Cooper v. DOJ

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

ELWOOD J. COOPER, )

)

Plaintiff, )

)

v. ) Civil Action No. 99-2513 (RBW)

)

UNITED STATES DEPARTMENT OF )

JUSTICE, et al., )

)

Defendants. )

)

MEMORANDUM OPINION

The plaintiff, Elwood J. Cooper, a federal prisoner proceeding pro se, brings this action

against the United States Department of Justice (the “Justice Department”), the United States

Marshals Service (the “Marshals Service”), and the United States Department of the Treasury

(the “Treasury Department”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,

seeking the release of “all records related to his arrest and prosecution.” Cooper v. Dep’t of

Just., 890 F. Supp. 2d 55, 57–58 (D.D.C. 2012) (Walton, J.). On March 14, 2016, following

multiple decisions by the undersigned and other members of this Court and multiple remands by

the District of Columbia Circuit over the twenty-plus-year duration of this case, the Court

granted summary judgment to the defendants on what it understood to be “[t]he only remaining

issue for the Court to resolve in this case[:] the propriety of the redactions made to the additional

documents produced to the plaintiff in September 2005.” Cooper v. U.S. Dep’t of Just., 169 F.

Supp. 3d 20, 32 (D.D.C. 2016) (Walton, J.) (“Cooper 2016”). In response to the Court’s ruling,

the plaintiff appealed, see Notice of Appeal at 1, ECF No. 146, and the Circuit subsequently

remanded the case to this Court for consideration of what it concluded were further “unresolved

issues in this case[,]” namely, (1) “the withholdings in records produced to [the plaintiff] prior to

[his] second appeal” and (2) “whether the agencies other than the [Marshals Service] conducted

adequate searches for responsive records[,]” Order at 1–2, Cooper v. U.S. Dep’t of Just.,

No. 17-5219 (D.C. Cir. July 11, 2018) (“Cooper III”). In addition to the issues remanded by the

Circuit, regarding which both parties have moved for summary judgment, see Defendants’

Consolidated Brief (“Defs.’ Br.”) at 14, ECF No. 154; Plaintiff’s Ex Parte Motion to the Court to

Take Judicial Notice of the Record (“Pl.’s Apr. 4, 2019 Mot. for Judicial Notice”) at 4, ECF

Nos. 160 & 169; 1 also pending before the Court are two motions filed by the plaintiff following

the Circuit’s remand: (1) the plaintiff’s motion for judicial notice, see Pl.’s Apr. 4, 2019 Mot. for

Judicial Notice, and (2) the plaintiff’s motion for discovery, see Plaintiff’s Motion to Proffer

Interr[o]gatories and Request for Admission and Production of Documents in Respon[s]e to

Defendants’ Opposition to His Motion to Take Judicial Notice and Notices to the Court and the

Defendants Out of Time (“Pl.’s Aug. 16, 2021 Mot. for Discovery”) at 1, ECF No. 174. Upon

consideration of the parties’ submissions and the entire record in this case, 2 the Court concludes

1

Although titled a motion for judicial notice, the plaintiff’s motion for judicial notice does not appear to seek

judicial notice of the attached records, but rather primarily sets forth a “cross-motion in opposition to [the]

defendants’ motion for summary judgment[,]” Pl.’s Apr. 4, 2019 Mot. for Judicial Notice at 4. Accordingly, the

Court will consider the plaintiff’s motion for judicial notice as containing two motions: (1) a cross-motion for

summary judgment regarding the issues remanded to this Court from the Circuit in Cooper III and (2) a motion for

judicial notice. The Court addresses both motions infra.

2

In addition to the filings already identified, the Court considered the following submissions and their supporting

exhibits in rendering its decision: (1) the Notice of Disclosure (“Pl.’s Mar. 16, 2006 Notice”), ECF No. 74; (2) the

Plaintiff’s Objection to the Defendant’s Status Report Ex Parte and Motion for Discovery Hearing and for Entry of

an Order to Appear Before the Court via Video Conference (“Pl.’s June 26, 2006 Objection”), ECF No. 79; (3) the

Defendants’ Memorandum in Support of Renewed Motion for Summary Judgment (“Defs.’ Apr. 27, 2007 Mem.”),

ECF No. 90; (4) the Plaintiff’s Cross-Motion in Response to the Defendants’ Renewed Motion for Summary

Judgment and Renewed Motion to Supplement Preliminary Injunction and for Discovery and Hearing Thereon and

to Appear Therein via Video Conference (“Pl.’s July 16, 2007 Cross-Motion”), ECF No. 91-1; (5) the Declaration of

Ray Catena (“Catena Decl.”), ECF No. 91-2; (6) the Declaration of Vicki L. Rashid (“Rashid Decl.”), ECF

No. 91-3; (7) the Plaintiff’s Motion for Leave of the Court to File Supplemental Pleading and Compel Production of

Documents (“Pl.’s Aug. 26, 2011 Mot.”), ECF No. 98; (8) the Plaintiff’s Reply to the Defendants’ Consolidated

Opposition to Plaintiff’s Cross-Motion for Summary Judgment, Renewed Motion for Injunction and Discovery, and

Motion for Leave to Supplement and Compel Production of Documents and Defendants’ to Plaintiff’s Statement of

(continued . . .)

2

for the following reasons that it must (1) grant in part and deny in part without prejudice the

defendants’ motion for summary judgment; (2) deny the plaintiff’s cross-motion for summary

judgment; (3) deny the plaintiff’s motion for the Court to take judicial notice; and (4) deny the

plaintiff’s motion for discovery.

(. . . continued)

Genuine Issues of Material Facts (“Pl.’s Aug. 22, 2012 Reply”), ECF No. 103; (9) the Plaintiff’s Motion for

Reconsideration and/or to Alter or Amend the Court’s September 11, 2012 Order and Memorandum (“Pl.’s

Oct. 12, 2012 Mot.”), ECF No. 107; (10) the Defendants’ First Status Report, ECF No. 108; (11) the Plaintiff’s

Motion in Opposition to Defendants’ Status Reports, Motion to Compel Disclosure Pursuant to Rule 5

Fed.[ ]R.[ ]Civ.[ ]P., and Motion for Entry of Default and Reconsideration as a Matter of Law or in the Alternative

Motion for Entry of a Final Appealable Order to Allow the Circuit to Clarify the Scope of Its[] April 23[,] 2004 and

December 28, 2005 Remand Decisions (“Pl.’s Apr. 1, 2013 Mot.”), ECF No. 114; (12) the Defendants’ Fourth

Status Report, ECF No. 118; (13) the Plaintiff’s Second Cross-Motion for Summary Judgment in Opposition to

Defendants’ Second Renewed Motion for Summary Judgment (“Pl.’s Sept. 13, 2013 Cross-Mot.”), ECF No. 121;

(14) the Plaintiff’s Notice of Disclosure and Intent to Re[p]ly (“Pl.’s 1st Nov. 8, 2013 Notice”), ECF No. 128;

(15) the Notice of Filing of Exhibits Severed from Plaintiff’s Second Cross-Motion in Opposition to Defendants’

Second Renewed Motion for Summary Judgment (“Pl.’s 2d Nov. 8, 2013 Notice”), ECF No. 129; (16) the Plaintiff’s

Notice of Filing of Thirty-Nine [ ] Pages of United States Marshals Service Document in re March 14, 2016 Order

and Opinion (“Pl.’s June 8, 2016 Notice”), ECF No. 141; (17) the Plaintiff’s Motion for Summary Judgment in

Response to the Defendant’s Supplemental Brief in Light of Oversights and Omissions in the Court’s March 14,

2016 Order and Opinion (“Pl.’s June 8, 2016 Mot.”), ECF No. 142; (18) the Plaintiff’s Ex Parte Motion to the Court

to Take Judicial Notice of the Record, ECF No. 144 (“Pl.’s July 11, 2016 Mot.”); (19) the Plaintiff’s Combined

Reply and Ex Parte Status Report and Statement of Material Facts in Genuine Dispute in Opposition to Defendants’

Notice of Filing and Consolidated Brief (“Pl.’s Opp’n”), ECF No. 156; (20) the Defendants’ Reply to Plaintiff’s

Consolidated Brief (“Defs.’ Reply”), ECF No. 159; (21) the Plaintiff’s July 2021 Notice of Filing and Intend to

Rely, ECF No. 171; (22) the Defendants’ Opposition to Plaintiff’s Motion to Take Judicial Notice and Response to

Plaintiff’s Notice (“Defs.’ Opp’n to Pl.’s Apr. 4, 2019 Mot. for Judicial Notice”), ECF No. 172; (23) the

Defendant’s Motion to Dismiss or, in the Alternative, for Summary Judgment, ECF No. 175-2; (24) the Declaration

of Dorothy A. Chambers, Chief, Disclosure Division, Bureau of Alcohol, Tobacco and Firearms (“ATF”) (the

“Chambers Declaration or Chambers Decl.”), ECF No. 175-3; (25) the Declaration of Leila I. Wassom (the “First

Wassom Declaration” or “Wassom Decl.”), ECF No. 175-4; (26) the Declaration of Lee H. Kramer (the “Kramer

Declaration” or “Kramer Decl.”), ECF No. 175-5; (27) the Declaration of Margaret P. Grafeld (the “Grafeld

Declaration” or “Grafeld Decl.”), ECF No. 175-6; (28) the Supplemental Declaration of Leila I. Wassom (the

“Wassom Supplemental Declaration” or “Supp. Wassom Decl.”), ECF No. 175-8; (29) the Supplemental

Declaration [of William E. Bordley] (the “Bordley Supplemental Declaration” or “Supp. Bordley Decl.”), ECF

No. 175-9; (30) the Declaration [of Florastine P. Graham] (“the “Graham Declaration” or “Graham Decl.”), ECF

No. 175-9, at 10–14; (31) the Declaration of John E. Boseker (the “Boseker Declaration” or “Boseker Decl.”), ECF

No. 175-10; (32) the Second Supplemental Declaration [of William E. Bordley] (the “Second Supplemental Bordley

Declaration” or “2d Supp. Bordley Decl.”), ECF No. 175-11; (33) the Declaration of William C. Little, Jr. (the

“Little Declaration” or “Little Decl.”). ECF No. 175-13; (34) the Declaration of Stephanie M. Boucher, Chief,

Disclosure Division[,] Bureau of Alcohol, Tobacco, Firearms and Explosives (the “Boucher Declaration” or

“Boucher Decl.”), ECF No. 175-14; and (35) the Declaration of Barry S. Orlow, Associate Chief Counsel, Field

Operations and Information Bureau of Alcohol, Tobacco and Firearms (ATF) (the “Orlow Declaration” or “Orlow

Decl.”), ECF No. 175-15.

3

I. BACKGROUND

Filed in September 1999, this case has a long and complicated procedural history that is

partially outlined in the Court’s September 11, 2012 (“Cooper 2012”) and March 14, 2016

(“Cooper 2016”) Memorandum Opinions. 3 See Cooper v. U.S. Dep’t of Just., 890 F. Supp.

2d 55, 58–60 (D.D.C. 2012) (“Cooper 2012”); Cooper 2016, 169 F. Supp. 3d at 26–31. Because

this Memorandum Opinion concerns issues that were not addressed in Cooper 2012 or

Cooper 2016, the Court will set forth the background information necessary to resolve all of the

issues currently pending before the Court.

The plaintiff, who “is currently incarcerated at the [United States] Penitentiary in

Coleman, Florida, where he is serving a life sentence after being convicted of drug trafficking

offenses in the United States District Court for the Southern District of Florida[,]” seeks “records

concerning his arrest and prosecution.” Cooper 2016, 169 F. Supp. 3d at 26 (internal quotation

marks omitted); see Pl.’s June 26, 2006 Objection at 6 (stating that the “[p]laintiff sought to

compel the production” of “records generated by, or in the possession of[,]” the Justice

Department, the United States Customs Service (“Customs”), the Drug Enforcement

Administration (“DEA”), and the West Palm Beach branch of the Bureau of Alcohol, Tobacco,

Firearms, and Explosives (“ATF”), “resulting f[ro]m a [t]ask [f]orce investigation they had

conducted of [the plaintiff] with the cooperation of the Bahamian Royal Police [ ] and two paid

confidential informants that resulted in [the plaintiff’s] arrest and prosecution” (internal

quotation marks and footnotes omitted)). Because the FOIA requests by the plaintiff that are at

issue in this case concern his criminal case, the Court will begin by briefing summarizing the

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In light of the numerous decisions issued by both this Court and the Circuit in this case, the Court sets forth the

following list of the relevant court decisions rendered in this case in chronological order: Cooper 2003, Cooper I,

Cooper 2004, Cooper II, Cooper 2012, Cooper 2016, Cooper III. The Court refers to the district court decisions by

reference to their year of publication, and to the Circuit decisions by roman numerals.

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relevant portions of the plaintiff’s criminal case, before turning to the FOIA requests submitted

by the plaintiff.

A. The Plaintiff’s Criminal Case

On December 26, 1997, the plaintiff was arrested on charges related to an alleged

conspiracy to import cocaine into the United States. See Minute (“Min.”) Entry (Dec. 26, 1997),

United States v. Cooper, Crim. Case No. 9:97-cr-08125-KLR-2 (S.D. Fla.). On January 8, 1998,

a grand jury issued a Superseding Indictment charging the plaintiff with one count of conspiracy

to import cocaine, in violation of 21 U.S.C. § 963; one count of conspiracy to possess with intent

to distribute cocaine, in violation of 21 U.S.C. § 846; one count of importation of cocaine, in

violation of 21 U.S.C. §§ 952(a), 960(a)(1) & b, and 18 U.S.C. § 2; and one count of possession

with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. See

Superseding Indictment at 1–3, United States v. Cooper, Crim. Case No. 9:97-cr-08125-KLR-2

(S.D. Fla.), ECF No. 17. On that same day, the plaintiff pleaded not guilty. See Court Mins.

(Jan. 8, 1998), United States v. Cooper, Crim. Case No. 9:97-cr-08125-KLR-2 (S.D. Fla.), ECF

No. 18.

On March 16, 1998, a five-day jury trial began, see Min. Entry (Mar. 16, 1998), United

States v. Cooper, Crim. Case No. 9:97-cr-08125-KLR-2 (S.D. Fla.), ECF No. 43, and, on

March 20, 1998, a jury found the plaintiff guilty beyond a reasonable doubt on all counts, see

Verdict Form at 2, United States v. Kevin Joseph Moore & Elwood Cooper, Crim. Case No. 97-

8125-CR-RYSKAMP (S.D. Fla.), ECF No. 52; Superseding Indictment at 1–3, United States v.

Kevin Joseph Moore & Elwood Cooper, Crim. Case No. 97-8125-CR-RYSKAMP (S.D. Fla.),

ECF No. 17. On September 11, 1998, the plaintiff was sentenced to a term of life imprisonment.

See Judgment at 1, United States v. Cooper, Crim. Case No. 97-8125-CR-2-RYSKAMP (S.D.

5

Fla.), ECF No. 86. On September 18, 1998, the plaintiff appealed his conviction and sentence,

see Notice of Appeal, United States v. Cooper, Crim. Case No. 97-8125-CR-2-RYSKAMP

(S.D. Fla.), ECF No. 87, and on October 25, 2001, the United States Court of Appeals for the

Eleventh Circuit affirmed the plaintiff’s conviction and sentence, see Mandate at 11, United

States v. Kevin Joseph Moore & Elwood Cooper, Crim. Case No. 97-8125-CR-RYSKAMP

(S.D. Fla.), ECF No. 118.

B. The Plaintiff’s FOIA Requests

On May 3, 1999, while his appeal of his criminal case was pending before the Eleventh

Circuit, the plaintiff “submitted separate FOIA requests to the [DEA, Customs, the ATF, and the

Marshals Service].” Cooper 2016, 169 F. Supp. 3d at 26. The Court will discuss in turn the

searches and productions of records completed by each agency in response to the plaintiff’s

requests. 4

4

The Court will discuss the searches and production of records made by each agency infra, however, in light of the

number of requests and agencies at issue in this case, for ease of reference, it also provides the following chart of the

requests addressed in this Memorandum Opinion:

Agency Name Date of Production Number of Withholdings

Pages Located

ATF February 16, 2000 23 pages 7 pages were referred to the DEA;

16 pages were produced with redactions

pursuant to Exemptions 7(C) and 2, see

Chambers Decl. ¶ 9.

DEA January 3, 2000 290 pages 277 pages were withheld in their entirety;

13 pages were produced with redactions

pursuant to Exemptions 2, 7(A), 7(C), and

7(F) of the FOIA and (j)(2) of the Privacy

Act, see Wassom Decl. ¶ 11.

(continued . . .)

6

1. The DEA’s Searches and Productions

On May 3, 1999, the plaintiff submitted a FOIA request to the DEA, seeking records

related to (1) his name and criminal case, see Wassom Decl., Exhibit (“Ex.”) A (Pl.’s DEA FOIA

Request) at 1; (2) the employment of DEA Special Agent Ray Catena, Jr., Biran Arrandale, and

Ihormity Collins, see id., Ex. A (Pl.’s DEA FOIA Request) at 3; and (3) the “authority granting

any agency, particularly the Coast Guard, [ ] Customs, [the Justice Department,] and[/]or any

other agenc[ies] of the United States [ ] authoriz[ed] entry [into] foreign territorial waters for the

purpose of mounting a narcotic operation concerning citizens of that foreign country without

approval of the [g]overnment of that country[,]” id., Ex. A (Pl.’s DEA FOIA Request) at 4. “By

letter dated May 18, 1999, [the] DEA informed the plaintiff that it was necessary for him to

(. . . continued)

DEA August 21, 2001 10 10 photographs were released; 6 pages

photographs; from “related files” were withheld in full

68 pages pursuant to FOIA Exemptions 2, 7(C),

7(D), and 7(F), and Privacy Act

exemption (j)(2); 23 pages were

reprocessed due to appellate rulings, with

information withheld pursuant to the

same FOIA exemptions; 39 pages that

were referred to Customs, and portions of

38 pages were released with redactions

pursuant to Exemptions 2, 7(C), 7(D), and

7(E), and 1 page was withheld in full, see

Wassom Decl., Ex. K.

