Ewell v. United States Department of Justice Criminal Division , 153 F. Supp. 3d 294 ( 2016 )


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  •                                UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    ERIC EWELL,
    Plaintiff,
    Civil Action No. 14-495 (RDM)
    v.
    U.S. DEPARTMENT OF JUSTICE,
    Defendant.
    MEMORANDUM OPINION AND ORDER
    Eric Ewell, who is proceeding pro se in this matter, was charged in the Western District
    of Pennsylvania with conspiracy to distribute and to possess with intent to distribute heroin in
    violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(i). While awaiting trial, Ewell filed a
    request with the United States Department of Justice under the Freedom of Information Act
    (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, seeking documents regarding
    the wiretap the government used to obtain evidence disclosed to Ewell during discovery in his
    criminal case. When the Justice Department declined to produce any responsive records or to
    expedite his administrative appeal, Ewell brought this action under FOIA and the Privacy Act.
    Before the Court are the government’s motion for summary judgment, Dkt. 12, and
    Ewell’s motion for leave to amend his complaint, Dkt. 25. Because the government has
    demonstrated that it conducted a reasonable search for responsive records and that all responsive
    records were properly withheld under FOIA and the Privacy Act, the Court grants summary
    judgment to the Justice Department. Because Ewell’s motion for leave to amend his complaint
    would fundamentally alter the nature and scope of this action, would unduly burden the
    defendant, and is, at least in significant respects, futile, the Court denies that motion.
    I. BACKGROUND
    Eric Ewell was charged in the Western District of Pennsylvania with conspiracy to
    distribute and to possess with intent to distribute one kilogram or more of heroin in violation of
    21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(i). See United States v. Ewell, No. 13-cr-125 (W.D. Pa.
    Apr. 30, 2013). In advance of Ewell’s detention hearing in June 2013, the government disclosed
    that it had intercepted and recorded his telephone communications under the authority of a
    wiretap obtained pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of
    1968 (“Title III”). See Dkt. 130 at 1, Ewell, No. 13-cr-125 (W.D. Pa. June 27, 2013). In
    November 2013, Ewell filed a request with the Department of Justice under FOIA and the
    Privacy Act, seeking “an authentic Department of Justice (DOJ) Office of Enforcement
    Operation (OEO) copy of the Title III authorization letter(s), memorandums, and any other
    documents involved in their approval for the electronic surveillance” of several phone numbers
    that he alleged had been wiretapped. See Dkt. 12-2 at 2 (Cunningham Decl., Ex. A); see also
    Dkt. 12 at 3 (Defs.’ Statement of Material Facts ¶ 1).
    The Justice Department responded to Ewell’s FOIA/Privacy Act request in December
    2013. The Department informed Ewell that “to the extent responsive records do exist, they are
    exempt from disclosure pursuant to” Exemption 3 of FOIA, which permits agencies to withhold
    documents “specifically exempted from disclosure by statute.” Dkt. 12-3 at 2 (Cunningham
    Decl, Ex. B) (citing 5 U.S.C. § 552(b)(3)). For this reason, the Department explained, it “did not
    conduct a search for records” and would not produce any records responsive to his request. 
    Id. Ewell appealed
    the Department’s denial of his request and sought expedited treatment, Dkt. 12-4
    at 2–5 (Cunningham Decl., Ex. C), but, when the Department’s Office of Information Policy
    (“OIP”) denied his request for expedited treatment, see Dkt. 12-5 at 2 (Cunningham Decl., Ex.
    2
    D), he filed this action. OIP then informed Ewell that, in light of the pendency of this lawsuit, it
    was closing his administrative appeal. Dkt. 12-6 at 2 (Cunningham Decl., Ex. E).
    Ewell challenges the adequacy of the Department’s search and all of its withholdings.
    Dkt. 1 at 7 (Compl.). He also requests that, if the Court remands the matter to the Department,
    that it “provide for expeditious proceeding in this action.” 
    Id. After Ewell
    brought suit, the
    Department searched two databases: the Office of Enforcement Operations (“OEO”) “database
    used to track federal prosecutors’ requests for permission to apply for court-authorization to
    surreptitiously intercept conversations of person[s] allegedly involved in criminal activity under
    Title III,” and “archived emails of [Criminal Division] employees that are maintained by its IT
    department.” Dkt. 12-1 at 4 (Cunningham Decl. ¶ 11). The Department maintains, however,
    that Ewell is not entitled to any records in response to his request, and it has asserted several
    additional grounds for nondisclosure that it did not previously assert.
    The matter is before the Court on the Department’s motion for summary judgment. See
    Dkt. 12. The Department argues that it conducted an adequate search for responsive records;
    that it properly withheld all responsive records under the Privacy Act and FOIA Exemptions 3, 5,
    6, and 7(C); and that it properly denied Ewell’s request for expedited treatment. 
    Id. It supports
    its motion with a declaration by John E. Cunningham III, a trial attorney assigned to the Criminal
    Division’s FOIA and Privacy Act Unit, see Dkt. 12-1 (Cunningham Decl.), and a 208-page
    Vaughn index detailing the withheld records and the reasons they were withheld, see Dkt. 12-7
    (Cunningham Decl., Ex. H); Vaughn v. Rosen, 
    484 F.2d 820
    (D.C. Cir. 1973). Ewell has also
    moved for leave to file an amended complaint. See Dkt. 25. Ewell’s amended complaint would
    include new claims under Bivens v. Six Unknown Named Agents, 
    403 U.S. 388
    (1971); the
    Federal Tort Claims Act, 28 U.S.C. § 1346; the remedial provisions of Title III, 18 U.S.C. §
    3
    2520; and 42 U.S.C. § 1985(3). 
    Id. at 2.
    The proposed amended complaint would also add new
    defendants, including the Drug Enforcement Administration (“DEA”) and several of its agents,
    as well as various members of the U.S. Attorney’s Office for the Western District of
    Pennsylvania. 
    Id. at 3.
    Both motions are opposed. See Dkts. 16, 27.
    II. LEGAL FRAMEWORK
    The Freedom of Information Act is premised on the notion that an informed citizenry is
    “vital to the functioning of a democratic society, needed to check against corruption and to hold
    the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 
    437 U.S. 214
    ,
    242 (1978). The Act embodies a “general philosophy of full agency disclosure.” U.S. Dep’t of
    Defense v. FLRA, 
    510 U.S. 487
    , 494 (1994) (quoting Dep’t of Air Force v. Rose, 
    425 U.S. 352
    ,
    360–61 (1976)). It thus mandates that an agency disclose records on request, unless they fall
    within one of nine exemptions. “These exemptions are ‘explicitly made exclusive’ and must be
    ‘narrowly construed.’” Milner v. Dep’t of Navy, 
    562 U.S. 562
    , 565 (2011) (quoting EPA v.
    Mink, 
    410 U.S. 73
    , 79 (1973), and FBI v. Abramson, 
    456 U.S. 615
    , 630 (1982)). As explained
    further below, the present dispute turns on the meaning and application of Exemptions 3 and 5.
    Exemption 3 protects records that are “specifically exempted from disclosure by statute.” 5
    U.S.C. § 552(b)(3). And Exemption 5 protects “inter-agency or intra-agency memorandums or
    letters which would not be available by law to a party other than an agency in litigation with the
    agency.” 
    Id. § 552(b)(5).
    It exempts “those documents, and only those documents, normally
    privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co., 
    421 U.S. 132
    , 149
    (1975).
    The Privacy Act “safeguards the public from unwarranted collection, maintenance, use
    and dissemination of personal information contained in agency records . . . by allowing an
    4
    individual to participate in ensuring that his records are accurate and properly used, and by
    imposing responsibilities on federal agencies to maintain their records accurately.” Mobley v.
    CIA, 
    806 F.3d 568
    , 585 (D.C. Cir. 2015) (quoting Bartel v. FAA, 
    725 F.2d 1403
    , 1407 (D.C. Cir.
    1984)). Under the Privacy Act, any agency that maintains a “system of records” must provide
    information about a person to that person upon request. 5 U.S.C. § 552a(d)(1). But an agency
    may promulgate regulations “to exempt any system of records within the agency” from such a
    request, provided that the system meets certain criteria. 
    Id. § 552a(j).
    This is because “[t]he
    Privacy Act—unlike [FOIA]—does not have disclosure as its primary goal.” See Henke v. U.S.
    Dep’t of Commerce, 
    83 F.3d 1453
    , 1456 (D.C. Cir. 1996).
    FOIA cases are typically resolved on motions for summary judgment under Federal Rule
    of Civil Procedure 56. See, e.g., Beltranena v. U.S. Dep’t of State, 
    821 F. Supp. 2d 167
    , 175
    (D.D.C. 2011). To prevail on a summary judgment motion, the moving party must demonstrate
    that there are no genuine issues of material fact and that he or she is entitled to judgment as a
    matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 325 (1986). In a
    FOIA action, the agency may meet its burden by submitting “relatively detailed and non-
    conclusory” affidavits or declarations, SafeCard Servs., Inc. v. SEC, 
    926 F.2d 1197
    , 1200 (D.C.
    Cir. 1991) (quotation marks and citation omitted), and an index of the information withheld,
    
