Blanchard v. Exec. Office for United States Attorneys

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JOSHUA BLANCHARD, Plaintiff, v. EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, Respondent.

No. 1:22-cv-0539

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

January 3, 2024

Hon Robert J. Jonker U.S. District Judge

REPORT AND RECOMMENDATION

PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE

Plaintiff Joshua Blanchard, brought this action under the Freedom of Information Act, 5 U.S.C. § 552, et seq. (FOIA). In the underlying FOIA request, Plaintiff sought information from Defendant, Executive Office for United States Attorneys regarding documents relating to United States Attorney Mark Totten's recusal from the criminal prosecution in United States v. Fox et al., 1:20-cr-0183-RJJ, as well as documents regarding the authority of certain named Assistant United States Attorneys to conduct criminal prosecutions in this district. (ECF No. 32-2).

Plaintiff represented Barry Gordon Croft, Jr., in the Fox case. Mr. Croft was convicted by jury on August 13, 2022, of conspiracy to kidnap Governor Gretchen Whitmer, conspiracy to use a weapon of mass destruction, and possession of an unregistered destructive device. (Fox, 1:22-cr-183, ECF No. 727-1 (restricted access); see also Judgment, Id. at ECF No. 804).

Mark Totten has served as the presidentially appointed United States Attorney for the Western District of Michigan since May 5, 2022. (See https://www.justice.gov/usao-wdmi/meet-us-attorney (last visited November 29, 2023)). Immediately preceding his appointment as United States Attorney, Mr. Totten served as Chief Legal Counsel to Governor Whitmer. (See https://www.statesattorney.org/case/mark-a-totten (last viewed November 29, 2023)).

In his amended complaint, Plaintiff raises two claims. Count I asserts that Defendant violated its obligations under FOIA by failing to make a determination regarding his FOIA request within the statutory deadline; Count II avers that Defendant improperly withheld agency records responsive to his FOIA request. (Amended Complaint ¶¶ 22-23, 34, ECF No. 30, PageID.99, 101). Defendant, for its part, denies that it violated its obligations under FOIA, and it denies that it improperly withheld agency records. (Answer to Amended Complaint ¶¶ 23, 34, ECF No. 31, PageID.126, 128).

Presently before the Court is Plaintiff's motion for summary judgment and, in the alternative with respect to Count II, in camera review of the withheld information (ECF No. 33). Also before the Court is Defendant's motion for summary judgment (ECF No. 34, 35).^[1] This case was referred to the undersigned judicial officer for all pretrial purposes pursuant to 28 U.S.C.§636(b)(1)(A), and for a report and recommendation on all dispositive matters under 28 U.S.C. §636(b)(1)(B). (Order of Reference, ECF No. 8). The undersigned has determined that oral argument is unnecessary. For the reasons articulated herein, the undersigned recommends that Plaintiff's motion (ECF No. 33) be denied and Defendant's motion (ECF No. 34) be granted.

Statement of Facts

On May 10, 2022, Plaintiff submitted a FOIA request to Defendant, requesting a copy of the following:

Any letter, memorandum, correspondence, or other writing requesting that special counsel be appointed to prosecute crimes within the Western District of Michigan or explaining the basis for United States Attorney Mark Totten's recusal from any case, including, United States v Fox et al.

Any appointment letters or other documents which grant authority to Donald Daniels, Nils Kessler, or Christopher O'Connor to conduct criminal prosecutions in the Western District of Michigan pursuant to 28 U.S.C. § 515.

(Complaint ¶ 12, ECF No. 1, PageID.3; FOIA Request, ECF No. 32-2). The date range for the request was April 1, 2022, to May 10, 2022. (See ECF No. 32-2, PageID.146).

On June 13, 2022, Plaintiff filed a complaint for declaratory and injunctive relief, claiming that Defendant failed to respond to his FOIA request within the statutory deadline and that it was unlawfully withholding agency records. (Complaint, ECF No. 1). The complaint was served by certified mail on June 21, 2023. (Certificate of Service, ECF No. 6, PageID.15). Defendant answered on July 27, 2022. (ECF No. 7).

