystone Bus. Credit II LLC, 631 F.3d 42, 52 (2d Cir. 2011) (citations omitted).

B. The Applicable Standard Under the Freedom of Information Act

The FOIA requires United States government agencies to disclose agency records to any

person requesting those records, provided the request reasonably describes such records and is

made in accordance with published rules and procedures. 5 U.S.C. 552(a)(3)(A). Under the

FOIA, a district court is authorized to enjoin the agency from withholding agency records and

to order the production of any agency records improperly withheld from a person who has made

a proper written request for the records. 5 U.S.C. 552(a)(4)(B); see 5 U.S.C. 552(a)(3)(A);


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Main Street Legal Serv. v. Natl Sec. Council, -- F.3d --, 2016 WL 305175, at *19 (2d Cir. Jan.

26, 2016) (discussing a courts remedial power under the FOIA).2 To obtain relief under the

FOIA, a plaintiff must show that an agency has (1) improperly; (2) withheld; (3) agency

records. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980)

(internal quotation marks omitted). All three criteria must be met. U.S. Dept of Justice v. Tax

Analysts, 492 U.S. 136, 142 (1989). The FOIA compels disclosure only of existing records

that are requested. Nolen v. Rumsfeld, 535 F.2d 890, 891 (5th Cir. 1976). There can be no

withholding when, as in this case, no responsive documents exist. See id.

The FOIA does not authorize sanctions as a remedy. See, e.g., OMeara v. Internal

Revenue Serv., 142 F.3d 440, 1998 WL 123984, at *1 (7th Cir. Mar. 17, 1998) (order) (FOIA . .

. does not authorize sanctions as a remedy for failure to disclose documents. (internal citations

omitted)); Brown v. Fed. Bureau of Investigation, 873 F. Supp. 2d 388, 408 (D.D.C. 2012)

(denying plaintiffs request for sanctions where the court could find no reason for such an

extreme punishment without substantial evidence that defendant frustrated judicial

proceedings); see also Schlabach v. Internal Revenue Serv., No. CS-96-361, 1996 WL 887472,

at *2 (E.D. Wash. Nov. 5, 1996) (Nor is there any provision in the Freedom of Information Act

that entitles Plaintiff to recover compensatory or punitive damages; FOIA permits recovery only

of reasonable attorney fees and their litigation costs, not damages. 5 U.S.C. 552(a)(4)(E).).

C. The Courts Inherent Power to Impose Sanctions

A federal court has the inherent power to fashion an appropriate sanction for conduct

which abuses the judicial process. Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991).

Because of their very potency, inherent powers must be exercised with restraint and discretion.

2 As required by Local Civil Rule 7.2, copies of decisions cited herein that are

unreported or reported exclusively on computerized databases are being provided to Plaintiff.


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Id. at 44. Through that inherent power, a court may impose sanctions if a party has acted in bad

faith, vexatiously, wantonly, or for oppressive reasons. Id. at 45-46.

Where a party seeks an imposition of sanctions based on an attorneys alleged excesses

in conduct of the sort that is normally part of the attorneys legitimate efforts at zealous advocacy

for the client, the movant must establish bad faith as a prerequisite. See United States v. Seltzer,

227 F.3d 36, 40 (2d Cir. 2000). In other words, as clarified by the Second Circuit: [w]hen a

district court invokes its inherent power to impose attorneys fees or to punish behavior by an

attorney in the actions that led to the lawsuit or conduct of the litigation, which actions are taken

on behalf of a client, the district court must make an explicit finding of bad faith. Id. at 41-42

(internal editing and quotation marks and citations omitted).

II. THERE IS NO BASIS FOR ANY RELIEF UNDER RULE 52 OF THE FEDERAL RULES OF CIVIL PROCEDURE

Plaintiffs reliance on Rule 52 is misplaced. First, pending before the Court are cross-

motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. See

Dkt. Nos. 20, 23-24. Although a court should state on the record the reasons for granting or

denying a motion for summary judgment, Fed. R. Civ. P. 56(a), findings of fact are not

required, Fed. R. Civ. P. 52(a)(3). Thus, the very rule upon which Plaintiff relies, Rule 52, by its

own clear language does not apply.