Customs September 5, 2000 4 Treasury 3 TECS records were provided with

Enforcement certain portions withheld pursuant to

Communication Exemptions 2 and 7(C), 1 TECS record

System II was referred to the State Department for

(“TECS”) direct response to the plaintiff, see

records Kramer Decl. ¶ 10.

Customs June 13, 2001 182 pages 179 pages were released in part with

redactions pursuant to Exemptions 2,

7(C), 7(D), and 7(E); 3 pages were

released in full, see Kramer Decl. ¶ 17.

Marshals July 7, 1999 50 pages 24 pages were released in their entirety,

Service 4 pages were released with minimal

redactions, and 26 pages of regulations

were released in full, see Graham Decl.

¶ 11.

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provide [further] identifying information[,]” id. ¶ 9; see id., Ex. B (Letter from Linda M. Vettori

to Elwood J. Cooper (May 18, 1999)) at 2, and, thereafter, the plaintiff submitted a certification

of identity, providing his full name, date of birth, and place of birth, see id., Ex. B (Certification

of Identity) at 2.

“By letter dated January 3, 2000, [the] DEA released portions of [thirteen] pages to the

plaintiff[,]” and “withheld [277 pages] in their entirety.” Id. ¶ 11; see id., Ex. D (Letter from

Katherine L. Myrick, Chief, Freedom of Information Operations Unit, Drug Enforcement

Admin., to Elwood J. Cooper (Jan. 3, 2000) (“DEA Jan. 3, 2000 Production”)) at 2. Of the

thirteen pages that were produced, the DEA withheld information “pursuant to [FOIA

E]xemptions (b)(2), (b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(F)” and Privacy Act Exemption

(j)(2). Id. ¶ 11; see id., Ex. D (DEA Jan. 3, 2000 Production) at 2.

On that same date, the DEA also notified the plaintiff by a second letter that the

plaintiff’s “name was mentioned in two ‘related’ files” (the “related files”), and that “if [the

plaintiff] wished the [related] files to be searched, he should agree to pay an estimated search fee

of $56.00[.]” Id. ¶ 12; see also id., Ex. E (Letter from Katherine L. Myrick, Chief, Freedom of

Info., Drug Enf’t Admin. to Elwood J. Cooper (Jan. 3, 2000)). “By letter dated February 3,

2000, the plaintiff appealed [the] DEA’s action to the [Justice Department’s] Office of

Information and Privacy[ (“OIP”),]” id. ¶ 13, (1) challenging “the adequacy of the DEA’s

search[,]” id., Ex. F (Freedom of Information/Privacy Act Appeal, under [T]itle 5 [U.S.C. §] 552

(a)(b)(ii) Pursuant to [D]enial of [R]ecords (“Feb. 3, 2000 Appeal of DEA Request”)) at 3; (2)

asserting that the thirteen pages that were produced were “f[a]ls[i]fied and/or [ob]tained in

v[io]lation[] of the [l]aws of the United States and [of the] Bahamas[,]” id., Ex. F (Feb. 3, 2000

Appeal of DEA Request) at 3–4; and (3) challenging the DEA’s asserted exemptions, see id.,

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Ex. F (Feb. 3, 2000 Appeal of DEA Request) at 4–5. “By letter dated November 9, 2000, [the]

OIP informed the plaintiff that[,] as a result of discussions between [the] OIP and [the] DEA,

th[e] DEA had agreed to further process records [that] the plaintiff had requested,” by releasing

information that “had initially [been] withheld pursuant to [E]xemption (b)(7)(A)[.]” Id. ¶ 15.

The OIP also informed the plaintiff that, due to “changed circumstances, Exemption 7(A) is no

longer applicable to withhold the requested records in their entireties[,]” id., Ex. H (Letter from

Richard L. Huff, Co-Director, Off. of Info. & Priv., U.S. Dep’t of Just., to Elwood J. Cooper

(Nov. 9, 2000)), and therefore, the records would be released with partial redactions of

information regarding “an individual involved in the plaintiff’s investigation[,]” who “is a

fugitive[,]” id. ¶ 15.

“By letter dated June 25, 2001, [the] DEA forwarded [thirty-nine] pages to [Customs] for

return to [the] DEA after review, deletions, and exemptions claimed.” Id. ¶ 16; see also id., Ex. I

(Letter from Katherine L. Myrick, Freedom of Info. Operations Unit, Drug Enf’t Admin., to Lee

Kramer, U.S. Customs Serv., Disclosure L. Branch, Off. of Reg. Rulings (June 25, 2001)). “By

letter dated July 10, 2001, [Customs] returned the documents with information withheld pursuant

to FOIA [E]xemptions (b)(2), (b)(7)(C), (b)(7)(D), and (b)(7)(E).” Id. ¶ 17; see id., Ex. J (Letter

from Gloria L. Marshall, Director, FOIA/PA, Admin., Planning & Pol’y, Off. of Investigations,

U.S. Customs Serv., Katherine L. Myrick, Freedom of Info. Ops. Unit, Drug Enforcement

Admin. (July 10, 2001)) at 1.

By letter dated August 21, 2001, the DEA (1) “released ten photographs to the plaintiff”

“[p]ursuant to a litigation review[;]” (2) informed the plaintiff that it had located “[s]ix

responsive pages” as a result of its search through the related files, but was withholding the six

pages “in their entirety pursuant to FOIA exemptions (b)(2), (b)(7)(C), (b)(7)(D), and (b)(7)(F),

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and [Privacy Act] exemption (j)(2)[;]” (3) made “a supplemental release of portions of twenty-

three pages” that were re-processed “pursuant to the disposition of [the plaintiff’s [ ] appeal” to

OIP[,]” and on which “[i]nformation [wa]s withheld pursuant to” the same FOIA exemptions;

and (4) regarding the “thirty-nine pages [that] were referred to [Customs,]” released “[p]ortions

of thirty-eight pages” withheld portions pursuant to FOIA Exemptions (b)(2), (b)(7)(C),

(b)(7)(D), and (b)(7)(E), and “withheld [one page] in its entirety[.]” Id., Ex. K (Letter from

William C. Little, Jr., Chief, Freedom of Info., Litig. Unit, to Elwood Cooper (Aug. 21, 2001))

at 1.

2. The Marshals Service’s Searches and Productions

By letter dated May 3, 1999, the plaintiff “submitted a FOIA/[Privacy Act] request to the

[Marshals Service’s] West Palm Beach, Florida[,] office[,]” seeking “records pertaining to him

and a copy of regulations governing [the Justice Department’s] FOIA activities.” Graham Decl.

¶ 2; see id., Ex. A (Plaintiff’s FOIA Request to the Marshals Service (“Pl.’s May 3, 1999

Marshals Serv. FOIA Request”)) at 1–3. The Marshals Service “conducted a search for records

[relating to the] plaintiff in [its] office for the Southern District of Florida [ ], the district to

which [the] plaintiff [had] directed his request[,]” and “in the locations that could reasonably be

expected to contain responsive documents.” Id. ¶ 4. “As a result of [its] search” of “the Prisoner

Processing and Population Management/Prisoner Tracking [ ] System, Justice/USM-005, and the

Warrant Information Network, Justice/USM-007,” “[twenty-four] pages of material pertaining to

[the] plaintiff were located[.]” Id.

“By letter dated July 7, 1999, the [Marshals Service] responded to [the] plaintiff’s request

by releasing to him [twenty-six] pages of public record material describing the functions of the

[Marshals Service] [ ], and regulations governing the FOIA activities within the [Justice

Department.]” Id. ¶ 6. The Marshals Service “also released to [the] plaintiff the [twenty-four]

10

pages of material pertaining to [him],” with “[twenty] pages [released] in full, and four pages [ ]

released with limited exempt information excised and withheld pursuant to [FOIA exemption]

(b)(7)(c).” Id. The Marshals Service did not withhold any documents “in their entirety.” Id.

3. The ATF’s Searches and Productions

On May 3, 1999, the plaintiff “made a request to [the] ATF[,]” Chambers Decl. ¶ 4,

seeking (1) “all records and/or data contained in the [ATF’s] files . . . under [his] name and

[criminal case number 97 8125 CR RYSKAMP,]” id., Ex. 2 (Plaintiff’s FOIA Request to the

ATF (“Pl.’s ATF FOIA Request”)) at 1, and (2) “all records that show[ the] employment of

Biran Arrandale as agent and/or informant between 1988[ and ]1997[,]” including “receipts[ or ]

checks made payable to” Arrandale, id., Ex. 2 (Pl.’s ATF FOIA Request) at 2; see also id. ¶ 4.

The plaintiff also included “his birth date and [p]assport number.” Id. By letter dated

May 26, 1999, Averill P. Graham, an ATF Disclosure Specialist, informed the plaintiff that “[a]

search of [the ATF’s] records has failed to produce the requested information[,]” but that “if [the

plaintiff would] tell [the ATF] how and when [he] had contact with [the] ATF, and why [he]

feel[s] certain [that the] ATF would maintain records about [him,]” the ATF would “conduct

additional searches[.]” Id., Ex. 4 (Letter from Averill P. Graham, Disclosure Specialist, Bureau

of Alcohol, Tobacco and Firearms, to Elwood J. Cooper (May 26, 1999) (“Graham Letter”)) at 1.

The ATF states that, in response to the plaintiff’s FOIA request, it “[u]s[ed] the identifiers

supplied by [the p]laintiff at the initial request stage” to “conduct[] a subject query in” the

Treasury Enforcement Communication System II (“TECS”), the “central database containing

[the] ATF’s law enforcement investigations[,]” which “allows [the] ATF to know where to

physically search for any records.” Id. ¶ 10. It further represents that its subject query in TECS

located “no ATF-responsive records[,]” id. ¶ 11, and “[w]hen there are no ATF investigations”

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located in TECS, it, “without additional information provided by the requester, cannot know

which, if any, ATF office in the United States may have a record[,]” id. ¶ 10.

“By letter dated June 25, 1999, the [p]laintiff[] administratively appealed the adequacy of

the [ATF’s] search, asserting that the provided case number prove[d] that [the] ATF ha[d]

documentation, and request[ing] another search.” Id. ¶ 6; see also id., Ex. 5 (Letter from Elwood

J. Cooper to FOIA [D]isclosure Specialist (June 25, 1999) (“Cooper June 25, 1999 Letter to

ATF”)). However, the ATF represents, “[t]he [p]laintiff did not provide any additional

information in his administrative appeal.” Id. ¶ 6; see also id., Ex. 5 (Cooper June 25, 1999

Letter to ATF) at 1. On August 5, 1999, the ATF denied the plaintiff’s administrative appeal.

See id. ¶ 7; id., Ex. 6 (Letter from David L. Benton, Asst. Dir., Liaison & Pub. Info., Bureau of

Alcohol, Tobacco and Firearms, to Elwood J. Cooper) at 1–2.

During the pendency of this case, the plaintiff submitted filings that “provided additional

names of individuals related to his case[,]” “stated that [the] ATF had seized a gun[,]” and “made

an allegation that the [DEA] and [Customs] forwarded documents to [the] ATF regarding [ ]

Arrandale.” Id. ¶ 9. The ATF states that, in response to the plaintiff’s submission, it “made an

inquiry into the individual’s name provided” by the plaintiff, and “located a file under this other

individual’s name that contained information about a firearm [that] was transferred from [the]

DEA to [the] ATF.” Id. The ATF determined that “[t]his file was . . . relevant to the [p]laintiff’s

FOIA request” and his reference in his filings “to a seizure of a gun[,]” and it proceeded to

process the file, “which totaled [twenty-three] pages[.]” Id. Because “[o]f these [twenty-three]

pages, [seven] pages originated with [the] DEA[,]” the ATF “referred [these seven pages] to

[the] DEA by letter dated February 7, 2000.” Id.; see also id., Ex. 11 (Letter from Averill P.

Graham, Disclosure Specialist, Bureau of Alcohol, Tobacco & Firearms, to Sally Myrick, DEA

12

FOIA Section, Drug Enf’t Admin. (Feb. 7, 2000)) at 1 (referring “seven pages . . . to [the DEA]

for [the DEA’s] disclosure determination and direct response to the” plaintiff). The remaining

“[sixteen] pages were processed by [the] ATF’s Disclosure Division” and “partially released [to

the plaintiff] by letter dated February 16, 2000[.]” Id.; see also id., Ex. 12 (Letter from Averill P.

Graham, Disclosure Specialist, Bureau of Alcohol, Tobacco & Firearms, to Elwood J. Cooper

(“Feb. 16, 2000 ATF Production”)) at 1 (stating that enclosed were “sixteen [ ] documents [that

had] been processed” and that “[r]edactions ha[d] been made pursuant to” Exemption 7(C), in

order to “redact the names and identifies of law enforcement officers and third parties[,]” and

pursuant to Exemption 2, in order “to redact computer codes and reference codes”). The letter

stated that the sixteen pages “were not retrievable by [the plaintiff’s] name or any identifier

provided in [the plaintiff’s] original FOIA request to [the] ATF.” Id., Ex. 12 (Feb. 16, 2000 ATF

Production) at 1.

The ATF also made “an inquiry . . . of Customs to ensure [that] no [Customs] agents

[had] provided documents to [the] ATF.” Id. After “Customs was able to locate an agent who

may have had contact with an ATF agent regarding the [p]laintiff[, t]he ATF agent performed a

manual search of his office’s records, locating one document that originated with [the] DEA[,]”

which “was referred to [the] DEA for processing by letter dated January 20, 2000.” Id.; see also

id., Ex. 10 (Letter from Averill P. Graham, Disclosure Specialist, Bureau of Alcohol, Tobacco, &

Firearms, to Kathy Myrick, Drug Enf’t Admin. FOIA Section (Jan. 20, 2000) (“ATF Jan. 20,

2000 Referral to DEA”)).

4. Customs’ Searches and Productions

“By letter dated May 3, 1999[,]” the plaintiff “requested ‘full disclosure and release of all

records and/or data contained in the files of [Customs,]’” specifically any information “under

[the plaintiff’s] name and [criminal] case[ number], or any identifier assigned to [his] name,”

13

Kramer Decl. ¶ 2, as well as, inter alia, records relating to the scope of Customs’ authority, see

id.; see also id., Ex. 1 (Plaintiff’s FOIA Request to Customs (“Pl.’s Customs FOIA Request”))

at 1–6 (requesting records related to (1) Customs’ authority for its agents “to use alias(es)

and[/]or pseudonym(s), weapons or firearm(s), ships, vessels, air[]crafts[,] and/or military

equipment[;] (2) Customs’ authority to “enter[] foreign territorial waters for the purpose of

mounting a narcotic operation concerning citizens of that foreign nation without approval of the

[g]overnment of that [nation;]” (3) the “geographical boundaries” of Customs’ authority; (4) the

“employment of Alfred Catena Junior, Special Agent, [and] Biran Arrandale[,] informant[,]

between 1988[ and ]1997[;]” and (5) the “check provided to Arrandale in the amount of

75,000.00 on behalf of” Customs).

Customs “acknowledged receipt of [the plaintiff’s] May 3, 1999[] FOIA and Privacy Act

request[.]” Id. ¶ 3. Having not received any further correspondence from Customs, “[b]y

letter . . . dated May 3, 2000, [the plaintiff] appealed Customs’ failure to respond to his

request[,]” and “agreed to modify or limit his request to [the following] three items in order to

expedite [ ] processing of his request[:]” (1) “records or report[s]” from “Customs [A]gent

Gambino [of the] Palm Beach branch” regarding the plaintiff’s “DEA and Customs case[,]” as

“implied in [a] document . . . described [by the plaintiff] as a ‘declaration’ by DEA [A]gent

Catena Jr.[;]” (2) “[i]nvestigation report[s] or records concerning [the plaintiff] conducted by [ ]

Customs Special [A]gent Hutchison while in Lake Worth[,] Florida [i]n June [ ] 1997, as

testified [to] by former Customs agent and now DEA agent Catena Jr.[;]” and (3) “suite on [ ]

Customs Case, Unite[d] [ ] States v. Alonso Gentry[,] Alfred Catena as lead Customs agent or

14

were publish[ed] in the Federal Register such as case number e[tc.]” 5 Id. ¶ 4 (underline added);

see also id., Ex. 3 (Freedom of Information P/A Appeal under title 5 U.S.C. § 552(6)(ii) (“Pl.’s

Customs FOIA Appeal”)) at 1–2.

On May 19, 2000, “Special Agent in Charge, Miami, Florida, Frank J. Figueroa[,]

advised John E. Eichelberger, the Director of Administration, Planning and Policy for the Office

of Investigations that a search of [TECS] records indicated that some of the records requested by

[the plaintiff] may be located with the [DEA] and [the United States Department of State (“]State

Department[”)].” Id. ¶ 6. “By letter dated September 5, 2000, [Gloria L.] Marshall[, Director of

FOIA/PA, Office of Administration, Planning and Policy for the Office of Investigations at

Customs,] referred [the plaintiff’s] request to Margaret Grafeld, the Acting Director for the

Office of [Information Resources Management] Programs and Services A/IM/IPF for the [State

Department], for that agency’s determination of disclosure and direct response concerning one

record that appeared in TECS.” Id. ¶ 10. “On the same date, [ ] Marshall [also] responded to

[the plaintiff directly], identifying four [ ] TECS records responsive to his request[,]” three of

which “were provided to [the plaintiff], with certain portions withheld pursuant to [FOIA]

exemptions . . . (b)(2) and (b)(7)(C)[,]” and “advis[ing the plaintiff] that any remaining records

pursuant to his request had been referred to the [State Department] for determination of

disclosure and direct response to him.” Id.

“By letter dated October 2, 2000, [the plaintiff] appealed [Customs’ determination

regarding the four TECS records,]” arguing that (1) “Customs had failed to address his request

5

In a subsequent letter dated May 29, 2000, the plaintiff once again requested that Customs consider only the three

requests submitted in his appeal. See Kramer Decl., Ex. 7 (Denial of Freedom of Information appeal ref: Initial

response (“Pl.’s May 29, 2000 Letter to Customs”)) at 2 (stating that “this notification comes as an alternative for

reduction of [the plaintiff’s] initial request in order to expedite processing, which now consist[s] only of two

investigative reports and a case suite United States v. Alonso Gentry” (underline added)).

