TAITZ v. Astrue

806 F. Supp. 2d 214 (2011)

Orly TAITZ, Plaintiff,
v.
Michael ASTRUE, Commissioner of the Social Security Administration, Defendant.

Civil Action No. 11-402 (RCL).

United States District Court, District of Columbia.

August 30, 2011. Order Denying Reconsideration October 17, 2011.

Orly Taitz, Santa Margarita, CA, pro se.

Patrick George Nemeroff, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

Before the Court is defendant's Motion for Summary Judgment [21]. Upon consideration of defendant's motion, plaintiff's opposition [31], the reply thereto [32], the entire record herein, and the applicable law, the Court will grant summary judgment in defendant's favor for the reasons set forth below.

I. BACKGROUND

Ever persistent, plaintiff has once again come before this Court in an effort to uncover "the biggest cover up in the history of this nation." Pl.'s Opp'n to Mot. for Summ. J. 20 [31]. She believes that the President is using a "fraudulently obtained" social security number and that the Social Security Administration— among other agencies—is involved in a scheme to "cover[] up social security fraud, IRS fraud, elections fraud and possibly treason" committed by the President. Id. at 5-6, 13. As her numerous filings with the Court demonstrate, plaintiff will stop at nothing to get to the bottom of this alleged conspiracy. Unfortunately for plaintiff, today is not her lucky day.

In her latest litigation before this Court, plaintiff has sued Michael Astrue, Commissioner of the Social Security Administration ("SSA"), under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), for information relating to individuals' social security numbers. On October 4, 2010, plaintiff submitted a FOIA request to the SSA seeking various records and posing questions relating to the social security numbers of several individuals. Def.'s Mem. in Supp. of Mot. for Summ. J. 2 [21-2] ("Def.'s Mem. in Supp."). The SSA responded to her request on March 2, 2011. See Mot. for Summ. J. Ex. C [21-6] ("March Response"). The record demonstrates that the SSA conducted a thorough search in response to plaintiff's request, disclosing all responsive documents except for the "redacted Form SS-5 for the living individual who holds the social-security number xxx-xx-xxxx." Def.'s Mem. in Supp. 2 [21-2].

The SSA withheld the requested Form SS-5^[1] under FOIA Exemption 6, which protects records from release where disclosure "would constitute a clearly unwarranted invasion of privacy." 5 U.S.C. § 552(b)(6). In its response to plaintiff's request, the SSA explained that the Privacy Act of 1974, 5 U.S.C. § 552a, protects the personal information of social security number holders. See March Response 2 [21-6]. The SSA releases such information to the public only with the holder's consent—which the SSA did not have here—or if FOIA requires disclosure. The SSA determined that Exemption 6 applied to the Form SS-5 because the information therein could be used to identify the social security number holder and because plaintiff had identified no public interest that would be served by disclosure. See id.

Having filed an administrative appeal, plaintiff filed a complaint and an amended complaint asking this Court to order defendant to release various documents. Defendant answered the amended complaint and subsequently moved for summary judgment. Defendant argues that the SSA conducted an adequate search for responsive documents and produced all such documents that are not exempt from release under FOIA. In her opposition to defendant's summary judgment motion, plaintiff does not dispute that the SSA conducted an adequate search for responsive documents and disclosed all such documents except for one—the requested Form SS-5. She challenges only the SSA's withholding of that form. See Pl.'s Opp'n to Mot. for Summ. J. 5 [31]. Thus, the only question before this Court in determining whether defendant is entitled to summary judgment is whether the SSA properly withheld the Form SS-5 under FOIA Exemption 6.

II. STANDARD OF REVIEW

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). FOIA actions are typically resolved on summary judgment. See Reliant Energy Power Generation, Inc. v. FERC., 520 F. Supp. 2d 194, 200 (D.D.C. 2007). To establish that it is entitled to summary judgment in a FOIA case, an agency must demonstrate that it has conducted an adequate search for the requested documents and that any withheld documents fall into one of FOIA's statutory exemptions. Id. In determining whether the defendant agency has met its burden, "the underlying facts are viewed in the light most favorable to the [FOIA] requester." Weisberg v. U.S. Dept. of Justice, 705 F.2d 1344, 1350 (D.C.Cir.1983).