Although Plaintiffs Notice of Motion states that he moves for entry of a preliminary

injunction[,] and references Rule 65 of Federal Rules of Civil Procedure, Plaintiff has not set

forth any basis in law or fact that would support an injunction under Rule 65 in his


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Memorandum.3 See Dkt. No. 25. In any event, Rule 52 would require findings and conclusions

only where the court grants or refuses an interlocutory injunction. Fed. R. Civ. P. 52(a)(2).

Plaintiff is not seeking interlocutory relief, and the Court need not make any findings of fact

under Rule 52.

Moreover, to the extent Plaintiff is attempting to appeal Magistrate Judge Manns

September 16, 2015 Order or November 9, 2015 Memorandum and Order, Plaintiffs appeal

must be rejected. See Dkt. Nos. 14, 19. Plaintiff did not timely move for reconsideration of or

appeal (or object to) either Order. See Fed. R. Civ. P. 72(a); L. Civ. R. 6.3. Further, Plaintiff has

not identified any part of the two Orders that is clearly erroneous or contrary to law. See 28

U.S.C. 636(b)(1); Fed. R. Civ. P. 72(a).

As shown below, even if the Court were to make findings of fact under Rule 52, there is

no basis for Plaintiffs proposed findings.

A. Plaintiff Provides No Basis For A Finding That The DOJ Lacks Credibility Based On Online Postings

Plaintiff requests that the Court make a finding of fact that the DOJ lacks credibility in

essentially all FOIA matters based on an amalgamation of third-party online postings. See Pl.

Mem. at 28-31. A finding of fact, however, must be based on evidence of record when an action

is tried without a jury. See Fed. R. Civ. P. 52(a)(1); see also Fed. R. Civ. P. 56(c)(2) (A party

may object that the material cited to support or dispute a fact cannot be presented in a form that

would be admissible in evidence.).

Credibility determinations cannot be made on factual inferences that the evidence d[oes]

not permit. Doe v. Menefee, 391 F.3d 147, 164 (2d Cir. 2004). The online postings on which

3 Plaintiffs entitlement to injunctive relief as authorized under the FOIA, 5 U.S.C.

552(a)(4)(B), with regards to his April 30, 2013 FOIA request is addressed in Defendants motion for summary judgment.


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Plaintiff relies are not admissible evidence. See, e.g., Fed. R. Evid. 403, 802, 901. Nor do those

online postings have any relevancy to Plaintiffs FOIA request. See, e.g., Fed. R. Evid. 401, 402.

The online postings do not support a broad sweeping finding that Defendants declarations in

support of its motion for summary judgment on Plaintiffs FOIA claims in this action are not

entitled to the presumption of good faith. See Carney v. Dept of Justice, 19 F.3d 807, 812 (2d

Cir. 1994) (Agency declarations are accorded a presumption of good faith.).4

As such, the Court should disregard the online sources relied on by Plaintiff.

B. Defendant Did Not Act In Bad Faith Through Pre-Suit Conduct

Plaintiff argues that Defendant engaged in bad faith by, inter alia, losing Plaintiffs FOIA

request, failing to account for that loss, and failing to respond to a letter from United States

Representative Joseph Crowley. See, e.g., Pl. Mem. at 29, 31-33.

As Defendant has acknowledged, upon being notified of the initiation of this action,

EOUSA looked for but could not locate a copy of Plaintiffs FOIA request in its files. See Dkt.

No. 17 at 34.

Defendant also has consistently acknowledged that an Assistant U.S. Attorney (AUSA)

at the United States Attorneys Office for the District of Columbia (USAO-DC) was copied on

Plaintiffs April 30, 2013 email. See 56.1 Reply Stmt. at 12; Dkt. No. 17 at 4. However, her

mere receipt as a cc on an email does not mean that EOUSA, a separate DOJ office, received a

properly filed FOIA request made in accordance with DOJ regulations. See 5 U.S.C.