15

for a copy or the case suite of . . . United States v. Alonso Gentry, or where it can be found in the

Federal Register[,]” (2) “as to the TEC[S] records and/or [their] authenticity, no specification

was made as to the identification of the responsive records or which records [were] referred to

the [State Department,]” and (3) Customs’ application of FOIA exemptions 2 and 7(C) was

incorrect because “the information sought was testified to in open court and not subject to

exemption.” Id. ¶ 11 (internal quotation marks omitted); see id., Ex. 11 (DIS 2-01 01: APP:

FOIA (“Pl.’s Oct. 2, 2000 Customs FOIA Appeal”)) at 1–2.

“By letter dated October 23, 2000,” Customs explained to the plaintiff that the “Miami

office had been directed to process his request as expeditiously as possible and was in the

process of redacting documents responsive to his request.” Id. ¶ 13. “By letter dated

February 5, 2001, John P. Clark, Special Agent in Charge, Miami[,] Florida, acknowledged [the

plaintiff’s] requests” and notified the plaintiff that Customs required “additional information so

that [it] could determine which reports” were responsive to the plaintiff’s request. Id. ¶ 15. By

“letter dated February 20, 2001,” the plaintiff “amended his request with regard to the Gentry

case to any information [that] Customs could provide[,] such as [the c]ourt [d]istrict, [s]tate or

[f]ederal jurisdiction, [or c]ourt docket number[.]” Id. ¶ 16. On June 13, 2001, “the Miami

Customs office responded to [the plaintiff’s] request, identifying 182 pages of [responsive]

documents” and stating “that Customs was thereby releasing” 179 pages only “in part (based

upon [FOIA] exemptions from disclosure (b)(2), (b)(7)(C), (b)(7)(D), and (b)(7)(E)), and three

pages . . . in full.” Id. ¶ 17. 6

6

Customs states that “those records which have been released: in full (3 pages), partially released (182 pages from

the Special Agent in Charge, New Orleans), and [3] pages from the Office of Investigations, Headquarters, (only one

page was withheld in its entirety), comprise all of the Customs records responsive to the plaintiff’s request.”

Kramer Decl. ¶ 30. However, in Customs’ Vaughn Index, it represents that 346 “total pages [were] found[,]”

154 “total pages [were] withheld in [their] entirety[,]” 189 “total pages [were] released in part[,]” and 3 “total pages

[were] released in [their] entirety.” Id., Ex. 20 (Customs Vaughn Index) at 9. In light of this discrepancy, the Court

(continued . . .)

16

5. The Executive Office for United States Attorneys’ and the United States Attorney’s

Office for the Southern District of Florida’s Searches and Productions

The plaintiff alleges that he submitted a FOIA request on May 3, 1999, to the United

States Attorney’s Office for the Southern District of Florida (the “United States Attorney’s

Office”). See Pl.’s Opp’n at 6. The defendants dispute that the United States Attorney’s Office

ever “receive[d] a FOIA request from [the plaintiff[.]” 7 Defs.’ Br. at 11 n.4; see Boseker Decl.

¶ 7 (stating that the plaintiff’s “name did not appear in [the] computer file system” maintained by

the Executive Office for United States Attorneys (the “Executive Office”) that tracks FOIA

requests received by the Executive Office or individual United States Attorney Offices).

However, once notified “[o]n or about June 20, 2006,” by defense counsel that the plaintiff “had

indicated [in this litigation] that ‘[the Justice Department]’ . . . had received and processed a

FOIA request from [the plaintiff] in 1999[,]” Boseker Decl. ¶ 6; see id., Ex. 1 (Pl.’s U.S. Att’y’s

Off. FOIA Request) at 1, 5 (seeking the “release of all record and/or data . . . under [the

plaintiff’s] name and [criminal] case, or any identifier assigned to [the plaintiff’s] name” or

related to the “employment of Alfred Catena Junior, Special Agent, [and] Biran Arrandale[,]

informant[,] between 1988[ and ]1997[,] acting as [a]gents of [ ] Customs”), the Executive

(. . . continued)

will require Customs to submit an additional declaration or Vaughn Index clarifying the reason for the apparent

discrepancy and confirming the total number of pages located, processed, withheld, released in part, and released in

full.

7

After defense counsel notified the Executive Office for United States Attorneys (the “Executive Office”) of the

plaintiff’s alleged request, the Executive Office “searched its own computer files, which would reveal by search

under the requester’s name the record of any FOIA [or Privacy Act] request made to [the Executive Office] during

the relevant time period and thereafter[.]” Boseker Decl. ¶ 7. However, the plaintiff’s “name did not appear in this

computer file system[.]” id. Moreover, the United States Attorney’s Office for the Southern District of Florida’s

“FOIA contact could not independently verify [the United States Attorney’s Office for the Southern District of

Florida’s] receipt of the alleged request letter in 1999, but believed that the letter was not apparently considered or

treated as a FOIA/[Privacy Act] request by the individual who read it, and thus had not forwarded it to [the

Executive Office] per [the] usual handling of such correspondence.” Id. ¶ 9. “Absent the [United States Attorney’s

Office] forwarding of th[e] letter, [the Executive Office] had no request from [the plaintiff.]” Id. (citing 28 C.F.R.

§ 16.3(a) (noting that a FOIA “request will be considered received as of the date it is received by the proper

component’s FOIA office”)).

17

Office, which handles FOIA requests on behalf of individual United States Attorney’s Offices,

initiated a search. 8 See id. ¶ 10 (noting that the Executive Office “opened a FOIA/[Privacy Act]

file in conjunction with [this] litigation, assigned it FOIA No. 06-2287, and asked the FOIA

contact for the [United States Attorney’s Office for the Southern District of Florida] to conduct a

search for all records pertaining to [the plaintiff] that might be maintained in its files”).

“By letter dated July 25, 2006,” Boseker Decl. ¶ 11, the Executive Office notified the

plaintiff that it had requested that the United States Attorney’s Office for the Southern District of

Florida “conduct a search[,]” id. ¶ 10. In the same letter, the Executive Office “advised [the

plaintiff] that a ‘Project Request,’ (i.e., a ‘very large request’), such as where an individual

sought all of his criminal records, could take up to nine months to process[,]” but that the

“time-frame might be lessened by . . . narrowing the scope [of the request.]” Id.; see id., Ex. B

(Letter from William G. Stewart II, Acting Asst. Dir., Exec. Off. for U.S. Attys. Freedom of

Info./Privacy Act Staff, to Elwood J. Cooper (July 25, 2006)) at 1. The Executive Office also

informed the plaintiff that, “by making this request[,] he had agreed to pay up to $25.00 in fees.”

Id.; see id., Ex. B (Letter from William G. Stewart II, Acting Asst. Dir., Exec. Off. for U.S.

Attys. Freedom of Info./Privacy Act Staff, to Elwood J. Cooper (July 25, 2006)) at 1.

By “letter dated September 28, 2006[,]” the Executive Office “notif[ied the plaintiff] that

[its] FOIA contact had estimated that to complete its search it would take an additional five hours

of search time ([in addition] to the two hours already expended at no charge),” resulting in an

8

Regardless of whether the Executive Office or the United States Attorney’s Office for the Southern District of

Florida received the plaintiff’s alleged May 3, 1999 FOIA request, the parties agree that the Executive Office and

the United States Attorney’s Office did not take any action on the request prior to defense counsel’s notifying the

Executive Office of the plaintiff’s allegations during this litigation. See Pl.’s Opp’n at 3 n.4 (arguing that the

Executive Office and United States Attorney’s Office for the Southern District of Florida “received [his] FOIA

request and failed to acknowledge its receipt or process [his] appeal thereof”); Defs.’ Br. at 11 n.4 (arguing that “the

[Executive Office] did not receive a FOIA request from [the plaintiff]” and “[b]ecause [the plaintiff] never perfected

a request with respect to [the Executive Office], it has not conducted a search or provided any records to him”).

18

“estimated fee of $140.00 ([five] hours billed at $28.00 per hour])[.]” Id. ¶ 12; see id., Ex. C

(Letter from William G. Stewart II, Acting Asst. Dir., FOIA & Privacy Act Staff, Exec. Off. for

U.S. Att’ys to Elwood J. Cooper (“Exec. Off. Sept. 28, 2006 Letter”)). Because the Executive

Office had already located “an estimated 10,500 pages of documents in the case involving more

than one defendant, [and] an as[-]yet[-]unknown quantity of pages to be located dealing with [the

plaintiff] himself[,]” it advised the plaintiff that “a fee larger than $25.00 was anticipated” and,

accordingly, “before going any further, he would need to agree to pay such anticipated fees[.]”

Id. It further informed the plaintiff that, “absent this agreement being received within [thirty]

days of the date of this letter” or the plaintiff “reformulat[ing] his request and possibly reduc[ing]

the anticipated fees to be incurred[,]” the plaintiff’s “file [would be] closed.” Id.

“On January 29, 2007,” the Executive Office “received a letter from [the plaintiff] dated

September 23, 2006[,]” which “sought to narrow his request to particular records or types of

records that might be in his file[.]” Id. ¶ 13; see id., Ex. D (Letter from Elwood J. Cooper to Mr.

Stewart, EOUSA/FOI/PA/Stewart II (Sept. 23, 2006) (“Pl.’s Sept. 23, 2006 Letter to Exec.

Off.”)). Specifically, the plaintiff limited his requests to (1) “documented proof [that]

corroborate[s] the testimony of [A]gent Catena that the DEA had gained the cooperation and had

received permission from the Bahamian Government on November 5, 1997, to allow its

DEA[-]controlled vessel legal entry into the Bahamas[;]” (2) “[c]opies of the two [Royal

Bahamian Police Force] reports dated November 11 and 12, 1997, as identified in” a record

released to the plaintiff as part of the DEA’s January 3, 2000 production; (3) “[t]he arrest

statement [that A]gent Catena . . . testified he had obtained from Glenroy Craig upon his

arrest[;]” (4) “Customs [A]gent[] Robert Gambino’s report documenting a serialized listing and

denominations of the mon[ie]s alleged to have been seized from Craig[;]” (5) “documentation of

19

mon[ie]s[ ](copies of checks, payment receipt[s], etc.) [that A]gent Catena testified were

reimbursed to Arrandale and Collins for their contribution [to] the DEA investigation” of the

plaintiff; (6) “[a] copy of the ‘chemist report’ refer[ring to] the cocaine seized in [the plaintiff’s

criminal] case[;]” (7) “[c]opies of those transcripts of the audio[-]recorded conversation between

[the plaintiff] and the DEA informants” that were allegedly “prepared by the government but [ ]

not submitted into evidence at [the plaintiff’s] trial[;]” and (8) “[r]ecord receipts of Treasury

Check(s) of Equitable Sharing Pr[o]ceeds of mon[ie]s paid out to the City of Delray Beach that

were sent out to the [United States Attorney’s Office for the Southern District of Florida] in 1998

and 1999.” Id., Ex. D (Pl.’s Sept. 23, 2006 Letter to Exec. Off.) at 2–3. Upon receipt, the

Executive Office “forwarded [the plaintiff’s] itemized . . . request to the [United States

Attorney’s Office for the Southern District of Florida]” and “[t]he FOIA contact resumed

searching for the specifically enumerated records among the afore-referenced large volume of

records.” Id. ¶ 14.

“On February 2, 2007,” the Executive Office “received a letter from [the plaintiff] dated

January 8, 2007,” id. ¶ 15, in which the plaintiff stated that he “agree[d] to pay all such fees[,]”

but also argued that because the “documents that have been located this far and the p[ro]cessing

thereof did not result [from his alleged May 3, 1999] FOIA request to [the Executive Office], but

rather . . . at the direction of [defense counsel] in” this case, “any costs associated with that

search should be submitted to the court” as part of a “motion for litigation costs[,]” id., Ex. E

(Letter from Elwood J. Cooper to Stewart, U.S. Dep’t of Just. (Jan. 8, 2007) (“Pl.’s Jan. 8, 2007

Letter to Exec. Off.”)) at 1–2.

“By letter dated April 10, 2007, [the Executive Office] notified [the plaintiff] that the

[United States Attorney’s Office for the Southern District of Florida] had completed its search

20

for the []specific documents[] requested [by the plaintiff], and that it had expended a total of

twenty-three and one[-]half hours in that effort[,]” resulting in a fee of $602.00. Id. ¶ 16. The

Executive Office advised the plaintiff that payment was required “within [thirty] days before [the

Executive Office] would take any further action respecting the processing of the[se] records[.]” 9

Id.

C. This Case

On September 28, 1999, the plaintiff initiated this lawsuit. See generally Complaint for

Declaratory and Injunctive Relief (“Compl.”), ECF No. 178-1. 10 On May 28, 2003, “Judge

Thomas Penfield Jackson, a former member of this Court, granted summary judgment to the

defendants after finding that they had ‘fully complied’ with their FOIA obligations in responding

to [the plaintiff’s] requests.” Cooper 2012, 890 F. Supp. 2d at 59 (quoting Memorandum and

Order at 3 (May 28, 2003) (Jackson, J.) (“Cooper 2003”)). The plaintiff appealed the ruling. See

Notice of Interlocutory Appeal, ECF No. 54. On April 2, 2004, prior to the Circuit’s disposition

of the plaintiff’s appeal, “the defendants discovered “three cashier’s checks used as evidence in

the plaintiff’s criminal trial[,]” which were responsive to the plaintiff’s FOIA request, “and

9

In their brief, the defendants assert that the “plaintiff failed to pay [the fee]” and, as a result, the Executive Office

“closed the matter in 2009[,]” Defs.’ Br. at 11 n.4, however, the declaration provided by the defendants does not

make such representations, see generally Boseker Decl.

10

In its preparation of this Memorandum Opinion, the Court discovered that it required access to certain filings that

pre-dated the Court’s ECF system and, accordingly, were not available via the Court’s electronic docket. Despite a

diligent search for the hard copies of the documents that were originally filed with the Court, the Court was unable

to locate the documents. Accordingly, the Court requested that the defendants provide the Court with copies of the

relevant documents. See Order at 1 (May 26, 2020), ECF No. 162 (requesting a copy of the documents cited in the

defendants’ consolidated brief); Order at 1 (August 26, 2021), ECF No. 177 (requesting a copy of the Complaint).

On August 27, 2021, the defendants filed copies of the Complaint and Answer. See Defendants’ Response to

August 26, 2021 Order at 1, ECF No. 178; id., Ex. 1 (Complaint for Declaratory and Injunctive Relief); id., Ex. 2

(Answer for Federal Defendants). The copy of the Complaint to which the Court refers in this Memorandum

Opinion is the copy that was filed by the defendants on August 27, 2021, in response to the Court’s August 26, 2021

Order.

21

promptly mailed copies [of the checks] to the plaintiff.” Cooper v. Dep’t of Just., No. Civ. A.

99-2513, 2005 WL 670296, at *1 (D.D.C. Mar. 22, 2005) (Urbina, J.) (“Cooper 2005”).

1. Cooper I

On June 17, 2004, the Circuit vacated Judge Jackson’s Order in Cooper 2003 and

remanded the case back to this Court. See Cooper v. Dep’t of Just., No. 03-5172, 2004 WL

895748, at *1–2 (D.C. Cir. Apr. 23, 2004) (per curiam) (“Cooper I”). The Circuit cited affidavits

provided by the defendants “detailing the searches they conducted and the FOIA exemptions that

[they had] applied[,]” including a declaration from the Marshals Service “stating that it had

conducted a search for [the plaintiff’s] records in its Southern District of Florida office, the

district to which [the plaintiff] directed his request, and in all locations that could reasonably be

expected to contain responsive documents.” Id. at *2. The Circuit concluded that this evidence

entitled the defendants to “a presumption that the [Marshals Service’s] search was adequate[,]”

however,

[the plaintiff] submitted countervailing evidence as to the adequacy of the

[Marshals Service’s] search, repeatedly pointing to cashier’s checks that had not

been produced. In support, [the plaintiff] cited the trial testimony of a DEA agent

stating that the cash seized in connection with [the plaintiff’s] criminal

prosecution was converted into cashier’s checks and sent to the [Marshals

Service]. Thus, contrary to the district court’s conclusion that [the plaintiff]

‘insists, without offering any proof, that other documents exist,’ [the plaintiff] did

offer such proof. Moreover, prior to the district court’s ruling on summary

judgment, [the defendants] indicated that they had not produced a copy of a check

that was transferred from the DEA to the [Marshals Service], and offered to

submit an additional declaration from [the Marshals Service] addressing it.

Id. at 2–3 (quoting Cooper 2003 at 2). The Circuit further rejected the defendants’ argument that

“they did not produce the cashier’s checks because [the plaintiff’s] FOIA request did not

specifically identify the checks[,]” underscoring that “the government has a duty to construe

FOIA requests liberally.” Id. at 3 (citing Nation Mag. v. U.S. Customs Serv., 71 F.3d 885, 890

(D.C. Cir. 1995)). Because the defendants had “not explained why” they had not located the

22

cashier’s checks during their searches in response to the plaintiff’s 1999 FOIA “request for all

records pertaining to his case[,]” the Circuit concluded that the defendants “ha[d] not rebutted

the evidence presented by [the plaintiff] that raised a substantial doubt as to the adequacy of the

[Marshals Service’s] search” and, “[a]ccordingly, summary judgment was not appropriate on this

issue.” Id.

2. Remand from Cooper I

On remand, Judge Jackson scheduled a status conference for July 13, 2004, see Notice of

Hearing (June 22, 2004), and the plaintiff filed a motion for leave to appear at the hearing

remotely due to his incarceration, which Judge Jackson denied, see Plaintiff’s Motion for Entry

of an Order to Appear Before the Court via Speaker Telephone or Other Remote Electronic

Means, and Request for Issuance of Subpoena at 1, ECF No. 61. At the July 13, 2004 status

conference, “[n]one of the parties appeared.” Cooper 2005, 2005 WL 670296 at *1. Relying on

the defendants’ representation at the rescheduled hearing on July 13, 2004, that “the cashier’s

checks in dispute had been turned over to the plaintiff,” Judge Jackson concluded that “no viable

claim [remained] in dispute” and “dismissed the case from the bench[.]” Id. Thereafter, the

plaintiff filed two motions seeking review of Judge Jackson’s July 13, 2004 Order dismissing the

case. See id. at 2. Judge Jackson subsequently retired, and the case was reassigned by the

Court’s calendar committee to Judge Ricardo M. Urbina, another former member of this Court.

