Smith v. Sessions

247 F. Supp. 3d 19, 2017 WL 1166306, 2017 U.S. Dist. LEXIS 45234
District Court, District of Columbia·Decided March 28, 2017·No. Civil Action No. 2015-0206·Published·Cited by 5 cases

Opinion

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

This matter is before the Court on the FBI’s Motion to Dismiss or, in the Alternative, for Summary Judgment, ECF No. 28. For the reasons discussed below, the motion will be granted.

I. BACKGROUND

At the time the plaintiff filed his complaint and amended complaint, he was “a federal pretrial detainee,” Am. Compl. ECF No. 8, at 3 (page numbers designated by ECF), facing criminal charges in the United States District Court for the Western District of New York arising from “a scheme to defraud Pentagon Federal Credit Union (‘Penfed’) and [to] knowingly obtain money, funds, credits, owned by and under the custody and control of Penfed by means of false and fraudulent pretenses in violation of 18 U.S.C. §§ 1344(1) and 1344(2),” Mot. for Order Preserving Certain Exemptions, and Mem. of P. & A. in Support Thereof, ECF No. 20, Deck of David M. Hardy (“First Hardy Deck”) ¶ 26. “On September 22, 2015, the plaintiff [pled] guilty to Count 1 of the Second Superseding Indictment, charging a viola *23 tion of 18 U.S.C. § 1344.” First Hardy Decl. ¶ 26. On June 28, 2016, the defendant was sentenced to a 63-month term of imprisonment followed by a five-year term of supervised release. See Judgment in a Criminal Case, United States v. Smith, No. 1:13-cr-0084 (W.D.N.Y. June 30, 2016). Plaintiff filed an appeal on July 7, 2016. Notice of Filing, ECF No. 26, Second Decl. of David M. Hardy (“Second Hardy Decl”) ¶6. “[T]here are additional conspirators who have been charged and awaiting trial,” and “the overall investigation remains pending,” Id. ¶ 7; see First Hardy Decl. ¶ 27.

In October 2014, the plaintiff submitted a FOIA request to the FBI, Am. Compl. at 3, for “all files in [its] possession ... regarding ... Brian Avery Smith,” First Hardy Decl., Ex. A at 1. A search of the FBI’s Central Records System, see id. ¶¶ 22-23, yielded “one main file indexed to [the] plaintiff’s name ... along with multiple cross-references.” Id. ¶ 23.

The FBI assigned the matter a tracking number, FOIPA Request Number 1303815-000. Id. ¶ 4. 2 It initially denied the plaintiffs request on the ground that the main file was exempt from disclosure under Exemption 7(A). Id. ¶¶ 4,23. 3 After the plaintiff filed this lawsuit, FBI staff “reran [the] search[ ] to confirm its results,” and “located a file related to prior civil litigation that [the] plaintiff brought against the FBI.” Second Hardy Decl. ¶ 16. By letter dated August 25, 2015, the FBI asked whether the plaintiff “would like to receive copies of records from this civil litigation file (identified ... by the 197 file classification or as the ‘197 file’).” Id. 4 In addition, the FBI notified the plaintiff that it had “located two responsive cross-references to [the] plaintiff in other investigative files.” Id.

The plaintiff responded by asking the FBI to “process [his] FOIA request, based on the letter [he] received ... dated August 25, 2015.” First Hardy Decl., Ex. K at 2. The FBI interpreted the plaintiffs response “as confirmation that [he] wanted copies from [the] 197 file.” Id. ¶ 17. FBI staff “processed all 15 pages of responsive records from the 197 (civil litigation) file and the two cross-references to [the] plaintiff in other investigative files.” Id. ¶ 18. “On October 28, 2015, the FBI released all 15 pages ... in full or in part, with certain information redacted pursuant to FOIA Exemptions [5, 6, 7(A), 7(C), and 7(E) ].” Id. Lastly, on June 5, 2016, the FBI released, in full, 153 pages of records “from the pending investigation files, representing all reasonably segregable, non-exempt information in the files.” Id. ¶ 21. It maintained that the remaining records were protected under Exemption 7(A) and other exemptions, and withheld these records in full. Id.

The FBI filed its motion to dismiss or, alternatively, for summary judgment on September 13, 2016. On September 26, 2016, the Court issued an Order advising the plaintiff of his obligations under the Federal Rules of Civil Procedure and the local civil rules of this Court. See Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992); Fox v. Strickland, 837 F.2d 507, 509 (D.C. *24 Cir. 1988). Specifically, the Court notified the plaintiff that, if he failed to file an opposition or other response to the defendants’ motion by October 27, 2016, the Court would treat the defendants’ motion as conceded. See Local Civil Rule 7(b) (permitting court to “treat ... as conceded” a motion not met with a timely opposing memorandum of points and authorities). On the plaintiffs motion, the Court twice extended his deadline, most recently to February 21, 2017. To date, the plaintiff has not filed an opposition to the motion or requested more time to file an opposition.

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Smith v. Sessions, 247 F. Supp. 3d 19, 2017 WL 1166306, 2017 U.S. Dist. LEXIS 45234 (D.D.C. 2017).

247 F. Supp. 3d 19 (Smith v. Sessions) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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