EWELL v. UNITED STATES DEPARTMENT OF JUSTICE CRIMINAL DIVISION et al
MEMORANDUM OPINION AND ORDER: The Justice Department's motion for summary judgment 12 is GRANTED. Ewell's motion for an extension of time in which to move for leave to amend his complaint 24 is GRANTED nunc pro tunc, and the motion is deemed timely filed. The Justice Department's motion for an extension of time in which to file its opposition to Ewell's motion 26 is also hereby GRANTED nunc pro tunc, and the Department's opposition is deemed timely filed. Ewell's motion for leave to amend his complaint 25 is DENIED. See Memorandum Opinion and Order for details. Signed by Judge Randolph D. Moss on 1/26/2016. (lcrdm2, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 14-495 (RDM)
U.S. DEPARTMENT OF JUSTICE,
MEMORANDUM OPINION AND ORDER
Eric Ewell, who is proceeding pro se in this matter, was charged in the Western District
of Pennsylvania with conspiracy to distribute and to possess with intent to distribute heroin in
violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(i). While awaiting trial, Ewell filed a
request with the United States Department of Justice under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, seeking documents regarding
the wiretap the government used to obtain evidence disclosed to Ewell during discovery in his
criminal case. When the Justice Department declined to produce any responsive records or to
expedite his administrative appeal, Ewell brought this action under FOIA and the Privacy Act.
Before the Court are the government’s motion for summary judgment, Dkt. 12, and
Ewell’s motion for leave to amend his complaint, Dkt. 25. Because the government has
demonstrated that it conducted a reasonable search for responsive records and that all responsive
records were properly withheld under FOIA and the Privacy Act, the Court grants summary
judgment to the Justice Department. Because Ewell’s motion for leave to amend his complaint
would fundamentally alter the nature and scope of this action, would unduly burden the
defendant, and is, at least in significant respects, futile, the Court denies that motion.
Eric Ewell was charged in the Western District of Pennsylvania with conspiracy to
distribute and to possess with intent to distribute one kilogram or more of heroin in violation of
21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(i). See United States v. Ewell, No. 13-cr-125 (W.D. Pa.
Apr. 30, 2013). In advance of Ewell’s detention hearing in June 2013, the government disclosed
that it had intercepted and recorded his telephone communications under the authority of a
wiretap obtained pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of
1968 (“Title III”). See Dkt. 130 at 1, Ewell, No. 13-cr-125 (W.D. Pa. June 27, 2013). In
November 2013, Ewell filed a request with the Department of Justice under FOIA and the
Privacy Act, seeking “an authentic Department of Justice (DOJ) Office of Enforcement
Operation (OEO) copy of the Title III authorization letter(s), memorandums, and any other
documents involved in their approval for the electronic surveillance” of several phone numbers
that he alleged had been wiretapped. See Dkt. 12-2 at 2 (Cunningham Decl., Ex. A); see also
Dkt. 12 at 3 (Defs.’ Statement of Material Facts ¶ 1).
The Justice Department responded to Ewell’s FOIA/Privacy Act request in December
2013. The Department informed Ewell that “to the extent responsive records do exist, they are
exempt from disclosure pursuant to” Exemption 3 of FOIA, which permits agencies to withhold
documents “specifically exempted from disclosure by statute.” Dkt. 12-3 at 2 (Cunningham
Decl, Ex. B) (citing 5 U.S.C. § 552(b)(3)). For this reason, the Department explained, it “did not
conduct a search for records” and would not produce any records responsive to his request. Id.
Ewell appealed the Department’s denial of his request and sought expedited treatment, Dkt. 12-4
at 2–5 (Cunningham Decl., Ex. C), but, when the Department’s Office of Information Policy
(“OIP”) denied his request for expedited treatment, see Dkt. 12-5 at 2 (Cunningham Decl., Ex.
D), he filed this action. OIP then informed Ewell that, in light of the pendency of this lawsuit, it
was closing his administrative appeal. Dkt. 12-6 at 2 (Cunningham Decl., Ex. E).
Ewell challenges the adequacy of the Department’s search and all of its withholdings.
Dkt. 1 at 7 (Compl.). He also requests that, if the Court remands the matter to the Department,
that it “provide for expeditious proceeding in this action.” Id. After Ewell brought suit, the
Department searched two databases: the Office of Enforcement Operations (“OEO”) “database
used to track federal prosecutors’ requests for permission to apply for court-authorization to
surreptitiously intercept conversations of person[s] allegedly involved in criminal activity under
Title III,” and “archived emails of [Criminal Division] employees that are maintained by its IT
department.” Dkt. 12-1 at 4 (Cunningham Decl. ¶ 11). The Department maintains, however,
that Ewell is not entitled to any records in response to his request, and it has asserted several
additional grounds for nondisclosure that it did not previously assert.