Id. at 2. Judge Urbina ultimately denied both of the plaintiff’s motions, concluding that “[t]he

only material issue on remand from the [ ] Circuit—the location of the missing cashier’s

checks—was resolved when the defendant[s] discovered the checks and mailed them to the

plaintiff” and “[o]nce the checks were found, no issue in dispute remained and Judge Jackson

properly dismissed the case.” Id. at 3; see also Order at 1 (Mar. 3, 2005), ECF No. 66.

23

3. Cooper II

The plaintiff appealed again, see Notice of Appeal at 1, ECF No. 70, and, “while [the

plaintiff’s] second appeal was pending, the Marshals Service and the DEA ‘made [available to

the plaintiff] additional documents relating to the cashier’s checks[,]” which had “resulted from a

search by the [Marshals Service] for [the] cashier’s checks [conducted] in response to the

Circuit’s” Cooper I decision (“the 2005 production”), Cooper 2012, 890 F. Supp. 2d at 60

(internal quotation marks omitted). On December 28, 2005, the Circuit ordered that Judge

Jackson’s “July 13, 2004 [O]rder dismissing the case be vacated and the case remanded [again]

to the district court.” Order at 1, Cooper v. Dep’t of Just., No. 05-5093 (D.C. Cir. Dec. 28, 2005)

(“Cooper II”). The Circuit instructed that,

[o]n remand, the district court shall reevaluate the adequacy of the . . . Marshals

Service’s [ ] search for records in general, as [Cooper I] instructed. The

[Marshals Service’s] production during this appeal of additional records

responsive to [the plaintiff’s FOIA] request has not rendered this case ready for

summary appellate disposition because the production casts even more doubt on

the adequacy of the [Marshals Service’s] initial search. On remand, the district

court also shall address any challenges made by [the plaintiff] to the redactions

associated with this production.

Id.

4. Remand from Cooper II

On remand, Judge Urbina directed the parties to report the status of the case, see Min.

Order (Mar. 9, 2006), and on June 26, 2006, the plaintiff filed a motion for a discovery hearing,

see Plaintiff’s Objection to the Defendant’s Status Report Ex Parte and Motion for Discovery

Hearing and for Entry of an Order to Appear Before the Court via Video Conference at 1, ECF

No. 79. On February 15, 2007, Judge Urbina denied without prejudice the plaintiff’s motion for

a discovery hearing and set a briefing schedule for the defendants to file a renewed motion for

summary judgment, see Min. Order (Feb. 15, 2007), which was filed on April 27, 2007, see

24

Defs.’ Apr. 27, 2007 Mem. at 1, and fully briefed on December 4, 2007, see Plaintiff’s Cross-

Motion in Response to the Defendants’ Renewed Motion for Summary Judgment and Renewed

Motion to Supplement Preliminary Injunction and for Discovery and Hearing Thereon and to

Appear Therein via Video Conference at 1, ECF No. 93; Plaintiff’s Notice of Filing and Intent to

Rely in Opposition to Defendants’ Renewed Motion for Summary Judgment and to Permit

Limited Discovery at 1, ECF No. 96.

On March 26, 2008, Judge Urbina stayed the case to provide the plaintiff with the

opportunity to file “a statement of genuine issues of material fact,” which he had not included

with his filings in opposition to the defendants’ renewed motion for summary judgment. Order

at 1 (Mar. 26, 2008), ECF No. 94. On May 1, 2008—the deadline set by Judge Urbina for the

plaintiff to file his statement of genuine issues of material fact—the plaintiff filed a motion for an

extension of time to file his submission, see Plaintiff’s Motion for Enlargement of Time to File

Further Briefing at 1, ECF No. 95, and, on July 21, 2008, the plaintiff filed his submission, see

Plaintiff’s Notice of Filing and Intent to Rely in Opposition to Defendants’ Renewed Motion for

Summary Judgment and to Permit Limited Discovery at 1, ECF No. 96. On October 10, 2008,

Judge Urbina granted the plaintiff’s motion for an extension of time. See Min. Order (Oct. 1,

2008). On August 16, 2010, the plaintiff filed a notice of change of address, and on August 26,

2011, he filed a motion for leave “to supplement the pleadings” and for resolution of the

defendants’ renewed motion for summary judgment. See Plaintiff’s Motion for Leave of the

Court to File Supplemental Pleading and Compel Production of Documents at 1, ECF No. 98.

“On April 20, 2012, this case was randomly reassigned to the undersigned member of the

Court upon Judge Urbina’s retirement.” Cooper 2012, 890 F. Supp. 2d at 60. On May 8, 2012,

the Court issued an Order directing the parties to file updated consolidated submissions. See

25

Order at 1–2 (May 8, 2012), ECF No. 99. On July 26, 2012, the defendants filed their

consolidated brief, see Defendants’ Consolidated Opposition to Plaintiff’s Cross-Motion for

Summary Judgment and to Plaintiff’s Renewed Motion for Preliminary Injunction and Discovery

at 1, ECF No. 102, and on August 22, 2012, the plaintiff filed his reply, see Pl.’s Aug. 22, 2012

Reply at 1.

On September 11, 2012, the Court issued a Memorandum Opinion and Order, granting in

part and denying in part the defendants’ renewed motion for summary judgment and denying

without prejudice the plaintiff’s renewed cross-motion for summary judgment. See

Cooper 2012, 890 F. Supp. 2d at 65. The Court concluded that “the two issues identified by the

Circuit” in Cooper II—namely, (1) “the adequacy of the Marshals Service’s search for records in

general” and (2) “any challenges made by [the plaintiff] to the redactions associated with the

production of documents made by the Marshals Service” in its 2005 production— “were the only

issues that rendered ‘summary appellate disposition’ of the case inappropriate[.]” Id. at 60–61

(internal quotation marks and alterations omitted). Accordingly, the Court “deem[ed] it

appropriate to focus solely” on those two issues.” Id. at 60.

The Court then held that the Marshals Service “demonstrated that its search was

reasonable.” Id. at 64. However, the Court “deem[ed] it inappropriate at th[at] time to assess the

propriety of the Marshals Service’s invocation of Exemption 2” in support of the defendants’

redactions to documents in the 2005 production because the defendants had represented that they

would “file supplemental information regarding [their invocation of] Exemption 2” in light of the

Supreme Court’s decision in Milner v. Department of the Navy, 562 U.S. 562, 569 (2011). Id.

at 65. In Milner, the Supreme Court had “abrogated and narrowed the expansive interpretation

of [ ] Exemption 2 advanced by the . . . Circuit in Crooker v. Bureau of Alcohol, Tobacco, and

26

Firearms, 670 F.2d 1051, 1073 (D.C. Cir. 1981)[,]” and “because the Marshals Service ha[d]

invoked both Exemptions 2 and 7(C) as to several documents,” the Court ultimately “defer[red]

consideration of the Marshals Service’s invocation of both [E]xemption[]” 2 and

Exemption 7(C). Id. (emphasis in original). The Court therefore directed the defendants to file

status reports “discussing the progress of their re-review of withholdings in this case pursuant

[to] FOIA Exemption 2 in light of . . . Milner[.]” Order at 1 (Sept. 11, 2012), ECF No. 105.

On October 12, 2012, the plaintiff filed a motion for reconsideration, see Pl.’s

Oct. 12, 2012 Mot. at 1, and on April 1, 2013, the plaintiff filed a “motion in opposition to the

defendants’ status reports[,]” Pl.’s Apr. 1, 2013 Mot. at 1. On June 20, 2013, the Court denied

the plaintiff’s motions and set a briefing schedule for new cross-motions for summary judgment,

“focusing solely on the propriety of the redactions made to the additional documents produced to

the plaintiff in September 2005.” Order at 1 (June 20, 2013), ECF No. 119. Thereafter, the

parties filed new cross-motions for summary judgment, addressing the validity of the redactions

in the 2005 production. See Cooper 2016 at 28.

On March 14, 2016, the Court granted in part the defendants’ Second Summary

Judgment Motion and denied the plaintiff’s Second Cross-Motion for Summary Judgment. 11 See

id. at 46. The Court concluded that “the defendants properly invoked Exemptions 7(C), (D), and

(E) to justify their redactions . . . [, h]owever, the DEA ha[d] yet to sufficiently show that it has

released all the reasonably segregable material from [one particular document,] document 35.”

Id. at 44. Therefore, the Court “reserve[d] judgment on whether the DEA ha[d] released all

11

In Cooper 2012, the Court set forth its understanding of “why [ ] rulings on [the parties’ new cross-motions for

summary judgment] were not rendered” prior to 2016, noting the facts that (1) the case was administratively closed

by the Court on June 25, 2012, for reasons not reflected in the record and (2) “on October 2, 2013, the defendants

filed” a motion to stay the case in light of the lapse of appropriations, but failed to subsequently “notify the Court

that the lapse in appropriations had [ ] ended and that the stay should be lifted.” Cooper 2012, 169 F. Supp. 3d at 25

n.1.

27

reasonably segregable information from document 35 and require[d] the defendants to submit

supplemental briefing on this issue[,]” id., which the defendants filed on April 14, 2016, see

Defendants’ Supplemental Brief at 1, ECF No. 140. On June 8, 2016, the plaintiff filed a notice,

attaching “[t]hirty-nine[ Marshals Service] documents[ allegedly] referenced in paragraph 3 of

the Second Bordley declaration[,]” Pl.’s June 8, 2016 Notice at 1, and an additional motion for

summary judgment that argued that “the Court has committed clerical mistakes, oversights, and

omissions in its consideration of all the redactions associated with the” 2005 production, see Pl.’s

June 8, 2016 Mot. at 1.

On August 31, 2017, the Court granted in full the defendants’ second motion for

summary judgment and denied the plaintiff’s cross-motion for summary judgment, see Order at 8

(Aug. 31, 2017), ECF No. 145, resolving what it understood to be “the sole remaining issue [in

this case], i.e., the ‘redactions made to the additional documents produced to the plaintiff in

September 2005[,]’” Cooper 2016 at 28 (quoting Order at 10 (June 20, 2013), ECF No. 119).

5. Cooper III

On September 25, 2017, the plaintiff again filed a notice of appeal. See Notice of Appeal

at 1, ECF No. 146. On July 11, 2018, the Circuit once again remanded the case to this Court,

concluding that, “in light of the vacatur of the [Cooper 2003] judgment [in Cooper I], . . . the [ ]

Court to date has not addressed [either] the withholdings in records produced to [the plaintiff]

prior to the second appeal” or “whether the agencies other than [the Marshals Service] conducted

adequate searches for responsive records.” 12 Order at 2, Cooper v. U.S. Dep’t of Just.,

12

The Circuit’s prior decisions in Cooper I and Cooper II directed the Court to focus on the searches and

productions made by the Marshals Service. As previously explained, see supra Section I.C.1, the Circuit’s Cooper I

decision, in vacating Cooper 2003, held that the defendants had “not rebutted the evidence presented by the

[plaintiff] that raised a substantial doubt as to the adequacy of the [Marshal Service’s] search” and, “[a]ccordingly,

summary judgment was not appropriate on this issue.” Cooper I, 2004 WL 895748, at *2 (emphasis added). In

Cooper II, the Circuit similarly directed the Court to address only the Marshals Service’s search. See Cooper II at 1

(continued . . .)

28

No. 17-5219 (July 11, 2018) (per curiam) (“Cooper III”) (emphasis added). The Circuit directed

the Court to enter an “order addressing the remaining issues and stating the reasons for its

decision[,]” id. at 2, and ordered “that the record be remanded to [this C]ourt for further

proceedings consistent with [its] order[,]” id. at 1.

6. Remand from Cooper III & the Pending Motions

On July 16, 2018, the Court ordered the defendants to “file . . . a consolidated brief

addressing the two remaining unresolved issues in this case[, as described by the Circuit in

Cooper III]: [(1)] the withholdings in records produced to [the plaintiff] prior to [his] second

appeal and [(2)] whether the agencies other than [the Marshals Service] conducted adequate

searches for responsive records.” Order at 1 (July 16, 2018), ECF No. 152. On August 13,

2018, the defendants filed their consolidated brief, see Defs.’ Br. at 1. On September 19, 2018,

the plaintiff filed his opposition and motion for “summary judgment or discovery in his favor on

the grounds that [the defendants’] consolidated brief fails to address the issues of material facts

in genuine dispute for which the record of this case was remanded and held in abeyance[,]” Pl.’s

Opp’n at 1–2. On April 4, 2019, the plaintiff filed his motion for the Court to take judicial

notice, see Pl.’s Apr. 4, 2019 Mot. for Judicial Notice at 1, which the defendants opposed on

July 27, 2021, see Defs.’ Opp’n to Pl.’s Apr. 4, 2019 Mot. for Judicial Notice at 1. 13 On May 26,

(. . . continued)

(ordering that, “[o]n remand, the district court shall reevaluate the adequacy of the . . . Marshals Service’s [ ] search

for records in general” because “[t]he [Marshals Service’s] production during this appeal of additional records

responsive to [the plaintiff’s FOIA] request has not rendered this case ready for summary appellate disposition

[when] the production casts even more doubt on the adequacy of the [Marshals Service’s] initial search” and that,

“[o]n remand, the district court also shall address any challenges made by [the plaintiff] to the redactions associated

with this production[,]” i.e., the Marshals Service’s production (emphasis added)).

13

Because the plaintiff titled his motion for judicial notice the “Plaintiff’s Ex Parte Motion to the Court to Take

Judicial Notice of Record[,]” see Pl.’s Apr. 4, 2019 Mot. for Judicial Notice at 1, the Court docketed the motion ex

parte and the defendants, who accordingly were not alerted to the motion, did not file an opposition. However, in

the Court’s review of the case materials in the drafting of this Memorandum Opinion, it ascertained that, despite the

title of the motion, the plaintiff claimed to have served the defendants with a copy of the motion. See id. at 5

(continued . . .)

29

2020, the Court ordered the defendants to “submit to the Court [documents referenced in their

consolidated brief,]” Order at 1 (May 26, 2020), ECF No. 162, and the defendants filed their

submission of the referenced documents on July 31, 2020, see Defendants’ Notice of

Compliance with May 26, 2020 Order at 1, ECF No. 164. 14

On August 16, 2021, the plaintiff filed another motion for discovery. See Pl.’s Aug. 16,

2021 Mot. for Discovery at 1. In that motion, the plaintiff “requests leave and [an] exten[s]ion of

time to proffer as an offer of proof as to the inadequacy of the defendants’ searches and the

withholding of additional records in this case[.]” Id.

II. STANDARD OF REVIEW

“FOIA cases typically are resolved on a motion for summary judgment.” Ortiz v. U.S.

Dep’t of Just., 67 F. Supp. 3d 109, 116 (D.D.C. 2014) (citation omitted). The “FOIA requires

federal agencies to disclose, upon request, broad classes of agency records unless the records are

covered by the statute’s exemptions.” Students Against Genocide v. U.S. Dep’t of State,

(. . . continued)

(stating that the plaintiff “certif[ies] that a true and correct copy of the above and foregoing was sent by

U.S.[ ]mail[ ](postage prepaid) this 27th day of March, 2019, marked for delivery to” defense counsel).

Accordingly, the Court directed the parties to advise the Court as to whether the defendants had received a copy of

the motion and whether it should continue to be filed ex parte on the docket. See Order at 1–2 (June 24, 2021), ECF

No. 165. After being advised that the defendants had not received a copy of the motion, see Defendants’ Response

to the Court’s June 24, 2021 Order at 1, ECF No. 166 (stating that the “[d]efendants’ counsel did not receive [the

p]laintiff’s ex parte motion to take judicial notice of the record that is the subject of the Court’s June 24, 2021

Order”), and that the plaintiff had intended to serve the motion on the defendants, see Plaintiff’s Notice of

Compliance with the Court’s June 24, 2021 Order at 1, ECF No. 167 (“I hereby declare under penalty of perjury

that[,] on March 27, 2019[,] I cause[d] a copy of the original of [the motion] to be served via U.S.[ ]mail marked for

delivery to defendants’ counsel[.]”), the Court ordered the Clerk of the Court to file the plaintiff’s motion for

judicial notice on the public docket and directed the defendants to respond to the motion on or before July 27, 2021,

see Order at 2 (July 13, 2021), ECF No. 168. The defendants filed their opposition on July 27, 2021. See Defs.’

Opp’n to Pl.’s Apr. 4, 2019 Mot. for Judicial Notice at 1. Accordingly, even though the defendants’ opposition was

filed over two years after the filing of the plaintiff’s motion for judicial notice, it is deemed timely filed.

14

On November 12, 2019, the plaintiff filed a notice advising the Court that he had submitted a petition for a writ of

mandamus to the Circuit. See Plaintiff/Petitioner Elwood Cooper’s Notice of Service Process of Writ of Mandamus

to the D.C. Circuit Court of Appeals at 1, ECF No. 161. On September 21, 2020, the Circuit issued a per curiam

Order, denying the plaintiff’s petition. See Order at 1, In re Elwood J. Cooper, No. 19-5312 (D.C. Cir. Sept. 21,

2020) (per curiam). As the Circuit noted, in issuing this Memorandum Opinion and Order, the Court is “act[ing] as

promptly as its docket permits.” Id.

30

257 F.3d 828, 833 (D.C. Cir. 2001) (citing 5 U.S.C. § 552(a)(3)(A), (b)); see also Wash. Post Co.

v. U.S. Dep’t of Just., 863 F.2d 96, 101 (D.C. Cir. 1988) (citation omitted) (“[The] FOIA is to be

interpreted with a presumption favoring disclosure and exemptions are to be construed

narrowly.”). In a FOIA action, the defendant agency has “[the] burden of demonstrating that the

withheld documents are exempt from disclosure[.]” Boyd v. U.S. Dep’t of Just.,

475 F.3d 381, 385 (D.C. Cir. 2007). This burden “cannot be met by mere conclusory

statements.” Wash. Post Co., 863 F.2d at 101 (citation omitted). Rather, “[t]he agency may

meet this burden by filing affidavits describing the material withheld and the manner in which it

falls within the exemption claimed,” King v. U.S. Dep’t of Just., 830 F.2d 210, 217 (D.C.