522(a)(3); 28 C.F.R. 16.3; see also 5 U.S.C. 552(a)(4)(B). Moreover, the AUSA was not

under an obligation to ensure that, despite Plaintiffs representation that he submitted a FOIA

request to EOUSA, EOUSA actually received that FOIA request made in accordance with DOJ

4 See also Memorandum of Law in Further Support of Defendants Motion for Summary Judgment and in Opposition to Plaintiffs Cross-Motion for Partial Summary Judgment (Defendants Summary Judgment Reply) at 7-10.


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regulations. See Singh Decl., Ex. F (Plaintiffs April 30, 2013 email, stating, inter alia, that he

submitted [his] FOIA request today by certified mail, return receipt requested); see also

Amnesty Intl USA v. Cent. Intelligence Agency, 728 F. Supp. 2d 479, 497 (S.D.N.Y. 2010)

(FOIA was not intended to reduce government agencies to full-time investigators on behalf of

requesters. (internal quotation and editing marks and citations omitted)); Peralta v. United

States Attorneys Office, 136 F.3d 169, 172 (D.C. Cir. 1998) (finding the EOUSA, not an

individual AUSA is the entity responsible for fielding FOIA requests sent to individual U.S.

Attorneys Offices throughout the country).

Plaintiff also takes issue with Defendant stating that Plaintiffs FOIA request could not be

located, while the May 20, 2014 correspondence from the DOJ Office of Information Policy

(OIP) refers to a request file that could not be located.5 See Pl. Mem. at 35-36; see also

Singh Decl., Ex. H. Beyond his demand that DOJ account for the request file, the import of

Plaintiffs argument is not clear. It is corroborated that, as of May 2014, EOUSA could not

locate any FOIA request from Plaintiff and could not confirm that it properly received a valid

FOIA request. See Singh Decl., Ex. H. EOUSA, subsequently, could not locate the request. See

Stone Decl. at 5.

Contrary to Plaintiffs accusations, Defendant did not destroy Plaintiffs FOIA request.

See Pl. Mem. at 25, 36. DOJ components must preserve all correspondence pertaining to the

requests that it receives under FOIA. 28 C.F.R. 16.9. Spoliation is the destruction or

significant alteration of evidence, or the failure to preserve property for anothers use as evidence

in pending or reasonably foreseeable litigation. West v. Goodyear Tire & Rubber, Co., 167

5 The request file would contain Plaintiffs FOIA request. See

http://www.justice.gov/oip/oip-foia-%C2%A0-major-information-system (Each initial request file typically contains a request letter, a search request form, responsive documents, and a determination letter.).


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F.3d 776, 779 (2d Cir. 1999). A party accused of spoliation must have had a culpable state of

mind. Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir. 2002).

That EOUSA could not locate Plaintiffs FOIA request in its files does not mean that spoliation

or destruction of evidence occurred. EOUSA does not know what happened to the request. In

any event, after obtaining a copy of the request, EOUSA processed it. See Stone Decl. at 6.

Defendant has not argued, or moved to dismiss on the basis, that Plaintiff never submitted a

FOIA request dated April 30, 2013.

Finally, Plaintiff cannot make a showing of bad faith or obtain any relief based on the

allegation that EOUSA did not respond to a February 10, 2014 letter from U.S. Representative

Joseph Crowley. See Pl. Mem. at 29. Because EOUSA could not locate the request file, it

cannot verify whether any response was sent to Representative Crowley. Moreover, EOUSA

was not obligated to respond to that third-party letter, as it was neither a FOIA request nor an

appeal. See 5 U.S.C. 552(a)(3), (4); 28 C.F.R. 16.1(b)(5); see also McDonnell v. United

States, 4 F.3d 1227, 1236-37 (3d Cir. 1993) (We think a person whose name does not appear on

a request for records has not made a formal request for documents within the meaning of the

[FOIA]. Such a person, regardless of his or her personal interest in disclosure of the requested

documents, has no right to receive either the documents, or notice of an agency decision to

withhold the documents. (internal citations omitted)).

Administrative errors simply do not warrant a finding of bad faith. See Garcia v. U.S.