The matter is before the Court on the Department’s motion for summary judgment. See
Dkt. 12. The Department argues that it conducted an adequate search for responsive records;
that it properly withheld all responsive records under the Privacy Act and FOIA Exemptions 3, 5,
6, and 7(C); and that it properly denied Ewell’s request for expedited treatment. Id. It supports
its motion with a declaration by John E. Cunningham III, a trial attorney assigned to the Criminal
Division’s FOIA and Privacy Act Unit, see Dkt. 12-1 (Cunningham Decl.), and a 208-page
Vaughn index detailing the withheld records and the reasons they were withheld, see Dkt. 12-7
(Cunningham Decl., Ex. H); Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). Ewell has also
moved for leave to file an amended complaint. See Dkt. 25. Ewell’s amended complaint would
include new claims under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971); the
Federal Tort Claims Act, 28 U.S.C. § 1346; the remedial provisions of Title III, 18 U.S.C. §
2520; and 42 U.S.C. § 1985(3). Id. at 2. The proposed amended complaint would also add new
defendants, including the Drug Enforcement Administration (“DEA”) and several of its agents,
as well as various members of the U.S. Attorney’s Office for the Western District of
Pennsylvania. Id. at 3. Both motions are opposed. See Dkts. 16, 27.
II. LEGAL FRAMEWORK
The Freedom of Information Act is premised on the notion that an informed citizenry is
“vital to the functioning of a democratic society, needed to check against corruption and to hold
the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
242 (1978). The Act embodies a “general philosophy of full agency disclosure.” U.S. Dep’t of
Defense v. FLRA, 510 U.S. 487, 494 (1994) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352,
360–61 (1976)). It thus mandates that an agency disclose records on request, unless they fall
within one of nine exemptions. “These exemptions are ‘explicitly made exclusive’ and must be
‘narrowly construed.’” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011) (quoting EPA v.
Mink, 410 U.S. 73, 79 (1973), and FBI v. Abramson, 456 U.S. 615, 630 (1982)). As explained
further below, the present dispute turns on the meaning and application of Exemptions 3 and 5.
Exemption 3 protects records that are “specifically exempted from disclosure by statute.” 5
U.S.C. § 552(b)(3). And Exemption 5 protects “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.” Id. § 552(b)(5). It exempts “those documents, and only those documents, normally
privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149
The Privacy Act “safeguards the public from unwarranted collection, maintenance, use
and dissemination of personal information contained in agency records . . . by allowing an
individual to participate in ensuring that his records are accurate and properly used, and by
imposing responsibilities on federal agencies to maintain their records accurately.” Mobley v.
CIA, 806 F.3d 568, 585 (D.C. Cir. 2015) (quoting Bartel v. FAA, 725 F.2d 1403, 1407 (D.C. Cir.
1984)). Under the Privacy Act, any agency that maintains a “system of records” must provide
information about a person to that person upon request. 5 U.S.C. § 552a(d)(1). But an agency
may promulgate regulations “to exempt any system of records within the agency” from such a
request, provided that the system meets certain criteria. Id. § 552a(j). This is because “[t]he
Privacy Act—unlike [FOIA]—does not have disclosure as its primary goal.” See Henke v. U.S.
Dep’t of Commerce, 83 F.3d 1453, 1456 (D.C. Cir. 1996).
FOIA cases are typically resolved on motions for summary judgment under Federal Rule
of Civil Procedure 56. See, e.g., Beltranena v. U.S. Dep’t of State, 821 F. Supp. 2d 167, 175
(D.D.C. 2011). To prevail on a summary judgment motion, the moving party must demonstrate
that there are no genuine issues of material fact and that he or she is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In a
FOIA action, the agency may meet its burden by submitting “relatively detailed and nonconclusory” affidavits or declarations, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (quotation marks and citation omitted), and an index of the information withheld,
Vaughn, 484 F.2d at 827–28; Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998).
An agency “is entitled to summary judgment if no material facts are in dispute and if it
demonstrates ‘that each document that falls within the class requested either has been produced
. . . or is wholly exempt from the [FOIA’s] section requirements.” Students Against Genocide v.