A court reviews an agency's response to a FOIA request de novo. See 5 U.S.C. § 552(a)(4)(B). Affidavits that the agency submits to demonstrate the adequacy of its response are entitled to a presumption of good faith. Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir.1981). The reviewing court "is not obligated to conduct an in camera review of the documents withheld [under a FOIA exemption]; the decision to do so is discretionary." Meeropol v. Meese, 790 F.2d 942, 958 (D.C.Cir.1986). The court may grant summary judgment in favor of the agency "simply on the basis of [its] affidavits, if they ``contain information of reasonable detail, sufficient to place the documents within the exemption category, and if the information is not challenged by contrary evidence in the record or evidence of agency bad faith.'" Id. (quoting Lesar v. U.S. Dept. of Justice, 636 F.2d 472, 481 (D.C.Cir.1980)).

III. DISCUSSION

FOIA Exemption 6 exempts from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). In determining whether an agency has properly withheld a record under Exemption 6, a court must first determine whether disclosure would compromise a substantial privacy interest. Nat'l Ass'n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C.Cir.1989). The court must then balance any such privacy interest in nondisclosure "against the public interest in the release of the records" to determine whether disclosure would constitute a clearly unwarranted invasion of personal privacy. Id.

In a previous case in which plaintiff requested the same Form SS-5 that she has requested here, this Court held that social security numbers are exempt from disclosure under FOIA Exemption 6. See Taitz v. Obama, 754 F. Supp. 2d 57, 60 (D.D.C.2010). That holding was not surprising, as it is consistent with other courts' recognition that Exemption 6 protects social security numbers. See, e.g., Smith v. Dept. of Labor, No. 10-1253, 798 F. Supp. 2d 274, 283-84, 2011 WL 3099703, at *6 (D.D.C. July 26, 2011); Prison Legal News v. Lappin, 780 F. Supp. 2d 29, 39-41, 2011 WL 766559, at *6 (D.D.C.2011); Coleman v. Lappin, 680 F. Supp. 2d 192, 197 (D.D.C.2010). It is also consistent with the SSA's regulations, which list social security numbers as "information that [the SSA] frequently withhold[s] under Exemption 6." 20 C.F.R. § 420.100(c).

Here, the SSA withheld from disclosure only one document requested by plaintiff— the redacted Form SS-5 of the living individual who holds social security number xxx-xx-xxxx.^[2] In requesting that form, plaintiff asked for the date of the application as well as the zip code and gender of the applicant. See Mot. for Summ. J. Ex. A [21-4]. She did not seek the name of the applicant. See id. Because the redacted Form SS-5 contains identifying information associated with a living individual's social security number, its disclosure would compromise a substantial privacy interest. See Sherman v. U.S. Dept. of Army, 244 F.3d 357, 365 (5th Cir.2001) ("[A]n individual's informational privacy interest in his or her [social security number] is substantial."). Redacting the individual's name from the Form SS-5—while still retaining the social security number, the date of the application, and the applicant's zip code and gender—does not diminish the privacy interest. Dawn Wiggins, Deputy Executive Director for the Office of Privacy and Disclosure in the SSA's Office of General Counsel, states in her affidavit on behalf of the SSA:

The agency also considered whether we could release information associated with a [social security number] without releasing the number holder's name. However, release of information based on a specific number holder's identified [social security number] could confirm the identity of the number holder and/or give the requestor information that could lead to the possible identification or confirmation of the true number holder. Again, the agency concluded that this would constitute an unwarranted invasion of personal privacy.

Mot. for Summ. J. Ex. E [21-8] (emphasis added). Indeed, plaintiff makes no secret of her intention to use the redacted Form SS-5 to identify the holder of social security number xxx-xx-xxxx-or, as plaintiff puts it, to confirm her suspicion that the President is fraudulently using that number.^[3]

