                                                     UNITED STATES DISTRICT COURT
                                                     FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
Randee A. Gilliam,                        )
                                          )
       Plaintiff,                         )
                                          )
              v.                          )                              Civil No. 1:14-cv-00036 (APM)
                                          )
U.S. Department of Justice, et al.,       )
                                          )
       Defendant.                         )
_________________________________________ )

                                                 MEMORANDUM OPINION AND ORDER

              This case is the third in a line of cases recently brought in this court under the Freedom of

Information Act (“FOIA”) challenging the government’s withholding of all documents relating to

court-authorized wiretaps in pending drug conspiracy cases in the Western District of

Pennsylvania. The first was brought by Anthony Ellis and resolved by Judge Boasberg in Ellis v.

DOJ, __ F. Supp. 3d__, Civ. No. 13-2056, 2015 WL 3855587 (D.D.C. June 22, 2015). The second

was brought by Lamont Wright and resolved by Judge Walton in Wright v. DOJ, __ F. Supp. 3d

__, Civ. No. 14-272, 2015 WL 4910502 (D.D.C. Aug. 17, 2015). And this case, the third, was

brought by Plaintiff Randee Gilliam. All three men are incarcerated at the Northeast Ohio

Correctional Center in Youngstown, Ohio. In fact, Gilliam and Wright are co-defendants in the

same criminal matter. See United States v. Randee Gilliam, 12-cr-00093 (W.D. Pa.). Not

coincidentally, all three cases raise almost identical claims and arguments under FOIA.1 Indeed,

Gilliam’s and Wright’s opposition briefs are, except for their final pages, identical.


                                                            
1
 For reasons that are unclear, the government did not alert the court to the relatedness of this case, Ellis, and Wright.
Nor did it bring either Judge Boasberg’s or Judge Walton’s rulings to this court’s attention. The government would
do better in the future to identify such connected cases—even if not technically “related” under the court’s rules—to
conserve judicial resources.
Compare Gilliam v. DOJ, Pl.’s Opp’n, ECF No. 18, with Wright v. DOJ, Pl.’s Opp’n, ECF No.

18.

              Notwithstanding the substantial overlap among these cases, this court has an independent

obligation to consider the merits of the case before it. And, to that end, the court has reviewed all

of the briefing and supporting materials submitted by the parties. Ultimately, the court concludes,

for the same reasons as those set forth in Ellis and Wright, that Defendants’ motion for summary

judgment must be granted. However, as explained below, the court grants Plaintiff’s request to

amend his complaint to add new FOIA claims, but denies the request insofar as Plaintiff seeks to

add claims arising from the alleged illegal intercept of his telephone communications.

Additionally, the court denies Plaintiff’s motion for sanctions.

I.            BACKGROUND

              On March 29, 2013, Plaintiff Randee Gilliam submitted a FOIA request to Defendant

United States Department of Justice (“DOJ”) for “a copy of the Title III interception approval

letters and all other documents that are a part of the electronic surveillance” for four telephone

numbers. Def.’s Mot. for Summ. J., Decl. of Peter Sprung [hereinafter “Sprung Decl.”], ECF No.

15-2, ¶ 8.2 On July 17, 2013, the Criminal Division of DOJ denied the request in its entirety. Id.

¶ 14, Ex. I. It advised Plaintiff that, “to the extent responsive records do exist, they are exempt

from disclosure” under FOIA Exemption 3 because Title III exempts them from disclosure. Id.

DOJ’s Office of Information Policy affirmed the Criminal Division’s invocation of Exemption 3.

Id. ¶ 19, Ex. N.

              On January 7, 2014, Gilliam filed this lawsuit. Compl., ECF No. 1. Even though it had

previously refused to search for or produce documents, DOJ conducted a search for records and

                                                            
2
 Gilliam also submitted similar requests, but for one less telephone number, on May 30, 2013, and June 18, 2013.
Sprung Decl. ¶¶ 10-11, Exs. E, F.