Dept of Justice, 181 F. Supp. 2d 356, 367 (S.D.N.Y. Jan. 14, 2002) (granting defendants

motion for summary judgment and rejecting argument that initial failure to locate responsive

documents was the result of bad faith) (citing SafeCard Serv., Inc. v. Sec. Exch. Commn, 926

F.2d 1197, 1202 (D.C. Cir. 1991) (finding apparent mix-up and a small collection of other


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technical failings support neither the allegation that the SECs search procedures were

inadequate, nor an inference that it acted in bad faith)); Simon v. United States, 587 F. Supp.

1029, 1031-32 (D.D.C. 1984) (finding agencys failure to comply with statutory deadlines does

not automatically imply that suit was necessary).

Accordingly, the Court should reject Plaintiffs argument that Defendant engaged in bad

faith based on conduct that pre-dates the initiation of this action.

C. Defendant Did Not Act In Bad Faith Through Its Search For Records Responsive To Plaintiffs FOIA Request

Defendant acted in good faith in searching for and responding to Plaintiffs FOIA

request. Defendant incorporates by reference its arguments regarding this issue presented in

support of its Motion for Summary Judgment. See Memorandum of Law in Support of

Defendants Motion for Summary Judgment (Defendants Summary Judgment Memorandum)

at 7-16; Defendants Summary Judgment Reply at 7-12.

In addition, although Plaintiff argues otherwise, EOUSA was not required to contact him

to request additional information in conducting the search for records responsive to his request.

See Pl. Mem. at 19. 28 C.F.R. 16.3(b) provides:

Requesters must describe the records sought in sufficient detail to enable Department personnel to locate them with a reasonable amount of effort. . . . If after receiving a request a component determines that it does not reasonably describe the records sought, the component shall inform the requester what additional information is needed or why the request is otherwise insufficient. . . .

28 C.F.R. 16.3(b).

Here, Plaintiffs FOIA request appeared facially clear. It requested information regarding

the Choi prosecution and the prosecution of activists. See Singh Decl., Ex. A. The USAO-DCs

search of the Legal Information Network System (LIONS) database used activists as a search

term, but it yielded no results. See Kelly Decl. at 15. The USAO-DC could not use the terms


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in Plaintiffs request, ie., activists, and targeted, to search the Replicated Criminal

Information System (RCIS) database because that electronic tracking system did not use

activists as a category. See Kelly Decl. at 10-12. This was not an instance where an agency

did not conduct any search at all because it was unable to determine precisely what records the

requester sought. See Davis v. United States Dept of Homeland Sec., No. 11-CV-203, 2013 WL

3288418, at *9-10 (E.D.N.Y. June 27, 2013) (Ross, J.) (recognizing that TSA made no search all

on the contention that it could not determine which flight was the subject of the FOIA request

and finding TSA did not conduct an adequate search where it did not follow internal procedures

to request more information from the requester). Re-contacting Plaintiff would not have enabled

USAO-DC to locate the records that he sought.

Plaintiff also cites to the FOIA provision that an agency should make proactive

disclosures. See Pl. Mem. at 24, 29-30 (citing 5 U.S.C. 552(a)(2)(D)-(E)). Defendant has

made proactive disclosures, including a general index, on its website in accordance with 5

U.S.C. 552(a)(2). See http://www.justice.gov/oip/available-documents-all-doj-components.

Included among the proactive disclosures is the United States Attorneys Manual. See

http://www.justice.gov/usao/resources/foia-library. The FOIA exempts proactive disclosures

from any production made in response to a FOIA request. See 5 U.S.C. 552(a)(3)(A).

Accordingly, Defendant has acted in good faith in searching for records responsive to,

and responding to, Plaintiffs FOIA request.

