NATIONAL SECURITY COUNSELORS et al v. DEPARTMENT OF JUSTICE

Filing 44

MEMORANDUM AND OPINION re 34 Defendant's Renewed Motion for Summary Judgment; 40 Plaintiff Stein's Cross-motion for Summary Judgment. Signed by Judge Tanya S. Chutkan on 3/31/18. (DJS)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL
SECURITY COUNSELORS, et al.,
Plaintiffs,
v.
DEPARTMENT OF JUSTICE,
Defendant.

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Civil Action No. 13-cv-0556 (TSC)

MEMORANDUM OPINION
Plaintiffs National Security Counselors (“NSC”), Jeffrey Stein, and Truthout initiated this
action, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, challenging
certain fee-related policies and determinations of two components of the Department of Justice
(“DOJ”)—the Federal Bureau of Investigation (“FBI”) and the Civil Division (“Civil”). Before
the court are Defendant’s Renewed Motion for Summary Judgment (ECF No. 34 (Def. Mem.))
and Plaintiff Jeffrey Stein’s Cross-Motion for Summary Judgment (ECF No. 40 (Pl. Mem. &
Opp’n)). Upon consideration of the parties’ filings, and for the reasons stated herein, the court
will GRANT Defendant’s motion and DENY Plaintiff Stein’s motion.
I.

BACKGROUND

The facts of this case are set forth in more detail in the court’s February 18, 2015
Memorandum Opinion regarding Defendant’s Motion for Summary Judgment and Plaintiffs’
Cross-Motion for Partial Summary Judgment or, in the Alternative, Discovery. ECF No. 27
(Mem. Op.). In that opinion, this court granted Defendant’s motion, denied Plaintiffs’ motion,
and dismissed Plaintiffs’ four-count Complaint in its entirety. Mem. Op. at 25; see also ECF No.

28 (Order, Feb. 18, 2015). Most relevant to the parties’ current cross-motions, the court found
that “the law and the undisputed facts” entitled Defendant to summary judgment on Count III of
Plaintiffs’ Complaint. Mem. Op. at 14–15.
In Count III, Plaintiffs challenged the FBI’s interim release policy, which requires the
electronic production of medium to large FOIA document requests on multiple CD-ROMs. See
ECF No. 1 (Compl.) ¶¶ 41–67. Plaintiffs alleged that the FBI’s practice of producing electronic
documents in increments of 500 pages per CD, and at a cost of $15 per CD, results in excessive
fees for FOIA requesters in violation of FOIA’s fee provisions. See Compl. ¶ 64. In its February
18 opinion, this court found that the FBI’s interim release policy, including its fee structure, was
“consistent with its obligations under FOIA and applicable regulations.” Mem. Op. at 14.
Plaintiff Stein appealed this court’s decision on Count III, and the D.C. Circuit found that
the FBI’s interim release policy did “not result in a violation of FOIA’s mandate that agencies
recover only ‘reasonable standard charges.’” Nat’l Sec. Counselors v. United States Dep’t of
Justice, 848 F.3d 467, 472 (D.C. Cir. 2017). However, the Circuit found that there remained “a
genuine issue, foreclosing the entry of summary judgment, concerning whether the fees assessed
by the agency exceeded its direct costs” of producing CDs. Id. at 472–73.
The Court noted that the FBI estimated its direct costs to produce one CD to be
approximately $39.50—the amount it costs to employ an FBI employee to run the FBI’s 50minute security review program (the “Integrity program”) prior to transferring documents onto a
CD. See id. at 471; see also ECF No. 12-2 (First Hardy Decl.) ¶ 33(d) n.18. The Court found
that summary judgment was not warranted on the record before it because it was unclear whether
the FBI appropriately based its direct costs on the labor costs associated with running the 50minute Integrity program, given the lack of information regarding “whether, and to what extent,

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the 50-minute period for running the [Integrity] program involve[d] employee engagement rather
than idle time.” Id. at 472. Accordingly, the Court vacated this court’s “grant of summary
judgment with respect to Stein’s claim” on Count III and remanded the case “for further
proceedings consistent with [its] opinion.”1 Id. at 475.
II.

LEGAL STANDARD

Summary judgment is appropriate where there is no genuine issue of material fact and the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.
Cir. 2002). In determining whether a genuine issue of material fact exists, the court must view
all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A fact is material if “a dispute over it
might affect the outcome of a suit under governing law; factual disputes that are ‘irrelevant or
unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d
889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
An issue is genuine if “‘the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’” Id. (quoting Anderson, 477 U.S. at 248). The party seeking summary
judgment “bears the heavy burden of establishing that the merits of his case are so clear that
expedited action is justified.” Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir.
1987) (citing Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir. 1980)).