                                                               2
 
located 2,300 pages of potentially responsive material. Sprung Decl., Ex. Q, ECF No. 15-4. That

material included, among other things, Title III applications, agent affidavits, proposed orders,

authorization memoranda, and emails among DOJ attorneys concerning the Title III application.

Id., Ex. P, ECF No. 15-3. DOJ moved for summary judgment on September 12, 2014. See Def.’s

Mot. Summ. J., ECF No. 15. With its motion, DOJ produced a 150-page Vaughn index, asserting

that all potentially responsive documents were exempt under FOIA Exemptions 3, 5, 6, or 7(C).

Id., Ex. Q.

II.    STANDARD OF REVIEW

       Most FOIA cases are appropriately resolved on motions for summary judgment. Brayton

v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment is

warranted under Federal Rule of Civil Procedure 56 “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 dispute is “genuine” only if a reasonable fact-finder could find for the nonmoving

party, while a fact is “material” only if it is capable of affecting the outcome of litigation. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A non-material factual dispute is insufficient to

prevent the court from granting summary judgment. Id.           The moving party must support the

assertion that no facts are in dispute by “citing to particular parts of materials in the record,

including . . . affidavits or declarations.” Fed. R. Civ. P. 56(c)(1)(A). In making its determination

as to summary judgment, the court must review “[a]ll underlying facts and inferences . . . in the

light most favorable to the non-moving party.” N.S. ex rel. Stein v. District of Columbia, 709 F.

Supp. 2d 57, 65 (D.D.C. 2010) (citing Anderson, 477 U.S. at 255).

       An agency seeking summary judgment in a FOIA case bears the burden of showing that,

even with the facts viewed in the light most favorable to the requester, the agency has conducted



                                                   3
 
a search “reasonably calculated to uncover all relevant documents.” Weisberg v. DOJ, 705 F.2d

1344, 1351 (D.C. Cir. 1983). To carry this burden, the agency may submit 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 Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Production of such an affidavit allows a requester to

challenge, and a court to assess, the adequacy of the search performed by the agency. Id. These

affidavits are afforded “a presumption of good faith, which cannot be rebutted by purely

speculative claims.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal

quotation marks omitted).

       Summary judgment based on affidavits is not warranted, however, if the affidavits are

“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) (citations omitted); see also

Hall v. CIA, 668 F. Supp. 2d 172, 196 (D.D.C. 2009) (“Courts may permit discovery in FOIA

cases where a plaintiff has made a sufficient showing that the agency acted in bad faith.”) (citations

omitted) (internal quotation marks omitted). “To successfully challenge an agency’s showing that

it complied with the FOIA, the plaintiff must come forward with ‘specific facts’ demonstrating

that there is a genuine issue with respect to whether the agency has improperly withheld extant

agency records.” Wright, 2015 WL 4910502, at *3 (citation omitted) (internal quotation marks

omitted).

III.   DISCUSSION

       A.      Reasonableness of DOJ’s Search

       Gilliam challenges the reasonableness of DOJ’s search for responsive materials.

Pl.’s Opp’n at 52. To prevail on this issue DOJ must show that it conducted a search reasonably



                                                  4
 
calculated to uncover all relevant records. See Weisberg, 705 F.2d at 1351. To meet its burden,

DOJ may rely on a detailed affidavit that explains the scope and method of its search. See Oglesby,

920 F.2d at 68. Here, DOJ has presented a declaration from Peter Sprung, an attorney in DOJ’s

Freedom of Information Act/Privacy Act Unit, for that purpose [hereinafter “Sprung Declaration”].

       The Sprung Declaration explains that DOJ searched two databases for responsive

materials: (1) an Office of Enforcement Operations (“OEO”) database used to track prosecutors’

requests for Title III intercepts, and (2) the Criminal Division’s archived email system.

