Watkins v. United States Bureau of Customs

643 F.3d 1189

98 U.S.P.Q.2d 1601

11 Cal. Daily Op. Serv. 5431

2011 Daily Journal D.A.R. 6535

Samuel R. WATKINS, Plaintiff–Appellant,

v.UNITED STATES BUREAU OF CUSTOMS AND BORDER PROTECTION, Defendant–Appellees.

No. 09–35996.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 13, 2010.Filed May 6, 2011.

Samuel R. Watkins, Fall City, WA, proceeding pro se as plaintiff-appellee.Kayla C. Stahman, Assistant United States Attorney, Western District of Washington, for defendant-appellee United States Bureau of Customs and Border Protection.Appeal from the United States District Court for the Western District of Washington, James L. Robart, District Judge, Presiding. D.C. No. 2:08–CV–01679–JLR.Before: PAMELA ANN RYMER and N. RANDY SMITH, Circuit Judges, and DONALD E. WALTER, District Judge.^*

Opinion by Judge Walter; Partial Concurrence and Partial Dissent by Judge RYMER; Partial Concurrence and Partial Dissent by Judge N.R. SMITH.

OPINION

WALTER, District Judge:

Appellant, Samuel Watkins (“Watkins”), a copyright and trademark attorney, appeals pro se the district court's summary judgment in favor of the United States Bureau of Customs and Border Protection (“CBP”) in his eight Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, requests for 19 C.F.R. § 133.21(c) Notices of Seizure of Infringing Merchandise (“Notices of Seizure” or “Notices”) from the Ports of San Francisco, Miami, El Paso, Seattle, Newark/New York, Los Angeles/Long Beach, and Boston. Watkins's FOIA request to the Port of Seattle sought “[a]ll notices to trademark owners required to be made pursuant to 19 C.F.R. Section 133.21(c), dated during the period January 1, 2005 through July 31, 2007, regarding merchandise seized at the Port of Seattle as being counterfeit, as defined in 19 C.F.R. Section 133.21(a).” Watkins made almost identical requests to the remaining six ports identified above.

According to Watkins, he did not receive any response or acknowledgment of the FOIA requests he sent to the Ports of San Francisco and Miami, as well as a second request to the Port of Seattle. He further contends that the Port of El Paso only informed him that his request had been sent to the FOIA division in Washington D.C., without providing any further information on the status of the request. The Ports of Newark/New York, Los Angeles/Long Beach, and Boston demanded, as a prerequisite to responding to Watkins's request, that he make an advance payment to cover the processing fees for his FOIA request. The Ports required advance processing fees ranged from $500 to almost $30,000. In order to avoid paying what he deemed to be exorbitant processing fees for his various FOIA requests, Watkins limited the breadth of his FOIA requests to cover a shorter time-period.

Commercial importers provide the information revealed in the Notices of Seizure to the Agency when they “make entry” into the United States. “Making entry” consists of providing information to the Agency, including the port of entry, description of the merchandise, the quantity of merchandise, and the name and address of both the exporter and the importer. The Agency largely maintains the confidentiality of this information because it is important that it receive accurate information from importers. The Agency gives this information in the Notices of Seizure only to notify trademark owners upon the seizure of goods bearing a counterfeit mark “that infringe upon their trademark that has been recorded with [the Agency].”

The Notices of Seizure include the following information: (1) the date the merchandise was imported; (2) the port of entry; (3) description of the merchandise; (4) quantity of the merchandise; (5) country of origin of the merchandise; (6) name and address of the exporter; (7) name and address of the importer; and (8) the name and address of the manufacturer. The eighth item of information is not always known to the Agency and is therefore sometimes excluded from the Notice of Seizure. In addition to the above information, the Notices of Seizure also include the name of the individual responsible for receiving the Notices on behalf of the trademark holder.

After considerable back and forth between Watkins and the Ports, the Ports provided Watkins heavily redacted Notices of Seizure sent during the relevant time periods, citing FOIA exemptions 5 U.S.C. § 552(b)(2), (b)(4), (b)(6), and (b)(7)(A) and (C).