Plaintiff's allegation that the requested Form SS-5 is associated with a public official does not diminish the privacy interest at stake here. Even if plaintiff's allegation were true, an individual's status as a public official does not, as plaintiff contends, "make exemption 6 irrelevant to him and his vital records." Pl.'s Opp'n to Mot. for Summ. J. 18 [31]. "Individuals do not waive all privacy interests. . . simply by taking an oath of public office." Lissner v. U.S. Customs Serv., 241 F.3d 1220, 1223 (9th Cir.2001); see also Nix v. United States, 572 F.2d 998, 1006 (4th Cir.1978) (explaining that public servants are not "stripped of every vestige of personal privacy," particularly where the release of identifying information could "subject them to harassment and annoyance in the conduct of their official duties"); Kidd v. Dept. of Justice, 362 F. Supp. 2d 291, 297 (D.D.C.2005) (upholding the redaction of a public official's personal information under FOIA Exemption 6 where such information had "little bearing on the public's understanding of the way in which the Department of Justice. . . conducts its affairs"). To be sure, a public official's "privacy interests may be diminished in cases where information sought under FOIA would likely disclose ``official misconduct.'" Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest Serv., 524 F.3d 1021, 1025 (9th Cir.2008) (quoting Lissner, 241 F.3d at 1223-24). But plaintiff's unsubstantiated allegations, without more, do not persuade the Court that the requested information "would likely disclose" official misconduct, id., and thus do not affect the calculus here.

On the other side of the ledger, plaintiff has identified no legitimate public interest that would be served by disclosure of the requested Form SS-5. In determining whether the disclosure of government records would result in a clearly unwarranted invasion of privacy, the relevant public interest to be weighed against the privacy interest is the extent to which disclosure would contribute to "public understanding of the operations or activities of the government." Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 33 (D.C.Cir.2002) (quoting U.S. Dep't of Def. v. FLRA, 510 U.S. 487, 495, 114 S. Ct. 1006, 127 L. Ed. 2d 325 (1994)) (internal quotation marks omitted). "Thus, unless a FOIA request advances the citizens' right to be informed about what the government is up to, no relevant public interest is at issue." Id. at 34 (quoting U.S. Dept. of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 773, 109 S. Ct. 1468, 103 L. Ed. 2d 774 (1989)) (internal quotation marks omitted). The disclosure of an individual's Form SS-5 would provide absolutely no insight into the SSA's operations or activities. And plaintiff—for all her allegations—has produced no "evidence that would warrant a belief by a reasonable person that the alleged government impropriety might have occurred." Nat'l Archives and Records Admin. v. Favish, 541 U.S. 157, 174, 124 S. Ct. 1570, 158 L. Ed. 2d 319 (2004). Her vehement allegations of fraud consist of mere "bare suspicion[s]" and thus fail to satisfy the public interest standard required under FOIA. Id.^[4]

Disclosure of the requested Form SS-5 would implicate a substantial privacy interest while serving no public interest cognizable under FOIA. Because disclosure would "constitute a clearly unwarranted invasion of personal privacy," 5 U.S.C. § 552(b)(6), the SSA properly withheld the Form SS-5 under Exemption 6. Plaintiff challenges no other aspect of the SSA's response to her FOIA request. Accordingly, the Court finds that defendant is entitled to summary judgment in this case.

IV. CONCLUSION

For the reasons discussed above, defendant's Motion for Summary Judgment [21] will be granted. A separate Order consistent with this Memorandum Opinion shall issue this date.

MEMORANDUM AND ORDER

Before the Court is plaintiff's Motion for Reconsideration [36]. Upon consideration of plaintiff's motion, defendant's opposition [37], the reply thereto [38], the entire record herein, and the applicable law, the Court will deny the motion for the reasons set forth below.

I. BACKGROUND

An extensive description of the factual background underlying this litigation and related lawsuits appears in this Court's August 30, 2011 Memorandum Opinion [33]. Plaintiff filed suit under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), to compel the defendant to disclose the Form SS-5 for Social Security number xxx-xx-xxxx in an attempt to confirm her belief that President Barack Obama is using a fraudulent Social Security number. The SSA denied the request under FOIA Exemption 6, which guards against release of documents when such release "would constitute a clearly unwarranted invasion of privacy." 5 U.S.C. § 552(b)(6). This Court in granting summary judgment for the defendant upheld that decision. This Court determined that even public figures retain a privacy interest in personal information, see, e.g., Kidd v. Dept. of Justice, 362 F. Supp. 2d 291, 297 (D.D.C.2005), and that no legitimate public interest would be served by disclosure in absence of any reasonable substantiation of plaintiff's allegations of impropriety. Plaintiff then filed the instant motion for reconsideration.