U.S. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339,
352 (D.C. Cir. 1978)). The Court reviews the agency’s decision de novo, and the agency bears
the burden of sustaining its action. 5 U.S.C. § 552(a)(4)(B).
A. The Department’s Motion for Summary Judgment
1. Adequacy of the Search
Ewell first argues that the Department conducted an inadequate search in response to his
FOIA request. An agency has an obligation under FOIA to conduct an adequate search for
responsive records. “An agency fulfills its obligations . . . if it can demonstrate beyond material
doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” ValenciaLucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of
State, 897 F.2d 540, 542 (D.C. Cir. 1990)). “In order to obtain summary judgment the agency
must show that it made a good faith effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the information requested.” Oglesby v.
U.S. Department of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Although the agency “cannot limit
its search to only one record system if there are others that are likely to turn up the information
requested,” it need not “search every record system.” Id. The agency can show that it conducted
an adequate search by relying on “[a] reasonably detailed affidavit [or declaration], setting forth
the search terms and the type of search performed, and averring that all files likely to obtain
responsive records (if such records exist) were searched.” Valencia-Lucena, 180 F.3d at 326.
The Justice Department has introduced just such a declaration this case. The declaration,
provided by trial attorney John Cunningham, explains that “[t]here were two sources of records
in [the Criminal Division] where documents responsive to Mr. Ewell’s FOIA request were likely
to be located: (1) a . . . database used to track federal prosecutors’ requests for permission to
apply” for Title III wiretaps and “(2) archived emails of [Criminal Division] employees that are
maintained by its IT department.” Dkt. 12-1 at 4 (Cunningham Decl. ¶ 11). Cunningham states
that the Department searched both sources. Id. He explains that the Department searched the
Title III database for the telephone numbers submitted by Ewell and for Ewell’s name. Id. at 5–
6 (Cunningham Decl. ¶ 16). And he attests that the Department identified the Criminal Division
attorney who reviewed the request for permission to apply for a wiretap and the Assistant U.S.
Attorney (“AUSA”) who made the request, and searched the Criminal Division attorney’s e-mail
account for all e-mails exchanged between them between December 30, 2011, and May 30,
2012. Id. at 6 (Cunningham Decl. ¶ 19). Cunningham explains: “[The Department] searched the
two records systems that would contain information responsive to Mr. Ewell’s request. Its
search was conducted in good faith, and was reasonable and complete.” Id. at 7 (Cunningham
Decl. ¶ 20).
Ewell’s primary argument is that the Department erred in not searching other databases
for information about him. Specifically, he points to four cases from this Court in which Justice
Department components searched for records in databases that were not searched in his case.
See Lewis v. U.S. Dep’t of Justice, 867 F. Supp. 2d 1 (D.D.C. 2011); Petit-Frere v. U.S. Att’y’s
Office for the S. Dist. of Fla., 800 F. Supp. 2d 276 (D.D.C. 2011); Wolfson v. United States, 672
F. Supp. 2d 20 (D.D.C. 2009); Linn v. U.S. Dep’t of Justice, No. 92-cv-1406, 1995 WL 417810
(D.D.C. June 6, 1995). But the FOIA requests submitted in each of those cases differed in
material respects from the one Ewell submitted. In Linn, for example, the requester sought
“background information filed under his name and/or identifying number” from “eleven separate
governmental agencies or sub-agencies,” including the Executive Office of U.S. Attorneys
(“EOUSA”) and the DEA. 1995 WL 417810, at *1. The other cases are to similar effect: In
Wolfson, the FOIA requester sought “information about himself” in eleven Criminal Division
databases. 672 F. Supp. 2d at 24. In Petit-Frere, the requester sought records regarding a
wiretap application, but he sent his FOIA request to the U.S. Attorney’s Office in Miami, which
is why the search “began with the Legal Information Office Network System (LIONS),” the
database Ewell faults the Department for not searching in this case. 800 F. Supp. 2d at 277–79.
And in Lewis, the requester also sought information relating to a wiretap, but he sought it from
the U.S. Attorney’s Office—which referred the request to the EOUSA— and the DEA, which is
why records systems used by those components were searched. 867 F. Supp. 2d at 7–11.