D. Defendant Has Not Acted In Bad Faith Throughout This Litigation

Plaintiff argues that Defendant has acted in bad faith through the litigation of this action

by, inter alia, allegedly: (1) making misrepresentations in its Answer to Plaintiffs Amended

Complaint; (2) not complying with the Courts orders; (3) failing to produce a Vaughn index; (4)

not providing a declaration of the search voluntarily conducted at the DOJ Criminal Divisions


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Office of the Assistant Attorney General (OAAG); (5) redacting two documents provided to

Plaintiff on October 14, 2015; (6) making a misrepresentation that the DOJ Criminal Division

was the only DOJ Criminal Division likely to have guidelines regarding the prosecution of

activists; (7) refusing to negotiate with Plaintiff and respond to each item listed in his October

26, 2015 letter; (8) altering Exhibit F to the Singh Declaration; and (9) violating Model Rule of

Professional Conduct 3.3(d). See Pl. Mem. at 19-20, 22, 25, 27, 29, 34, 37-38. Plaintiffs bald

accusations, however, lack merit and support.

First, Plaintiff argues that Defendant made a material misrepresentation when it

modified paragraph 34 of the Answer to the original Complaint (Dkt. No. 1), which stated in

relevant part:

Based on Millers instruction communicated to Flores by Millers electronic email of April 17, 2013, Flores prepared and submitted by letter dated April 30, 2013, a FOIA Request seeking: . . .

from:

Defendant denies knowledge or information sufficient to form a response to each and every allegation made in paragraph 34 of the Complaint, except to aver only that a log maintained by EOUSA indicates that EOUSA received a request from Plaintiff; however, despite searching its records, Defendant has been unable to find a copy of Plaintiffs FOIA request in its files[;]

Dkt. No. 9 at 34, to the following in Defendants Answer to paragraph 34 of Plaintiffs

Amended Complaint, which contained the same language as the original Complaint:

Defendant denies knowledge or information sufficient to form a response to each and every allegation made in paragraph 34 of the Amended Complaint, except avers only that a log maintained by EOUSA indicates that EOUSA received a request from Plaintiff, and despite searching its records, EOUSA was unable to find Plaintiffs April 30, 2013 FOIA request in its files.

Dkt. No. 17 at 34.


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No misrepresentations were made by Defendant. The answers are worded slightly

differently but state the same response. Both answers state that the EOUSA could not located

Plaintiffs FOIA request. The Answer to the original Complaint may be less specific than the

Answer to the Amended Complaint, but that is not a material difference. Moreover, by the time

of the filing of the Amended Complaint on October 8, 2015, Defendant had obtained a copy of

Plaintiffs FOIA request from his online postings (referenced in the Complaint), and EOUSA had

responded to that request. See Dkt. No. 1 at 54-56; Singh Decl., Ex. I. Defendant has always

been forthright about the missing FOIA request, and EOUSA responded to the FOIA request

once it obtained a copy. See Stone Decl. 4-6; see also Meeropol v. Meese, 790 F.2d 942, 953

(D.C. Cir. 1986) ([W]hat is expected of law-abiding agency is that it admit and correct error

when error is revealed.).

Second, Plaintiffs argument that Magistrate Judge Mann ruled in Plaintiffs favour

[sic], when the Court ordered the DOJ to conduct a search of Main Justice and to produce at least

some of the records on Plaintiffs Index of References to Records Requested under the FOIA

Request is belied by the plain language of the September 16, 2015 Order. Pl. Mem. at 27. That

Order, granted Plaintiff leave to amend/supplement his complaint . . . without prejudice to any

defenses the government might raise[.] Dkt. No. 14. The Order also provided as follows:

The Court sustains the governments objection that discovery ordinarily is not available in FOIA actions. See, e.g., Carney v. U.S. Dept of Justice, 19 F.3d 807 (2d Cir. 1994). The Court encourages the government to voluntarily search the files of Main Justice and to produce any written guidelines for prosecution of activists. In addition, rather than engage in dispositive motions practice without further discussions between the parties, the Court encourages the government to consider voluntarily producing at least some of the documents listed on the index served on defense counsel today by plaintiff. The parties are directed to confer further and to jointly file, by November 6, 2015, an updated status report and proposed briefing schedule.