Cir. 1987) (citations omitted), and by “show[ing] how release of the particular material would

have the adverse consequence that the [FOIA] seeks to guard against,” Wash. Post Co., 863 F.2d

at 101 (citation omitted).

Moreover, courts will grant summary judgment to the government in a FOIA case only if

the agency can prove “that it has fully discharged its obligations under the FOIA, after the

underlying facts and the inferences to be drawn from them are construed in the light most

favorable to the FOIA requester.” Friends of Blackwater v. U.S. Dep’t of Interior,

391 F. Supp. 2d 115, 119 (D.D.C. 2005) (quoting Greenberg v. U.S. Dep’t of Treasury,

10 F. Supp. 2d 3, 11 (D.D.C. 1998)). Thus, in a lawsuit brought to compel the production of

documents under the FOIA, “an 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[, or partially,] exempt [from disclosure].’” Students Against

Genocide, 257 F.3d at 833 (omission in original) (quoting Goland v. Cent. Intel. Agency,

607 F.2d 339, 352 (D.C. Cir. 1978)). “Even when [a] requester files a motion for summary

31

judgment, the [g]overnment ‘ultimately has the onus of proving that the [documents] are exempt

from disclosure[,]’” and “[t]he burden upon the requester is merely ‘to establish the absence of

material factual issues before a summary disposition of the case could permissibly occur.’” Pub.

Citizen Health Rsch. Grp. v. Food & Drug Admin., 185 F.3d 898, 904–05 (D.C. Cir. 1999)

(quoting Nat’l Ass’n of Gov’t Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978))

(alteration omitted).

In applying the above framework, the Court is mindful of the fact that the plaintiff is

proceeding in this matter pro se. This appreciation is required because the pleadings of pro se

parties are “to be liberally construed, and a pro se complaint, however inartfully pleaded, must be

held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,

551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). Furthermore, all factual

allegations by a pro se litigant, whether contained in the complaint or other filings in the matter,

should be read together in considering whether to grant a dispositive motion. See Richardson v.

United States, 193 F.3d 545, 548 (D.C. Cir. 1999). Nonetheless, “when faced with a motion for

summary judgment,” a pro se litigant “must comply with the Federal Rules of Civil Procedure

and this Court’s local rules . . . regarding responding to statements of material fact and

marshalling record evidence that establishes each element of his claim for relief[.]” Hedrick v.

Fed. Bureau of Investigation, 216 F. Supp. 3d 84, 93 (D.D.C. 2016) (citations omitted); see

McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e have never suggested that procedural

rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who

proceed without counsel.”).

32

III. ANALYSIS

In Cooper III, the Circuit instructed this Court to address two remaining issues in this

case: (1) “the withholdings in records produced to [the plaintiff] prior to the second appeal” and

(2) “whether the agencies other than [the Marshals Service] conducted adequate searches for

responsive records.” Cooper III at 1. The Court will address in turn (1) the parties’ dispute

related to the scope of the remand in Cooper III; (2) the plaintiff’s request to the Executive

Office; (3) the adequacy of the searches conducted by the agencies other than the Marshals

Service; (4) the withholdings in the records produced to the plaintiff prior to the 2005

production; and (5) the segregability of the withholdings in the records produced to the plaintiff

prior to the 2005 production.

A. The Scope of Cooper III

In light of the parties’ dispute regarding the scope of the remand from the Circuit in

Cooper III, see Pl.’s Opp’n at 2 n.2 (arguing that “[t]he defendants[,] in their consolidate[d]

brief[, are] attempting to construe and circumvent the directives of both this Court’s and the [ ]

Circuit’s [o]rder[s]”); Defs.’ Reply at 1–2 n.1 (arguing that “[p]articularly with respect to the

search issue, contrary to [the p]laintiff’s suggestion, [the d]efendants’ [c]onsolidated [b]rief

addresses the adequacy of searches for responsive records prior to 2005”), the Court will begin

by clarifying its understanding of the scope of the Circuit’s remand in Cooper III and,

accordingly, what it must address in this Memorandum Opinion.

In Cooper III, the Circuit stated the following:

In 1999, [the plaintiff] requested records relating to his arrest and

prosecution from the [ATF], the [DEA], the [Justice Department,]

[Customs], and [the Marshals Service]. The district court’s judgment [in

Cooper 2003] in favor of [the defendants] was vacated by this court [in

Cooper I]. Likewise, the district court’s order [in Cooper 2004]

dismissing the case was also vacated.

33

In granting summary judgment to the government following [Cooper II],

the district court confined its inquiry to considering only (1) whether [the

Marshals Service’s] search for records was adequate, and (2) whether the

withholdings pursuant to FOIA exemptions asserted in [the Marshals

Service’s] and [the] DEA’s [ ] 2005 [ ] productions were proper.

However, in light of the vacatur of [Cooper 2003], and as the government

has acknowledged in its district court filings, ‘the District Court to date

has not addressed the withholdings in records produced to [the plaintiff]

prior to [Cooper II]. Nor has the district court resolved whether the

agencies other than [the Marshals Service] conducted adequate searches

for responsive records. On remand, the district court may order the parties

to submit further briefing concerning the unresolved issues in this case.

The district court is requested to notify this court promptly upon the

issuance of an order addressing the remaining issues and stating the

reasons for its decision.

Cooper III at 1–2 (internal quotation marks and citations omitted). With these instructions, the

Circuit “ordered that the record be remanded to the district court for further proceedings

consistent with this order.” Id. at 1.

Therefore, according to the Circuit in Cooper III, there are two issues that remain

“unresolved”: (1) “the withholdings in records produced to [the plaintiff] prior to [Cooper II,]”

which is “unresolved” due to “the vacatur of [Cooper 2003;]” and (2) “whether the agencies

other than [the Marshals Service] conducted adequate searches for responsive records[,]” which

is “unresolved” due to “the vacatur of [Cooper 2003]” and the focus in Cooper II, Cooper 2012,

and Cooper 2016 on the 2005 production. 15 Id. at 1–2. Pursuant to the Circuit’s most recent

directive, the Court will address these two issues.

15

In his opposition, the plaintiff identifies three issues for the Court to address on remand: “(1) [t]he withholdings in

the records produced to [him] prior to the second appeal, (2) whether the agencies other than the [Marshals Service]

conducted adequate searches for responsive records, and (3) [whether] the parties [should be ordered] to submit

further briefing concerning the unresolved issues in this case[.]” Pl.’s Opp’n at 1. This appears largely to comport

with the defendants’ identification of the issues to be addressed on remand, namely:

(1) the withholdings pursuant to [FOIA] exemptions in records provided to [the] plaintiff prior

[his] appeal in 2005 [in Cooper II]; and (2) the adequacy of the searches conducted by all agencies

(continued . . .)

34

B. The Plaintiff’s Request to the Executive Office for United States’ Attorneys

The Court begins by considering the plaintiff’s contentions regarding the processing of

his alleged FOIA request made on May 3, 1999, to the United States Attorney’s Office for the

Southern District of Florida. 16 See Pl.’s Opp’n at 6; see also Boseker Decl., Ex. A (Pl.’s U.S.

Att’y’s Off. FOIA Request) at 1. The plaintiff argues that the United States Attorney’s Office

failed to respond initially to his FOIA request and, after it was advised of the plaintiff’s alleged

request by defense counsel, failed to process responsive pages that it located. See Pl.’s Opp’n

at 6.

(. . . continued)

that received the FOIA requests at issue in this case other than the . . . Marshals Service’s search

for records specifically relating to [the] cashier’s checks.

Defs.’ Br. at 1. Despite this apparent agreement, the plaintiff also argues that

[t]he defendants[,] in their consolidate[d] brief[, are] attempting to construe and circumvent the

directives of both this Court’s and the [ ] Circuit’s [o]rder[s] by addressing the withholdings

pursuant to exemptions in records provided to [the] plaintiff instead cited herein and on appeal,

and [sic] adequacy of the searches conducted by all agencies other than [the Marshal Service’s]

search for records specifically relating to cashier’s checks as oppose[d] to and adequate searches

for responsive records in general.

Pl.’s Opp’n at 2 n.2. The defendants contest the plaintiff’s characterization, arguing that, “[p]articularly with respect

to the search issue, contrary to [the p]laintiff’s suggestion, [the d]efendants’ [c]onsolidated [b]rief addresses the

adequacy of searches for responsive records prior to 2005.” Defs.’ Reply at 1–2 n.1.

As noted above, the Court understands the Circuit’s opinion to remand two issues for consideration to this Court:

(1) “the withholdings in records produced to [the plaintiff] prior to [Cooper II,]” and (2) “whether the agencies other

than [the Marshals Service] conducted adequate searches for responsive records[,]” Cooper III at 1–2. To the extent

that the Circuit also instructed that, “[o]n remand, the district court may order the parties to submit further briefing

concerning the unresolved issues in this case[,]” id. at 2, the Court has ordered the parties “to submit further

briefing” concerning these issues. See Order at 1 (July 16, 2018), ECF No. 152. Moreover, the Court concludes

that as to the issues resolved by the Court in Cooper 2012 and Cooper 2016, and the issues that were remanded in

Cooper III and that are addressed infra, no further “unresolved” issues remain. However, to the extent the parties

have raised additional issues that need to be addressed, the Court will also address them infra.

16

As noted above, see supra Section I.B.5, the defendants dispute that the Executive Office and the United States

Attorney’s Office for the Southern District of Florida ever “receive[d] a FOIA request from [the plaintiff[,]” Defs.’

Br. at 11 n.4. However, there is no dispute that, once the Executive Office was notified by defense counsel on

June 20, 2006, about the plaintiff’s claim in this litigation that he had submitted a request to the United States

Attorney’s Office for the Southern District of Florida, the Executive Office began to conduct a search for responsive

documents. Accordingly, the Court’s analysis in this section will focus on whether that search—as it was conducted

in 2006—was adequate.

35

In response, the defendants first argue that “[t]he absence of any allegation in the

[C]omplaint regarding a FOIA request made to [the Executive Office] or an individual [United

States] Attorney’s Office means that any claims about such a request should be outside the scope

of this action[,]” Defs.’ Reply at 6. According to the defendants, the plaintiff did not include any

alleged FOIA request to the Executive Office or a particular United States Attorney’s Office in

his Complaint. See Defs.’ Br. at 10 n.4 (arguing that, “[e]arlier in this litigation but not in [his

C]omplaint, [the plaintiff] claimed that he had also sent a FOIA request to the [Executive

Office]”); Defs.’ Reply at 6 (“The absence of any allegation in the [C]omplaint regarding a FOIA

request made to [the Executive Office] or an individual [United States] Attorney’s Office means

that any claims about such a request should be outside the scope of this action.”). The

defendants are correct that the plaintiff’s Complaint does not mention either a United States

Attorney’s Office or the Executive Office by name and does not specifically refer to a request to

the United States Attorney’s Office for the Southern District of Florida. See generally Compl.

However, the plaintiff’s Complaint does refer to a FOIA request submitted to the Justice

Department, see id. ¶ 1, of which the Executive Office is a “component[,]” Richardson v. U.S.

Dep’t of Just., 730 F. Supp. 2d 225, 229 n.1 (D.D.C. 2010). Cf. Boseker Decl. ¶ 6 (stating that,

“while naming other defendants as entities in his action, [the plaintiff] had indicated that ‘DOJ’

. . . had received and processed a FOIA request . . . in 1999” and, “[a]s such, [the Executive

Office] was considered to be a defendant in the above-captioned action, where such participation

had not been prior-noticed”). Moreover, according to the Boseker Declaration, once defense

counsel notified the Executive Office of the plaintiff’s allegations, it

opened a FOIA/[Privacy Act] file in conjunction with th[is] [ ] litigation, assigned

it FOIA No. 06-2287, and asked the FOIA contact for the [United States

Attorney’s Office for the Southern District of Florida] to conduct a search for all

36

records pertaining to [the plaintiff] that might be maintained in its files, pursuant

to his initial request letter.

Id. ¶ 10. Accordingly, in light of the liberal construction afforded complaints filed by pro se

plaintiffs; Boseker’s statement that the Executive Office “considered [itself] to be a defendant in

th[is] [ ] action[,]” id. ¶ 6; and the fact that the Executive Office subsequently conducted searches

in response to the plaintiff’s alleged FOIA request, see id. ¶ 10, the Court disagrees with the

defendants that the plaintiff’s FOIA request to the United States Attorney’s Office for the

Southern District of Florida should be considered “outside the scope of this action[,]” Defs.’

Reply at 6, at this stage of the litigation.

The defendants next argue that, to the extent the Executive Office began conducting a

search once it was advised of the plaintiff’s alleged request by defense counsel, see Boseker

Decl. ¶¶ 10–16, “summary judgment in favor of [the] defendants on a FOIA request to [the

Executive Office] would be appropriate based on [the p]laintiff’s multiple failures to exhaust his

administrative remedies by following the agency’s regulations to submit a request and pay the

associated fees.” Defs.’ Reply at 6. Indeed, under the FOIA, “a party [must] exhaust his

administrative remedies before seeking judicial review.” Skinner v. U.S. Dep’t of Just., 744 F.

Supp. 2d 185, 195 (D.D.C. 2010), overruled on other grounds by Milner, 562 U.S. 562 (2011).

“Exhaustion does not occur until the required fees are paid or an appeal is taken from the refusal

to waive fees.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 66 (D.C. Cir. 1990).

According to the Boseker Declaration, the Executive Office notified the plaintiff twice

that he would need to pay the fees associated with the processing of his FOIA request before the

Executive Office would complete its searches and processing of the requested documents. See

Boseker Decl. ¶¶ 12, 16. First, by letter dated September 28, 2006, the Executive Office advised

the plaintiff that he would “need to agree to pay [the] anticipated fees” before the Executive

37

Office would proceed with its searches and processing of records due to the “estimated [search]

fee of $140.00” and anticipated processing “fee larger than $25.00” in light of the “estimated

10,500 pages of documents” already located and “an as[-]yet[-]unknown quantity of pages to be

located dealing with [the plaintiff.]” 17 Id. ¶ 12. Second, on April 10, 2007, the Executive Office

sent the plaintiff “an advance fee letter, pursuant to 5 U.S.C. §[ ]552(a)(4)(A)(v) and 28 C.F.R.

§[ ]16.11(I), requiring payment of $602.00 within [thirty] days before [the Executive Office]

would take any further action respecting the processing of the records located in connection with

his request.” Id. ¶ 16.

In response to the Executive Office’s September 28, 2006 letter, the plaintiff stated that,

“without waiving [his] objection, [he] h[e]reby agree[s] to pay all such fees.” Id., Ex. E (Pl.’s

Jan. 8, 2007 Letter to Exec. Off.) at 2. However, in the same letter, the plaintiff stated that, “for

fee-notice purposes, [ ] the documents that have been located this far and the p[ro]cessing thereof

did not result [from the plaintiff’s] submi[ssion of] a FOIA request to [the Executive Office], but

rather by, and at the direction of[, defense counsel[,]” and, “[t]herefore, any costs associated with

that search should be submitted to the court through [defense counsel] to be determine[d] in the

defendant[s’] motion for litigation costs.” 18 Id., Ex. E (Pl.’s Jan. 8, 2007 Letter to the Exec. Off)

17

Under the FOIA and Justice Department regulations, the Executive Office was authorized in its

September 28, 2006 letter to require the plaintiff to agree to pay the fees prior to proceeding with its processing of

the requested records. See Chaplin v. Stewart, 796 F. Supp. 2d 209, 211 (D.D.C. 2011) (stating that the FOIA

permits an agency to “charge a requester reasonable fees for the search, review, and duplication of responsive

documents” (citing 5 U.S.C. § 552(a)(4)(A))), vacated as moot, No. 11-5252, 2015 WL 9309592 (D.C. Cir. 2015);

28 C.F.R. § 16.11(e) (1999) (stating that, “[i]n cases in which a requester has been notified that actual or estimated

fees amount to more than $25.00, the request shall not be considered received and further work shall not be done on

it until the requester agrees to pay the anticipated total fee”).

18

The Court notes that, if it accepted the plaintiff’s statement to the Executive Office that the search had been

initiated “at the direction of” defense counsel in this case, rather than in response to his FOIA request, see Boseker

Decl., Ex. E (Pl.’s Jan. 8, 2007 Letter to the Exec. Off.) at 2, it would also have to conclude that the plaintiff lacks

standing to challenge the Executive Office’s failure to search for and process the requested records, because

“standing under [the] FOIA is limited to the person who made the initial request[,]” Feinman v. Fed. Bureau of

Investigation, 680 F. Supp. 2d 169, 172 (D.D.C. 2010) (“[S]tanding under [the] FOIA is limited to the person who

(continued . . .)

38

at 2. Accordingly, the plaintiff’s letter is, at best, inconclusive as to whether he agreed to pay the

anticipated fees resulting from the processing of his FOIA request.

However, even if the plaintiff’s January 8, 2007 letter could be construed as an agreement

to pay the fees, there is no evidence in the record before the Court that, when the Executive

Office notified the plaintiff in its April 10, 2007 letter that it “require[ed] an advance payment of

$602.00 . . . before [it would] continue [ ] processing [his] request[,]” id., Ex. F (Exec. Off.

Apr. 10, 2007 Letter) at 1, the plaintiff paid the required advance fee. Under 28 C.F.R.

§ 16.11(i)(2)–(4) (1999), 19

[w]here a component [of the Justice Department] determines or estimates that a

total fee to be charged under this section will be more than $250.00, it may

require the requester to make an advance payment of an amount up to the amount

of the entire anticipated fee before beginning to process the request, except where

it receives a satisfactory assurance of full payment from a requester that has a

history of prompt payment.

...

In cases in which a component requires advance payment or payment due under

paragraph (i)(2) or (3) of this section, the request shall not be considered received

and further work will not be done on it until the required payment is received.