    Vaughn, 484 F.2d at 827
    –28; Summers v. Dep’t of Justice, 
    140 F.3d 1077
    , 1080 (D.C. Cir. 1998).
    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 exempt from the [FOIA’s] section requirements.” Students Against Genocide v.
    U.S. Dep’t of State, 
    257 F.3d 828
    , 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 
    607 F.2d 339
    ,
    5
    352 (D.C. Cir. 1978)). The Court reviews the agency’s decision de novo, and the agency bears
    the burden of sustaining its action. 5 U.S.C. § 552(a)(4)(B).
    III. DISCUSSION
    A. The Department’s Motion for Summary Judgment
    1. Adequacy of the Search
    Ewell first argues that the Department conducted an inadequate search in response to his
    FOIA request. An agency has an obligation under FOIA to conduct an adequate search for
    responsive records. “An agency fulfills its obligations . . . 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) (quoting Truitt v. Dep’t of
    State, 
    897 F.2d 540
    , 542 (D.C. Cir. 1990)). “In order to obtain summary judgment 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.” Oglesby v.
    U.S. Department of Army, 
    920 F.2d 57
    , 68 (D.C. Cir. 1990). Although the agency “cannot limit
    its search to only one record system if there are others that are likely to turn up the information
    requested,” it need not “search every record system.” 
    Id. The agency
    can show that it conducted
    an adequate search by relying on “[a] reasonably detailed affidavit [or declaration], setting forth
    the search terms and the type of search performed, and averring that all files likely to obtain
    responsive records (if such records exist) were searched.” 
    Valencia-Lucena, 180 F.3d at 326
    .
    The Justice Department has introduced just such a declaration this case. The declaration,
    provided by trial attorney John Cunningham, explains that “[t]here were two sources of records
    in [the Criminal Division] where documents responsive to Mr. Ewell’s FOIA request were likely
    to be located: (1) a[] . . . database used to track federal prosecutors’ requests for permission to
    6
    apply” for Title III wiretaps and “(2) archived emails of [Criminal Division] employees that are
    maintained by its IT department.” Dkt. 12-1 at 4 (Cunningham Decl. ¶ 11). Cunningham states
    that the Department searched both sources. 
    Id. He explains
    that the Department searched the
    Title III database for the telephone numbers submitted by Ewell and for Ewell’s name. 
    Id. at 5–
    6 (Cunningham Decl. ¶ 16). And he attests that the Department identified the Criminal Division
    attorney who reviewed the request for permission to apply for a wiretap and the Assistant U.S.
    Attorney (“AUSA”) who made the request, and searched the Criminal Division attorney’s e-mail
    account for all e-mails exchanged between them between December 30, 2011, and May 30,
    2012. 
    Id. at 6
    (Cunningham Decl. ¶ 19). Cunningham explains: “[The Department] searched the
    two records systems that would contain information responsive to Mr. Ewell’s request. Its
    search was conducted in good faith, and was reasonable and complete.” 
    Id. at 7
    (Cunningham
    Decl. ¶ 20).
    Ewell’s primary argument is that the Department erred in not searching other databases
    for information about him. Specifically, he points to four cases from this Court in which Justice
    Department components searched for records in databases that were not searched in his case.
    See Lewis v. U.S. Dep’t of Justice, 
    867 F. Supp. 2d 1
    (D.D.C. 2011); Petit-Frere v. U.S. Att’y’s
    Office for the S. Dist. of Fla., 
    800 F. Supp. 2d 276
    (D.D.C. 2011); Wolfson v. United States, 
    672 F. Supp. 2d 20
    (D.D.C. 2009); Linn v. U.S. Dep’t of Justice, No. 92-cv-1406, 
    1995 WL 417810
    (D.D.C. June 6, 1995). But the FOIA requests submitted in each of those cases differed in
    material respects from the one Ewell submitted. In Linn, for example, the requester sought
    “background information filed under his name and/or identifying number” from “eleven separate
    governmental agencies or sub-agencies,” including the Executive Office of U.S. Attorneys
    (“EOUSA”) and the DEA. 
    1995 WL 417810
    , at *1. The other cases are to similar effect: In
    7
    Wolfson, the FOIA requester sought “information about himself” in eleven Criminal Division
    