Sprung Decl. ¶ 21. The Sprung Declaration details why those two databases were selected and

how DOJ went about searching them for responsive materials. Id. ¶¶ 22-30. Based on these

representations, the court is satisfied that DOJ’s search met its obligations under FOIA. Therefore,

for the same reasons stated in Wright and Ellis, this court concludes that DOJ conducted a search

reasonably designed to identify all responsive records. See Wright, 2015 WL 4910502, at *6-8

(finding that search of OEO database and Criminal Division’s email archive system was sufficient

to uncover all relevant documents); Ellis, 2015 WL 3855587, at *3-5 (same).

       The court also rejects Gilliam’s specific challenges to the adequacy of the search. First, his

contention that DOJ did not perform a search under the Privacy Act, 5 U.S.C. § 552a, Pl.’s Opp’n

at 47, fails. As explained in Ellis, a Privacy Act search is co-extensive with a FOIA search. See

Ellis, 2015 WL 3855587, at *5. Thus, “[i]t follows that since the agency conducted an adequate

search under FOIA, it also satisfied the Privacy Act’s requirements.” Id.

       Second, Gilliam contends that DOJ should have searched two other databases—the United

States Drug Enforcement Agency’s Narcotics and Dangerous Drug Information System and the

Executive Office of the United States’ Attorneys’ Legal Information Office Network Systems.

Pl.’s Opp’n at 55-56. But as Judge Walton explained in Wright, an agency is only required to



                                                 5
 
search systems that are likely to have responsive documents. 2015 WL 4910502, at *5. And, here,

Gilliam has offered no specific facts creating a genuine issue as to whether DOJ has withheld

responsive documents by searching only the OEO and email databases. See id.

       Finally, Gilliam challenges DOJ’s search because it took place only after he filed suit

against the agency. Pl.’s Opp’n at 61. But, as explained in Ellis, “the only consequence of this

delay would be a finding that Plaintiff constructively exhausted his administrative remedies and

therefore was entitled to bring this suit.” 2015 WL 3855587, at *4. “As DOJ does not proffer any

exhaustion defense here, the point is moot.” Id.

       B.      FOIA Exemptions

               1.     Exemption 3

       DOJ invokes FOIA Exemption 3, 5 U.S.C. § 552(b)(3), to withhold the following

documents: (1) applications, affidavits of law enforcement agents, and proposed court orders

seeking court-authorization to intercept wire communications; (2) action memoranda from OEO

to the Assistant Attorney General (“AAG”) recommending approval of the prosecutor’s intercept

requests; and (3) a memorandum from the AAG to OEO approving the prosecutor’s requests.

Sprung Decl. ¶ 34. Under Exemption 3, an agency may withhold information “specifically

exempted from disclosure by statute,” so long as the statute, as pertinent here, either “requires

[withholding] from the public in such a manner as to leave no discretion on the issue” or

“establishes particular criteria for withholding or refers to particular types of matters to be

withheld.” 5 U.S.C. § 552(b)(3)(A). To justify its withholding under Exemption 3, DOJ relies on

two sections of Title III—18 U.S.C. §§ 2518(8)(b) and 18 U.S.C. § 2517—which, according to

DOJ, require that the above-listed materials be sealed by a court order.




                                                   6
 
        For the same reasons set forth in Wright, 2015 WL 4910502, at *6-7, and Dorsey v. DEA,

__ F. Supp. 2d __, Civ. No. 11–1350, 2015 WL 1431707, at *3 (D.D.C. Mar. 28, 2015), the court

concludes that DOJ’s invocation of Exemption 3 was proper. As explained in Wright, section

2518(8)(b) on its face requires courts to seal applications and orders granting the Title III intercept

application. See Wright, 2015 WL 4910502, at *6. Plaintiff points out that Title III does not

specifically require sealing of authorizing memoranda. Pl.’s Opp’n at 18. However, as explained

in Dorsey, because such records contain the very same information as applications and orders, they

too are properly exempted from disclosure under FOIA. See Dorsey, 2015 WL 1431707, at *3;

see also Wright, 2015 WL 4910502, at *6 (following Dorsey). Thus, the agency here had no

choice but to withhold the relevant Title III applications, orders, and authorizing memoranda from

Plaintiff, and it did so properly.