28 C.F.R. § 16.11(i)(2)—(4) (1999). Accordingly, because its search efforts had already resulted

in a fee of $602.00, see Boseker Decl. ¶ 16, the Executive Office was authorized to require that

the plaintiff pay the fee prior to continuing its search and processing of the requested records, see

(. . . continued)

made the initial request.”). However, because the plaintiff has not advanced this argument before this Court, the

Court will not consider it as a bar precluding his pursuit of this action.

19

The Court cites the 1999 version of 28 C.F.R. § 16.11(2)–(4), see 28 C.F.R. § 16.11(2)–(4) (1999), because that

was the version of the regulations in effect on April 10, 2007, when that the Executive Office informed the plaintiff

that he was required to pay the fee prior to completion of the search, see Boseker Decl., Ex. F (Exec. Off. Apr. 10,

2007 Letter) at 1. The provision was subsequently amended in 2015, see 80 Fed. Reg. 18,099–19,001 (Apr. 3,

2015), and 2017, see 82 Fed. Reg. 727 (Jan. 4, 2017), however, the provision still authorizes the Justice Department

to require a “commitment or designation in writing” from a requester that either (1) he or she will pay “the actual or

estimated total fee” or “some amount of fees the requester is willing to pay,” or (2) “in the case of a noncommercial

use requester who has not yet been provided with the requester’s statutory entitlements, . . . the requester seeks only

that which can be provided by the statutory entitlements[,]” 28 C.F.R. § 16.10.

39

28 C.F.R. §§ 16.11(i)(4) (1999) (providing that “further work will not be done . . . until the

required payment is received”).

Because the plaintiff does not argue that he paid the required fees, see generally Pl.’s

Opp’n, the Court concludes that the plaintiff has not demonstrated that he exhausted his

administrative remedies by paying the fees required by the FOIA and Justice Department

regulations. 20 See Oglesby, 920 F.2d at 66 (“Exhaustion does not occur until the required fees

are paid or an appeal is taken from the refusal to waive fees.”). Accordingly, the Court must

grant summary judgment to the defendants regarding the plaintiff’s alleged FOIA request to the

Executive Office and the United States Attorney’s Office for the Southern District of Florida.

See Hines v. United States, 736 F. Supp. 2d 51, 54 (D.D.C. 2010) (granting summary judgment

to the agency defendants because “the plaintiff ha[d] failed to exhaust his administrative

remedies”).

20

Under 5 U.S.C. § 552(a)(4)(A)(iii) and 28 C.F.R. § 16.11(k) (1999), a FOIA requester may seek a waiver or

reduction of fees if “disclosure of the information is in the public interest because it is likely to contribute

significantly to public understanding of the operations or activities of the government and is not primarily in the

commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii); see also 28 C.F.R. § 16.11(k)(1) (1999). Neither

the plaintiff’s September 23, 2006, see Boseker Decl., Ex. D (Pl.’s Sept. 23, 2006 Letter to Exec. Off.) at 1–3, nor

his January 8, 2007, see id., Ex. E (Pl.’s Jan. 8, 2007 Letter to Exec. Off.) at 1–2, letters to the Executive Office

explicitly addresses the requirements for a fee waiver specified in 28 C.F.R. § 16.11(k)(2) (1999). See 28 C.F.R.

§ 16.11(k)(2) (1999) (providing that, in order to determine whether disclosure “is likely to contribute significantly to

public understanding[,]” the agency “will consider[:]” (1) whether “[t]he subject of the requested records [ ]

concern[s] identifiable operations or activities of the federal government,” (2) whether the “disclosable portions of

the requested records” are “meaningfully informative about government operations or activities[,]” (3) whether the

disclosure “contribute[s] to the understanding of a reasonably broad audience of persons interested in the subject,”

and (4) whether “[t]he public’s understanding of the subject in question” would “be enhanced by the disclosure to a

significant extent”). As the Circuit has noted, although “fee-waiver applications are to be liberally construed in

favor of finding that requesters meet [the] FOIA’s two-prong test, requesters still must justify their entitlement to a

waiver of fees in reasonably specific and non-conclusory terms.” Nat’l Sec. Couns. v. U.S. Dep’t of Just., 848 F.3d

467, 473 (D.C. Cir. 2017) (internal quotation marks omitted). As the plaintiff’s letters do not present “reasonably

specific and non-conclusory” argument in favor of a fee waiver, the Court concludes that, even if the plaintiff had

requested a fee waiver in his letters, he did not present grounds sufficient to support the granting of a waiver.

40

C. The Adequacy of the Searches Conducted by Agencies Other than the Marshals

Service’s Search for Records Relating to the Cashier’s Checks

The Court next addresses the adequacy of the searches conducted by the defendants—

other than the Marshals Service—for records responsive to the plaintiff’s FOIA requests. 21 The

defendants argue that “[t]aking the [Marshals Service’s] search for cashiers checks separately,

the initial searches for responsive records [conducted by the defendants] were otherwise

reasonable and adequate because each agency used reasonable means to locate responsive

records in the agency’s investigative files.” Defs.’ Br. at 11. In response, the plaintiff raises

several challenges to the adequacy of the defendants’ searches, and the Court will discuss each of

the plaintiff’s challenges in turn.

“An agency fulfills its obligations under [the] FOIA if it can demonstrate beyond material

doubt that its search was reasonably calculated to uncover all relevant documents.” Valencia-

Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (internal quotation marks

omitted). “[C]ourt[s] appl[y] a reasonableness test to determine the adequacy of a search

21

On August 16, 2021, the plaintiff filed his most recent motion for discovery. See Pl.’s Aug. 16, 2021 Mot. for

Discovery at 1. As an initial matter, the plaintiff requests a seven-day extension nunc pro tunc for the filing of this

motion because of his delayed receipt of the defendants’ opposition to his motion for judicial notice and the Bureau

of Prisons’ COVID-19 protocol. See id. at 1 n.1. The defendants having opted not to oppose this request and the

Court perceiving no prejudice that would result from granting it, the Court will grant the plaintiff’s request for the

seven-day extension of time nunc pro tunc and consider the merits of the plaintiff’s request to conduct discovery.

Turning to the merits of the plaintiff’s request for discovery, the Court concludes that the plaintiff has not made an

adequate showing that discovery is warranted in this case. In FOIA cases, “[d]iscovery is only appropriate when an

agency has not taken adequate steps to uncover responsive documents[,]” Schrecker v. Dep’t of Just., 217 F. Supp.

2d 29, 35 (D.D.C. 2002) (citing SafeCard Servs., Inc. v. Secs. & Exchange Comm’n, 926 F.2d 1197, 1202 (D.C. Cir.

1991)), and is only permitted “where[, inter alia,] a ‘plaintiff has made a sufficient showing that the agency acted in

bad faith[,]’” Justice v. Internal Revenue Serv., 798 F. Supp. 2d 43, 47 (D.D.C. 2011). In his motion, the plaintiff

argues that (1) two declarations filed in his criminal case “regarding seized and forfeited cash [were] submitted in

bad faith” and (2) “[t]his Court has previously expressed its displeasure with [defense] counsel’s apparent lack of

candor[.]” Pl.’s Aug. 16, 2021 Mot. for Discovery at 2. However, to the extent that these arguments demonstrate

bad faith, they allege bad faith on the part of third parties, namely declarants in the plaintiff’s criminal case and

defense counsel, rather than bad faith on the part of the defendant agencies regarding his FOIA requests. Cf. In re

Clinton, 970 F.3d 357, 365 (D.C. Cir. 2020) (noting that “courts may order limited discovery where there is

evidence—either at the affidavit stage or (in rarer cases) before—that the agency acted in bad faith in conducting the

search” (emphasis added)). Accordingly, because the plaintiff raises no arguments in his motion for discovery “that

the [defendants] acted in bad faith[,]” id., in responding to his FOIA requests, see generally Pl.’s Aug. 16, 2021 Mot.

for Discovery, the Court will deny the motion to permit him to conduct discovery.

41

methodology, consistent with congressional intent tilting the scale in favor of disclosure[.]”

Morley v. Cent. Intel. Agency, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (internal quotation marks

and citations omitted). “This ‘reasonableness’ inquiry is necessarily ‘dependent upon the

circumstances of the case.’” Swick v. U.S. Dep’t of the Army, 471 F. Supp. 3d 246, 251

(D.D.C. 2020) (quoting Davis v. Dep’t of Just., 460 F.3d 92, 103 (D.C. Cir. 2006)). “The

question is not ‘whether there might exist any other documents possibly responsive to the

request, but rather whether the search for those documents was adequate.’” Steinberg v. Dep’t of

Just., 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. Dep’t of Just., 745 F.2d 1476,

1485 (D.C. Cir. 1984)) (emphasis in original). “The agency must show that it made a good faith

effort to conduct a search for the requested records, using methods which can be reasonably

expected to produce the information requested.” Valencia-Lucena, 180 F.3d at 326 (internal

quotation marks and alterations omitted). “The agency cannot limit its search to only one or

more places if there are additional sources that are likely to turn up the information requested.”

Id. (internal quotation marks omitted). “In a suit seeking agency documents . . . at the summary

judgment stage, where the agency has the burden to show that it acted in accordance with the

statute, the court may rely on a reasonably detailed affidavit, 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.” Chambers v. U.S. Dep’t of Interior, 568 F.3d 998, 1003

(D.C. Cir. 2009) (internal quotation marks omitted).

1. The Adequacy of the DEA’s Search for Responsive Records

The Court begins by addressing the adequacy of the DEA’s search. According to the

First Wassom Declaration, in response to the plaintiff’s FOIA request, the DEA searched its

“Investigative Records Filing System [(“IRFS”),]” which “contains administrative, general[,] and

investigative files compiled for law enforcement purposes[,]” and was the only location at the

42

DEA that “would reasonably contain information responsive to the plaintiff’s request.” Wassom

Decl. ¶ 19 (“No other location at [the] DEA would reasonably contain information responsive to

the plaintiff’s request”); see id. ¶ 20 (stating that the “IRFS contains administrative, general[,]

and all . . . investigative report files compiled for law enforcement purposes” (emphasis added)).

The DEA states that, within IRFS, any records responsive to the plaintiff’s request “would be

found in Criminal Investigative Case files,” which “contain reports on individuals suspected or

convicted of narcotics violations, reports of arrests, information on drug possession, sales[,] and

purchases by such individuals, and information on the transport of such drugs, either inside the

United States, or internationally, by such individuals.” Id. ¶ 21. Here, according to the DEA,

“[t]o retrieve investigative case files and reports related to the plaintiff, a DEA pre-processor

conducted a search of NADDIS,” the system by which “[i]nvestigative case files maintained in

IRFS are retrieved[,]” using the plaintiff’s “name, social security number, and date of birth.”

Id. ¶ 22.

The Court concludes that the First Wassom Declaration is entitled to the “presumption of

good faith” generally accorded to agency declarations. SafeCard Servs., Inc. v. Secs. & Exch.

Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991). The defendants have “provided a reasonably

detailed and non-conclusory declaration describing the contents and organization of the [IRFS,]”

Spurling v. U.S. Dep’t of Just., 425 F. Supp. 3d 1, 12 (D.D.C. 2019) (Walton, J.), as well as the

terms that the DEA used to conduct its search—namely, the plaintiff’s “name, social security

number, and date of birth[,]” Wassom Decl. ¶ 22. Moreover, the DEA represents that it searched

“all locations likely to contain responsive records[,]” Heffernan v. Azar, 317 F. Supp. 3d 94, 113

(D.D.C. 2018), because it searched the IRFS and “[n]o other location at [the] DEA would

reasonably contain information responsive to the plaintiff’s request[,]” Wassom Decl. ¶ 19.

43

In response, the plaintiff argues that the DEA’s search was inadequate because it did not

locate records related to the alleged forfeiture of two vehicles, a BMW and an Infiniti Q-45, and

additional United States Treasury checks. See Pl.’s Aug. 26, 2001 Mot. at 8; 22 see also Pl.’s

Apr. 4, 2019 Mot. for Judicial Notice 23 at 3 (arguing that documents provided by the plaintiff

“clearly evidence at the least withholding of additional seizure and forfeiture documents by [the]

DEA and [the Marshals Service] relat[ed] to the BMW and the Infinit[i] Q-45”).

22

In light of (1) the fact that the issues before the Court on remand from Cooper III are the same issues that were

briefed for this Court initially, (2) the length of time since these issues were first presented to the Court, (3) the

mandate to construe the pro se plaintiff’s filings liberally, and (4) the plaintiff’s incorporation of his prior arguments

in his opposition, see Pl.’s Opp’n at 2 n.3 (“request[ing] leave [to] rel[y] on [enumerated] submissions and exhibits

previously filed in this case”), the Court will consider not only the arguments presented in the plaintiff’s filings

submitted after Cooper III, but also the pertinent arguments presented in his earlier filings.

23

For the following reasons, the Court will deny the plaintiff’s motion for the Court to take judicial notice of the

documents attached to his motion, i.e., the declarations from Agent Ray Catena, Jr., and Vicki L. Rashid; the

documentation regarding the forfeiture of U.S. currency; and the records from a private Florida company,

Secure-All of Florida, Inc., showing “the receipt, maintenance, cost and disposition of [a] 1998 BMW 735I[,]” Pl.’s

Apr. 4, 2019 Mot. for Judicial Notice, Ex. 1 at 56. See id.; see also id., Ex. 1. As noted above, see supra note 1, the

plaintiff’s motion for judicial notice predominantly amounts to a cross-motion for summary judgment and, although

the plaintiff briefly states that he “moves the Court to take judicial notice of records to aid the Court’s decisional

process[,]” including certain “declarations and [p]ublic [a]uction records relat[ed] to the cashier’s checks and certain

withholdings in records that had not been produced to [the plaintiff] . . . prior to the second appeal of this case[,]”

Pl.’s Apr. 4, 2019 Mot. for Judicial Notice at 1, he presents no argument or case law to support that request. See

generally id. Moreover, as the defendants correctly note, see Defs.’ Opp’n to Pl.’s Apr. 4, 2019 Mot. for Judicial

Notice at 1–2, the plaintiff has already placed copies on the docket of all of the documents appended to his motion

for judicial notice. Compare Pl.’s Apr. 4, 2019 Mot. for Judicial Notice, Ex. 1 (Catena Decl.) at 1–5, with Plaintiff’s

Notice of Clarification of Belated Filing of Plaintiff’s Cross-Motion in Response to the Defendants’ Renewed

Motion for Summary Judgment and Notice of Disclosure in Support of Plaintiff’s Cross-Motion and Motion to

Leave to [Acc]ept Belated Filing Thereof, Ex. 2 (Catena Decl.), ECF No. 91-2. Compare Pl.’s Apr. 4, 2019 Mot. for

Judicial Notice, Ex. 1, at 6–54 (Rashid Decl.; U.S. currency forfeiture documents), with Pl.’s Sept. 13, 2013 Cross-

Mot., Ex. 1, at 1–48 (same). Compare Pl.’s Apr. 4, 2019 Mot. for Judicial Notice, Ex. 1, at 55–70 (Secure-All of

Florida documents), with Pl.’s Opp’n, Ex. 2 (Tab G), at 108–22 (same). Thus, this issue is moot because the

documents have already been brought to the Court’s attention and the Court will therefore deny the plaintiff’s

motion for judicial notice.

During the pendency of this case, the plaintiff has on several occasions re-filed documents that were previously

submitted to the Court and asked the Court to take judicial notice of documents that are already on the Court’s

docket. See, e.g., Pl.’s Apr. 4, 2019 Mot. for Judicial Notice; Pl.’s July 11, 2016 Mot. at 1 (asking the Court to “take

judicial notice of the record” and providing a list of specific docket entries). The Court has reviewed the

already-voluminous record in this case and all of the docket entries, including, inter alia, the documents attached to

the plaintiff’s motion for judicial notice. Neither the re-submission of documents already on the docket nor the

submission of additional filings identifying prior docket entries assists the Court in expeditiously resolving the

remaining issues in this case. Therefore, the Court will direct the plaintiff to refrain from (1) re-filing any

documents or submissions that were previously placed on the docket or (2) filing any submission having the sole

purpose of identifying documents already on the docket, absent an instruction from the Court to do so.

44

“If an agency has made a prima facie showing of the adequacy of its search, [a] FOIA

requester bears the burden of overcoming this presumption of good faith by ‘provid[ing]

countervailing evidence as to the adequacy of the agency’s search.’” DaVita Inc. v. U.S. Dep’t

of Health & Hum. Servs., 2021 WL 980895, at *5 (D.D.C. Mar. 16, 2021) (quoting Iturralde,

315 F.3d at 315). “If the plaintiff provides ‘sufficient evidence to raise substantial doubt

concerning the adequacy of the agency’s search,’ particularly when there are ‘well[-]defined

requests and positive indications of overlooked materials,’ summary judgment is inappropriate.”

Cooper 2012, 890 F. Supp. 2d at 61–62. Moreover, when “a FOIA requester points to ‘evidence

that would indicate that at the time the agency searched its files there was reason to believe that

the missing documents were in those files[,]” DaVita, Inc., 2021 WL 980895, at *6 (quoting Ctr.

for Biological Diversity v. Bureau of Land Mgmt., Civ. A. No. 17-1208 (BAH), 2021 WL

918204, at *7 (D.D.C. Mar. 9, 2021)) (alterations omitted), “the agency must explain those holes

in the record, such that the Court is able to ascertain if the agency has explained the absence of

the responsive records from the results of the search,” id. (citations and alterations omitted).

However, “in the absence of countervailing evidence or apparent inconsistency of proof,

affidavits that explain in reasonable detail the scope and method of the search conducted by the

agency will suffice to demonstrate compliance with the obligations imposed by the FOIA.”

Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). And, because “particular documents may

have been accidentally lost or destroyed, or a reasonable and thorough search may have missed

them[,]” when an agency “fails to find an identified record or set of records through an

otherwise-adequate search[,]” it need only explain “‘why the record systems that it queried were

the only ones likely to contain’ the requested records and ‘why it was unlikely that there were

45

additional files’ or locations ‘that could contain’ the records.’” DaVita, Inc., 2021 WL 980895,

at *7 (quoting Aguiar v. Drug Enf’t Admin., 865 F.3d 730, 739–40 (D.C. Cir. 2017)).

In support of his claims that the DEA’s search did not account for the forfeiture records

he references, the plaintiff first provides documentation from a private Florida company,

Secure-All of Florida, Inc., showing “the receipt, maintenance, cost and disposition of [a] 1998

BMW 735I[,]” Pl.’s Opp’n, Ex. 2 (Tab G) at 108. 24 See id., Ex. 2 (Tab G) at 110–22. These

records show that a BMW seized by the DEA, see id., Ex. 2 (Tab G) at 118, associated with case

number G8-97-0100, see id., Ex. 2 (Tab G) at 110, was received by Secure-All of Florida on

May 18, 1998, see id., Ex. 2 (Tab G) at 108, and was sold “at a public auction[] on

November 30, 1999[,]” see id., Ex. 2 (Tab G) at 108.

The plaintiff also identifies records reflecting an agreement between the West Palm

Beach Police Department and the DEA for the West Palm Beach Police Department to receive

ten percent of $24,210.00 in United States currency due to its participation in “a multi-agency

[DEA-]sponsored narcotics task force located in Palm Beach, Florida[.]” Pl.’s Aug. 26, 2011

Mot., Ex. 1 at 2. See id., Ex. 1 (Application for Transfer of Federally Forfeited Property) at 1–2

(reflecting an application filed by the West Palm Beach Police Department to obtain ten percent

of the proceeds from the forfeiture of $24,210.00 in United States currency); id., Ex. 1 (Equitable

Sharing Memorandum) at 3 (reflecting that a check totaling $2,406.60 was delivered to the DEA

in order for it to be transferred to the West Palm Beach Police Department); id., Ex. 4 (Letter

from William J. Mitchell, Special Agent in Charge, Asset Forfeiture Section, Drug Enf’t Admin.,

24

The plaintiff organized the documents attached to his opposition by tabs labeled Tab A through Tab J, and he

refers to the material by the corresponding tab letter. However, the Court’s ECF system has sorted these tabs into

two—rather than ten—exhibits. See Pl.’s Opp’n, Ex. 1 (Tabs A through C); id., Ex. 2 (Tabs C through J).

Accordingly, for ease of reference, the Court will (1) use the automatically generated page numbers assigned by the

Court’s ECF system; (2) refer in the text to the documents included in the tabs by ECF number and page number,

e.g., ECF No. 156-1 page 10; and (3) cite the documents by referring to both the exhibit number and tab letter, e.g.,

Pl.’s Opp’n, Ex. 1 (Tab A) at 1; id., Ex. 2 (Tab D) at 1.

46

to Lieut. Ron Sowers, W. Palm Beach PD (May 22, 1998)) at 1 (referring to a “[s]haring

[r]equest filed with the [DEA]” by the West Palm Beach police department, “seeking equitable

distribution” of “$24,210.00 [in] U[nited ]S[tates] Currency”); id., Ex. 4 (Letter from Michael F.

Kane, Acting Special Agent in Charge, Miami Field Div., Drug Enf’t Admin., to Chief of Police

Ric Bradshaw, W. Palm Beach Police Dep’t (Aug. 28, 1999)) at 3 (stating that the DEA is

“forward[ing] to [the West Palm Beach police department]” a “United States Treasury Check[]”

for $2,406.60”); id., Ex. 4 at 5 (reflecting a United States Treasury check addressed to the West

Palm Beach police department, “seeking equitable distribution” of “$24,210.00 [in United

States] Currency”); id., Ex. 4 (Letter from Michael F. Kane, Acting Special Agent in Charge,

Miami Field Div., Drug Enf’t Admin., to Chief of Police Ric Bradshaw, W. Palm Beach Police

Dep’t (Aug. 28, 1999)) at 3 (stating that the DEA is “forward[ing] to [the West Palm Beach

police department]” a “United States Treasury Check[]” for $2,406.60”); id., Ex. 4 at 5

(reflecting a United States Treasury check addressed to the West Palm Beach Police Department

in the amount of $2,406.60). The plaintiff argues that these records demonstrate that “there are

additional [ ] U[nited ]S[tates] Treasury checks and correspondence relating to those checks,” as

well as “additional ATFFP[ 25] and [equitable sharing memoranda] relating to the BMW and

Infinity Q-45 that have yet to be disclosed[,]” Pl.’s Aug. 26, 2011 Mot. at 8 (citations omitted).

Although “[i]n certain circumstances, . . . a court may place significant weight on the fact

that a records search failed to turn up a particular document in analyzing the adequacy of a

records search[,]” Lamb v. Millennium Challenge Corp., 228 F. Supp. 3d 28, 36 (D.D.C. 2017)

(internal quotation marks omitted), the Court concludes that such circumstances are not present

25

The Court is unaware of the name that the acronym “ATFFP” references and the plaintiff does not provide the full

name in his filings. Accordingly, the Court will construe the plaintiff’s argument as asserting that there are

additional documents pertaining to the seizure and forfeiture of the two vehicles that were not located by the

defendants.

47

here. First, the plaintiff has provided no “countervailing evidence” of the existence of records

regarding an Infiniti Q-45. See generally Pl.’s Aug. 26, 2011 Mot.; Pl.’s Opp’n. Accordingly,

the plaintiff’s speculative assertions that the defendants should have located such records fail to

demonstrate that any records related to an Infiniti Q-45 “likely existed at the time of the search.”

Lamb, 228 F. Supp. 3d at 36.

Regarding the BMW and the Treasury checks, the Court agrees with the plaintiff that

these records tend to suggest that the DEA would possess some records regarding the forfeiture

of the BMW and the issuance of Treasury checks to the additional agencies that participated in

the task force that conducted the criminal investigation of the plaintiff. In regards to the BMW,

the case number listed on the Secure-All of Florida records, G8-97-0100, see id., Ex. 2 (Tab G)

at 110, matches a case number related to the plaintiff’s name, see id., Ex. 1 (Tab A) at 12 (listing

the “[f]ile [n]umber” as “G8-97-0100” and the “[f]ile [t]itle” as the plaintiff’s name), which

suggests that the forfeiture of the BMW was related to the plaintiff’s criminal case. Regarding

the Treasury checks, the issuance of a check to the West Palm Beach Police Department pursuant

to the equitable sharing memorandum, see Pl.’s Aug. 26, 2011 Mot., Ex. 1 at 5 (reflecting

issuance of a check addressed to the West Palm Beach Police Department in the amount of

$2,406.60 pursuant to an equitable sharing memorandum related to the seizure of $24,210 in the

case number associated with the plaintiff’s case), and the statement in the records from the West

Palm Beach Police Department that it was “part of a multi-agency [DEA-]sponsored narcotics

task force[,]” consisting of a total of nine agencies, which had an “agreement . . . that each

agency would share equally in the distribution of forfeited items[,]” id., Ex. 1 at 2, suggest that

the other agencies in the task force also received such checks, about which some record would

likely exist.

48

However, to the extent that the records provided by the plaintiff constitute

“countervailing evidence[,]” Iturralde, 315 F.3d at 315, the DEA has adequately “explain[ed]

those holes in the record” and “the absence of the responsive records from the results of [its]

search,” DaVita, Inc., 2021 WL 980895, at *7 (citations and alterations omitted). Although the

First Wassom Declaration does not address why the DEA’s search failed to identify any

forfeiture records associated with either the BMW or additional Treasury checks, see generally

Wassom Decl., the DEA submitted a supplemental declaration supporting the adequacy of its

search in light of the plaintiff’s allegations that its initial search was inadequate, see generally

Supp. Wassom Decl. The Wassom Supplemental Declaration states that the “DEA retrieves

asset forfeiture records using the [Justice Department] Consolidated Asset Tracking System[,]”

id. ¶ 31, which differs from the IRFS system that was allegedly initially searched in response to

the plaintiff’s FOIA request, see Wassom Decl. ¶ 22. The DEA further states that, “[f]or [the]

DEA to retrieve asset forfeiture records, either the DEA Asset Forfeiture Seizure Number, or the

asset name, DEA investigative case file number[,] and/or the date of the seizure is required[,]”

Supp. Wassom Decl. ¶ 31, but “[t]he plaintiff failed to provide the information in his initial

request to locate asset forfeiture records or specifically request asset forfeiture records in his

initial request to [the] DEA[,]” id. ¶ 32; see Wassom Decl., Ex. A (Pl.’s DEA FOIA Request)

at 1–5. To the extent that the plaintiff provided his name, alias, date of birth, criminal case

docket number, and passport number in his FOIA request, see id., Ex. A (Pl.’s DEA FOIA

Request) at 1, the DEA represents that “[n]o system exists, to which [the] DEA has access, to

retrieve asset forfeiture records by an individual’s name or personal identifier” and, “[t]hus, the

records were not and could not be located during the initial DEA search[,]” Supp. Wassom Decl.

¶ 32.

49

The Wassom Supplemental Declaration also addresses why the DEA’s initial search may

have failed to discover additional non-forfeiture records that were responsive to the plaintiff’s

request. The DEA states that it “does not maintain dossier[-]type files[,]” and therefore, because

the plaintiff “is mentioned in five [ ] separate investigative case files with numerous drug and

non-drug exhibits[,]” the DEA did not locate a file “unless the plaintiff’s name is specifically

mentioned in block 9 of the DEA Form 7 or DEA 7a.” Id. ¶ 33. However, the DEA states,

“[w]here it was clear that the information contained in a document related to the plaintiff, the

document was processed and, where appropriate, released to the plaintiff.” Id.

According to the DEA, even to the extent that it may have “liberally construed” the

plaintiff’s FOIA request to pertain to forfeiture records, “[n]o system exists, to which [the] DEA

has access, to retrieve asset forfeiture records by an individual’s name or personal identifier.”

Id. ¶ 32. Accordingly, based on the information provided by the plaintiff in his FOIA request,

see Wassom Decl., Ex. 1 (Pl.’s DEA FOIA Request) at 1–5, any forfeiture records pertaining to

either the BMW or additional Treasury checks, to the extent they exist, “could not [have] be[en]

located during the initial DEA search[,]” Supp. Wassom Decl. ¶ 32. Moreover, in light of the

plaintiff’s failure to argue that he provided any information to the defendants that would have

resulted in the discovery of records related to the forfeiture of the BMW, see Pl.’s Aug. 26, 2011

Mot.; Pl.’s Opp’n, the Court concludes that the DEA has sufficiently “explained the absence of

the responsive records from the results of the search,” DaVita, Inc., 2021 WL 980895, at *7. 26

26

The plaintiff also argues that a declaration filed in his criminal case by Vicki L. Rashid, “the Acting Forfeiture

Counsel of the [DEA,]” see Rashid Decl. ¶ 4, “serves a[s] proof th[at] both [the] DEA and [the Marshals Service]

knew or should have known of the vehicle forfeitures . . . as early as March 7, 2002, when [the plaintiff] provided

this [C]ourt with [the] Rashid[ D]eclaration[,] which identified the DEA case and CATS identification numbers

in[ ]which all of the seized items from [the plaintiff] were kept[,]” Pl.’s Sept. 13, 2013 Cross-Motion at 4. To the

extent that the plaintiff is challenging the adequacy of the Marshals Service’s search, the Court already addressed

that issue in Cooper 2012 and, accordingly, will not address it again here. See Cooper 2012, 890 F. Supp. 2d at 64

(concluding that “the Marshals Service’s search may not have been perfect, but it has now demonstrated that its

(continued . . .)

50

As “the adequacy of a FOIA search is generally determined not by the fruits of the

search, but by the appropriateness of the methods used to carry out the search[,]” Iturralde,

315 F.3d at 315, the Court declines to fault the DEA for allegedly failing to locate records that

could not have been located with the information it was provided. Accordingly, the Court

concludes that the DEA’s search for records responsive to the plaintiff’s FOIA request was

adequate. 27

2. The Adequacy of the ATF’s Search for Responsive Records

According to the Chambers Declaration, “[i]n an attempt to locate records responsive to

[the p]laintiff’s request, [the] ATF searched the [TECS,]” because “[a]ny responsive record

(. . . continued)

search was reasonable”). To the extent that this argument also challenges the adequacy of the DEA’s search, the

Court concludes that the argument is not relevant to the issues currently before the Court. The question now before

the Court is whether the defendants have “offered [an] explanation as to why an adequate search of the [DEA’s]

records in response to [the plaintiff’s] 1999 FOIA request would not have . . . produced[,]” Cooper I at 2 (emphasis

added), any allegedly missing records, not whether a hypothetical additional search in response to information in the

Rashid Declaration, submitted by the plaintiff in March 2002, would have located any such documents. Although

the Court acknowledges that “it is well settled in this Circuit that the subsequent production of responsive

documents can remedy inadequate searches[,]” People for the Ethical Treatment of Animals, Inc. v. Bureau of

Indian Affs., 800 F. Supp. 2d 173, 179 (D.D.C. 2011), the plaintiff fails to identify—and the Court has been unable

to find—any case law supporting the proposition that agencies are obligated to conduct additional searches based on

new information provided by a plaintiff during litigation, particularly when the agency’s initial search was adequate.

See Nolen v. Dep’t of Just., 146 F. Supp. 3d 89, 95 (D.D.C. 2015) (concluding that the “additional search that the

[agency] voluntarily undertook” in response to information provided “for the first time in the Complaint . . . does not

compel the [agency], without more, to run searches as to every new piece of information contained in a complaint”).

Accordingly, the Court disagrees with the plaintiff that the additional information he provided to the DEA after he

submitted his 1999 FOIA request demonstrates that the DEA did not conduct an adequate search in response to that

request.

27

The plaintiff also argues that “[t]he fact[s] that the DEA[’s and Marshals Service’s] release[s] clearly do[] not

disclose[] the U[nited ]S[tates ]Treasury [c]hecks or even mention the letters evidence withholdings of at least an

additional [thirty-two] such letters and [twenty-four] U[nited ]S[tates ]Treasury checks by the DEA and [the]

Marshals Service relating to the [c]ashier’s checks.” Pl.’s Apr. 4, 2019 Motion at 3. This argument appears to

challenge the DEA’s and Marshals Service’s release of additional records to the plaintiff in the 2005 production.

However, the Court has already concluded that the DEA and the Marshals Service released all reasonably segregable

information regarding the documents that were produced in 2005. See Cooper 2016, 169 F. Supp. 3d at 32, 44

(concluding that the DEA and the Marshals Service, “with one minor exception, . . . have adequately shown that

they disclosed all non-exempt portions of the documents at issue[,]” but “reserv[ing] judgment on whether the DEA

has released all reasonably segregable information from document 35”); Order at 3 (Aug. 31, 2017), ECF No. 145

(subsequently concluding that “the defendants have released to the plaintiff all reasonably segregable information

contained in” document 35). Accordingly, the adequacy of the DEA’s and the Marshals Service’s search that led to

the 2005 release to the plaintiff is not one of “the unresolved issues in this case[,]” Cooper III at 2, that the Court

must address in this Memorandum Opinion.

51

pertaining to a criminal case in [the] ATF’s computerized filing systems would be retrievable in

[the] TECS.” Chambers Decl. ¶ 10. The ATF states that, “[w]hen there are no ATF

investigations, [its] Disclosure Division[,]” which is responsible for processing FOIA requests

made to the ATF, “cannot know which, if any, ATF office in the United States may have a

record[,]” “without additional information provided by the requester.” Id. According to the

ATF, when it conducted its initial search of [the] TECS in response to “the identifiers supplied

by [the p]laintiff[,]” “no ATF-responsive records were located.” Id. ¶ 11.

The ATF further states that, after the plaintiff (1) “filed a complaint and a summary

judgment motion with exhibits” as part of the litigation process which “provided additional

names of individuals related to his case[,]” (2) “stated that [it] had seized a gun[,]” and (3) “made

an allegation that the [DEA] and [Customs] forwarded documents to [it] regarding Biran

Arrandale[,]” it undertook additional efforts to retrieve any responsive records. Id. ¶ 9.

Regarding the plaintiff’s allegation that it had received documents from Customs, the ATF made

“an inquiry . . . of Customs” that resulted in Customs “locat[ing] an agent who may have had

contact with an ATF agent regarding the [p]laintiff.” Id. After “[t]he ATF agent performed a

manual search of his office’s records,” he “locat[ed] one document that originated with [the]

DEA[,]” which “was referred to [the] DEA for processing[.]” Id. Regarding the additional

names provided by the plaintiff, the “ATF [ ] made an inquiry into the individual’s name” and

“located a file under this other individual’s name that contained information about a firearm

[that] was transferred from [the] DEA to [the] ATF.” Id. Because the ATF “determined [this

file] to be relevant to the [p]laintiff’s FOIA request and [his] reference to a seizure of a gun in his

[s]ummary [j]udgment [m]otion[,]” the “file, which totaled [twenty-three] pages, was

processed.” Id.

52

The Court concludes that, despite the efforts taken by the ATF, it has not provided

sufficient information to demonstrate that its search was adequate. Regarding the ATF’s search

of TECS, the ATF states that, “[u]sing the identifiers supplied by [the p]laintiff at the initial

request stage, [it] . . . conducted a subject query in TECS II[,] but no ATF-responsive records

were located[,]” id. ¶ 11, however, it does not provide any information about which “identifiers

supplied by [the p]laintiff” were used, see generally id. “Without a complete list of the search

terms used in response to [a] FOIA request, the Court is unable to conclude that [the agency’s]

search was adequate.” Walston v. U.S. Dep’t of Def., 238 F. Supp. 3d 57, 65 (D.D.C. 2017)

Regarding its searches in response to the information provided by the plaintiff during

litigation, the ATF does describe at least some methods employed in its search in response to the

additional information provided by the plaintiff. See, e.g., Chambers Decl. ¶ 9 (stating that the

ATF agent “performed a manual search of his office’s records”). However, as to other methods,

the ATF does not provide the requisite level of detail. For example, although the ATF represents

that it “made an inquiry into the individual’s name provided in the [p]laintiff’s [s]ummary

[j]udgment [m]otion [e]xhibits[,]” id., it provides no indication as to either the type of “inquiry”

it made or as to which individual’s name—out of the multiple “additional names of individuals

related to his case” that were provided by the plaintiff—was searched, see id. See Kean v. Nat’l

Aeronautics & Space Admin., 480 F. Supp. 2d 150, 157 (D.D.C. 2007) (concluding that

“documents and declarations [we]re inadequate to satisfy [the] defendant’s burden at summary

judgment because they fail[ed] to ‘describe in any detail what records were searched, by whom,

and through what process[]’” (quoting Steinberg v. U.S. Dep’t of Just., 23 F.3d 548, 552 (D.C.

