                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA



RICHARD ALLEN SMITH, JR.,                      )
                                               )
                    Plaintiff,                 )
                                               )
               v.                              )       Civ. Action No. 11-0997 (ABJ)
                                               )
UNITED STATES DEPARTMENT                       )
OF JUSTICE et al.,                             )
                                               )
               Defendants.                     )
__________________________________             )


                                  MEMORANDUM OPINION

       On May 31, 2011, plaintiff filed this action against the United States Department of

Justice and several DOJ components under the Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552. [Dkt. #1]. On November 17, 2011, the Executive Office for United States Attorneys and

the Federal Bureau of Investigation moved to dismiss the complaint pursuant to Fed. R. Civ. P.

12(b)(6), and the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) moved for

summary judgment under Fed. R. Civ. P. 56. [Dkt. 17]. On November 22, 2011, the Drug

Enforcement Administration (“DEA”) moved for summary judgment as well. [Dkt. 20]. On each

occasion, the Court notified the plaintiff, in accordance with Fox v. Strickland, 837 F. 2d 507

(D.C. Cir. 1988) and Neal v. Kelly, 963 F. 2d 453 (D.C. Cir. 1992), that he was required to

respond by a certain date, and that, pursuant to the court’s Local Rules, if plaintiff failed to file a

timely response, “the court will treat defendants’ motion as conceded and may either summarily

dismiss the claims against the moving defendants or enter judgment in their favor.” [Dkt. 19 and

21]. The orders set forth the text of Rule 56, accompanied by the following explanation:


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       Plaintiff should be advised that on a motion for summary judgment, “any factual
       assertion in the movant’s affidavits will be accepted as being true unless [the
       opposing party] submits his own affidavits or other documentary evidence
       contradicting the assertion.” . . . Thus, parties such as plaintiff, who are on the
       opposing side of a motion for summary judgment must rebut the moving party’s
       affidavits with evidence, such as other affidavits or sworn statements; mere
       statements that the moving party’s affidavits are inaccurate or incorrect are not
       sufficient.

Id.

       Plaintiff did not file any opposition to the pending motions, and on February 3, 2012,

several weeks after the oppositions were due, the Court granted the motions, including the

motion for summary judgment filed by the DEA, as conceded. See Memorandum Opinion and

Order [Dkt. # 22 and 23]. Ten days later, plaintiff filed a motion for enlargement of time by

which to file his opposition, requesting an additional 60 days. [Dkt. # 24]. The Court construed

the motion to be a motion seeking relief under Fed. R. Civ. P. 60(b), but it declined to vacate the

dismissal order since plaintiff had not demonstrated the existence of a meritorious claim or

grounds to oppose the motion upon which the Court dismissed the complaint. See Order dated

February 16, 2012 [Dkt. # 25], citing Murray v. District of Columbia, 52 F. 3d 353, 355 (D.C.

Cir. 1995). However, the Court denied the motion “without prejudice to plaintiff’s filing, within

60 days of this order, a Rule 60(b) motion with his proposed opposition as an attachment.” Id.

Plaintiff never filed his proposed opposition to the summary judgment motion; instead, he

appealed the judgment and the February 16, 2012 order denying reconsideration. So plaintiff has

never supplied the court with any evidence to rebut the material proffered in support of the

defendants’ motions for summary judgment.

       On January 3, 2013, the United States Court of Appeals for the District of Columbia

Circuit vacated this Court’s judgment and remanded the case for consideration of “the effect of

the 2010 amendments to Federal Rule of Civil Procedure 56 and ‘state on the record the reasons

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for granting or denying the [summary judgment] motion.’ ” Order, No. 12-5078 (D.C. Cir. Jan.

3, 2013) (quoting Fed. R. Civ. P. 56(a)). 1

A. Summary Judgment in a FOIA Case

       Rule 56 provides that summary judgment shall 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). 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.” Fed. R.