Ewell’s FOIA/Privacy Act request, in contrast, was limited in two material ways. First,
Ewell’s request was directed solely to the Criminal Division, Dkt. 12-2 at 2 (Cunningham Decl.,
Ex. A), not to EOUSA or the DEA. The distinction is a material one, as the Department’s FOIA
regulations specify that a requester “should write directly to the FOIA office of the component
that maintains the records being sought.” 28 C.F.R. § 16.3(a)(1) (emphasis added); see also id.
at § 16.1 (defining “component” to mean “each separate bureau, office, division, commission,
service, center, or administration”). As a result, only the component to which the FOIA request
is directed has an obligation to conduct a search. See Hicks v. Executive Office of U.S. Attorneys,
12 F. Supp. 3d 25, 29 (D.D.C. 2013). Second, unlike the requests in many of the cases on which
Ewell relies, Ewell’s request did not seek all records regarding him, or even all records regarding
the investigation that led to his arrest. Instead, Ewell sought a precise set of documents—an
authentic OEO “copy of the Title III authorization letter(s), memorandums, and any other
documents involved in their approval for the electronic surveillance” conducted on five
telephone lines. See Dkt. 12-2 at 2 (Cunningham Decl., Ex. A). As Cunningham explains, OEO
is the component of the Criminal Division that processes requests from prosecutors seeking
permission to apply for court-authorized surveillance and that makes recommendations to the
Assistant Attorney General for approval of those requests. Dkt. 12-1 at 5 (Cunningham Decl. ¶¶
13–15). The Department thus reasonably construed Ewell’s FOIA request to seek records
actually involved in that approval process and, accordingly, reasonably concluded that its search
effort should focus on records maintained by OEO and communications between OEO and the
prosecutor who sought approval for the wiretaps.
Ewell also argues that the Department erred in refusing to conduct a broader search for
responsive records under the Privacy Act. He suggests that his invocation of the Privacy Act
obligated the Department to search for “all files pertaining to [him] . . . in it[s] full system of
records.” Dkt. 16 at 14 (emphasis added). But the Privacy Act does not obligate an agency to
conduct a search for all records relating to a requester where a requester has asked the agency
only to look for certain records. 5 U.S.C. § 552a(d)(1); see also Spears v. U.S. Dep’t of Justice,
— F. Supp. 3d —, No. 14-387, 2015 WL 5730734, at *3 (D.D.C. Sept. 29, 2015). 1 Here, as
discussed above, Ewell’s request was very specific—he sought documents involved in the OEO
approval process, and those are the documents for which the Department searched. Ewell “did
not request” any other records “at the administrative level, and he will not be permitted to
expand the scope of the request underlying this action and then assert an unexhausted claim.”
Spears, 2015 WL 5730734, at *3. And, even if Ewell had requested all the records in all
Criminal Division databases that refer to him, the Department would not have been required to
provide access to any information in those systems of records that have been exempted from the
Privacy Act’s sweep, see 28 C.F.R. § 16.91, and Ewell does not identified any unexempted
Spears, a FOIA/Privacy Act action brought by an inmate housed in the same facility as Ewell,
raises identical claims regarding a wiretap. Judge Collyer granted summary judgment to the
Justice Department in that action in September. See Spears, 2015 WL 5730734, at *1.
system of records that he believes the Department should have searched, see id. §§ 16.70–
In sum, the declaration submitted by the Department makes clear that it “made a good
faith effort to conduct a search for the requested records.” Oglesby, 920 F.2d at 68. Although
Ewell may wish that the Department had searched more databases for records regarding the Title
III wiretap or other, unspecified subjects, an agency need not “search every record system,” id.,
especially when it concludes that only certain systems are likely to have responsive records. The
search was adequate and reasonable.
2. Relevant FOIA Exemptions
Although the Department initially relied solely on Exemption 3 to withhold all records
responsive to Ewell’s request, it now justifies its withholdings on the basis of Exemptions 3, 5, 6,
and 7(C). 2 Because all of the documents were properly withheld under either Exemption 3 or 5,
the Court addresses only the assertion of those two exemptions here.
a. Exemption 3
Exemption 3 shields from disclosure all records that are “specifically exempted from
disclosure by statute,” so long as the statute upon which the agency relies either “requires that
the matters be withheld from the public in such a manner as to leave no discretion on the issue”
The agency bears the burden of identifying “the specific statutory exemption relied upon” in
withholding records and must “demonstrate that the exemption applies to the documents in
question.” See Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 779 (D.C. Cir. 1978) (en banc).
Although the Department did not assert Exemption 5 below, the D.C. Circuit has long implied
that an agency may invoke a FOIA exemption for the first time before the district court—but not
“for the first time in the appellate court.” Id.; see also Maydak v. Dep’t of Justice, 218 F.3d 760,
764 (D.C. Cir. 2000) (explaining that an agency “must assert all exemptions at the same time, in
the original district court proceedings”). Ewell does not argue that the Department should be
precluded from asserting Exemption 5 here, so the Court concludes that the exemption is
properly before it.
or “establishes particular criteria for withholding or refers to particular types of matters to be
withheld.” 5 U.S.C. § 552(b)(3)(A). 3 “Exemption 3 differs from other FOIA exemptions in that
its applicability depends less on the detailed factual contents of specific documents” and more on
“the existence of a relevant statute and the inclusion of withheld material within that statute’s
coverage.” Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978). The Justice Department asserts
that the non-disclosure provisions of Title III authorize it to withhold the application it submitted
to the federal court in Pennsylvania for a wiretap, including all supporting materials. See Dkt.
12-8 at 2 (Table of Responsive Records) (listing “Title III applications,” “agent affidavits,”
“proposed Title III orders,” and “authorization memorandums from the [Assistant Attorney
General]” to attorneys approving the application for a wiretap as exempt under Exemption 3). 4
Title III establishes a comprehensive scheme to govern the procurement, use, and
disclosure of federal law enforcement wiretaps. To obtain a wiretap, a law enforcement officer
must submit an application “in writing upon oath or affirmation to a judge of competent
jurisdiction.” 18 U.S.C. § 2518(1). The statute requires the application to include “the identity
of the investigative or law enforcement officer making the application, and the officer
The exemption also provides that any statute “enacted after the date of enactment of the OPEN
FOIA Act of 2009,” Pub L. No. 111-83, § 564, 123 Stat. 2142, 2184 (2009), must “specifically
cite to” the exemption. 5 U.S.C. § 552(b)(3)(B). Title III predates the Act.
Elsewhere in its briefing, the Department appears to assert Exemption 3 more broadly to cover
documents not submitted to the court in connection with its Title III application. Compare Dkt.
12-1 at 8–9 (Cunningham Decl. ¶ 24) (listing “[p]rosecutors’ requests for permission to apply”
for wiretaps and “[a]ction memorandums from [attorneys] to the [Assistant Attorney General]”
as exempt under Exemption 3), with Dkt. 12-8 at 2 (Table of Responsive Records) (listing these
items as exempt under Exemptions 5, 6, and 7(c), but not Exemption 3). Because the Court
concludes that these items are exempt under Exemption 5, it has no need to decide whether
Exemption 3 would permit the government to withhold them—a potentially more difficult
question given that Title III does not expressly provide for the protection of material not
submitted to a court as part of a wiretap application.
authorizing the application” and a “complete statement of the facts and circumstances” giving
rise to the application. See id. § 2518(1)(a)–(b). If the judge concludes that the statutory
requirements are met, he or she “may enter an ex parte order” authorizing the wiretap. Id.
§ 2518(3). Title III provides that any communications intercepted by the wiretap shall be
recorded “if possible,” and that the recordings “shall be made available to the judge issuing such
order and sealed.” Id. § 2518(8)(a). The recordings shall be used only by law enforcement
officers “to the extent such use is appropriate to the proper performance of [their] official
duties.” Id. § 2517. Title III also provides that the “[a]pplications made and orders granted” for
the authorization of wiretaps shall be sealed and “disclosed only upon a showing of good cause.”
Id. § 2518(8)(b). The recordings, the “court order” authorizing the wiretap, and the
“accompanying application, under which the interception was authorized or approved,” however,
shall be produced to the parties before the recordings are introduced in a criminal proceeding.
Id. § 2518(9).
Not surprisingly, the D.C. Circuit has held that “intercepted communications” obtained
pursuant to a Title III wiretap fall “squarely within the scope” of Exemption 3. Lam Lek Chong
v. DEA, 929 F.2d 729, 733 (D.C. Cir. 1991). And several opinions of this Court have extended
that holding to those materials submitted to a court in support of a request for authorization to
conduct surveillance under Title III. See Sinito v. U.S. Dep’t of Justice, No. 87-814, 2000 WL
36691372, at *6 (D.D.C. July 12, 2000); Butler v. U.S. Dep’t of Justice, No. 86-2255, 1994 WL
55621, at *8–9 (D.D.C. Feb. 3, 1994). The Court agrees that Title III makes no distinction, at
least for the purposes of Exemption 3, between the recordings and the application (including all
supporting materials) that gave rise to them. Both the recordings and the application are required
by statute to be sealed except under specific circumstances. See 18 U.S.C. §§ 2517, 2518(8)(a)–
(b), (9). There is no reason that the recordings themselves should be understood as “particular
types of matters to be withheld” under Title III but the application the Department submitted to
obtain them should not be. See 5 U.S.C. § 552(b)(3). Accord Spears, 2015 WL 5730734, at *4
(noting that these items “remain under seal; thus, 18 U.S.C. § 2518(8)(b) prohibits their
Ewell’s primary argument is not that these materials fall outside of Exemption 3; instead,
he argues that they fall within the exception established in Cottone v. Reno, 193 F.3d 550 (D.C.