    databases. 672 F. Supp. 2d at 24
    . In Petit-Frere, the requester sought records regarding a
    wiretap application, but he sent his FOIA request to the U.S. Attorney’s Office in Miami, which
    is why the search “began with the Legal Information Office Network System (LIONS),” the
    database Ewell faults the Department for not searching in this 
    case. 800 F. Supp. 2d at 277
    –79.
    And in Lewis, the requester also sought information relating to a wiretap, but he sought it from
    the U.S. Attorney’s Office—which referred the request to the EOUSA— and the DEA, which is
    why records systems used by those components were 
    searched. 867 F. Supp. 2d at 7
    –11.
    Ewell’s FOIA/Privacy Act request, in contrast, was limited in two material ways. First,
    Ewell’s request was directed solely to the Criminal Division, Dkt. 12-2 at 2 (Cunningham Decl.,
    Ex. A), not to EOUSA or the DEA. The distinction is a material one, as the Department’s FOIA
    regulations specify that a requester “should write directly to the FOIA office of the component
    that maintains the records being sought.” 28 C.F.R. § 16.3(a)(1) (emphasis added); see also 
    id. at §
    16.1 (defining “component” to mean “each separate bureau, office, division, commission,
    service, center, or administration”). As a result, only the component to which the FOIA request
    is directed has an obligation to conduct a search. See Hicks v. Executive Office of U.S. Attorneys,
    