        Plaintiff’s other arguments do not warrant a different conclusion. First, although as

Plaintiff argues, the Sprung Declaration itself does not identify the withheld documents with

specificity, Pl.’s Opp’n at 4-5, the Vaughn Index does. See Sprung Decl., Ex. Q. Thus, DOJ has

not, as Plaintiff contends, simply made a boilerplate invocation of Exemption 3. See also Wright,

2015 WL 4910502, at *7.

        Second, Plaintiff argues that the documents at issue have entered the public domain and

thus are not subject to any FOIA exemption. See Pl.’s Opp’n at 8-13. But Plaintiff is wrong for

the reasons set forth in Wright. See Wright, 2015 WL 4910502, at *8. The transcripts provided

by Plaintiff do not show public disclosure of the Title III applications, orders, and authorization

memoranda. Id. Further, Plaintiff’s receipt of some of those records through discovery in his

criminal case did not place them into the public domain for purposes of FOIA Exemption 3. Id.




                                                  7
 
(citing Cottone v. Reno, 193 F.3d 550, 556 (D.C. Cir. 1999) (stating that “a constitutionally

compelled disclosure to a single party simply does not enter the public domain”).

               2.     Exemption 5

       DOJ invokes FOIA Exemption 5, 5 U.S.C. § 552(b)(5), to justify withholding the same

seven categories of documents it withheld in Wright. Compare Def.’s Mem., ECF No. 15, at 20

with Wright, 2015 WL 4910502, at *9. Exemption 5 shields disclosure of “inter-agency or intra-

agency memorandums or letters which would not be available by law to a party other than an

agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). Exemption 5 has been interpreted to

incorporate the three traditional civil discovery privileges—the attorney work product privilege,

the deliberative process privilege, and the attorney-client privilege. Burka v. Dep’t of Health &

Human Servs., 87 F.3d 508, 518 (D.C. Cir. 1996). As was the case in Wright, DOJ asserted here

both the attorney work product and deliberative process privileges to justify its invocation of

Exemption 5.

       The court agrees that the seven categories of documents withheld under Exemption 5 were

properly withheld as protected attorney work product. Plaintiff has not contested DOJ’s work

product assertion and therefore has conceded the issue. See Fox v. American Airlines, Inc., 389

F.3d 1291, 1294 (D.C. Cir. 2004); Day v. D.C. Dep’t of Consumer and Regulatory Affairs, 191 F.

Supp. 2d 154, 159 (D.D.C. 2002). Moreover, even if Plaintiff had contested the issue, as the courts

concluded in Wright and Dorsey, the work product privilege covers the withheld materials.

See Wright, 2015 WL 4910502, at *10-11; Dorsey, 2015 WL 1431707, at *4 (holding that Title

III authorization memoranda were covered by the work product privilege); see also Wolfson v.

United States, 672 F. Supp. 2d 20, 30 (D.D.C. 2009) (finding that memoranda recommending

continued wiretap authorization were protected by attorney work-product privilege).



                                                8
 
              The court also agrees with DOJ that the action memoranda from OEO to the Assistant

Attorney General recommending approval of the Title III requests, as well as email messages

between the requesting and reviewing prosecutors, are protected under the deliberative process

privilege. Def.’s Mem. at 22. Such documents are both “predecisional” and “deliberative,” as

required to invoke that privilege. See Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C. Cir. 1997); see

also Wolfson, 672 F. Supp. 2d at 30 (finding that memoranda recommending intercept

authorization were covered by the deliberative process privilege); Gov’t Accountability Project v.