Cir. 1999). In Cottone, the government played recordings of telephone conversations it had
obtained via a Title III wiretap “in open court, before the jury and the public gallery . . . and
introduced them into evidence.” Id. at 552. Cottone argued that Exemption 3 did not apply to
the recordings because the government had introduced the tapes into the public domain. Id. at
554. The D.C. Circuit explained that the “public-domain” exception, on which Cottone relied, is
a narrow one, and required Cottone to show “that there is a permanent public record of the exact
portions [of the records] he wishes.” Id. (quoting Davis v. U.S. Dep’t of Justice, 968 F.2d 1276,
1280 (D.C. Cir. 1992)). Because Cottone had “demonstrated precisely which recorded
conversations were played in open court,” however, he met this demanding burden. Id. at 555.
The court, accordingly, held that the government could not rely on Exemption 3 to shield the
recordings from production. Id. at 556.
Ewell argues that his case is like Cottone because “Title III intercepted content . . . w[as]
disclosed, played, and entered into evidence” at his detention hearing. Dkt. 16 at 26–27. But his
argument is unpersuasive for two reasons. First, the transcript of Ewell’s detention hearing does
not show that any wiretapped conversations were played in open court. At the hearing, a law
enforcement officer acknowledged the existence of the wiretap and summarized several
conversations that he had recorded. See Dkt. 12-9 at 16 (“Q. At that time were wiretap
interceptions occurring over phones used by . . . Eric Ewell? A. Yes, they were.”); id. at 20
(noting “conversations between Mr. Anderson and Mr. Ewell noting that they feared that Mr.
Anderson was kind of shook from being in jail and that they thought he would cooperate with
law enforcement”). It also appears from the transcript that the government introduced a “line
sheet” summarizing some of the calls intercepted between Ewell and other defendants. See id. at
20–21 (describing “Exhibit 2”); id. at 34 (describing compilations of “informal, unofficial
summaries of or transcripts of phone calls”). But neither the agent’s oral testimony nor the
written summaries would qualify under Cottone as sufficiently specific to waive Exemption 3
with respect to the recordings.
More importantly, however, even if the government had played the recordings at Ewell’s
detention hearing, that would not be sufficient under Cottone to waive Exemption 3 with respect
to the supporting documents that Ewell seeks. The public-domain exception applies where a
FOIA requester can identify documents “made public through an official and documented
disclosure” that exactly “match the information previously disclosed.” Wolf v. CIA, 473 F.3d
370, 378 (D.C. Cir. 2007) (quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)).
Here, there is no claim that the authorization letters, memoranda, and related documents that
Ewell sought have themselves been publicly disclosed, only that the recordings have. But even
if the recordings had been made public—which, as discussed above, Ewell has failed to show—
that would not justify the release of the application materials. Ewell also notes that the
application materials were provided to his counsel under the terms of Title III’s disclosure
provisions. See 18 U.S.C. § 2518(9). But the fact that those materials were provided to Ewell’s
counsel in the course of discovery does not waive Exemption 3, as the D.C. Circuit held in
Cottone. See 193 F.3d at 556 (“[A] . . . compelled disclosure to a single party simply does not
enter the public domain.”). The government, accordingly, has not waived the protections of
Exemption 3 by publicly disclosing the application materials.
b. Exemption 5
Exemption 5 protects “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). This provision shields “those documents, and only those documents, normally
privileged in the civil discovery context.” Sears, Roebuck, 421 U.S. at 149. As relevant here, it
permits an agency to withhold documents under the attorney work product privilege, which
protects documents and other memoranda prepared by an attorney in anticipation of litigation.
See FTC v. Boehringer Ingelheim Pharm., Inc., 778 F.3d 142, 149 (D.C. Cir. 2015); Hickman v.