    12 F. Supp. 3d 25
    , 29 (D.D.C. 2013). Second, unlike the requests in many of the cases on which
    Ewell relies, Ewell’s request did not seek all records regarding him, or even all records regarding
    the investigation that led to his arrest. Instead, Ewell sought a precise set of documents—an
    authentic OEO “copy of the Title III authorization letter(s), memorandums, and any other
    documents involved in their approval for the electronic surveillance” conducted on five
    telephone lines. See Dkt. 12-2 at 2 (Cunningham Decl., Ex. A). As Cunningham explains, OEO
    is the component of the Criminal Division that processes requests from prosecutors seeking
    8
    permission to apply for court-authorized surveillance and that makes recommendations to the
    Assistant Attorney General for approval of those requests. Dkt. 12-1 at 5 (Cunningham Decl. ¶¶
    13–15). The Department thus reasonably construed Ewell’s FOIA request to seek records
    actually involved in that approval process and, accordingly, reasonably concluded that its search
    effort should focus on records maintained by OEO and communications between OEO and the
    prosecutor who sought approval for the wiretaps.
    Ewell also argues that the Department erred in refusing to conduct a broader search for
    responsive records under the Privacy Act. He suggests that his invocation of the Privacy Act
    obligated the Department to search for “all files pertaining to [him] . . . in it[s] full system of
    records.” Dkt. 16 at 14 (emphasis added). But the Privacy Act does not obligate an agency to
    conduct a search for all records relating to a requester where a requester has asked the agency
    only to look for certain records. 5 U.S.C. § 552a(d)(1); see also Spears v. U.S. Dep’t of Justice,
    — F. Supp. 3d —, No. 14-387, 
    2015 WL 5730734
    , at *3 (D.D.C. Sept. 29, 2015). 1 Here, as
    discussed above, Ewell’s request was very specific—he sought documents involved in the OEO
    approval process, and those are the documents for which the Department searched. Ewell “did
    not request” any other records “at the administrative level, and he will not be permitted to
    expand the scope of the request underlying this action and then assert an unexhausted claim.”
    Spears, 
    2015 WL 5730734
    , at *3. And, even if Ewell had requested all the records in all
    Criminal Division databases that refer to him, the Department would not have been required to
    provide access to any information in those systems of records that have been exempted from the
    Privacy Act’s sweep, see 28 C.F.R. § 16.91, and Ewell does not identified any unexempted
    1
    Spears, a FOIA/Privacy Act action brought by an inmate housed in the same facility as Ewell,
    raises identical claims regarding a wiretap. Judge Collyer granted summary judgment to the
    Justice Department in that action in September. See Spears, 
    2015 WL 5730734
    , at *1.
    9
    system of records that he believes the Department should have searched, see 
    id. §§ 16.70–
    16.136.
    In sum, the declaration submitted by the Department makes clear that it “made a good
    faith effort to conduct a search for the requested records.” 
    Oglesby, 920 F.2d at 68
    . Although
    Ewell may wish that the Department had searched more databases for records regarding the Title
    III wiretap or other, unspecified subjects, an agency need not “search every record system,” 
    id., especially when
    it concludes that only certain systems are likely to have responsive records. The
    search was adequate and reasonable.
    2. Relevant FOIA Exemptions
    Although the Department initially relied solely on Exemption 3 to withhold all records
    responsive to Ewell’s request, it now justifies its withholdings on the basis of Exemptions 3, 5, 6,
    and 7(C). 2 Because all of the documents were properly withheld under either Exemption 3 or 5,
    the Court addresses only the assertion of those two exemptions here.
    a. Exemption 3
    Exemption 3 shields from disclosure all records that are “specifically exempted from
    disclosure by statute,” so long as the statute upon which the agency relies either “requires that
    the matters be withheld from the public in such a manner as to leave no discretion on the issue”
    2
    The agency bears the burden of identifying “the specific statutory exemption relied upon” in
    withholding records and must “demonstrate that the exemption applies to the documents in
    question.” See Jordan v. U.S. Dep’t of Justice, 
    591 F.2d 753
    , 779 (D.C. Cir. 1978) (en banc).
    Although the Department did not assert Exemption 5 below, the D.C. Circuit has long implied
    that an agency may invoke a FOIA exemption for the first time before the district court—but not
    “for the first time in the appellate court.” Id.; see also Maydak v. Dep’t of Justice, 
    218 F.3d 760
    ,
    764 (D.C. Cir. 2000) (explaining that an agency “must assert all exemptions at the same time, in
    the original district court proceedings”). Ewell does not argue that the Department should be
    precluded from asserting Exemption 5 here, so the Court concludes that the exemption is
    properly before it.
    10
    or “establishes particular criteria for withholding or refers to particular types of matters to be
    withheld.” 5 U.S.C. § 552(b)(3)(A). 3 “Exemption 3 differs from other FOIA exemptions in that
    its applicability depends less on the detailed factual contents of specific documents” and more on
    “the existence of a relevant statute and the inclusion of withheld material within that statute’s
    coverage.” Goland v. CIA, 
    607 F.2d 339
    , 350 (D.C. Cir. 1978). The Justice Department asserts
    that the non-disclosure provisions of Title III authorize it to withhold the application it submitted
    to the federal court in Pennsylvania for a wiretap, including all supporting materials. See Dkt.
    12-8 at 2 (Table of Responsive Records) (listing “Title III applications,” “agent affidavits,”
    “proposed Title III orders,” and “authorization memorandums from the [Assistant Attorney
    General]” to attorneys approving the application for a wiretap as exempt under Exemption 3). 4
    Title III establishes a comprehensive scheme to govern the procurement, use, and
    disclosure of federal law enforcement wiretaps. To obtain a wiretap, a law enforcement officer
    must submit an application “in writing upon oath or affirmation to a judge of competent
    jurisdiction.” 18 U.S.C. § 2518(1). The statute requires the application to include “the identity
    of the investigative or law enforcement officer making the application, and the officer
    3
    The exemption also provides that any statute “enacted after the date of enactment of the OPEN
    FOIA Act of 2009,” Pub L. No. 111-83, § 564, 123 Stat. 2142, 2184 (2009), must “specifically
    cite to” the exemption. 5 U.S.C. § 552(b)(3)(B). Title III predates the Act.
    4
    Elsewhere in its briefing, the Department appears to assert Exemption 3 more broadly to cover
    documents not submitted to the court in connection with its Title III application. Compare Dkt.
    12-1 at 8–9 (Cunningham Decl. ¶ 24) (listing “[p]rosecutors’ requests for permission to apply”
    for wiretaps and “[a]ction memorandums from [attorneys] to the [Assistant Attorney General]”
    as exempt under Exemption 3), with Dkt. 12-8 at 2 (Table of Responsive Records) (listing these
    items as exempt under Exemptions 5, 6, and 7(c), but not Exemption 3). Because the Court
    concludes that these items are exempt under Exemption 5, it has no need to decide whether
    Exemption 3 would permit the government to withhold them—a potentially more difficult
    question given that Title III does not expressly provide for the protection of material not
    submitted to a court as part of a wiretap application.
    11
    authorizing the application” and a “complete statement of the facts and circumstances” giving
    rise to the application. See 
    id. § 2518(1)(a)–(b).
    If the judge concludes that the statutory
    requirements are met, he or she “may enter an ex parte order” authorizing the wiretap. 
    Id. § 2518(3).
    Title III provides that any communications intercepted by the wiretap shall be
    recorded “if possible,” and that the recordings “shall be made available to the judge issuing such
    order and sealed.” 
    Id. § 2518(8)(a).
    The recordings shall be used only by law enforcement
    officers “to the extent such use is appropriate to the proper performance of [their] official
    duties.” 
    Id. § 2517.
    Title III also provides that the “[a]pplications made and orders granted” for
    the authorization of wiretaps shall be sealed and “disclosed only upon a showing of good cause.”
    