II. DISCUSSION

While district courts enjoy discretion over the decision whether to grant a motion for reconsideration under Federal Rule of Civil Procedure 59(e), such motions are "disfavored" and are reserved for "extraordinary circumstances." Liberty Prop. Trust v. Republic Props. Corp., 570 F. Supp. 2d 95, 97 (D.D.C.2008) (quoting Niedermeier v. Office of Baucus, 153 F. Supp. 2d 23, 28 (D.D.C.2001)). In seeking reconsideration, a party must show that "there has been an intervening change of controlling law, that new evidence is available, or that granting the motion is necessary to correct a clear error or to prevent manifest injustice." Id.

Plaintiff first argues for reconsideration based on new evidence that purportedly undermines President Obama's privacy interest in the Form SS-5 for the Social Security number at issue. The primary piece of new evidence upon which plaintiff relies is President Obama's posting of his 2009 tax return to the Web site http://www.whitehouse.gov. Plaintiff alleges that users of the computer program Adobe Illustrator can remove the redaction of the President's Social Security number in the document and display the number xxx-xx-xxxx; therefore, plaintiff argues, the President relinquished any privacy interest he held in his association to that number. Assuming arguendo that plaintiff is correct, the document is no grounds for reconsideration. Rule 59(e) does not permit reconsideration solely because a party wishes to submit previously available evidence. Messina v. Krakower, 439 F.3d 755, 759 (D.C.Cir.2006). The President posted his tax return on April 15, 2010—well before plaintiff filed her complaint on February 16, 2011. Accordingly, the document is not "new evidence" under Rule 59(e) and cannot serve as the basis for reconsideration.

Plaintiff also argues that the Court erred in declining to consider as evidence her allegation that she used the Selective Service System's online registration verification service to confirm the President's use of the Social Security number xxx-xx-xxxx. Even if true, this evidence would not undermine the President's privacy interest in the Form SS-5, and does nothing to "warrant a belief by a reasonable person that the alleged government impropriety," namely the President's purportedly fraudulent use of the number, "might have occurred." Nat'l Archives and Records Admin. v. Favish, 541 U.S. 157, 174, 124 S. Ct. 1570, 158 L. Ed. 2d 319 (2004).^[1] Similarly, plaintiff submits an affidavit that an individual used the U.S. Citizenship and Immigration Services' E-Verify Self Check system, which returned an error message showing an unexplained discrepancy between the President and the Social Security number at issue. Apparently, plaintiff is arguing that, if one online database confirms the President's use of the number, and another database shows some mismatch between the President and this number, the President must be engaging in fraud. This constitutes nothing more than an unsubstantiated "bare suspicion" of wrongdoing.^[2]Id. Finally, plaintiff tries to submit as new evidence newspaper reports regarding the allegedly illegal use, by two relatives of the President, of other Social Security numbers. The Court will not give credence to plaintiff's attempt to impugn the President with the alleged misconduct of others.

Next, plaintiff argues four sources of clear error. First, plaintiff suggests that because FOIA Exception 6 only applies to living individuals, and because defendant did not explicitly state that the Social Security number at issue corresponds to a living individual, defendant has failed to meet his burden to show the applicability of the exemption. But defendant did in fact state that the individual associated with the Social Security number is living, see Def. Mem. in Supp. of Mot. for Summ. J. 1 [21-2]. Second, plaintiff argues that the amount of comments on an online version of a magazine article regarding this Court's August 30, 2011 Memorandum Opinion displays a public interest in the Form SS-5. But, as noted in that Opinion, there is no legitimate public interest where the plaintiff submits no evidence giving rise to a reasonable belief that impropriety has occurred, Favish, 541 U.S. at 174, 124 S. Ct. 1570. Third, plaintiff alleges that this Court erred in failing to take into account various affidavits submitted by investigators. These affidavits only restate the assertions made elsewhere by plaintiff and add no credibility to her claims. Fourth, plaintiff submits purported evidence of forgery in the President's birth certificate wholly unrelated to the issue of whether a Form SS-5 is subject to FOIA disclosure.

