Abdeljabbar v. Bureau of Alcohol

74 F.Supp.3d 158

Zeyad Abdeljabbar, Plaintiff

v.Bureau of Alcohol, Tobacco and Firearms, et al., Defendants.

Civil Action No. 1:13–cv–0330 RBW

United States District Court, District of Columbia.

Signed November 20, 2014

Zeyad Abdeljabbar, Greenville, IL, pro se.

Shuchi Batra, Kimberly J. Duplechain, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

Zeyad Abdeljabbar, the pro se plaintiff in this civil matter, alleges that the defendants, the Bureau of Alcohol, Tobacco, and Firearms (“ATF”), the Executive Office for United States Attorneys (“EOUSA”), and the Federal Bureau of Investigation (“FBI”), violated the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012), by failing to respond adequately to FOIA document requests submitted by the plaintiff. Complaint (“Compl.”) at 2–3, 5. Specifically, the plaintiff requested from the defendants “any and all investigative documents in the files of [the defendants], from the criminal case United States v. Zeyad Abdeljabbar, 4:07CR2114, [prosecuted] in the Eastern District of Missouri,” as well as certain “information [from] the file on the government testifying witness[es].” Id. The defendants have moved for summary judgment, asserting that they “have already disclosed all non-exempt information to [the][p]laintiff.” Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment (“Defs.' Mem.”) at 2. After carefully considering the Complaint, the Defendants' Motion for Summary Judgment (“Defs.' Mot.”), and the memoranda of law submitted in support of the motion, the Court concludes for the reasons that follow that it must grant the defendants' motion.¹

I. BACKGROUND

In compliance with the obligations set forth in Fox v. Strickland, 837 F.2d 507 (D.C.Cir.1988), and Neal v. Kelly, 963 F.2d 453 (D.C.Cir.1992),² the Court issued an order on January 23, 2014, advising the plaintiff of the potential consequences of failing to respond to the defendants' motion for summary judgment, and ordered the plaintiff to respond to the motion by March 3, 2014. ECF No. 23. As of the date of this Memorandum Opinion, the plaintiff has not responded to the defendants' motion for summary judgment. Accordingly, the Court accepts as true the factual assertions submitted in support of the defendants' motion. See Neal, 963 F.2d at 456.

A. ATF Request No. 12–951

The plaintiff alleges that he submitted a FOIA request to the ATF on April 3, 2012, demanding that he be provided “any and all investigative documents in the files of [the ATF], from the criminal case United States v. Zeyad Abdeljabbar, 4:07CR2114, [prosecuted] in the Eastern District of Missouri,” as well as certain “information [from] the file on the government testifying witness[es].” Compl. at 2; Boucher Decl., Exhibit (“Ex.”) A at 1. On May 26, 2012, the plaintiff lodged a FOIA appeal with the United States Department of Justice's Office of Information and Privacy (“OIP”), Defs.' Statement ¶ 1, claiming that he “ha[d] not heard from [the ATF]” and was “taking the non-response as a denial of [his] request,” Boucher Decl., Ex. A at 1. Upon review, the ATF determined that it “had not received a FOIA request from [the plaintiff].” See Defs.' Statement ¶ 4. The ATF advised the plaintiff of this by letter dated June 18, 2012, and noted that the plaintiff “could resubmit a FOIA request to [the] ATF.” Id.

When the plaintiff filed his Complaint with the Court on February 13, 2013, the ATF “treated that [C]omplaint as an initial FOIA request.” Id. ¶ 5. “By letter dated September 24, 2013, [the] ATF's Disclosure Division granted [the][p]laintiff's request, in part.” Defs.' Statement ¶ 6. “Portions of responsive records were withheld under Exemptions (b)(3), (b)(7)(C) [,] and (b)(7)(E) of the FOIA,” id., the ATF having “reviewed each page of the material identified as responsive to ensure that no additional information could be released ... [and that] [a]ll releasable information ha[d] been provided to [the plaintiff],” Boucher Decl. ¶ 42.