    Id. § 2518(8)(b).
    The recordings, the “court order” authorizing the wiretap, and the
    “accompanying application, under which the interception was authorized or approved,” however,
    shall be produced to the parties before the recordings are introduced in a criminal proceeding.
    
    Id. § 2518(9).
    Not surprisingly, the D.C. Circuit has held that “intercepted communications” obtained
    pursuant to a Title III wiretap fall “squarely within the scope” of Exemption 3. Lam Lek Chong
    v. DEA, 
    929 F.2d 729
    , 733 (D.C. Cir. 1991). And several opinions of this Court have extended
    that holding to those materials submitted to a court in support of a request for authorization to
    conduct surveillance under Title III. See Sinito v. U.S. Dep’t of Justice, No. 87-814, 
    2000 WL 36691372
    , at *6 (D.D.C. July 12, 2000); Butler v. U.S. Dep’t of Justice, No. 86-2255, 
    1994 WL 55621
    , at *8–9 (D.D.C. Feb. 3, 1994). The Court agrees that Title III makes no distinction, at
    least for the purposes of Exemption 3, between the recordings and the application (including all
    supporting materials) that gave rise to them. Both the recordings and the application are required
    by statute to be sealed except under specific circumstances. See 18 U.S.C. §§ 2517, 2518(8)(a)–
    12
    (b), (9). There is no reason that the recordings themselves should be understood as “particular
    types of matters to be withheld” under Title III but the application the Department submitted to
    obtain them should not be. See 5 U.S.C. § 552(b)(3). Accord Spears, 
    2015 WL 5730734
    , at *4
    (noting that these items “remain under seal; thus, 18 U.S.C. § 2518(8)(b) prohibits their
    disclosure”).
    Ewell’s primary argument is not that these materials fall outside of Exemption 3; instead,
    he argues that they fall within the exception established in Cottone v. Reno, 
    193 F.3d 550
    (D.C.
    Cir. 1999). In Cottone, the government played recordings of telephone conversations it had
    obtained via a Title III wiretap “in open court, before the jury and the public gallery . . . and
    introduced them into evidence.” 
    Id. at 552.
    Cottone argued that Exemption 3 did not apply to
    the recordings because the government had introduced the tapes into the public domain. 
    Id. at 554.
    The D.C. Circuit explained that the “public-domain” exception, on which Cottone relied, is
    a narrow one, and required Cottone to show “that there is a permanent public record of the exact
    portions [of the records] he wishes.” 
    Id. (quoting Davis
    v. U.S. Dep’t of Justice, 
    968 F.2d 1276
    ,
    1280 (D.C. Cir. 1992)). Because Cottone had “demonstrated precisely which recorded
    conversations were played in open court,” however, he met this demanding burden. 
    Id. at 555.
    The court, accordingly, held that the government could not rely on Exemption 3 to shield the
    recordings from production. 
    Id. at 556.
    Ewell argues that his case is like Cottone because “Title III intercepted content . . . w[as]
    disclosed, played, and entered into evidence” at his detention hearing. Dkt. 16 at 26–27. But his
    argument is unpersuasive for two reasons. First, the transcript of Ewell’s detention hearing does
    not show that any wiretapped conversations were played in open court. At the hearing, a law
    enforcement officer acknowledged the existence of the wiretap and summarized several
    13
    conversations that he had recorded. See Dkt. 12-9 at 16 (“Q. At that time were wiretap
    interceptions occurring over phones used by . . . Eric Ewell? A. Yes, they were.”); 
    id. at 20
    (noting “conversations between Mr. Anderson and Mr. Ewell noting that they feared that Mr.
    Anderson was kind of shook from being in jail and that they thought he would cooperate with
    law enforcement”). It also appears from the transcript that the government introduced a “line
    sheet” summarizing some of the calls intercepted between Ewell and other defendants. See 
    id. at 20
    –21 (describing “Exhibit 2”); 
    id. at 34
    (describing compilations of “informal, unofficial
    summaries of or transcripts of phone calls”). But neither the agent’s oral testimony nor the
    written summaries would qualify under Cottone as sufficiently specific to waive Exemption 3
    with respect to the recordings.
    More importantly, however, even if the government had played the recordings at Ewell’s
    detention hearing, that would not be sufficient under Cottone to waive Exemption 3 with respect
    to the supporting documents that Ewell seeks. The public-domain exception applies where a
    FOIA requester can identify documents “made public through an official and documented
    disclosure” that exactly “match the information previously disclosed.” Wolf v. CIA, 
    473 F.3d 370
    , 378 (D.C. Cir. 2007) (quoting Fitzgibbon v. CIA, 
    911 F.2d 755
    , 765 (D.C. Cir. 1990)).
    Here, there is no claim that the authorization letters, memoranda, and related documents that
    Ewell sought have themselves been publicly disclosed, only that the recordings have. But even
    if the recordings had been made public—which, as discussed above, Ewell has failed to show—
    that would not justify the release of the application materials. Ewell also notes that the