By letter dated September 15, 2022, Defendant initially responded to Plaintiff's FOIA request. (ECF No. 32-3). At that time, Defendant produced eleven pages of documents in full and produced thirteen additional pages with redactions. (Id. at PageID.147). Defendant cited three statutory exemptions for the withheld records: Section 552(b)(5) (“inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency”), Section 552(b)(6) (“personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy”), and Section 552(b)(7)(C) (“records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy”). (Id. at PageID.148-49).

The Court conducted a Rule 16 scheduling conference on October 17, 2022. (Minutes, ECF No. 12). An initial case management order issued the next day. (ECF No. 13). Defendant was given until November 30, 2022, to complete its processing of Plaintiff's FOIA request, and Plaintiff was given until December 28, 2022, to file an amended complaint. (Id. at PageID.41).

Plaintiff timely filed his motion to amend the complaint. (ECF No. 14). Following a hearing on March 14, 2023 (Minutes, ECF No. 27), the motion was granted (ECF No. 28). The Clerk filed the amended complaint on the docket. (See ECF No. 30). The Court set deadlines for filing an answer to the amended complaint and for filing the Vaughn index; the Court also set a briefing schedule for dispositive motions. (ECF No. 29).

Defendant filed an answer on March 28, 2023 (ECF No. 31), and it filed the Vaughan index on April 13, 2023 (See Finney Decl. Exhibit A, ECF No. 32-1). The Vaughn index included two additional exemptions to those asserted on September 15, 2022: Section 552(b)(7)(A) (law enforcement information that “could reasonably be expected to interfere with enforcement proceedings”), and Section 552(b)(7)(E) (law enforcement information that “would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions, where disclosure could risk circumvention of the law”). (See Finney Decl. at ¶¶ 26, 29, ECF No. 32, PageID.142).

Plaintiff filed his motion for summary judgment on May 29, 2023. (ECF No. 33). Defendant filed its summary judgment motion on June 28, 2023. (ECF No. 34, 35). Plaintiff responded to Defendant's motion on July 26, 2023 (ECF No. 37), and Defendant replied on August 9, 2023 (ECF No. 41).

Summary Judgment Standards

Summary judgment “shall” be granted “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). Whether a fact is “material” depends on “whether its resolution might affect the outcome of the case.” Harden v. Hillman, 993 F.3d 465, 474 (6th Cir. 2021).

A party moving for summary judgment can satisfy its burden by demonstrating that the non-moving party, “having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case.” Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir. 2005). Once the moving party makes this showing, the non-moving party “must identify specific facts that can be established by admissible evidence, which demonstrate a genuine issue for trial.” Amini v. Oberlin College, 440 F.3d 350, 357 (6th Cir. 2006). The existence of a mere “scintilla of evidence” in support of the non-moving party's position, however, is insufficient. Daniels v. Woodside, 396 F.3d 730, 734-35 (6th Cir. 2005).

While the Court must view the evidence in the light most favorable to the nonmoving party, that party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Amini, 440 F.3d at 357. The nonmoving party “may not rest upon [his] mere allegations,” but must instead present “significant probative evidence” establishing that “there is a genuine issue for trial.” Pack v. Damon Corp., 434 F.3d 810, 813-14 (6th Cir. 2006). Likewise, the nonmoving party cannot merely “recite the incantation, ‘credibility,' and have a trial on the hope that a jury may disbelieve factually uncontested proof.” Fogerty v. MGM Group Holdings Corp., Inc., 379 F.3d 348, 353-54 (6th Cir. 2004).

Accordingly, summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. ” Daniels, 396 F.3d at 735. Stated differently, the “ultimate question is whether the evidence presents a sufficient factual disagreement to require submission of the case to the jury, or whether the evidence is so one-sided that the moving parties should prevail as a matter of law.” Harden, 993 F.3d at 474.

While a moving party without the burden of proof need only show that the opponent cannot sustain his burden at trial, a moving party with the burden of proof faces a “substantially higher hurdle.” Arnett v. Myers, 281 F.3d 552 561 (6th Cir. 2002). Where the moving party has the burden, “his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986). ...