DOJ, 852 F. Supp. 2d 14, 25-26 (D.D.C. 2012) (holding that emails among prosecutors relating to

decision not to prosecute were covered by the deliberative process privilege).3

              The court is unpersuaded by Plaintiff’s effort to pierce these privileges by asserting that

DOJ has engaged in race discrimination in its seeking of intercepts in the Western District of

Pennsylvania. See Pl.’s Opp’n at 28, 36-46. The court agrees with the court in Wright that Plaintiff

has not offered compelling evidence of wrongdoing to vitiate the privilege invoked by DOJ.

See Wright, 2015 WL 4910502, at *11.

                             3.             Exemptions 6 and 7(C)

              DOJ also invokes FOIA Exemptions 6 and 7(C) to protect against disclosure of a host of

personal information about law enforcement personnel and third parties that is contained in the

records. Sprung Decl. ¶¶ 46-51; Def.’s Mem. at 24-26. Exemption 6 protects from disclosure

information about persons “in personnel and medical files and similar files the disclosure of which

would constitute a clearly unwarranted invasion of privacy.” 5 U.S.C. § 552(b)(6). Moreover,

Exemption 7(C) excludes from disclosure “information compiled for law enforcement purposes”


                                                            
3
 DOJ also asserts that the Title III affidavits were shielded by the deliberative process privilege. The court is skeptical
of that assertion, given that those affidavits were prepared to secure court-authorized approval of intercepts and thus
were not “deliberative.”

                                                                    9
 
if it “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

5 U.S.C. § 552(b)(7)(C). As other courts have done, because the documents at issue are plainly

law enforcement records, the court here considers only DOJ’s invocation of Exemption 7(C). See,

e.g., Dorsey, 2015 WL 1431707, at *5 (citing cases).

       Exemption 7(C) requires courts to balance an individual’s privacy interests against the

public’s right of access to information in government files. See Citizens for Responsibility and

Ethics in Washington v. DOJ, 746 F.3d 1082, 1091 (D.C. Cir. 2014). Here, there can be little

doubt that persons named in the documents—DOJ attorneys, law enforcement agents, and others—

have a substantial privacy interest. See Braga v. FBI, 910 F. Supp. 2d 258, 267-68 (D.D.C. 2012).

Plaintiff attempts to overcome these interests by asserting that there is a substantial public interest

in (1) uncovering wrongdoing in how DOJ obtained the intercept authorizations that led to his

prosecution and (2) showing a pattern of racial discrimination by DOJ in securing intercept

authorizations in the Western District of Pennsylvania. Pl.’s Opp’n at 37, 39-46. But these

asserted public interests are entirely conclusory and lack an evidentiary foundation to warrant a

belief that government impropriety has occurred. The court therefore affirms DOJ’s invocation of

Exemption 7(C) to protect the privacy interests of third parties.

               4.      Segregability

       Finally, as in Wright and Ellis, the court concludes that DOJ has satisfied its segregation

obligations under FOIA. See Wright, 2015 WL 4910502, at *11; Ellis, 2015 WL 3855587, at *7.

The documents withheld under Exemption 3 cannot be segregated.                As for the remaining

documents that fall under Exemption 5, because the asserted exemption is based on the work

product doctrine, segregation is not required. See Judicial Watch, Inc. v. DOJ, 432 F.3d 366, 371

(D.C. Cir. 2005).



                                                  10
 
              C.             Plaintiff’s Motion to Amend

              With his opposition to DOJ’s motion for summary judgment, Plaintiff sought leave to

amend his complaint (1) to add four new causes of action under FOIA and the Privacy Act

concerning four other requests for information submitted by him, and (2) to add two new claims

against government agencies and officials under Bivens v. Six Unknown Fed. Narcotics Agents,

403 U.S. 388 (1971), and various statutes for alleged unlawful interception of his private wire

communications. Pl.’s Opp’n at 1-2. Plaintiff attached a copy of his proposed Amended

Complaint to his combined summary judgment opposition and motion to amend. Pl.’s Opp’n,

Ex. A, ECF No. 19-1.4 In addition, Plaintiff later filed a Motion for Leave to File a Second

Amended Complaint, seeking to add claims against local law enforcement officials regarding their

alleged participation in the unlawful intercepts. Pl.’s Mot. [for] Leave to File Second Am. Compl.,

ECF No. 26, at 8.