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In addition to vacating and remanding this court’s decision as to Plaintiff Stein, the Circuit
affirmed this court’s grant of summary judgment to Defendant on Plaintiff NSC’s claims. See
Nat’l Sec. Counselors, 848 F.3d at 475. Given the Circuit’s decision, and the fact that Plaintiff
Truthout declined to join in the appeal, Stein is the only plaintiff remaining in this case. Stein
maintains that Plaintiff NSC alleged claims under Count III as well, and therefore remains a
plaintiff in this case. Pl. Mem. & Opp’n at 9 n.8. But this court has already dismissed as moot
Plaintiff NSC’s claims under Count III. Mem. Op. at 8.
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FOIA cases are “typically and appropriately . . . decided on motions for summary
judgment.” Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F.
Supp. 2d 123, 130 (D.D.C. 2011) (citation omitted). Upon an agency’s request for summary
judgment on the grounds that it has fully discharged its FOIA obligations, all underlying facts
and inferences are analyzed in the light most favorable to the FOIA requester; only after an
agency proves that it has fully discharged its FOIA obligations is summary judgment
appropriate. Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citations omitted).
III.

ANALYSIS

FOIA permits agencies to charge FOIA requesters “only the direct costs of search,
duplication, or review.” 5 U.S.C. § 552(a)(4)(A)(iv). On appeal, the D.C. Circuit found there
was a genuine issue concerning whether the FBI’s $15 fee per CD complies with this provision,
and ordered Defendant to “provide a sufficient factual basis upon which the district court can
make the determination that the fees assessed under its interim release policy do not exceed
direct costs.” Nat’l Sec. Counselors, 848 F.3d at 473. The Circuit stated that it did not “question
the possibility that the agency will adequately demonstrate on remand that the FBI’s labor (or
other direct) costs under the interim release policy in fact equal or exceed $15 per CD,” and
noted that “the agency might be able to do so in short order.” Id. This court finds that it has.
In support of its Renewed Motion for Summary Judgment, Defendant submitted a
detailed, eight-page declaration from David M. Hardy, Section Chief of the Record/Information
Dissemination Section in the FBI’s Records Management Division. ECF No. 34-2 (Third Hardy
Decl.). In his declaration, Hardy explains that the Integrity program enables the FBI to move
records “from its FOIA Document Processing System (‘FDPS’), which is a classified computer
network on which records responsive to FOIA requests are processed, to a non-classified

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computer network from which a CD can be prepared for release.” Third Hardy Decl. ¶ 6. He
further explains that the three major steps of the Integrity program process—document
conversion, Integrity scan, and resolution of issues—all require employee engagement. Id. At
the document conversion step, for example, FBI employees are solely responsible for converting
documents released from FDPS into single-page text documents in preparation for the Integrity
program’s security scan. Id. ¶ 7. Such a conversion requires FBI employees to (1) export the
released documents as multi-page TIF files, (2) rename the released documents and save them to
a common shared drive, (3) convert each page of the released documents into a single-page text
document, and (4) save each converted page onto the shared drive. Id. This level of employee
engagement, Hardy explains, continues for the duration of the 50-minute Integrity program
process. See id. ¶¶ 8–10 (providing a detailed account of employee engagement at the Integrity
scan and issue resolution steps of the process). Hardy asserts that it this level of engagement that
justifies and “underpin[s] the $15 assessed fee.” Id. ¶ 13.
The Hardy Declaration sufficiently demonstrates that FBI employees are actively
engaged for the duration of the Integrity program process, and in turn that the FBI justifiably
calculates its direct costs for CD production based on the labor costs associated with conducting
the 50-minute program. The FBI calculates its direct labor costs to be between $24.50 and
$46.00 per CD, id. ¶ 14, which certainly exceeds the $15 it charges per CD. Accordingly, the
court finds that the FBI’s interim release policy, as implemented through the Integrity program,
does not violate FOIA’s requirement that an agency recover “only the direct costs of search,
duplication, or review.” 5 U.S.C. § 552(a)(4)(A)(iv).
Plaintiff Stein’s arguments do not convince the court otherwise. Stein does not dispute
that the FBI’s direct costs of producing a CD exceeds the $15 it charges per CD. See Pl. Mem.