Cir. 1994)).

53

Moreover, the Chambers Declaration also fails to provide any statement that, in response

to this additional information provided by the plaintiff during this litigation, the ATF searched all

places where responsive records were reasonably likely to be found. See Heffernan, 317 F.

Supp. 3d at 113 (noting that a declaration in a FOIA case must “provide the requisite averment

that all locations likely to contain responsive records were searched” (internal quotation marks

omitted)). Accordingly, the Court cannot conclude, based on the Chambers Declaration, that the

ATF’s search for information responsive to the plaintiff’s original requests was adequate, and

will direct the ATF to submit a supplemental declaration or additional Vaughn Index information

regarding its search.

3. The Adequacy of Customs’ Search for Responsive Records

In support of the adequacy of Customs’ search, the Kramer Declaration states that “[t]he

usual and standard procedure in locating investigatory records pertaining to individuals and

commercial entities is to conduct a search through [TECS,]” which, as explained above, is “a

computer[-]based telecommunications system containing investigative information pertaining to

individuals, businesses, vehicles, and aircraft” that “serves as an index to all Customs

investigative records.” Kramer Decl. ¶ 22. Customs states that, “by entering the name of the

subject of interest, TECS will reference all of the case and file numbers, and denote the

[r]egions, districts, or offices in which the records are maintained[,]” as well as “locate[] any

records relating to things associated with the subject[,] such as aircraft, vessels, businesses, and

vehicles.” Id. In response, the plaintiff argues that Customs’ declaration and Vaughn Index are

inadequate because they “do[] not [ ] describe the type of search conducted, the search terms

used, or whether its files were [ ] searched with regards to it[s] release.” Pl.’s Aug. 22, 2012

Reply at 14. The Court agrees with the plaintiff.

54

Although the Kramer Declaration discusses the TECS and the materials that a search in

the TECS usually retrieves, see Kramer Decl. ¶ 22, it does not, at any point, definitively state that

Customs conducted a search in the TECS in response to the plaintiff’s FOIA request to Customs,

let alone provide the necessary discussion about “the method and scope of its search,” Spurling

v. U.S. Dep’t of Just., 425 F. Supp. 3d 1, 10 (D.D.C. 2019) (Walton, J.), required by the FOIA.

See generally Kramer Decl.; id., Ex. 20 (Customs Vaughn Index). Although the defendants are

correct that agency declarations are “accorded a presumption of good faith[,]” SafeCard Servs.,

Inc., 926 F.2d at 1200; see Defs.’ Br. at 11, the Court cannot speculate as to the specifics of the

searches that were conducted when the declaration itself does not provide any information to that

effect. Accordingly, the Court cannot agree with the defendants that Customs “searched for

records using the [TECS,]” Defs.’ Br. at 12, or that the Kramer Declaration “establish[es] the

reasonableness and adequacy of [Customs’] initial searches[,]” id. at 14, and will direct Customs

to submit an additional supplemental declaration or Vaughn Index information regarding its

search in response to the plaintiff’s FOIA request. See Lamb, 228 F. Supp. 3d at 36–37

(concluding that, “where the evidence raised questions about the adequacy of the search and the

agencies’ affidavits failed to provide sufficient detail to put those questions to rest[,] . . . the

proper recourse is for the Court to require a more exhaustive account of the [ ] search” (internal

quotation marks omitted)).

D. The Withholdings in Records Produced Prior to the Plaintiff’s 2005 Appeal

Turning now to the withholdings in the records produced prior to the plaintiff’s 2005

appeal, the defendants represent that there are five productions to the plaintiff at issue: (1) a

sixteen-page production to the plaintiff on February 16, 2000 by the ATF; (2) a thirteen-page

production on January 3, 2000 by the DEA; (3) a sixty-one-page production on August 21, 2001

55

by the DEA; (4) a 182-page production on June 13, 2001 by Customs; and (5) a fifty-page

production on July 7, 1999, by the Marshals Service. See Defs.’ Br. at 2. The plaintiff does not

appear to raise any challenge to the withholdings in the ATF’s February 16, 2000 production or

the Marshals Service’s July 7, 1999 production, see generally Pl.’s Opp’n, but does challenge

(1) the DEA’s January 3, 2000 production, see id. at 3–4; (2) the DEA’s June 25, 2001

production, see id. at 4; and (3) Customs’ June 13, 2000 production, see id, as well as the

withholding of eight pages that were referred by the ATF to the DEA, see id. The Court will

consider each of the exemptions claimed by the defendants in turn.

1. Exemption 3

Exemption 3 excludes from compelled disclosure matters that are “specifically exempted

from disclosure by statute.” 5 U.S.C. § 552(b)(3). Under this exemption, the defendants need

only show that the statute claimed qualifies as a withholding statute and “that the withheld

material falls within the statute.” Larson v. U.S. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir.

2009). A statute falls under the purview of Exemption 3 only if it “requires that the matters be

withheld from the public in such a manner as to leave no discretion on the issue,” “establishes

particular criteria for withholding[,] or refers to particular types of matters to be withheld.”

Morley v. Cent. Intel. Agency, 508 F.3d 1108, 1125 (D.C. Cir. 2007).

a. The ATF’s Application of Exemption 3

The defendants represent that the “ATF applied Exemption 3 in conjunction with [the]

Consolidated Appropriations Act of 20[05 28] to protect certain firearms trace information.”

28

In their consolidated brief, the defendants argue that the “ATF applied Exemption 3 in conjunction with [the]

Consolidated Appropriations Act of 2012 to protect certain firearms trace information.” Defs.’ Br. at 4 (emphasis

added). They later argue, in a footnote, that “[t]he amendment to Exemption 3 contained in the OPEN FOIA Act of

2009, Pub. L. No. 111-83, 123 Stat. 2142, 2184, that requires statutes enacted after its enactment to cite Exemption 3

specifically in order to qualify under Exemption 3 does not apply because [the] ATF is relying on appropriations

legislation passed in 2005.” Id. at 5. It is unclear to the Court how the defendant could both “appl[y] Exemption 3

(continued . . .)

56

Defs.’ Br. at 4; see Boucher Decl. ¶¶ 28 (attesting that the ATF “withheld information located on

the trace reports” under “Exemption 3”). Pursuant to the Consolidated Appropriations Act

of 2005,

no funds appropriated under this or any other Act with respect to any fiscal year

may be used to disclose part or all of the contents of the Firearms Trace System

database maintained by the National Trace Center of the [ATF] or any

information required to be kept by licensees pursuant to [§] 923(g) of title 18,

United States Code, or required to be reported pursuant to paragraphs (3) and (7)

of such [§] 923(g), to anyone other than a Federal, State, or local law enforcement

agency or a prosecutor solely in connection with and for use in a bona fide

criminal investigation or prosecution and then only such information as pertains

to the geographic jurisdiction of the law enforcement agency requesting the

disclosure and not for use in any civil action or proceeding other than an action or

proceeding commenced by the [ATF], or a review of such an action or proceeding

. . . and all such data shall be immune from legal process[.]

Consolidated Appropriations Act of 2005, Pub. L. No. 108–447, 18 Stat. 2809, 2859. Variations

of this language have since appeared in subsequent appropriations acts. See Abdeljabbar v.

Bureau of Alcohol, Tobacco, & Firearms, 74 F. Supp. 3d 158, 173 (D.D.C. 2014) (Walton, J.)

(noting that “[i]terations of [this same] language . . . have appeared in each of the consolidated

appropriations acts [from] at least 2005” to 2012).

According to the ATF, “[t]he portions of the two pages withheld-in-part pursuant to

Exemption [3] are part of a firearms [t]race [r]eport wholly derived from the contents of the

Firearms Trace System [d]atabase referenced in [the Consolidated Appropriations Act of 2005].”

Boucher Decl. ¶ 35. The ATF further represents that these “[t]race [r]eports are based [on] and

derived from information required to be kept by a Federal Firearms Licensee [ ] pursuant to . . .

§ 923(g).” Id. Therefore, under the plain language of the Consolidated Appropriations Act

(. . . continued)

in conjunction with [the] Consolidated Appropriations Act of 2012[,]” id. at 4, and “rely[ only] on appropriations

legislation passed in 2005[,]” id. at 5. Therefore, the Court will assume for the purposes of its analysis that the

defendants indeed intend to “rely[ only] on appropriations legislation passed in 2005[,]” namely, the Consolidated

Appropriations Act of 2005.

57

of 2005, the ATF is prohibited from disclosing this information because it represents both

“part . . . of the contents of the Firearms Trace Systems database” and “information required to

be kept by licensees pursuant to [§] 923(g)[.]” 18 Stat. at 2859. Accordingly, the Court

concludes that this information is properly withheld pursuant to Exemption 3. See Abdeljabbar,

74 F. Supp. 3d at 176 (concluding “that the . . . language [in the Consolidated Appropriations

Act] continues to satisfy the requirements of FOIA’s Exemption [3], and may be invoked by the

ATF to withhold the trace information”).

b. The State Department’s Application of Exemption 3

According to the State Department, to whom Customs referred one document, see

Grafeld Decl. ¶ 4, it applied Exemption 3 to withhold information that “relates directly to the

issuance or refusal of a visa or permit to enter the United States in a specific case.” Id. ¶ 8. The

State Department represents that this “information, therefore, is required to be withheld under

[Exemption 3].” Id.

As the defendants correctly note, see Defs.’ Br. at 9, this Circuit has held that

8 U.S.C. § 1202(f) “expresses Congress’ belief that information pertaining to visa issuances and

denials should be kept from the public[,]” and, accordingly, “Exemption 3 . . . precludes [a FOIA

requester] from circumventing that congressional directive by the use of a FOIA request.”

Medina-Hincapie v. Dep’t of State, 700 F.2d 737, 744 (D.C. Cir. 1983). Accordingly, the Court

concludes that the State Department properly withheld information related to “the issuance or

refusal of a visa or permit to enter the United States in a specific case[,]” Grafeld Decl. ¶ 8,

pursuant to Exemption 3.

2. Exemption 7

Exemption 7 prohibits the disclosure of

58

records or information compiled for law enforcement purposes, but only to the

extent that the production of such law enforcement records or information

(A) could reasonably be expected to interfere with enforcement

proceedings, . . . (C) could reasonably be expected to constitute an unwarranted

invasion of personal privacy, (D) could reasonably be expected to disclose the

identity of a confidential source, including a State, local, or foreign agency or

authority or any private institution which furnished information on a confidential

basis, and, in the case of a record or information compiled by criminal law

enforcement authority in the course of a criminal investigation or by an agency

conducting a lawful national security intelligence investigation, information

furnished by a confidential source, (E) would disclose techniques and procedures

for law enforcement investigations or prosecutions, or would disclose guidelines

for law enforcement investigations or prosecutions if such disclosure could

reasonably be expected to risk circumvention of the law, or (F) could reasonably

be expected to endanger the life or physical safety of any individual[.]

5 U.S.C. § 552(b)(7). Therefore, “Exemption 7 protects from disclosure ‘records or information

compiled for law enforcement purposes,’ but only to the extent that disclosure of such records

would cause [one of Exemption 7’s] enumerated harm[s.]” Lewis v. U.S. Dep’t of Just., 867 F.

Supp. 2d 1, 18 (D.D.C. 2011) (Walton, J.) (quoting id.). The Court begins its analysis by

addressing whether the defendant agencies have adequately demonstrated that the requested

records were “compiled for law enforcement purposes,” 5 U.S.C. § 552(b)(7), and then will turn

to whether the defendants have demonstrated that “the production of such law enforcement

records[,]” id., would result in any of Exemption 7’s “enumerated harm[s,]” Lewis, 867 F. Supp.

2d at 18.

a. Whether the Documents Were “Compiled for Law Enforcement

Purposes”

“To show that the disputed documents were compiled for law enforcement purposes, [an

agency] need only establish a rational nexus between [an] investigation and one of the agency’s

law enforcement duties and a connection between an individual or incident and a possible

security risk or violation of federal law.” Blackwell v. Fed. Bureau of Investigation¸646 F.3d 37,

40 (D.C. Cir. 2011). “With respect to the threshold requirement of showing that the disputed

59

records were compiled for law enforcement purposes, courts ‘are more deferential to the

agency’s claimed purpose for the particular records’ when ‘the agency’s principal function is law

enforcement,’ and will ‘scrutinize with some skepticism the particular purpose claimed’ when

‘the agency has mixed law enforcement and administrative functions.’” Codrea v. Bureau of

Alcohol, Tobacco, Firearms & Explosives, 239 F. Supp. 3d 128, 132 (D.D.C. 2017).

Here, each of the defendant agencies—Customs, the DEA, the Marshals Service, and the

ATF—are law enforcement agencies, whose “principal function is law enforcement[,]” id. See

id. (recognizing that “the ATF is a criminal and regulatory law enforcement agency” (internal

quotation marks omitted)); Griffin v. Exec. Off. for U.S. Att’ys, 774 F. Supp. 2d 322, 326

(D.D.C. 2011) (recognizing that the Marshals Service has “statutory law enforcement

responsibilities related to the execution of federal arrest warrants[,] the investigation of fugitives,

[and] the [transport and maintenance] of federal prisoners from . . . their arrest [to final

disposition]” (internal quotation marks omitted)); Lewis, 867 F. Supp. 2d at 18 (noting “the

DEA’s investigative jurisdiction derived from the Comprehensive Drug Abuse Prevention and

Control Act of 1970, 21 U.S.C. § 801, et seq., and corresponding authority to investigate

incidences involving the trafficking in controlled substances” (internal quotation marks and

alterations omitted)); Parker v. U.S. Immigr. & Customs Enf’t, 238 F. Supp. 3d 89, 99 (D.D.C.

2017) (concluding that the threshold requirement has been met when the “records . . . were

compiled as part of a criminal investigation by . . . Customs” and the defendant “characterize[d]

his FOIA request as seeking [ ] records pertaining to [Customs’] prior criminal investigation of

[the p]laintiff”). The Court therefore concludes that the agencies’ “claimed purpose for the [ ]

records” is entitled to deference. Codrea, 239 F. Supp. 3d at 128.

60

Moreover, the plaintiff sought “records under the FOIA related to his arrest and

prosecution[,]” Pl.’s Opp’n at 2, which are quintessential “law enforcement records within the

scope of Exemption 7[,]” Lewis, 867 F. Supp. 2d at 18. Indeed, the defendants confirm that the

information in the records they located was compiled for law enforcement purposes. See Defs.’

Br. at 5 (asserting that “[a]ll of the information located by [Customs] was compiled for law

enforcement purposes[,]” “[t]he same is true for [the] DEA and [the Marshals Service,]” and the

“ATF also located responsive information in its criminal investigative files”). Furthermore, the

declarations submitted by the defendants represent that (1) Customs withheld documents

“compiled for law enforcement purposes” because “the entire case file pertains to criminal

investigation, apprehension[,] and prosecution[,]” Kramer Decl. ¶ 21; (2) “[a]ll [of] the

responsive information [located by the DEA in response] to the plaintiff’s request is

investigatory data compiled for law enforcement purposes[,]” Wassom Decl. ¶ 24; (3) the

Marshals Service “compiled [the records] pursuant to its law enforcement responsibilities” and

“asserted [E]xemption 7(c) to withhold the names of federal law enforcement officers[,]”

Graham Decl. ¶ 7; and (4) “the [ATF] records responsive to [the plaintiff’s] FOIA request were

located in a third[-]party criminal file[,]” Boucher Decl. ¶ 21. The plaintiff has failed to respond

to these contentions and makes no argument that Exemption 7 does not apply. See generally

Pl.’s Opp’n.

Given the content of the plaintiff’s requests, coupled with the clear law enforcement

nature of the defendant agencies and the plaintiff’s failure to make any argument to the contrary,

the Court concludes that the defendants have satisfied the threshold showing that the relevant

records are law enforcement records for purposes of Exemption 7. The Court will now address

61

whether the production of the records “would cause [one of the] enumerated harm[s]” in

Exemption 7, Lewis, 867 F. Supp. 2d at 18.

b. Exemption 7(C)

Exemption 7(C) protects from disclosure information in law enforcement records that

“could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

5 U.S.C. § 552(b)(7)(C). “To determine whether disclosure could reasonably be expected to

constitute an unwarranted invasion of personal privacy for purposes of Exemption 7(C),” the

Court “must balance the privacy interests that would be compromised by disclosure against the

public interest in release of the requested information.” 29 Roth v. U.S. Dep’t of Just., 642 F.3d

1161, 1173 (D.C. Cir. 2011) (internal quotation marks omitted).

i. The Marshals Service’s Withholdings Pursuant to Exemption 7(C)

According to the Marshals Service, it produced two batches of documents to the plaintiff

from which it withheld information pursuant to Exemption 7(C): (1) “[i]n response to [the]

plaintiff’s initial request, . . . the [Marshals Service] located [twenty-four] pages of documents

pertaining to the plaintiff[,]” Bordley Supp’l Decl. ¶ 3, and “released [twenty pages] in full, and

four pages . . . with limited exempt information excised and withheld pursuant to

[Exemption 7(C),]” Graham Decl. ¶ 6; and (2) “[eighty-three] pages of documents . . . approved

for disclosure to [the] plaintiff, with the exception of administrative markings and [the] names of

[Marshals Service] employees and third-party individuals[,] which were exempt from disclosure

29

In a filing made on June 26, 2006, the plaintiff refers in passing to an argument that “the standard articulated

under FOIA exemption (b)(7)(C) or any other FOIA exemption does not, and should not have been[,] applied to his

personal phone and rental information” in records kept by the DEA and Customs, how

This text is long and has been trimmed here. Open the source document for the complete record.