B. EOUSA Request Nos. 12–1412, 12–1414, and 12–3509

On April 3, 2012, the plaintiff submitted a FOIA request to the EOUSA, which was largely identical in substance to the request he submitted to the ATF. Compl. at 3. By letter dated May 2, 2012, the EOUSA “informed [the] plaintiff” that, with respect to his request for records of third parties, “it is the policy of the EOUSA to neither confirm nor deny that records concerning living third parties exist.” Defs.' Statement ¶ 15. Following receipt of this letter, the plaintiff “submitted a modified request for third parties ... requesting only public records relating to the third parties.” Luczynski Decl. ¶ 14.³

On April 29, 2013, the EOUSA granted the plaintiff's modified request, in part, and informed the plaintiff that “his request has been processed and that 58 pages had been released in full (“RIF”), 141 pages had been released in part (“RIP”), and 197 pages of records had been withheld in full (“WIF”).” Defs.' Statement ¶ 14. The EOUSA noted in its letter that it withheld certain information pursuant to FOIA Exemptions (b)(3), (b)(5), (b)(6), (b)(7)(C), (b)(7)(D).⁴ Id. The EOUSA asserts in its declaration that “[a]ll information withheld was exempt from disclosure pursuant to a FOIA exemption ... [and] no reasonably segregable non-exempt information was withheld from [the] plaintiff.” Luczynski Decl. ¶ 39.

C. FBI Request No. 1188333–000

On March 30, 2012, the plaintiff submitted a FOIA request to the FBI, which was also largely identical in substance to the requests he submitted to the ATF and the EOUSA. Compl. at 5. “By letter dated December 19, 2013, the FBI advised [the][p]laintiff that it had reviewed 97 pages and it was releasing 59 pages⁵ to him ... [and that] it had withheld information pursuant to ... FOIA Exemptions (b)(1), (b)(6), (b)(7)(C), (b)(7)(D), and (b)(7)(E).” Defs.' Statement ¶ 28. According to the FBI, “[n]o reasonably segregable, nonexempt portions were withheld from [the] plaintiff,” Hardy Decl. ¶ 24, and that “all material which the FBI has withheld is exempt from disclosure pursuant to one or more FOIA exemptions,” id. ¶ 28.

I. STANDARD OF REVIEW

Courts will grant a motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and may do so by “citing to particular parts of materials in the record, including ... affidavits or declarations,” Fed.R.Civ.P. 56(c)(1)(A). “[A] dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party” on an element of the nonmoving party's claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C.Cir.1992). In opposing a summary judgment motion, a party may not “replace conclusory allegations of the complaint ... with conclusory allegations of an affidavit,” Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), but rather must “set forth specific facts showing that there is a genuine issue for trial,” Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 (internal quotations omitted).

Courts review an agency's response to a FOIA request de novo, 5 U.S.C. § 552(a)(4)(B), and “FOIA cases typically and appropriately are decided on motions for summary judgment,” ViroPharma Inc. v. HHS, 839 F.Supp.2d 184, 189 (D.D.C.2012) (citations omitted). In a FOIA action to compel production of agency records, the agency “is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced ... or is wholly exempt from the [FOIA's] inspection requirements.’ ” Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C.Cir.2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978) ).

Summary judgment in a FOIA case may be based solely on information provided in an agency's supporting affidavits or declarations if they are “relatively detailed and nonconclusory,” Safecard Servs., Inc. v. S . E . C . , 926 F.2d 1197, 1200 (D.C.Cir.1991) (internal quotations and citations omitted), and when they:

[d]escribe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record [or] by evidence of agency bad faith.

Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). “To successfully challenge an agency's showing that it complied with the FOIA, the plaintiff must come forward with ‘specific facts' demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records.” Span v. U.S. Dep't of Justice , 696 F.Supp.2d 113, 119 (D.D.C.2010) (quoting U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) ).

II. ANALYSIS

In his Complaint, the plaintiff sets forth only generalized allegations, noting that the defendants are in “violation of FOIA” by not releasing all responsive records. See Compl. at 3 (“[The ATF] is in gross violation of FOIA, by not respon[d]ing and releasing records and information requested. There is no legal justification for the nonresponse of [the ATF].”); id. at 5 (“EOUSA is in violation of EOUSA [sic], by not adequately responding to [the] [p]...