              The standard for assessing a motion to amend a pleading is well established. Under Federal

Rule of Civil Procedure 15(b), a “court should freely give leave when justice so requires.”

Rule 15(b)’s “mandate is to be heeded.” Foman v. Davis, 371 U.S. 178, 182 (1962). “If the

underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he

ought to be afforded an opportunity to test his claim on the merits.” Id. Denying leave to amend

is thus an abuse of discretion and “inconsistent with the spirit of the Federal Rules,” id., unless the

court provides a sufficient reason for so doing, such as “futility of amendment, undue delay, bad

faith, dilatory motive, undue prejudice, or repeated failure to cure deficiencies by previous




                                                            
4
  Because Plaintiff does not raise these new allegations to defeat DOJ’s pending motion for summary judgment, but
instead to add additional, distinct claims, the court does not apply the ordinary rule that “a plaintiff may not amend
[his] complaint by making new allegations in [an] opposition brief.” Budik v. Ashley, 36 F. Supp. 3d 132, 144 (D.D.C.
2014).

                                                               11
 
amendments.” Boyd v. District of Columbia, 465 F. Supp. 2d 1, 3 (D.D.C. 2006) (other citation

omitted) (citing Foman, 371 U.S. at 182).

       Heeding Rule 15(b)’s mandate to freely grant leave, the court will permit Plaintiff to amend

his complaint to add Counts II through V, which raise new claims under FOIA and the Privacy

Act. Though it opposes Plaintiff’s motion, DOJ has offered no specific reason for rejecting

Plaintiff’s new FOIA claims. See Def.’s Reply and Opp’n, ECF No. 25, at 24-25 (making

argument only as to the Bivens claims). Nor is there any apparent reason to do so. The additional

claims all relate to FOIA requests distinct from the claim at issue in Plaintiff’s original complaint.

And Plaintiff did not unduly delay in bringing the new claims. Each of them relates to a FOIA

request either finally denied by DOJ or made by Plaintiff in December 2013 or thereafter, see Am.

Compl. ¶¶ 24, 39, 52, 73, while Plaintiff moved to amend ten months later in October 2014,

Pl.’s Opp’n at 1-2. Nor will permitting Plaintiff to amend cause Defendant to suffer any

discernable prejudice. DOJ simply will have to defend its actions as to the additional FOIA

demands.

       The court reaches a different conclusion, however, as to proposed Counts VI and VII. As

to those counts, the court will not allow Plaintiff to amend his complaint because adding those

claims would be futile. See James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996)

(“Courts may deny a motion to amend a complaint as futile . . . if the proposed claim would not

survive a motion to dismiss.”) (citations omitted). In both proposed Counts VI and VII, Plaintiff

alleges that various federal agencies and individuals unlawfully intercepted his electronic

communications “without authorization from the U.S. Attorney General” or his designee.

Am. Compl. ¶¶ 99, 110. Such alleged conduct, Plaintiff contends, gives rise to claims for

constitutional violations under Bivens; for violation of Title III under 18 U.S.C. § 2520; and for



                                                 12
 
unauthorized publication or use of intercepted communications under 47 U.S.C. § 605. Id. ¶¶ 102,

113. These claims would not survive a motion to dismiss for a host of reasons.

       Starting with the Bivens claims against DOJ and its component parts, Plaintiff has failed to

state a claim because no Bivens claims may lie against a federal agency. See FDIC v. Meyer, 510

U.S. 471, 484-86 (1994). Section 2520 likewise does not provide a cause of action against DOJ

for a violation of Title III. 18 U.S.C. § 2520 (permitting civil suits for Title III violations against

“any person . . . other than the United States”).

       As for the Bivens and the Title III claims against the putative individual defendants,

Plaintiff has failed to plead facts sufficient to establish that the individual defendants would not be

entitled to qualified immunity. See Patterson v. United States, 999 F. Supp. 2d 300, 311 (D.D.C.