Civ. P. 56(c)(1)(A). The non-moving party has the burden “to produce admissible evidence

establishing a genuine issue of material fact.” Bush v. District of Columbia, 595 F.3d 384, 386

(D.C. Cir. 2010), citing Celotex v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving party

fails to “make a sufficient showing on an essential element of [his] case with respect to which

[he] has the burden of proof,” then the moving party is entitled to judgment as a matter of law.

Celotex, 477 U.S. at 323. The Supreme Court defines material facts as “those that might affect

the outcome of the suit under governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986), and a dispute over a material fact is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Id. “If a party fails to properly

support an assertion of fact or fails to properly address another party’s assertion of fact as

required by Rule 56(c),” the court has four options, namely, to give the party “an opportunity to

properly support or address the fact,” consider the fact undisputed, “grant summary judgment if

the motion and supporting materials – including the facts considered undisputed – show that the

movant is entitled to it . . . or issue any other appropriate order.” Fed. R. Civ. P. 56(e).




1
  The Court of Appeals did not take issue with that portion of the Court’s order granting motions
filed under Rule 12(b)(6).
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       In a FOIA case, the Court may grant summary judgment based on the information

provided in 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

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

discoverability of other documents.’ ” SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 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).

B. The Relationship between Rule 56 and the Local Rules

       In Grimes v. District of Columbia, 923 F. Supp. 2d 196 (D.D.C. 2013), another court in

this District considered the question posed by the Court of Appeals in the remand in this case,

and it examined the relationship between the amendments to the Federal Rule and the Local Rule

that permits a court to treat a summary judgment motion as conceded. The Court stated:

              The 2010 Amendments to Federal Rule of Civil Procedure 56 (“Rule 56”)
              and the accompanying Advisory Committee Notes do not prohibit this
              Court from granting summary judgment where, as here, the nonmovant
              fails to demonstrate a genuine dispute as to any material fact. Indeed, Rule
              56(a) provides that summary judgment “shall [be] grant[ed]” where “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) (emphasis added).
              Rule 56(c) permits the movant to demonstrate “the absence . . . of a
              genuine dispute” by showing “that [the nonmovant] cannot produce
              admissible evidence to support” the presence of a genuine dispute. Fed. R.
              Civ. P. 56(c)(1)(B). Rule 56(c) additionally requires the nonmovant to
              demonstrate the presence of a genuine dispute by “citing to particular parts
              of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A).

              Where, as here, the nonmovant has “fail[ed] to properly support [the
              movant's] assertion of fact . . . as required by Rule 56(c),” Rule 56(e)

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               permits this Court to “consider the fact undisputed for purposes of the
               motion.” Fed. R. Civ. P 56(e)(2). The Advisory Committee Notes state
               that Rule 56(e)(2) “authorizes the court to consider a fact undisputed for
               purposes of the motion when response or reply requirements are not
               satisfied.” Fed. R. Civ. P. 56(e) advisory committee notes (2010
               Amendment). The Advisory Committee Notes further state that “[t]his
               approach reflects the ‘deemed admitted’ provisions in many local rules.”
               Id. Here, Local Civil Rule 7(b), which concerns motions generally, and
               Local Civil Rule 7(h), which concerns motions for summary judgment,
               can be construed and applied consistently with Rule 56(e).
Id. at 198.

        This Court agrees with that analysis. A non-moving party’s complete failure to come

forward with evidence to demonstrate the existence of a genuine issue of material fact constitutes

a “reason” for the grant of summary judgment under the amended rule.

C. The Defendants’ Summary Judgment Motions

        Moreover, in this case, the record contains sufficient grounds for the entry of judgment in

the defendants’ favor.     Summary judgment was sought on the defendants’ processing of

plaintiff’s separate FOIA requests for DEA records and ATF records.

        1. DEA Records

        In support of its summary judgment motion, DEA proffered the declaration of William C.

Little, Jr. [Dkt. # 20-4] to explain that agency component’s handling of plaintiff’s FOIA request.