Taylor, 329 U.S. 495, 510–11 (1947). “If a document is fully protected as work product, then
segregability is not required” under FOIA. Judicial Watch, Inc. v. U.S. Dep’t of Justice, 432
F.3d 366, 371 (D.C. Cir. 2005). The Justice Department asserts that the following records are
exempt from disclosure under the work product privilege: “prosecutors’ requests for permission
to apply for court authorization to intercept wire communications,” “e-mail messages from [the
Electronic Surveillance Unit (“ESU”)] to AUSA’s acknowledging receipt of the AUSA’s Title
III application,” “OEO Title III Logging Notes,” “e-mail messages between the ESU attorney
and the AUSA concerning the ESU review process, edits, revisions, etc.,” “action memorandums
from the OEO to the AAG recommending approval of prosecutors’ requests,” and “letters signed
by Deputy AAGs on behalf of the AAG to a U.S. Attorney advising that the AAG has approved
the prosecutor’s request to apply for a Title III order.” Dkt. 12-8 at 2 (Table of Responsive
The government argues that these documents are exempt from disclosure under the
attorney work product privilege because they were prepared in anticipation of Ewell’s criminal
prosecution. “When considering whether a document is prepared ‘in anticipation of litigation,’
this Court employs a ‘because of’ test, inquiring ‘whether, in light of the nature of the document
and the factual situation in the particular case, the document can fairly be said to have been
prepared or obtained because of the prospect of litigation.’” Boehringer Ingelheim, 779 F.3d at
149 (quoting United States v. Deloitte LLP, 610 F.3d 129, 137 (D.C. Cir. 2010)). Cunningham
attests that all of the withheld records were “prepared by an attorney . . . or someone acting at the
direction of such an attorney . . . as part of the wiretap application process,” and therefore were
prepared “because of” of the government’s case against Ewell. Dkt. 12-1 at 13 (Cunningham
Decl. ¶ 32). Courts in this jurisdiction have consistently held that memoranda and e-mails sent
between prosecutors in anticipation of prosecution are covered by the work product privilege.
See Gov’t Accountability Project v. U.S. Dep’t of Justice, 852 F. Supp. 2d 14, 26–27 (D.D.C.
2012); Wolfson, 672 F. Supp. 2d at 30.
Ewell can muster no persuasive argument as to why the Department erred in asserting
Exemption 5. He argues that the Department has failed to comply with its duty to segregate all
responsive non-exempt material, but the Department has no duty to segregate factual material
under the work product privilege. See Judicial Watch, 432 F.3d at 371. Moreover, because all
It is not clear from the Department’s briefing and the record whether these letters were
submitted to the court as part of the Department’s application for a Title III wiretap. If they
were, they would be exempt under Exemption 3, for the reasons described above, and there
would be no need to consider whether they are also exempt under Exemption 5.
records not exempt under Exemption 3 are exempt under the work product privilege, the Court
has no need to consider the Department’s assertion of the deliberative-process privilege, which
does require segregation. Ewell similarly argues that several of the withheld documents (the
Title III affidavit and authorization memorandum) are not “predecisional” because they
accompanied the application presented to the court, but the question whether a document is
“predecisional” is relevant only to the assertion of the deliberative-process privilege, not the
work product privilege. See Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C. Cir. 1997). Moreover,
to the extent that any of these records were filed with the authorizing court as part of the Title III
application, they are protected under Exemption 3, which does not turn on whether the soughtafter material is predecisional or, for that matter, whether it is deliberative.
In sum, the Justice Department appropriately withheld all responsive documents under
Exemptions 3 and 5. Because the Court will grant summary judgment to the Department with
respect to Ewell’s claims, Ewell’s request that the Court “provide for expeditious proceeding in
this action” is denied as moot. Dkt. 1 at 7 (Compl.).
B. Ewell’s Motion for Leave to Amend
Ewell has also moved for leave to file an amended complaint. Dkt. 25. 6 His proposed
amended complaint would add three additional counts regarding alleged illegalities in the
Department’s use of a wiretap to intercept his communications. See Dkt. 25 at 24–35.
Specifically, construed liberally, the proposed amended complaint appears to allege claims under
Ewell also moved for an extension of time to in which to file his motion for leave to file an
amended complaint. Dkt. 24. That motion is hereby GRANTED nunc pro tunc, and Ewell’s
motion for leave to file an amended complaint is deemed timely filed. The Department also
moved for an extension of time in which to file its opposition to Ewell’s motion for leave to
amend his complaint. Dkt. 26. That motion is also hereby GRANTED nunc pro tunc, and the
Department’s opposition is deemed timely filed.
