BERNEGGER v. EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS

Filing 47

MEMORANDUM OPINION AND ORDER: Plaintiff's motion to strike, Dkt. 42 , is hereby DENIED.Defendants' motion for summary judgment, Dkt. 37 , will be GRANTED. A separate order will issue. See document for details. Signed by Judge Randolph D. Moss on 8/26/19. (lcrdm1, ) Modified on 8/28/2019 to change document type to "opinion"(kt).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PETER M. BERNEGGER,
Plaintiff,
v.

No. 17-CV-00563 (RDM)

EXECUTIVE OFFICE FOR UNITED
STATES ATTORNEYS,
Defendant.
MEMORANDUM OPINION AND ORDER
Upon consideration of Plaintiff’s motion to strike from the Court’s September 20, 2018
memorandum opinion the statement that Plaintiff was convicted of mail and bank fraud in 2009,
Dkt. 42, it is hereby ORDERED that the motion is DENIED. The Court finds that the statement
is factually accurate. See Am. Judgment, Bernegger, No. 01-0176, ECF No. 218 (N.D. Miss.
Oct. 25, 2011). The Court also notes that this case, brought under the Freedom of Information
Act (“FOIA”), cannot be used as a vehicle to challenge the legality of Bernegger’s conviction.
See Day v. Trump, 860 F.3d 686, 691 (D.C. Cir. 2017) (noting “the longstanding observation of
the courts that § 2255 is ordinarily the sole remedy for a federal prisoner challenging the legality
of his conviction or sentence”).
Further, upon consideration of Defendant’s motion for summary judgment, Dkt. 37, the
motion will be GRANTED. On September 20, 2018, this Court granted in part and denied in
part Defendant’s first motion for summary judgment, Dkt. 35. In its Memorandum Opinion and
Order, the Court identified two outstanding issues that required further development. First, the
Court ordered Defendant to submit for in camera review an unredacted copy of an email that it

had withheld in part under FOIA Exemption 5 and its deliberative process privilege. Id. at 20–
21. Defendant submitted the unredacted email on September 28, 2018, see Dkt. 36, and the
Court granted summary judgment to Defendant on that issue by Minute Order on the same day.
Second, the Court concluded that “further briefing and explanation” was necessary to
sustain Defendant’s redaction of names and contact information under FOIA Exemptions 6 and
7(C) from a string of emails between the United States Attorney’s Office for the Northern
District of Mississippi and the United States District Court for the Northern District of
Mississippi. Dkt. 35 at 17. Along with the renewed motion for summary judgment now before
the Court, Defendant released the names of the attorneys and contact information of court
personnel in the specified string of emails. See Dkt. 37-1. The Court concludes that the sole
remaining redaction—that of a legal assistant’s name and contact information—in the email
correspondences was lawful under FOIA Exemptions 6 and 7(C) given the legal assistant’s
ministerial function and the legitimate privacy interests that the Court described in its previous
Memorandum Opinion, Dkt. 35 at 14-17. Moreover, even though Plaintiff asserts that
Defendant’s motion for summary judgment should be denied as moot because he was able to
determine the redacted information on his own, see Dkt. 40, that contention is unavailing, as the
legal assistant continues to retain cognizable privacy interests. See Schoenman v. FBI, 573 F.
Supp. 2d 119, 149 (D.D.C. 2008) (“[E]ven if Plaintiff is correct that he can guess the individual’s
identity, ‘the fact that Plaintiff may deduce the identities of individuals through other means . . .
does not diminish their privacy interests.’” (quoting Shores v. FBI, 185 F. Supp. 2d 77, 83
(D.D.C. 2002))).
The Court, accordingly, will GRANT Defendant’s renewed motion for summary
judgment. A separate order will issue.

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/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: August 26, 2019

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