2013) (stating that “a plaintiff must allege sufficient facts to establish that the defendants are not

entitled to qualified immunity” at the motion to dismiss stage). Long ago, our Court of Appeals

said that governmental defendants are “entitled to a qualified immunity on both the Fourth

Amendment and the Title III claims if they can show that they had reasonable grounds for believing

their actions were legal (the ‘objective’ basis) and that there was no malice or bad faith in either

the initiation or the conduct of the wiretapping (the ‘subjective’ basis).” Halperin v. Kissinger,

606 F.2d 1192, 301 (D.C. Cir. 1979) (footnote omitted). More recently, the Supreme Court in

Saucier v. Katz, 533 U.S. 194, 201 (2001), as modified in Pearson v. Callahan, 555 U.S. 223, 232

(2009), has expressed the qualified immunity inquiry as a two-step analysis of whether the facts

alleged show a violation of a constitutional right and, if so, whether that right was clearly

established at the time of the incident. See Fox v. District of Columbia, __ F.3d __, No. 14-7042,

2015 WL 4385290, at *2-3 (D.C. Cir. July 17, 2015) (citations omitted).




                                                    13
 
              When, as here, the alleged constitutional violation is of Fourth Amendment protections,

see Am. Compl. ¶¶ 99, 111,5 the Supreme Court has held that law enforcement officials who act

in good faith on a magistrate-issued warrant are entitled to qualified immunity, except where “it is

obvious that no reasonably competent officer would have concluded that a warrant should issue.”

Malley v. Briggs, 475 U.S. 335, 341 (1986). “[T]he fact that a neutral magistrate has issued a

warrant is the clearest indication that the officers acted in an objectively reasonable manner or . . .

in ‘objective good faith.’” Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012) (footnote

omitted) (citation omitted).

              Here, Plaintiff’s Amended Complaint and the incorporated attachments allege that the

individual law enforcement officers obtained and relied upon court-authorized Title III orders to

intercept Plaintiff’s communications. See Am. Compl. ¶¶ 86-87, 103-104; see also English v.

District of Columbia, 717 F.3d 968, 971 (D.C. Cir. 2013) (“We may consider attachments to the

complaint as well as the allegations contained in the complaint itself.”). Plaintiff’s Amended

Complaint attaches the relevant Title III orders, which are signed by judges of the United States

District Court in the Western District of Pennsylvania and which make the requisite findings to

support the intercept authorizations. See Am. Compl., Exs. I-2, ECF No. 19-2, at 85-95, 101-12.

Thus, Plaintiff faces a high bar to establish that the individual law enforcement officials are not

entitled to qualified immunity. See Messerschmidt, 132 S. Ct. at 1245.

              He has come nowhere close to overcoming it. Plaintiff has not averred any facts that would

support the inference that a reasonably competent officer would not have relied on the duly

authorized interceptions. He has not, for instance, claimed that the law enforcement officials


                                                            
5
 Plaintiff also claims violations of his First and Sixth Amendment rights. But the court sees no reason why the
qualified immunity inquiry should differ in this context—where the legality of a Title III intercept is at issue—merely
because Plaintiff invokes the First and Sixth Amendments as additional alleged constitutional violations.

                                                               14
 
obtained the intercept orders with false applications or that the orders were somehow deficient on

their face. At most, he alleges that the orders were obtained without authorization from the

Attorney General or his authorized agent. Am. Compl. ¶¶ 99, 110. But that allegation is flatly

contradicted by the orders themselves, which state that the “Application is made pursuant to the

authority of a specially designated representative of the Attorney General of the United States.”