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Dkt. No. 14 at 1-2 (emphasis supplied). The Courts encouragement of Defendant to voluntarily

search for written guidelines for the prosecution of activists and to voluntarily provide some of

the documents listed in Plaintiffs September 16, 2015 index (which was not the same as in his

FOIA request dated April 30, 2013) was neither a ruling in Plaintiffs favor nor an order

compelling Defendant to undertake any action. Rather, although the Order did not require

Defendant to conduct an additional search or to respond to Plaintiffs index, Defendant, in good

faith, did so. See Singh Decl., Ex. K, L, N.

Third, Defendant was not required to produce a Vaughn index for either non-existent

records or records that are not responsive to Plaintiffs FOIA request. See Competitive Enter.

Inst. v. U.S. Envtl. Prot. Agency, 12 F. Supp. 3d 100, 114 (D.D.C. 2014).

Fourth, Defendant was similarly not required to prepare and serve a declaration regarding

the search at OAAG, which was voluntarily undertaken as part of the meet and confer efforts of

this litigation and not in response to any properly submitted FOIA request. Cf. Carney, 19 F.3d

at 812. Moreover, Defendants October 15, 2015 letter to Plaintiff regarding that search does not

constitute a declaration, de facto or otherwise. See Pl. Mem. at 29; Singh Decl., Ex. L; see

also 28 U.S.C. 1746.

Fifth, Defendant made no redactions to the documents produced to Plaintiff in this

lawsuit. See Singh Reply Decl. at 16. On October 23, 2015, in response to Plaintiffs request,

counsel provided Plaintiff with the Government Exhibit 24 (Cpt. Guddemis November 22

email) and the Government Exhibit 25 from the Choi prosecution (Myers memo (email)).

See Singh Decl., Ex. K at 2-3 (discussing documents); Declaration of Louis Flores dated Jan. 5,

2016 (Dkt. No. 26) (Flores Decl.), Ex. G at Tabs A, B. In his eleven-page letter dated October

26, 2015, Plaintiff asked, inter alia, the following in regards to these two documents:


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Is there any information that was redacted? There is an empty space near the bcc: field in the e-mail. Please provide clarification if this document was redacted, and whether any other documents were redacted.

Singh Decl., Ex. M at 5 (No. 4(b)(ii)) and 6 (No. 4(c)(ii)). Defendant objected to Plaintiffs

letter as an improper attempt to seek discovery. See Singh Decl., Ex. N.

Now, without anything more than a blank space next to the bcc: in the two documents,

Plaintiff assumes that redactions were made. See Pl. Mem. at 34. Counsel made no redactions to

those documents. Singh Reply Decl. at 10. The documents were provided to Plaintiff exactly

as they appear on the docket of the Choi prosecution. See United States of America v. Farrow et

al., No. 10-mj-00739-JMF (D.D.C.), Dkt. Nos. 64-1, 82-1.

Sixth, no misrepresentations were made during the October 16, 2015 telephone

conference between defense counsel and Plaintiff. As an initial matter, the telephone conference

occurred at Plaintiffs request after counsel offered either October 16 or 19, 2015 as possible

dates for the telephone conference. Singh Reply Decl. at 6, 9. Prior to the conference,

counsel informed Plaintiff that a search for records at OAAG for guidelines relating to the

prosecution of activists did not uncover any documents. Singh Reply Decl. at 11; Singh Decl.,

Ex. L. During the telephone conference, Plaintiff inquired whether any component of DOJ other

than OAAG would likely have guidelines regarding the prosecution of activists. Singh Reply

Decl. at 12. Counsel simply responded that there was no other criminal division component

that would have guidelines for the prosecution of activists other than the OAAG. See Singh

Reply Decl. at 12; Singh Decl., Ex. N at 2 n.1.

Seventh, Plaintiff argues that Defendant engaged in bad faith by refusing to negotiate

further and respond to his October 26, 2015 correspondence. See Pl. Mem. at 19-20; see also

Singh Decl., Ex. N. However, Defendant did respond and noted that Plaintiffs eleven-page


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correspondence, with 66 sub-points and questions, was an attempt to obtain discovery that the

Court had not permitted. See Singh Decl., Ex. N. Discovery is typically unavailable in FOIA

actions, see, e.g., Carney, 19 F.3d at 812, and Plaintiffs requests for discovery had already been

denied, Dkt. No. 14, 19. Defendant, therefore, did not act in bad faith in asserting a valid

objection to Plaintiffs discovery requests.