    application materials were provided to his counsel under the terms of Title III’s disclosure
    provisions. See 18 U.S.C. § 2518(9). But the fact that those materials were provided to Ewell’s
    counsel in the course of discovery does not waive Exemption 3, as the D.C. Circuit held in
    14
    Cottone. 
    See 193 F.3d at 556
    (“[A] . . . compelled disclosure to a single party simply does not
    enter the public domain.”). The government, accordingly, has not waived the protections of
    Exemption 3 by publicly disclosing the application materials.
    b. Exemption 5
    Exemption 5 protects “inter-agency or intra-agency memorandums or letters which would
    not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. §
    552(b)(5). This provision shields “those documents, and only those documents, normally
    privileged in the civil discovery context.” Sears, 
    Roebuck, 421 U.S. at 149
    . As relevant here, it
    permits an agency to withhold documents under the attorney work product privilege, which
    protects documents and other memoranda prepared by an attorney in anticipation of litigation.
    See FTC v. Boehringer Ingelheim Pharm., Inc., 
    778 F.3d 142
    , 149 (D.C. Cir. 2015); Hickman v.
    Taylor, 
    329 U.S. 495
    , 510–11 (1947). “If a document is fully protected as work product, then
    segregability is not required” under FOIA. Judicial Watch, Inc. v. U.S. Dep’t of Justice, 
    432 F.3d 366
    , 371 (D.C. Cir. 2005). The Justice Department asserts that the following records are
    exempt from disclosure under the work product privilege: “prosecutors’ requests for permission
    to apply for court authorization to intercept wire communications,” “e-mail messages from [the
    Electronic Surveillance Unit (“ESU”)] to AUSA’s acknowledging receipt of the AUSA’s Title
    III application,” “OEO Title III Logging Notes,” “e-mail messages between the ESU attorney
    and the AUSA concerning the ESU review process, edits, revisions, etc.,” “action memorandums
    from the OEO to the AAG recommending approval of prosecutors’ requests,” and “letters signed
    by Deputy AAGs on behalf of the AAG to a U.S. Attorney advising that the AAG has approved
    15
    the prosecutor’s request to apply for a Title III order.” Dkt. 12-8 at 2 (Table of Responsive
    Records). 5
    The government argues that these documents are exempt from disclosure under the
    attorney work product privilege because they were prepared in anticipation of Ewell’s criminal
    prosecution. “When considering whether a document is prepared ‘in anticipation of litigation,’
    this Court employs a ‘because of’ test, inquiring ‘whether, in light of the nature of the document
    and the factual situation in the particular case, the document can fairly be said to have been
    prepared or obtained because of the prospect of litigation.’” Boehringer 
    Ingelheim, 779 F.3d at 149
    (quoting United States v. Deloitte LLP, 
    610 F.3d 129
    , 137 (D.C. Cir. 2010)). Cunningham
    attests that all of the withheld records were “prepared by an attorney . . . or someone acting at the
    direction of such an attorney . . . as part of the wiretap application process,” and therefore were
    prepared “because of” of the government’s case against Ewell. Dkt. 12-1 at 13 (Cunningham
    Decl. ¶ 32). Courts in this jurisdiction have consistently held that memoranda and e-mails sent
    between prosecutors in anticipation of prosecution are covered by the work product privilege.
    See Gov’t Accountability Project v. U.S. Dep’t of Justice, 
    852 F. Supp. 2d 14
    , 26–27 (D.D.C.
    2012); 
    Wolfson, 672 F. Supp. 2d at 30
    .
    Ewell can muster no persuasive argument as to why the Department erred in asserting
    Exemption 5. He argues that the Department has failed to comply with its duty to segregate all
    responsive non-exempt material, but the Department has no duty to segregate factual material
    under the work product privilege. See Judicial 
    Watch, 432 F.3d at 371
    . Moreover, because all
    5
    It is not clear from the Department’s briefing and the record whether these letters were
    submitted to the court as part of the Department’s application for a Title III wiretap. If they
    were, they would be exempt under Exemption 3, for the reasons described above, and there
    would be no need to consider whether they are also exempt under Exemption 5.
    16
    records not exempt under Exemption 3 are exempt under the work product privilege, the Court
    has no need to consider the Department’s assertion of the deliberative-process privilege, which
    does require segregation. Ewell similarly argues that several of the withheld documents (the
    Title III affidavit and authorization memorandum) are not “predecisional” because they
    accompanied the application presented to the court, but the question whether a document is
    “predecisional” is relevant only to the assertion of the deliberative-process privilege, not the
    work product privilege. See Tax Analysts v. IRS, 
    117 F.3d 607
    , 616 (D.C. Cir. 1997). Moreover,
    to the extent that any of these records were filed with the authorizing court as part of the Title III
    application, they are protected under Exemption 3, which does not turn on whether the sought-