Bivens v. Six Unknown Named Agents, 403 U.S. 388; the Federal Tort Claims Act (“FTCA”), 28
U.S.C. § 1346; the remedial provisions of Title III, 18 U.S.C. § 2520; and a civil-rights statute,
42 U.S.C. § 1985(3). It would also add over 20 new defendants, including the U.S. Attorney for
the Western District of Pennsylvania, the regional director of the DEA in Pittsburgh, and dozens
of their employees. The motion appears to be modeled on a motion filed in Spears v. U.S.
Department of Justice, — F. Supp. 3d —, No. 14-387, 2015 WL 5730734 (D.D.C. Sept. 29,
2015). Compare Dkt. 25 at 26 n.7 (describing the “210[-]page Sprung Affidavit,” which does
not appear in the record in this case), with Spears, 2015 WL 5730734, at *1 (describing the
declaration of Peter Sprung, submitted by the Justice Department in that case).
Federal Rule of Civil Procedure 15(a) provides that leave to amend a pleading shall be
“freely give[n] when justice so requires.” Fed. R. Civ. P. 15(a). But leave may be denied in
cases of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, [or] futility of amendment.” See Atchinson v. District of
Columbia, 73 F.3d 418, 425 (D.C. Cir. 1996) (quoting Foman v. Davis, 371 U.S. 178, 182
(1962)). “Courts generally consider the relation of the proposed amended complaint to the
original complaint, favoring proposed complaints that do not ‘radically alter the scope and nature
of the case.’” Smith v. Cafe Asia, 598 F. Supp. 2d 45, 58 (D.D.C. 2009) (quoting Miss. Ass’n of
Coops. v. Farmers Home Admin., 139 F.R.D. 542, 544 (D.D.C. 1991)). The Department argues
that Ewell’s motion should be denied for the same reason that the motion in Spears was denied—
that is, because the proposed claims “would substantially alter the scope and nature of this FOIA
action,” would “unduly delay these proceedings,” and would be futile. See Dkt. 27-1 at 2.
The Court agrees on all three counts. The proposed amended complaint would
dramatically alter the scope and nature of this action. Unlike the current suit, a suit under Bivens,
the remedial provisions of Title III, Section 1985, or the FTCA would proceed against individual
officers or the United States on the basis of alleged constitutional, statutory, or common-law tort
violations allegedly committed by those officers. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009);
Simpkins v. District of Columbia, 108 F.3d 366, 369 (D.C. Cir. 2007). The new claims have
nothing to do with whether the Department has complied with its obligations under FOIA and
the Privacy Act, but rather attack the Department’s investigation of Ewell’s allegedly criminal
activity. Expanding a FOIA/Privacy Act suit to include allegations of illegal wiretapping would
entail significant additional burdens on the defendants, and it would unduly delay the resolution
of the current proceedings. The proposed amendments, moreover, are futile, at least in
significant part. This Court, for example, does not appear to have venue over Ewell’s FTCA
claims against the United States, because Ewell does not reside in this district and it does not
appear that his claims are premised on any act or omission occurring here. See 28 U.S.C. §
1402(b) (permitting FTCA actions only “in the judicial district where the plaintiff resides or
wherein the act or omission complained of occurred”). Even if venue were proper in this district
over some of Ewell’s proposed new claims, moreover, those claims focus on misconduct
allegedly occurring in the Western District of Pennsylvania, and there is no evident rationale for
litigating them here, rather than where the witnesses and evidence are presumably located. See
id. § 1404(a). In addition, Ewell does not allege that he has exhausted his administrative
remedies, as the FTCA requires. Id. § 2675(a).
In sum, Ewell’s proposed amended complaint would radically alter the scope and nature
of this action; it would result in an undue delay of the proceedings; and, at least in significant
respects, it would be futile. For these reasons, the Court DENIES Ewell’s motion for leave to
amend his complaint.
For the foregoing reasons, the Justice Department’s motion for summary judgment is
GRANTED. Ewell’s motion for an extension of time in which to move for leave to amend his
complaint is GRANTED nunc pro tunc, and the motion is deemed timely filed. The Justice
Department’s motion for an extension of time in which to file its opposition to Ewell’s motion is
also hereby GRANTED nunc pro tunc, and the Department’s opposition is deemed timely filed.
Ewell’s motion for leave to amend his complaint is DENIED.
SO ORDERED. The Clerk shall enter judgment, and shall mail a copy of this
Memorandum Opinion and Order to the plaintiff at the address reflected on the docket.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: January 26, 2016
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