Eighth, Plaintiff argues that Defendant altered the email that appears at Exhibit F of the

Singh Declaration, in support of Defendants summary judgment motion, because there is no

indication in the Exhibit that an attachment was included in the email exchange. See Pl. Mem. at

34. Paragraph 8 of the Singh Declaration, however, states without attachment thereto[.] Singh

Decl. 8.

Finally, Plaintiffs assertion that there has been some violation of the Model Rules of

Professional Conduct (Model RPCs) is wholly baseless. See Pl. Mem. at 22. Even assuming

the Model RPC 3.3(d) were applicable,6 Plaintiff has not and cannot articulate any basis to

support a contention that counsel has not met her duty of candor to the Court. Rather, Plaintiff

appears to be inappropriately using the Model RPCs as a means of requiring Defendant to

engage in discovery to which Plaintiff is not entitled and has already been denied by the Court

and to produce non-existent records to his FOIA request. See Pl. Mem. at 22 (arguing Model

RPC should have compelled the DOJ to comply with FOIA . . .). Defendant, however, has

complied with the FOIA, as set forth more fully in its summary judgment motion and has not

made any misrepresentations in connection with this action or Plaintiffs FOIA request.

In sum, Defendant has at all times throughout this litigation acted in good faith.

6 Model RPC 3.3(d) applies to an ex parte proceeding. See Model R. of Prof. Conduct

3.3(d).


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III. PLAINTIFF HAS NOT ESTABLISHED ANY BASIS FOR THE IMPOSITION OF SANCTIONS OR PENALTIES, OR FOR THE APPOINTMENT OF A MONITOR

Plaintiff appears to hope that, upon a finding of fact that Defendant and/or its counsel

engaged in bad faith, the Court would impose sanctions and penalties, and appoint a monitor.

See Pl. Mem. at 43-44. The Court, however, should deny Plaintiffs request.

As set forth above, sanctions are not available under the FOIA. Further, Plaintiffs

reliance on the First Amendment for the imposition of sanctions is misplaced. See Pl. Mem. at

31 (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571 (1980)), and 38-41. The

First Amendment provides a narrow . . . right of access to information[,] which does not

extend to non-judicial documents that are not part of a criminal trial. Ctr. for Natl Sec. Studies

v. U.S. Dept of Justice, 331 F.3d 918, 934 (D.C. Cir. 2003); see also in re N.Y. Times Co. to

Unseal Wiretap & Search Warrant Materials, 577 F.3d 401, 409 (2d Cir. 2009) (recognizing that

there is only a qualified constitution right of access to judicial records). The holding in

Richmond Newspapers upon which Plaintiff relies does not apply outside of the context of a

judicial record. Judicial records are not at issue here. Plaintiff sought agency records under

the FOIA. As a result, Plaintiff cannot rely on any alleged violation of the First Amendment to

seek the imposition of sanctions and penalties.

To the extent Plaintiff seeks the Court to draw on its inherent powers to award sanctions

and penalties, Plaintiff cannot establish that Defendant has acted in bad faith, vexatiously,

wantonly, or for oppressive reasons. Chambers, 501 U.S. at 45-46. For the reasons set forth

above and in Defendants summary judgment submissions, Defendant has at all times acted in

good faith. Indeed, it voluntarily provided Plaintiff with additional information and documents

through the EOUSAs FOIA response and the meet and confer process in this litigation. Even if

Defendant had uncovered documents that were responsive to Plaintiffs FOIA request after its


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initial search, producing those documents to Plaintiff would indicate good faith, not bad faith.

See Maynard v. Cent. Intelligence Agency, 986 F.2d 547, 565 (1st Cir. 1993) (where agency

could not locate a file due to administrative inefficiency, court concluded [r]ather than bad

faith, we think the forthright disclosure by the INS that it had located the misplaced file suggests

good faith on the part of the agency).