    after material is predecisional or, for that matter, whether it is deliberative.
    In sum, the Justice Department appropriately withheld all responsive documents under
    Exemptions 3 and 5. Because the Court will grant summary judgment to the Department with
    respect to Ewell’s claims, Ewell’s request that the Court “provide for expeditious proceeding in
    this action” is denied as moot. Dkt. 1 at 7 (Compl.).
    B. Ewell’s Motion for Leave to Amend
    Ewell has also moved for leave to file an amended complaint. Dkt. 25. 6 His proposed
    amended complaint would add three additional counts regarding alleged illegalities in the
    Department’s use of a wiretap to intercept his communications. See Dkt. 25 at 24–35.
    Specifically, construed liberally, the proposed amended complaint appears to allege claims under
    6
    Ewell also moved for an extension of time to in which to file his motion for leave to file an
    amended complaint. Dkt. 24. That motion is hereby GRANTED nunc pro tunc, and Ewell’s
    motion for leave to file an amended complaint is deemed timely filed. The Department also
    moved for an extension of time in which to file its opposition to Ewell’s motion for leave to
    amend his complaint. Dkt. 26. That motion is also hereby GRANTED nunc pro tunc, and the
    Department’s opposition is deemed timely filed.
    17
    Bivens v. Six Unknown Named Agents, 
    403 U.S. 388
    ; the Federal Tort Claims Act (“FTCA”), 28
    U.S.C. § 1346; the remedial provisions of Title III, 18 U.S.C. § 2520; and a civil-rights statute,
    42 U.S.C. § 1985(3). It would also add over 20 new defendants, including the U.S. Attorney for
    the Western District of Pennsylvania, the regional director of the DEA in Pittsburgh, and dozens
    of their employees. The motion appears to be modeled on a motion filed in Spears v. U.S.
    Department of Justice, — F. Supp. 3d —, No. 14-387, 
    2015 WL 5730734
    (D.D.C. Sept. 29,
    2015). Compare Dkt. 25 at 26 n.7 (describing the “210[-]page Sprung Affidavit,” which does
    not appear in the record in this case), with Spears, 
    2015 WL 5730734
    , at *1 (describing the
    declaration of Peter Sprung, submitted by the Justice Department in that case).
    Federal Rule of Civil Procedure 15(a) provides that leave to amend a pleading shall be
    “freely give[n] when justice so requires.” Fed. R. Civ. P. 15(a). But leave may be denied in
    cases of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to
    cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by
    virtue of allowance of the amendment, [or] futility of amendment.” See Atchinson v. District of
    Columbia, 
    73 F.3d 418
    , 425 (D.C. Cir. 1996) (quoting Foman v. Davis, 
    371 U.S. 178
    , 182
    (1962)). “Courts generally consider the relation of the proposed amended complaint to the
    original complaint, favoring proposed complaints that do not ‘radically alter the scope and nature
    of the case.’” Smith v. Cafe Asia, 
    598 F. Supp. 2d 45
    , 58 (D.D.C. 2009) (quoting Miss. Ass’n of
    Coops. v. Farmers Home Admin., 
    139 F.R.D. 542
    , 544 (D.D.C. 1991)). The Department argues
    that Ewell’s motion should be denied for the same reason that the motion in Spears was denied—
    that is, because the proposed claims “would substantially alter the scope and nature of this FOIA
    action,” would “unduly delay these proceedings,” and would be futile. See Dkt. 27-1 at 2.
    18
    The Court agrees on all three counts. The proposed amended complaint would
    dramatically alter the scope and nature of this action. Unlike the current suit, a suit under Bivens,
    the remedial provisions of Title III, Section 1985, or the FTCA would proceed against individual
    officers or the United States on the basis of alleged constitutional, statutory, or common-law tort
    violations allegedly committed by those officers. Ashcroft v. Iqbal, 
    556 U.S. 662
    , 676 (2009);
    Simpkins v. District of Columbia, 
    108 F.3d 366
    , 369 (D.C. Cir. 2007). The new claims have
    nothing to do with whether the Department has complied with its obligations under FOIA and
    the Privacy Act, but rather attack the Department’s investigation of Ewell’s allegedly criminal
    activity. Expanding a FOIA/Privacy Act suit to include allegations of illegal wiretapping would
    entail significant additional burdens on the defendants, and it would unduly delay the resolution
    of the current proceedings. The proposed amendments, moreover, are futile, at least in
    significant part. This Court, for example, does not appear to have venue over Ewell’s FTCA
    claims against the United States, because Ewell does not reside in this district and it does not
    appear that his claims are premised on any act or omission occurring here. See 28 U.S.C. §
    1402(b) (permitting FTCA actions only “in the judicial district where the plaintiff resides or
    wherein the act or omission complained of occurred”). Even if venue were proper in this district
    over some of Ewell’s proposed new claims, moreover, those claims focus on misconduct
    allegedly occurring in the Western District of Pennsylvania, and there is no evident rationale for
    litigating them here, rather than where the witnesses and evidence are presumably located. See
    
