                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

___________________________________
                                                      )
                                                      )
GARY CHARLES BRESTLE,                                 )
                                                      )
                       Plaintiff,                     )
                                                      )
                       v.                             )      Civil Action No. 11-1771 (BJR)
                                                      )
HARLEY LAPPIN,                                        )
                                                      )
                  Defendant.                          )
_____________________________________                 )


                                    MEMORANDUM OPINION

       On June 20, 2013, the Court granted summary judgment to the defendant in this Freedom

of Information Act (“FOIA”) case on the adequacy of the search for responsive records and the

claimed exemptions but found that it had insufficient information to make the requisite

segregability finding. See June 20, 2013 Mem. Op. and Order [Dkt. # 46] at 14-16 (citing

Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007)). Defendant was ordered

(1) to clarify whether it had actually withheld information pertaining to “techniques and

procedures,” as was mentioned by the declarant, id. at 14, and (2) to explain the withholding of

“large blocks of information” under FOIA exemption 7(C). Id. at 14-15.

       Defendant’s Response

       In response to the Order, defendant has proffered the Supplemental Declaration of

Christine Greene [Dkt. # 62-1]. Ms. Greene attributes the reference to techniques and

procedures in her initial declaration to “scrivener’s error,” and she has confirmed that “[n]o

[such] information was withheld.” Id. at 2 & ¶ 4.


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        As for the application of exemption 7(C), Ms. Greene admits that this exemption “was

used too extensively,” id. ¶ 8, and that only “insular words, i.e., the names and other identifying

factors” should have been redacted under exemption 7(C). Id. ¶ 9. Ms. Greene states that the

previous release was “reassessed,” id. ¶ 10, and that “[t]his error has been corrected and the

properly redacted pages have been released to [plaintiff].” Id. 9. Ms. Greene has included as

Attachment A the pages that were re-released to plaintiff on September 3, 2013. The Court finds

from Ms. Greene’s supplemental declaration and its examination of the redacted pages that

defendant has released all reasonably segregable portions of responsive pages to plaintiff.

        Plaintiff’s Pending Motions

        Also pending are plaintiff’s three contested motions, each of which will be denied for the

following reasons.

        First, plaintiff seeks leave to file a supplemental memorandum [Dkt. # 55], but he has not

proffered the proposed document. Regardless, as defendant has observed, plaintiff’s assertions

in support of the motion “merely reiterate[] a variant” of his public interest argument that the

Court has already rejected. Def.’s Mem. of P & A in Opp’n to Pl.’s Mot for Leave to File

Supplemental Mem. at 2; see Mem. Op. at 10-12. The Court finds no basis for allowing plaintiff

to supplement the record with a futile argument.

        Second, plaintiff moves to compel the production of documents responsive to a FOIA

request dated March 9, 2012, see Mot. to Compel [Dkt. # 58], Ex. 1, but defendant has correctly

countered that “this . . . request is neither at issue in nor a claim to the current action.” Def.’s

Mem. of P. & A. in Opp’n to Pl.’s Mot. to Compel at 1; see Mem. Op. at 1, 2 (identifying the

subject of this action as plaintiff’s FOIA request dated May 9, 2011).




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       Third, plaintiff seeks relief under the Administrative Procedure Act (“APA”), 5 U.S.C.

§ 702, see Mot. Re: Relief, Unopposed by DOJ Under Title 5, United States Code, Section § 702

“APA” [Dkt. # 60], but judicial review under the APA is available when there is “no other

adequate remedy in a court.” 5 U.S.C. § 704. An APA claim predicated on wrongfully withheld

agency records “in connection with [a] discrete FOIA request[] . . . is precluded.” Nat’l Sec.

Counselors v. CIA, 898 F. Supp. 2d 233, 264 (D.D.C. 2012) (citing Kenney v. U.S. Dep't of

Justice, 603 F. Supp. 2d 184, 190 (D.D.C. 2009)).

       For the foregoing reasons, the Court will deny the plaintiff’s pending motions and will

now enter judgment for the defendant on all claims. A separate final order accompanies this

Memorandum Opinion.

                                             _______________s/s____________
                                             BARBARA JACOBS ROTHSTEIN
                                             United States District Judge

DATE: October 3, 2013




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