Finally, Plaintiff requests that the Court appoint a monitor to conduct the searches for

records responsive to the Free Speech FOIA Requests. Pl. Mem. at 42. A district court has

broad discretion to appoint a compliance monitor[;] external monitors have been found to be

appropriate where consensual methods of implementation of remedial orders are unreliable or

where a party has proved resistant or intransigent to complying with the remedial purpose of [an]

injunction[.] United States v. Apple Inc., 992 F. Supp. 2d 263, 280 (S.D.N.Y. 2014) (quoting

United States v. Yonkers Bd. of Educ., 29 F.3d 40, 44 (2d Cir. 1994)), affd, 787 F.3d 131 (2d

Cir. 2015). See also Fed. R. Civ. P. 53(a)(1) (authorizing court to appoint a master in limited

circumstances). Here, Defendant has not located any records responsive to Plaintiffs FOIA

request following a reasonable search conducted in good faith. This is not an instance where

Defendant refuses to conduct any search or has failed to comply with court orders. See Apple

Inc., 992 F. Supp. 2d at 280. Nor is this an instance where the Court is asked to cull through

volumes of materials in camera to ascertain whether a proper FOIA exemption or exception

applies. Cf. in re U.S. Dept of Defense, 848 F.2d 232, 236 (D.C. Cir. 1988) (finding district

court exercised discretion to appoint a master where 14,000 pages of documents must be sifted

through to render a decision in a FOIA case). Thus, there is no basis for the appointment of a

monitor.


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Accordingly, the Court should deny Plaintiffs cross-motion for the imposition of

sanctions and penalties and the appointment of a monitor.

IV. PLAINTIFF IS NOT ENTITLED TO RELIEF WITH RESPECT TO ANY OTHER FOIA REQUEST

Although Plaintiff makes fleeting reference to another FOIA request, dated October 20,

2015 (see Pl. Mem. at 1), he does not further discuss it in his memorandum of law. To the

extent that Plaintiff is seeking the Court to provide relief with regard to that alleged FOIA

request, such request must be denied. The Amended Complaint in this action concerns only the

April 30, 2013 FOIA request.

CONCLUSION

For the foregoing reasons, as well as those set forth in Defendants summary judgment

motion and opposition to Plaintiffs cross-motion for partial summary judgment, Defendant

respectfully requests that this Court deny Plaintiffs Cross-Motion Under Rule 52 and Demand

for Sanctions and Penalties, dismiss Plaintiffs Amended Complaint and all claims asserted

against it therein, enter summary judgment in Defendants favor, deny Plaintiffs cross-motion

for partial summary judgment and discovery, and grant Defendant any such other and further

relief as this Court may deem proper and just.

Dated: Brooklyn, New York February 12, 2016 ROBERT L. CAPERS

United States Attorney Eastern District of New York Attorney for Defendant 271 Cadman Plaza East, 7th Floor Brooklyn, New York 11201

By: s/Rukhsanah L. Singh

RUKHSANAH L. SINGH Assistant United States Attorney (718) 254-6498 [email protected]


preliminary statementSTATEMENT OF THE CASEARGUMENTI. Applicable Legal StandardsA. The Standard Under Rule 52B. The Applicable Standard Under the Freedom of Information ActC. The Courts Inherent Power to Impose Sanctions

II. There Is No Basis For Any Relief Under Rule 52 Of The Federal Rules of Civil ProcedureA. Plaintiff Provides No Basis For A Finding That The DOJ Lacks Credibility Based On Online PostingsB. Defendant Did Not Act In Bad Faith Through Pre-Suit ConductC. Defendant Did Not Act In Bad Faith Through Its Search For Records Responsive To Plaintiffs FOIA RequestD. Defendant Has Not Acted In Bad Faith Throughout This Litigation

III. Plaintiff Has Not Established Any Basis For The Imposition Of Sanctions or Penalties, Or For The Appointment Of A MonitorIV. Plaintiff Is Not Entitled To Relief With Respect To Any Other FOIA Requestconclusion

2016-02-12 DOJ Reply Brief - Rule 52 Motion (Flores v DOJ)

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Transcript of 2016-02-12 DOJ Reply Brief - Rule 52 Motion (Flores v DOJ)