Id. Exs. I-2 ¶ 1; I-3 ¶ 1. The court need not, and does not, treat as true an allegation that is

contradicted by documents attached to the complaint. Edwards v. Ocwen Loan Servicing, LLC,

24 F. Supp. 3d 21, 26 n.4 (D.D.C. 2014) (citation omitted) (internal quotation marks omitted)

(“[W]here a conclusory allegation in the complaint is contradicted by a document attached to the

complaint, the document controls and the allegation is not accepted as true.”). Mindful of this

court’s duty “‘to weed out’ insubstantial Bivens suits ‘expeditiously,’” Simpkins v. District of

Columbia, 108 F.3d 366, 370 (D.C. Cir. 1997) (citation omitted), the court has little trouble

concluding that Plaintiff’s Bivens and Title III claims would not survive a motion to dismiss.6

              Finally, Plaintiff’s asserted claims under 47 U.S.C. § 605 also would not survive a motion

to dismiss. That statute permits civil claims for unauthorized publication or use of intercepted

communications, “[e]xcept as authorized by chapter 119, Title 18,” or, in other words, by Title III.

47 U.S.C. § 605. The Amended Complaint, however, alleges that a court authorized the contested

intercepts under Title III. See Am. Compl. Exs. I-2 ¶ 1; I-3 ¶ 1. Therefore, Plaintiff’s assertions

regarding the putative defendants’ publication or use of those intercepts fail to state a claim under

47 U.S.C. § 605.


                                                            
6
  There are additional reasons that Plaintiff’s Bivens and Title III claims would not survive a Rule 12(b)(6) motion.
For instance, Plaintiff has failed to aver specific facts supporting the claims as to each individual defendant. Moreover,
the Title III claims are barred by the two-year statute of limitations. See 18 U.S.C. § 2520(e); Am. Compl. ¶¶ 88, 105
(alleging that Plaintiff became aware of the alleged illegal intercepts at his arraignment on May 9, 2012, more than
two years before he sought to amend on October 27, 2014). The court does attempt to cover every possible reason for
rejecting Plaintiff’s Bivens and Title III claims.

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        In summary, Plaintiff shall be permitted to amend his complaint to add the four additional

FOIA and Privacy Act claims. Plaintiff will not, however, be allowed to amend his complaint to

add his proposed Bivens and statutory claims, as none of them would survive a motion to dismiss.  

        D.      Motion for Sanctions

        Finally, Plaintiff asks the court to sanction DOJ and its counsel under Federal Rule of Civil

Procedure 11 for alleged failures of timely filing and service. Pl.’s Mot. for Sanctions, ECF No. 17.

Plaintiff’s request for sanctions is frivolous.

        First, he contends that Defendants did not timely file and serve upon him an Answer to the

Complaint by April 25, 2015, as required by court order. Id. ¶ 2; see Minute Order, March 26,

2014. But Defendants did timely file their Answer on April 25, 2014, see ECF No. 7, and, as the

certificate of service indicates, mailed it to Plaintiff on that same day, id. at 5.

        Next, Plaintiff argues that Defendants did not timely file and serve him with their Motion

for Summary Judgment by September 12, 2014, as required by court order. Pl.’s Mot. for

Sanctions ¶ 3; see Minute Order, Aug. 11, 2014. But Defendants did timely file their Motion for

Summary Judgment on September 12, 2014, see ECF No. 15, and, as the certificate of service

indicates, mailed it to Plaintiff on that same day, id. at 35. The fact that Plaintiff did not actually

receive Defendants’ motion until September 25, 2014, Pl.’s Mot. for Sanctions ¶ 3, did not make

service untimely or violate a court order.

IV.     CONCLUSION AND ORDER

        For the foregoing reasons, DOJ’s Motion for Summary Judgment is granted. Plaintiff’s

Motion to Amend his complaint is granted in part and denied in part. His Motion for Leave to File

a Second Amended Complaint is denied. Plaintiff’s Motion for Sanctions also is denied.




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       As to the new FOIA counts, DOJ shall file a summary judgment motion on or before

October 8, 2015. Plaintiff shall file his response on or before November 9, 2015. And DOJ shall

file its reply on or before December 2, 2015.




Dated: September 1, 2015                                  Amit P. Mehta
                                                          United States District Judge




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