    id. § 1404(a).
    In addition, Ewell does not allege that he has exhausted his administrative
    remedies, as the FTCA requires. 
    Id. § 2675(a).
    In sum, Ewell’s proposed amended complaint would radically alter the scope and nature
    of this action; it would result in an undue delay of the proceedings; and, at least in significant
    19
    respects, it would be futile. For these reasons, the Court DENIES Ewell’s motion for leave to
    amend his complaint.
    CONCLUSION
    For the foregoing reasons, the Justice Department’s motion for summary judgment is
    GRANTED. Ewell’s motion for an extension of time in which to move for leave to amend his
    complaint is GRANTED nunc pro tunc, and the motion is deemed timely filed. The Justice
    Department’s motion for an extension of time in which to file its opposition to Ewell’s motion is
    also hereby GRANTED nunc pro tunc, and the Department’s opposition is deemed timely filed.
    Ewell’s motion for leave to amend his complaint is DENIED.
    SO ORDERED. The Clerk shall enter judgment, and shall mail a copy of this
    Memorandum Opinion and Order to the plaintiff at the address reflected on the docket.
    /s/ Randolph D. Moss
    RANDOLPH D. MOSS
    United States District Judge
    Date: January 26, 2016
    20
    

Document Info

Docket Number: Civil Action No. 2014-0495

Citation Numbers: 153 F. Supp. 3d 294, 2016 U.S. Dist. LEXIS 8707

Judges: Judge Randolph D. Moss

Filed Date: 1/26/2016

Precedential Status: Precedential

Modified Date: 11/7/2024

Authorities (34)

Smith v. Cafe Asia , 598 F. Supp. 2d 45 ( 2009 )

Milner v. Department of the Navy , 131 S. Ct. 1259 ( 2011 )

Carl Oglesby v. The United States Department of the Army , 920 F.2d 57 ( 1990 )

Hickman v. Taylor , 329 U.S. 495 ( 1947 )

Federal Bureau of Investigation v. Abramson , 102 S. Ct. 2054 ( 1982 )

Bivens v. Six Unknown Named Agents of Federal Bureau of ... , 91 S. Ct. 1999 ( 1971 )

Valencia-Lucena v. United States Coast Guard , 180 F.3d 321 ( 1999 )

Judicial Watch, Inc. v. Department of Justice , 432 F.3d 366 ( 2005 )

Richard C. Bartel v. Federal Aviation Administration ... , 725 F.2d 1403 ( 1984 )

Richard Atchinson v. District of Columbia , 73 F.3d 418 ( 1996 )

Environmental Protection Agency v. Mink , 93 S. Ct. 827 ( 1973 )

Celotex Corp. v. Catrett, Administratrix of the Estate of ... , 106 S. Ct. 2548 ( 1986 )

Ashcroft v. Iqbal , 129 S. Ct. 1937 ( 2009 )

Beltranena v. U.S. Department of State , 821 F. Supp. 2d 167 ( 2011 )

Lam Lek Chong v. United States Drug Enforcement ... , 929 F.2d 729 ( 1991 )

Susan D. Goland and Patricia B. Skidmore v. Central ... , 607 F.2d 339 ( 1978 )

Robert G. Vaughn v. Bernard Rosen, Executive Director, ... , 484 F.2d 820 ( 1973 )

Petit-Frere v. US Attorney's Office of Florida , 800 F. Supp. 2d 276 ( 2011 )

Wolf v. Central Intelligence Agency , 473 F.3d 370 ( 2007 )

Wolfson v. United States , 672 F. Supp. 2d 20 ( 2009 )

View All Authorities »