Bigwood v. United States Department of Defense

132 F. Supp. 3d 124, 2015 U.S. Dist. LEXIS 129331, 2015 WL 5675769
CourtDistrict Court, District of Columbia
DecidedSeptember 25, 2015
DocketCivil Action No. 2011-0602
StatusPublished
Cited by80 cases

This text of 132 F. Supp. 3d 124 (Bigwood v. United States Department of Defense) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bigwood v. United States Department of Defense, 132 F. Supp. 3d 124, 2015 U.S. Dist. LEXIS 129331, 2015 WL 5675769 (D.D.C. 2015).

Opinion

MEMORANDUM OPINION ADOPTING REPORT & RECOMMENDATION OF MAGISTRATE JUDGE

KETANJI BROWN JACKSON, United States District Judge

This action arises out of requests that plaintiff Jeremy Bigwood (“Plaintiff’) submitted to the Department of Defense’s Southern Command (“Southcom”) and the Central Intelligence Agency (“CIA”) (collectively, “Defendants”), pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, in which Plaintiff sought information about the June 28, 2009, coup d’état in Honduras. On January 28, 2014, Defendants moved for summary judgment on Plaintiffs complaint, asserting that they conducted an adequate search and turned *131 over all responsive records, except those that they properly withheld under the applicable FOIA exemptions. (Defs.’ Mot. for Summ. J., ECF No. 25, at 6.) 1 In his opposition brief, Plaintiff conceded the CIA’s motion for summary judgment (Pl.’s Mem. of Law in Opp’n to Mot. for Summ. J. by DOD, ECF No. 28, at 7), leaving at issue in this matter only the adequacy of Southcom’s search for documents responsive to Plaintiffs FOIA requests and its invocation of FOIA exemptions. After this motion became ripe upon the filing of Defendants’ reply on April 1, 2014 (ECF No. 33), Plaintiff filed a motion seeking leave to file a sur-reply (ECF No. 34). On February 24, 2015, this Court referred this matter to a Magistrate Judge for full case management.

Before this Court at present is the Report and Recommendation (ECF No. 42) that the assigned Magistrate Judge, G. Michael Harvey, has filed regarding Defendants’ motion for summary judgment and Plaintiffs’ motion for leave to file a surreply. The Report and Recommendation reflects Magistrate Judge Harvey’s opinions that this Court should grant Defendants’ motion for summary judgment and deny Plaintiffs motion for leave to file a surreply. {Id. at 1-2.) Specifically, Magistrate Judge Harvey finds that Southcom’s search for responsive records was adequate {id. at 15-25); that it appropriately invoked FOIA Exemptions 1 and 7(E) to withhold responsive material {id. at 25-30); and that it produced all reasonably segregable non-exempt information {id. at 30-33). He also recommends that this Court deny Plaintiffs request that the undersigned conduct an in camera review of the material that Southcom withheld under Exemptions 1 and 7(E), finding that doing so would be an unnecessary expenditure of judicial resources under these circumstances. {Id. at 37-38.) Finally, Magistrate Judge Harvey recommends that this Court deny Plaintiffs motion for leave to file a sur-reply because the proposed sur-reply does not address matters that South-com raised for the first time in its reply brief. {Id. at 38.)

The Report and Recommendation also advises the parties that either party may file written objections to the Report and Recommendation, which must include the portions of the findings and recommendations to which each objection is made and the basis for each such objection. {Id. at 39.) The Report and Recommendation further advises the parties that failure to file timely objections may result in waiver of further review of the matters addressed in the Report and Recommendation. {Id. at 40.) Under this Court’s local rules, any party who objects to a Report and Recommendation must file a written objection with the Clerk of the Court within 14 days of the party’s receipt of the Report and Recommendation. LCvR 72.3(b). As of this date — over a month after the Report and Recommendation was issued — no objections have been filed.

This Court has reviewed Magistrate Judge Harvey’s report and agrees with its careful and thorough analysis and conclusions. Thus, the Court will ADOPT the Report and Recommendation in its entirety. Accordingly, Defendants’ Motion for Summary Judgement will be GRANTED; and Plaintiffs Motion for Leave to File a Sur-reply will be DENIED.

A separate Order accompanies this Memorandum Opinion.

*132 REPORT AND RECOMMENDATION

G. Michael Harvey, United States Magistrate Judge

On February 24, 2015, this case was referred to the undersigned for full case management. Currently ripe for resolution are defendants’ motion for summary judgment and plaintiffs motion for leave to file a sur-reply to defendants’ motion for summary judgment. Upon a thorough review of the parties’ briefs and the entire record herein, 1 the undersigned recommends that defendants’ motion for summary judgment be granted, and that plaintiffs motion for leave to file a sur-reply to defendants’ motion for summary judgment be denied.

I. BACKGROUND

Plaintiff in this case is Jeremy Bigwood, a freelance investigative journalist. Pl.’s Suppl. Facts ¶ 1; Compl. ¶ 16. Defendants are two Executive Department agencies — the Department of Defense’s (“DOD”) Southern Command (“South-com”) and the Central Intelligence Agency (“CIA”). Id. ¶¶ 17, 19; 5 U.S.C. § 552(f)(1). Southcom is a joint command within the DOD comprised of, inter alia, members of the United States Army, Navy, Air Force, Marine Corps, and Coast Guard. Compl. ¶ 19. It is “responsible for providing contingency planning, operations, and security cooperation for Central and South America including Honduras.” Id. This action arises out of plaintiffs requests to Southcom and the CIA, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., in which plaintiff sought information about the June 28, 2009, coup d’état in Honduras. PL’s Facts ¶ 2; Compl. ¶¶ 1, 2. This Report and Recommendation only addresses plaintiffs FOIA requests to Southcom, as plain-, tiff no longer opposes defendants’ motion for summary judgment concerning plaintiffs FOIA requests to the CIA. Pl.’s Facts ¶¶ 19-27; Pl.’s Opp. at 1.

In plaintiffs first FOIA request to Southcom, submitted on July 1, 2009, plaintiff sought:

all records relating to the coup against Honduras’ President Manuel Zelaya in- *133 eluding, but not limited to: a. any observations or reports about the activities of the Honduran Armed Forces with respect to the coup — as well as the coup itself; b. any records of the passage of the kidnapped president through any military bases, such as Soto Cano— which has a significant U.S. presence; c. any reports about the coup d’état before it actually took place; and d. inter-agency communications to and from [South-com], as U.S. officers in Honduras may have been informing other US government entities about the coup.

Compl. ¶ 23 (internal quotation marks omitted). Plaintiff asked that his FOIA request receive expedited processing. Id. ¶ 24.

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132 F. Supp. 3d 124, 2015 U.S. Dist. LEXIS 129331, 2015 WL 5675769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bigwood-v-united-states-department-of-defense-dcd-2015.