The district court first addressed Watkins's claim that the Agency improperly relied on the DHS's FOIA fee regulations instead of its own in order to increase Watkins's costs. According to the court, upon becoming a component of DHS, CBP needed DHS's approval to maintain its previously-promulgated FOIA regulations. Because CBP did not seek DHS's approval, DHS's FOIA regulations properly governed Watkins's requests. The district court discounted the amendments CBP made to its FOIA fee regulations after becoming a component as merely technical amendments, which were not enough “evidence that the Agency reviewed its FOIA fee schedule and affirmatively determined that they would remain in the regulations.”

The district court next addressed the Agency's redaction of the Notices of Seizure pursuant to 5 U.S.C. § 552(b)(4), or Exemption 4. First, the court found “that information redacted in the Notices does constitute ‘confidential’ information.” The court was persuaded that Notices of Seizure do not always pertain to counterfeit goods, and it noted that the issuance of a Notice does not by itself demonstrate the importer was (1) liable for trademark infringement and (2) aware of the counterfeit nature of the goods. As a result, importers of goods seized are not “unworthy of protection from competitive harm.” Second, the court noted that although an agency ordinarily provides “affidavits from the submitters of the information objecting to disclosure, ... the Ninth Circuit has carved out exceptions in cases where the Agency submits a declaration from a declarant that is ‘very familiar’ with the industry at issue.” The court concluded that this exception was met because the Agency's declarants had “extensive knowledge of commercial enforcement and intellectual property affecting the nation's borders.” Third, the court found that the Agency's release of the Notices to affected trademark holders did not waive Exemption 4. The Agency was statutorily obligated to provide such “limited disclosure[s] to interested third-parties.” Fourth, the court found that the Agency “c[ame] forth with more than adequate information detailing the various harms that could befall importers if the Notices of Seizure were disclosed.” Consequently, the court granted the Agency's Motion for Summary Judgment and its request for a Protective Order.

STANDARD OF REVIEW

As we recently held in Electronic Frontier Foundation v. Office of the Director of National Intelligence, 639 F.3d 876 (9th Cir.2010), FOIA was enacted to create a “judicially enforceable public right to secure” government documents. EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973); see also U.S. Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) (FOIA “was enacted to facilitate public access to Government documents.”). The statutory scheme provides public access to government information “shielded unnecessarily” from the public and establishes a “judicially enforceable public right to secure such information from possibly unwilling official hands.” Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (internal quotation marks omitted). FOIA's purpose was thus to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) (internal quotation marks omitted).

“At the same time, FOIA contemplates that some information may legitimately be kept from the public.” Lahr v. NTSB, 569 F.3d 964, 973 (9th Cir.2009). The statute contains nine exemptions, pursuant to which the government can withhold information otherwise available for disclosure. See 5 U.S.C. § 552(b)(1)-(9) (2006). “FOIA's ‘strong presumption in favor of disclosure’ means that an agency that invokes one of the statutory exemptions to justify the withholding of any requested documents or portions of documents bears the burden of demonstrating that the exemption properly applies to the documents.” Lahr, 569 F.3d at 973 (quoting Ray, 502 U.S. at 173, 112 S.Ct. 541). Because of its overarching goal of public disclosure, FOIA “exemptions are to be interpreted narrowly.” Id.

On summary judgment, we employ a two-step standard of review in FOIA cases. Lion Raisins Inc. v. U.S. Dep't of Agric., 354 F.3d 1072, 1078 (9th Cir.2004). First, whether, de novo, “an adequate factual basis exists to support the district court's decisions.” Milner v. U.S. Dep't of the Navy, 575 F.3d 959, 963 (9th Cir.2009). If so, “ ‘then we review the district court's conclusions of fact for clear error, while legal rulings, including its decision that a particular exemption applies, are reviewed de novo.’ ” Id. ( quoting Lane v. Dep't of Interior, 523 F.3d 1128, 1135 (9th Cir.2008)). The burden rests on the government to justify its decision to exclude disclosures under FOIA. U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989).

A. FOIA Exemption Four

The trade secret exemption to FOIA states, “[t]his section does not apply to matters that are (4) trade secrets and commercial or financial information obtained from a person and privileged and confidential.” 5 U.S.C. § 552(b). In order to invoke Exemption 4 in the Ninth Circuit, the government agency must demonstrate that the information it sought to protect is “(1) commercial and financial information, (2)...