Finally, plaintiff alleges manifest injustice by repeating her claims of fraud and misconduct, but against fails to substantiate them in any way whatsoever, much less to the degree required to overcome an individual's privacy interest in the information contained in a Form SS-5. None of plaintiff's arguments provides this Court any doubt that reconsideration would be inappropriate.

III. CONCLUSION AND ORDER

For the reasons discussed above, it is hereby

ORDERED that the plaintiff's motion for reconsideration is DENIED.

SO ORDERED.

NOTES

[1] Form SS-5 is the form through which an individual applies for a social security card.

[2] The SSA disclosed to plaintiff three Form SS-5's belonging to deceased individuals because it generally "does not consider the disclosure of information about a deceased person to be a clearly unwarranted invasion of that person's privacy." 20 C.F.R. § 401.190.

[3] Plaintiff's argument that redacted Form SS-5's are "routinely provided to law enforcement," Pl.'s Opp'n to Mot. for Summ. J. 15 [31], is irrelevant. Both the Privacy Act and SSA regulations permit the SSA to disclose records to law enforcement in specific circumstances. See 5 U.S.C. § 552a(b)(7); 20 C.F.R. § 401.155. Clearly, those provisions are inapplicable here.

[4] Plaintiff submits the Selective Service registration acknowledgment form associated with security number xxx-xx-xxxx, Pl.'s Opp'n to Mot. for Summ. J. Ex. 1 [31], which apparently is "readily available on the world wide web." Pl.'s Am. Compl. 3 [3]. She argues that this form establishes that the President is fraudulently using social security number xxx-xx-xxxx, Pl.'s Opp'n to Mot. for Summ. J. 13 [31], and that the Selective Service and the SSA are "engaged in a cover up" of his fraud. Pl.'s Am. Compl. 3 [3]. The Selective Service does not release registration acknowledgment forms to the public; only a registrant himself can request proof of his registration. See Registration Information, http://www.sss.gov/ ack.htm. The Court can only conclude that plaintiff has submitted a form that some individual obtained through a false request and subsequently posted online. Plaintiff also submits a "verification results" page from the Social Security Number Verification System ("SSNVS") indicating that social security number xxx-xx-xxxx is "not in file (never issued)." Pl.'s Opp'n to Mot. for Summ. J. Ex. 2 [31]. She argues that this page is further evidence that the SSA is covering up the President's use of social security number xxx-xx-xxxx. The SSA uses the SSNVS to provide employers with a means of verifying the names and social security numbers of employees. See SSNVS Handbook, http://www.ssa. gov/employer/ssnvshandbk/ssnvsHandbook. pdf. "Anyone who knowingly and willfully uses SSNVS to request or obtain information from SSA under false pretenses violates Federal law and may be punished by a fine, imprisonment or both." Id. at 5. As with the registration acknowledgement form discussed above, the Court can only conclude that plaintiff has submitted a page that some individual obtained under false pretenses—that is, by representing himself as the President's employer. The Court notes that both documents submitted by plaintiff are incomplete; the address on the registration acknowledgment form and the employer identification number on the SSNVS page have been blacked out, further confirming the documents' fraudulent origins. For all of these reasons, the Court will disregard both documents as well as any arguments made in reliance on them.

[1] The Court is loath to dignify plaintiff's allegations of fraud with a response on the merits. However, suffice it to say that plaintiff's argument is premised on the incorrect assumption that Social Security numbers assigned prior to 1973 have any correlation to the recipient's residence, see Employer Filing Instructions and Information, http://www. socialsecurity.gov/employer/stateweb.htm ("Prior to 1973, social security numbers were assigned by our field offices. The [first three] number[s] merely established that his/her card was issued by one of our offices in that State."). Plaintiff's entire premise is totally defeated by a cursory examination of this site, which demonstrates that plaintiff's allegations lack any basis in fact.

[2] Furthermore, the Court notes that individuals may only use the E-Verify Self Check service to check their own employment eligibility, and that to do so an individual must answer a series of private questions before gaining access to the system. See Self Check: Terms of Use, https://selfcheck.uscis.gov/Self CheckUI.