Rutila v. United States Department of Transportation et al

Filing 91

ORDER ACCEPTING THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: Plaintiff's objections are OVERRULED and the Court accepts the Findings, Conclusions and Recommendation of the United States Magistrate Judge. Defendants' Motion for Summary Judgment, Doc. 80 , is GRANTED, and Plaintiff's remaining claims are DISMISSED. (Ordered by Judge Jane J. Boyle on 5/20/2020) (ctf)

Case 3:16-cv-02911-B-BK Document 91 Filed 05/20/20

Page 1 of 4 PageID 1904

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
HAROLD EDWARD RUTILA, IV,
PLAINTIFF,
V.
BK

UNITED STATES DEPARTMENT OF
TRANSPORTATION AND FEDERAL
AVIATION ADMINISTRATION,
DEFENDANTS.

§
§
§ CASE NO. 3:16-CV-2911-B-BK
§ CONSOLIDATED CASE NO. 3:16-CV-3433-B§
§
§
§
§
§

ORDER ACCEPTING THE FINDINGS, CONCLUSIONS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
On April 27, 2020, United States Magistrate Judge Renée Harris Toliver made findings,
conclusions and a recommendation in this case. Doc. 89. Judge Toliver recommended that
Defendants’ Motion for Summary Judgment, Doc. 80, should be granted. Doc. 89 at 1. Plaintiff
filed Objections to Magistrate Report and Recommendation on Defendants Motion for Summary
Judgment, Doc. 90. The Court has made a de novo review of those portions of the proposed
findings, conclusions and recommendation to which objection was made. For the reasons that
follow, Plaintiff’s objections are overruled and the Court accepts the Findings, Conclusions and
Recommendation (“FCR”) of the United States Magistrate Judge.
I.
Plaintiff’s Privacy Act Objection
Plaintiff objects to the finding that he waived his Privacy Act claims. Doc. 90 at 2. Plaintiff’s
main argument is that the Court improperly relied on United States v. Charles, 469 F.3d 402, 408 (5th

Case 3:16-cv-02911-B-BK Document 91 Filed 05/20/20

Page 2 of 4 PageID 1905

Cir. 2006) for the proposition that “inadequately briefed claims constitute waiver.” Doc. 89 at 2;
Doc. 90 at 3. He contends that he is “neither a [criminal] defendant nor an intervenor” and
therefore Charles is not analogous to the present case. Doc. 90 at 3.
Plaintiff’s objection is overruled because Judge Toliver’s reliance on Charles is appropriate,
and other courts have cited Charles for the same proposition. See Cooper v. Wells Fargo Bank, N.A.,
No. 4:11–CV–440, 2014 WL 3671204, at *5 n.5 (E.D. Tex. July 22, 2014) (Schell, J.) (granting
motion for summary judgment against plaintiffs when they “cited no authority in support of their
argument.”) (citing Charles for the proposition that “[i]nadequatly briefed issues are deemed
abandoned.”); see also Johns v. Colvin, No. 16-162–RLB, 2017 WL 3097161, at *3 (M.D. La. July 20,
2017) (J. Bourgeois) (same).
II.
Plaintiff’s Adequate Search Objection
Plaintiff next objects to the finding that the FAA conducted an adequate search. Plaintiff’s
primary argument–which Judge Toliver addressed in her FCR–is that Defendants’ affidavits are
insufficient because they fail to “explain the scope and method of the search in reasonable detail in
a nonconclusory fashion.” Doc. 90 at 4 (citing Gahagan v. United States Citizenship & Immigration
Servs., 147 F. Supp. 3d 613, 622 (E.D. La. 2015)); see Doc. 89 at 4-6 (addressing Plaintiff’s argument
that Defendants’ supporting evidence is insufficient).
Plaintiff’s objection is overruled for the same reasons stated in the FCR–he fails to present
evidence of bad faith to overcome the “presumption of legitimacy” in favor of Defendants’ supporting
evidence. See Doc. 89 at 3, 5. Plaintiff’s reliance on the Ninth Circuit’s holding in Rojas v. FAA,
Doc. 90 at 8, is misplaced because it is not precedential. See Rojas v. F.A.A., 927 F.3d 1046, 1053
(9th Cir. 2019), rehearing en banc granted, 948 F.3d 952 (9th Cir. 2020) (“The three-judge panel

Case 3:16-cv-02911-B-BK Document 91 Filed 05/20/20

Page 3 of 4 PageID 1906

disposition in this case shall not be cited as precedent by or to any court of the Ninth Circuit.”)).
More importantly, Plaintiff’s objection is silent regarding the “presumption of legitimacy” in favor of
agency evidence when, as here, there is no evidence of bad faith. See Doc. 89 at 4-8.
IV.
Plaintiff’s Exemption 5 Objection
Plaintiff’s third objection is that the inter-agency chart does not fall under exemption 5. Doc.
90 at 8. Plaintiff specifically argues that the “FAA has not demonstrated that this column of
information is ‘inextricably intertwined’ with any policymaking process” and the Court should order
an in camera inspection. Doc. 90 at 9 (citing Envtl. Prot. Agency v. Mink, 410 U.S. 73, 93 (1973)).
Plaintiff similarly argues that the Court should look to the opinions in Coastal States, Hajro, and
McGrady for guidance regarding the deliberative process privilege. See Doc. 90 at 9-11.
Plaintiff’s third objection is overruled. His reliance on Mink is misplaced as it has been
superseded by statue. See C.I.A. v. Sims, 471 U.S. 159, 189 (1985) (noting that Congress disagreed
with the ruling in Mink and overruled it via legislation). Plaintiff’s citations to Coastal States, Hajro,
and McGrady are also unpersuasive because he merely cites these holdings but fails to apply them
to the facts os this case–that is, to address why the information under exemption 5 is not
“pre-decisional (generated before the adoption of an agency policy or action) and deliberative
(reflecting the give-and -take of the consultative process).” Doc. 89 at 10 (citing Coastal States Gas
Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) and its application). Compare Doc. 90
at 10 (arguing FAA fails to explain how the information at issue constitutes subjective or personal
material); Doc. 90 at 10 (challenging Ms. Goodman’s declaration because the FAA never attempted
alternative dispute resolution with Plaintiff); Doc. 90 at 11 (conclusively stating data is not protected
under exemption 5).

Case 3:16-cv-02911-B-BK Document 91 Filed 05/20/20

Page 4 of 4 PageID 1907

V.
Plaintiff’s Remaining Objections
Plaintiff’s remaining objections are meritless and therefore overruled. Plaintiff’s fourth
objection that FAA Academy trainees are not private citizens is wholly unsupported and is a
non-starter. Doc. 90 at 11. Plaintiff’s fifth objection is unpersuasive because it conclusively asserts
without basis that Defendants are using exemption 2 to conceal the fact a search was never
performed in response to FOIA 9192. Doc. 89 at 12.
VI.
Conclusion
For the foregoing reasons, Plaintiff’s objections are OVERRULED and the Court accepts the
Findings, Conclusions and Recommendation of the United States Magistrate Judge. Defendants’ Motion
for Summary Judgment, Doc. 80, is GRANTED, and Plaintiff’s remaining claims are DISMISSED.

SO ORDERED this 20th day of May, 2020.

_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE