Blixseth v. United States Coast Guard

• Court: District Court, District of Columbia
• Decided: December 16, 2019
• Docket: Civil Action No. 2019-2297
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TIMOTHY BLIXSETH,

Plaintiff, v. Civil Action No. 19-2297 (JEB) UNITED STATES COAST GUARD,

Defendant.

MEMORANDUM OPINION

Plaintiff Timothy Blixseth believes himself the victim of high-level government

corruption. In the latest of his myriad Freedom of Information Act suits, he accuses the U.S.

Coast Guard of failing to produce documents principally related to a 2010 stop of his yacht,

Piano Bar, near San Pedro, California. The Coast Guard has produced only three unredacted

records and avers that its search has otherwise come up empty. Although Blixseth believes that

the search should have been more comprehensive, the Court concludes that the Coast Guard has

acted above and beyond what is typically required. Its Motion for Summary Judgment will

consequently be granted.

I. Background

According to Plaintiff, he submitted a FOIA request to the Coast Guard on April 17,

2018, which sought the following records:

1. All documents from the period of January 1, 2010 through December 31, 2010 that refer or relate to Blixseth, Piano Bar, or Yellowstone Aviation & Marine; and

2. All emails from any and all of former U.S. [Coast Guard] Commandant Robert J. Papp, Jr.’s email accounts from the period of May 25, 2010 through December 31, 2010, referencing: a. Piano Bar b. Yellowstone c. Yellowstone Aviation & Marine d. Blixseth.

1 ECF No. 1 (Complaint), ¶ 9. He alleges that “[t]he records relate to Coast Guard actions taken

against Plaintiff, as part of a coordinated and corrupt effort by high-level Department of Justice

officials, along with the Coast Guard and other agencies, to intimidate Plaintiff from further

pursuing his legal rights to continue challenging a bankruptcy reorganization plan in Montana.”

Id., ¶ 2. The Court notes that such conspiratorial allegations are consistent with those raised in

other suits here. See, e.g., Shaw v. DOJ, No. 18-593, ECF No. 32-1 (Declaration of Timothy

Blixseth), ¶ 22 (alleging that his adversaries “enlisted friends in the highest levels of the

Government to intimidate [him] as well as to cause [him] financial harm”).

In October 2018, the Coast Guard responded that it had performed a comprehensive

search without locating any responsive documents. Id., ¶ 12. In appealing this result

administratively, Plaintiff’s letter explained:

In 2010, Mr. Blixseth’s yacht, Piano Bar, was intercepted by the Coast Guard. Under its own policies, the Coast Guard is required to create and maintain all investigative files for any such activities, and as such, there must be responsive investigative records maintained by the Coast Guard in response to this Request. Moreover, the Coast Guard failed to search the records of several Coast Guard components, including but not limited to the Office of Commercial Vessel Compliance . . . .

Id., ¶ 13.

After receiving no response, Blixseth filed this action. The Coast Guard, in turn, renewed

its search and located one document, which it produced to him in full. (Two other documents

ultimately delivered to him are discussed in Section III.B, infra.) It now moves to dismiss or for

summary judgment, contending that its search was sufficient; Plaintiff both opposes such Motion

and moves for discovery on the mechanics of the search.

2 II. Legal Standard

Given the importance of the affidavits submitted here, the Court believes that the

appropriate standard is the one related to summary judgment. Summary judgment must be

granted 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). A genuine issue of

material fact is one that would change the outcome of the litigation. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome

of the suit under the governing law will properly preclude the entry of summary judgment.”). In

the event of conflicting evidence on a material issue, the Court is to construe the conflicting

evidence in the light most favorable to the non-moving party. Sample v. Bureau of Prisons, 466

F.3d 1086, 1087 (D.C. Cir. 2006). Factual assertions in the moving party’s affidavits or

declarations may be accepted as true unless the opposing party submits his own affidavits,

declarations, or documentary evidence to the contrary. Defs. of Wildlife v. U.S. Border Patrol,

623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citing Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992)).

FOIA cases typically and appropriately are decided on motions for summary judgment.

Id.; Bigwood v. U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In FOIA

cases, the agency bears the ultimate burden of proof. See DOJ v. Tax Analysts, 492 U.S. 136,

142 n.3 (1989). The Court may grant summary judgment based solely on information provided

in an agency’s affidavits or declarations when they “describe the documents and the

justifications for nondisclosure with reasonably specific detail, demonstrate that the information

withheld logically falls within the claimed exemption, and are not controverted by either contrary

evidence in the record []or by evidence of agency bad faith.” Military Audit Project v. Casey,

656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded “a presumption

3 of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and

discoverability of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.

Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

III. Analysis

Although many FOIA cases turn on whether the Government’s withholdings were proper,

the dispute here is much narrower: it focuses solely on the adequacy of the Coast Guard’s search

for documents. “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)); see also Steinberg v. DOJ, 23 F.3d 548, 551 (D.C.

Cir. 1994). “[T]he issue to be resolved is not whether there might exist any other documents

possibly responsive to the request, but rather whether the search for those documents was

adequate.” Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984). The adequacy of an

agency’s search for documents “is judged by a standard of reasonableness and depends, not

surprisingly, upon the facts of each case.” Id. A search-adequacy inquiry includes consideration

of facial validity and any specific deficiencies in the scope of the search. See Huntington v. U.S.

Dep’t of Commerce, 234 F. Supp. 3d 94, 103 (D.D.C. 2017). The Court, accordingly, will

separately evaluate these issues.

A. Facial Validity

The Government here submitted the Declaration of Jesse L. Houck, the Deputy Office

Chief for the Coast Guard Judge Advocate General’s Office of Claims and Litigation. See ECF

No. 11-1 & ¶ 1. Houck explained that “[t]he Coast Guard does not have a centralized document

management system that it can search when it receives a FOIA request. Rather, a FOIA

4 Contractor from [its Management Programs and Policy Division] evaluates the apparent subject

matter of the request, and then sends it to the Coast Guard unit(s) or office(s) most likely to have

responsive records for additional processing.” Id., ¶ 4. Those units or offices then conduct their

own searches, which include contacting employees of that unit or office and frequently

performing a computer key-word search. Id.

In this case, the Coast Guard conducted multiple exhaustive searches. To begin, the

FOIA Contractor, Jonathan Griffie, forwarded the request to the Coast Guard’s Office of

Investigations and Casualty Analysis (CG-INV), which “leads the Coast Guard’s investigation

program to promote marine safety, protect the maritime environment and to prevent future

maritime accidents.” Id., ¶ 6 (footnote omitted). The FOIA Coordinator for CG-INV received

the request and determined that her office would not have any responsive records, but she

forwarded it on to the Office of the Commandant. Id., ¶ 7. The search there was supervised by

the Assistant Commandant for Command, Control, Communications, Computers, and

Information (C-6). Id., ¶ 8. After determining that Piano Bar was the name of the vessel — a

fact Plaintiff had not divulged — the Executive Secretary to the Assistant Commandant “looked

for responsive records on a Coast Guard-wide intranet site known as the CG Portal, . . . [which]

is comprised of unique sites and pages that belong to each Coast Guard unit and office.” Id., ¶

10. His search using the terms Plaintiff provided yielded no success, as did a search of the paper

files located in C-6’s offices and C-6’s networked shared drive. Id., ¶¶ 10–11.

This was followed by a search of Coast Guard Cyber Command, the “backbone of the

Coast Guard’s email system . . . [and] the only place the Coast Guard stores individual email

accounts.” Id., ¶ 13. The search, however, was unlikely to find any of Commandant Papp’s

emails, since he had “retired from active duty on May 31, 2014, [and p]er Coast Guard IT policy,

5 . . . [225] days later, his account was deleted.” Id., ¶ 15. The Executive Secretary next contacted

the Chief Historian in the Coast Guard Historian’s Office for copies of Papp’s data, but he was

informed that the office does not “keep those types of records.” Id., ¶ 16.

Not done yet, Houck then worked with the Executive Secretary to conduct an additional

search, which could be more targeted since Plaintiff’s appeal letter indicated that “he was

seeking documentation relating to an alleged ‘interception’ of his vessel by the Coast Guard in

2010.” Id., ¶ 18. This led the searchers to the Marine Information for Safety and Law

Enforcement (MISLE) database, which covers all “operational activities such as vessel

boardings, . . . law enforcement actions, and search and rescue operations.” Id., ¶ 19. Plaintiff’s

proposed terms yielded one responsive record, which was produced. Id., ¶ 20. Houck also

supervised a record search in the National Vessel Documentation Center and the Office of

Commercial Vessel Compliance, both to no avail. Id., ¶¶ 21–22. In sum, Houck coordinated

with other very experienced Coast Guard officers and “searched, or directed searches, for records

responsive to the FOIA Request in every Coast Guard unit and office that we collectively

conceived would likely have responsive materials. . . . There are no other Coast Guard units or

offices likely to possess any records responsive to this FOIA Request.” Id., ¶ 23.

On its face, the Houck Declaration certainly constitutes 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.” Oglesby v. U.S. Dep’t of

the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The affidavit likewise contains the proverbial

“magic words.” The “magic” statement in an agency’s testimony is an “assertion that [the

Department] searched all locations likely to contain responsive documents.” Bartko v. DOJ, 167

F. Supp. 3d 55, 64 (D.D.C. 2016). As Houck’s Declaration unequivocally attests that it searched

6 all files reasonably likely to contain responsive information, the search is facially adequate.

B. Specific Deficiencies

Despite the impressive efforts detailed in the Houck Declaration, Plaintiff believes that

the Coast Guard has not satisfied its FOIA responsibilities. He raises multiple arguments, which

Houck dispatches in a Supplemental Declaration. See ECF No. 15-1. First, Plaintiff points out

that the Coast Guard did not “identify the date range for its search” that recovered the single

document. See ECF No. 13 (Opp.) at 7, but Houck clarifies that it was the 2010 range Blixseth

sought. See Houck Supp. Decl., ¶ 4.

Second, according to Blixseth, “Defendant never even bothered to search for . . . records

in the CG-INV Office,” which “on its own demonstrates the inadequacy of Defendant’s search in

this case.” Opp. at 7–8. This, Houck explains, is because CG-INV oversees investigations into

“reportable marine casualties (e.g. vessel grounding, loss of propulsion, loss of life,” none of

which was involved here. See Houck Supp. Decl., ¶ 5. Plaintiff’s third point also principally

relates to searches of CG-INV officers’ records, which, as just mentioned, would not have been

fruitful. See Opp. at 8.

Fourth, Blixseth asserts that “Defendant’s declaration does not explain what information

is provided on the CG Portal.” Id. (citation omitted). The Court is not sure why a more detailed

explanation beyond the discussion above is necessary on this point. See, e.g., Coffey v. Bureau

of Land Mgmt., 249 F. Supp. 3d 488, 501 (D.D.C. 2017) (“‘[F]ailure . . . to identify’ the database

and software involved in its search . . . does not preclude summary judgment . . . .”); CREW v.

Nat’l Indian Gaming Comm’n, 467 F. Supp. 2d 40, 50 (D.D.C. 2006) (rejecting argument that

agencies “must reveal details about the search, including ‘information regarding the actual

databases or indices searched’”).

7 Fifth, Plaintiff laments that “there is no evidence that Defendant searched the hard copy

records or other sources in the Coast Guard’s Office of Maritime Law Enforcement . . . or the

Coast Guard’s National Vessel Documentation Center.” Opp. at 9. Yet, the former “does not

maintain paper records of Coast Guard law enforcement activities,” and the latter only

“maintains vessel documentation records for vessel[s] flagged in the United States.” Houck

Supp. Decl., ¶¶ 7–8. Piano Bar is registered in the Cayman Islands. Id., ¶ 8.

Sixth, Blixseth contends that the Coast Guard should also have used as a search term the

“VIN number or other current identifiers” for the yacht. See Opp. at 9. This information was

readily available to Plaintiff as the yacht’s owner, and he could have requested such search but

did not.

Blixseth’s seventh point relates to when the Government learned a certain fact, but it does

not allege any further search that should have been done, and his eighth argues that “Defendant

provides no explanation for why there are no investigative records.” Id. at 10. The

Government’s responsibility under FOIA is to produce records, not explanations or surmises

about their absence.

Houck nonetheless pursued additional avenues once Plaintiff had informed the

Government that he sought records regarding Piano Bar’s interception and that it occurred near

San Pedro, California. He contacted the Lieutenant Commanders in charge of vehicle detentions

in both that area and in San Diego and directed further searches, which resulted in the retrieval of

a 2012 Notice of Violation and a 2012 Statement of Compliance for Piano Bar. Even though

their dates placed them outside Plaintiff’s search parameters, the two records were forwarded on

to him. See Houck Supp. Decl., ¶¶ 10–13.

Plaintiff’s final pleading continues to seek discovery and to complain that records of the

8 purported 2010 detention must exist. See ECF No. 16 (Reply) at 3–5. “To begin with, discovery

is generally inappropriate in a FOIA case. More important, Plaintiff here has offered no valid

reason to question the good faith or efficacy of [the Coast Guard’s] search.” Freedom Watch,

Inc. v. U.S. Dep’t of State, 77 F. Supp. 3d 177, 183 (D.D.C. 2015) (internal citation, internal

quotation marks, and citation omitted). Here, that search has been impressive in its

comprehensiveness, and the agency should be commended for such diligent efforts in response to

Plaintiff’s queries. No more is required under FOIA.

IV. Conclusion

For the foregoing reasons, the Court will grant the Coast Guard’s Motion for Summary

Judgment. An Order accompanies this Memorandum Opinion.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: December 16, 2019