On November 16, 2009, plaintiff requested from DEA “any and all” information “that relates to

me. More specifically, I request any information . . . related to the investigation and prosecution

of me by West Virginia State and Federal law enforcement agencies for narcotics and firearms

offenses.” Little Decl., Ex. A. Following a search of its files containing “criminal investigative

records,” id. ¶¶ 22-23, 28, DEA located responsive pages. Id. ¶ 28.

        On April 1, 2010, DEA released 34 pages to plaintiff in whole or in part, withheld 35

pages, and referred 32 pages to other agency components. Id. ¶¶ 15-18, 29 & Ex. D. DEA



                                                 5
informed plaintiff that it was withholding information under FOIA exemptions 2, 7(C), 7(D) and

7(F) set out at 5 U.S.C. § 552(b). On that same date, DEA properly referred thirteen pages to the

Executive Office for United States Attorneys, Little Decl., Ex. E., seventeen pages to the FBI,

Ex. F., and two pages to the United States Marshals Service, Ex. G. Each referral was done with

the understanding that the respective component would process the pages and provide a direct

response to the requester. See 28 C.F.R. § 16.4(c) (authorizing a DOJ component to refer

records in its possession to another component or U.S. agency upon a determination that the

other entity “is better able to determine whether the record is exempt from disclosure and, if so,

whether it should be disclosed as a matter of administrative discretion”); id. § 16.4(d) (requiring

the “receiving component” of a request for law enforcement information not originating there to

refer or consult the component or agency from where such information originated).

       DEA’s unrefuted declaration shows that a reasonably adequate search for responsive

records was conducted and records were retrieved. See Little Decl. ¶¶ 23-29. Plaintiff has come

forward with no evidence to rebut the assertions in the declaration and accompanying Vaughn

index that DEA properly withheld information under FOIA exemptions 7(C), 7(D), 7(E), and

7(F) and that all reasonably segregable information was released to plaintiff. See Id. ¶¶ 45-77.

Hence, the Court concludes that DEA, having satisfied its disclosure obligations, is entitled to

judgment as a matter of law.

       2. ATF Records

       In support of its summary judgment motion, ATF proffered the declaration of Averill P.

Graham [Dkt. # 17-7] to explain that agency component’s handling of plaintiff’s FOIA request

also dated November 16, 2009, that sought the same information plaintiff had requested from

DEA.     Plaintiff stated that the investigation by “West Virginia State and Federal law



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enforcement agencies for narcotics and firearms offenses” had occurred between January 1, 1995

and January 1, 2002. Graham Decl., Ex. A. On January 29, 2010, ATF informed plaintiff that

“despite a diligent search,” it was unable to locate his investigative file, which “was believed to

[have been] inadvertently destroyed.” Graham Decl. ¶ 9. However, ATF “print[ed] 13 pages

from a computer system of investigative records and provided them to [plaintiff],” with

redactions made pursuant to FOIA exemptions 3, 5, 7(C) and 7(E). Id. In this litigation, ATF

invoked exemption 6 “as an added authority for the redaction of the names of third party

individuals . . . .” Id., n.1.

        ATF’s unrefuted declaration shows that a reasonably adequate and good-faith search for

responsive records was conducted and that “the only responsive records still existing” were

produced. Graham Decl. ¶¶ 14-21. In addition, ATF has provided a reasonable explanation of

why plaintiff’s investigative file might have been destroyed “in error.” Id. ¶ 19. Plaintiff has

come forward with no evidence to rebut the assertions in the declaration and accompanying

Vaughn index that ATF properly withheld information under FOIA exemptions 3, 5, 6, 7(C) and

7(E) and that all reasonably segregable information was released to plaintiff. See Id. ¶¶ 23-47.

Hence, the Court concludes that ATF, having satisfied its disclosure obligations, is also entitled

to judgment as a matter of law.

        For the foregoing reasons, the Court finds on the unrefuted factual record that DEA and

ATF are entitled to judgment as a matter of law.         A separate judgment accompanies this

Memorandum Opinion.

                                                     ____________s/___________
                                                     AMY BERMAN JACKSON
                                                     United States District Judge

DATED: October 17, 2013



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