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& Opp’n at 3 n.4 (“Plaintiffs will concede for the sake of argument that the direct costs of
producing a CD using the process described by FBI exceed $15 per CD.”); see also id. at 1 n.1
(“Plaintiffs have not filed a response to Defendant’s Statement of Material Facts not in Genuine
Dispute because they do not dispute any of the facts stated therein.”). Nonetheless, he argues
that this court should deny the government’s motion and rule in his favor because the Integrity
program process is unreasonably “convoluted” and “cumbersome.” Id. at 9. Because the
process is unreasonable, Stein argues, the direct costs associated with the process are also
unreasonable, and therefore cannot serve as the “metric against which other arbitrary fees are
measured.” Id.
As a threshold matter, this court is prohibited from implementing the D.C. Circuit’s
remand mandate in a manner that exceeds the scope of the Circuit’s decision. See Indep.
Petroleum Ass’n of Am. v. Babbit, 235 F.3d 588, 597–98 (D.C. Cir. 2001) (“‘an inferior court has
no power or authority to deviate from the mandate issued by an appellate court’”) (quoting
Briggs v. Pennsylvania R. Co., 334 U.S. 304, 306 (1948)); see also Texas Oil & Gas Corp. v.
Hodel, 654 F. Supp. 319, 323 (D.D.C. 1987) (“And, while a district court may not ‘ignore’ any
part of an appellate order on remand, it must scrupulously avoid implementing the mandate in a
manner that exceeds, or limits, the scope of the appellate decision.”). The Circuit ordered the
FBI to “provide a sufficient factual basis upon which the district court can make the
determination that the fees assessed under the interim release policy do not exceed direct costs,”
and remanded the case for “further proceedings consistent with [its] opinion.” Nat’l Sec.
Counselors, 848 F.3d at 473, 475. Thus, the only question before this court on remand is
whether the FBI’s fees exceed its direct costs. The Circuit confirmed this limited scope on
August 11, 2017, when it denied Plaintiff Stein’s motion to recall and modify its mandate. ECF

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No. 40-1 (Circuit Order, Aug. 11, 2017). Stein argued that the Circuit should modify its mandate
and “remove any limitation . . . on the District Court’s ability to consider the reasonableness of
FBI’s direct costs.” Document #1686437, Nat’l Sec. Counselors v. Dep’t of Justice, No. 155117, at 5 (D.C. Cir. July 28, 2017). The Circuit declined to do so, and therefore this court is
prohibited from considering the reasonableness of the FBI’s direct costs.
Even if the issue of reasonableness was appropriately before this court, Stein has failed to
demonstrate that the FBI’s procedures, and therefore its direct costs, are unreasonable. Stein has
not submitted an affidavit or declaration supporting his argument that the FBI’s CD production
process, and any direct costs associated with the process, are “unreasonable” and “bizarre.” Pl.
Mem. & Opp’n at 6, 9. Nor does he provide the court with details regarding what a proper,
reasonable CD production process entails. Instead, he asserts, without any factual support, that
the FBI’s “process serves very little actual purpose,” id. at 8, and is “unnecessarily complex and
redundant,” id. at 4.2 Such conclusory allegations do not create a triable issue of fact. See Public
Citizen Health Research Group v. Food & Drug Admin, 185 F.3d 898, 908 (D.C. Cir. 1999) (“As
we have said many times before, ‘[i]t is well settled that [c]onclusory allegations unsupported by
factual data will not create a triable issue of fact.’”) (citations omitted). Therefore, even if this
court were permitted to consider the reasonableness of the FBI’s direct costs, Stein’s allegations
are insufficient to prevent entry of summary judgment in Defendant’s favor.

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In support of his unreasonableness argument, Stein also references a transcript from a
proceeding in Nat’l Sec. Counselors v. Central Intelligence Agency, No. 11-443-BAH (D.D.C.
Dec. 16, 2011). See Pl. Mem. & Opp’n at 5. The court finds the discussion in the transcript
inapposite. The transcribed proceeding concerned the Central Intelligence Agency’s inability to
produce electronic documents due to its production process. Here, Stein asks the court to find
that the FBI’s CD production process results in unreasonable direct costs.
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For all of the above reasons, the court finds that the FBI has complied with the D.C.
Circuit’s order and provided “a sufficient factual basis” upon which this court can determine that
the fees assessed under the FBI’s interim release policy do not exceed the FBI’s direct costs of
CD production. Given Plaintiff Stein’s concession that a sufficient factual basis exists, the court
finds that there are no disputed issues of material fact and that Defendant is entitled to judgment
as a matter of law on Count III.
IV.

CONCLUSION

For the foregoing reasons, the court will grant Defendant’s Renewed Motion for
Summary Judgment and deny Plaintiff Stein’s Cross-Motion for Summary Judgment.
A corresponding order will issue separately.

Date: March 31, 2018

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge 

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