Pardo v. Federal Aviation Administration

Filing 29

MEMORANDUM OPINION in re 17 MOTION for Summary Judgment. Signed by District Judge Claude M. Hilton on 07/10/2013. (jlan)

E

1

L

K

JUL 10 2013
IN THE UNITED
FOR THE

STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

CUir K. i) S .)!S ! HICT COURT

Alexandria Division

DAVID

PARDO

Plaintiff,
Civil Action No.

v,

THE

l:13-cv-14

FEDERAL AVIATION

ADMINISTRATION

Defendant.

MEMORANDUM OPINION

This matter comes before the Court on Plaintiff David

Pardo's ("Plaintiff") Motion for Summary Judgment and Defendant
The Federal Aviation Administration's

Motion for Summary Judgment.

("Defendant" or "FAA")

Plaintiff is a previous employee

of the FAA who submitted a Freedom of Information Act ("FOIA")

request seeking documents.

5 U.S.C. § 552, et seq.

Plaintiff

seeks to have this Court determine whether the FAA conducted a
reasonable search of its records when it did not search the

email archives of its employee,

Dale Roberts, and its disaster

recovery tapes.

Plaintiff submitted FOIA requests on July 27, 2012,
seeking:

An email sent by Dale E. Roberts,
Bechdolt,

AGC-220,

on

June

14,

AFS-220,
2010,

to Anne

11:27

EST.

That email indicates that it had been replied to,
presumably by Ms. Bechdolt. I request that reply
and any subsequent emails between Ms. Bechdolt, Mr.
Dale, and anyone else, based on that conversation,
as it pertains to a Request for Interpretation from
a Mr. Keith Stamper, Chief Pilot of COMAIR, Inc.

[A]11
documents
pertaining to
a
May
14,
2010
Request for Interpretation from Mr. Keith Stamper
of COMAIR Inc.
Documents, including emails, should
be in the possession of individuals within AGC and
AFS that include Dale E. Roberts, AFS-220, Richard
Clarke, AFS-200, Anne Bechdolt, AGC-220, and Jodi
L. Baker,
AFS-200,
though there may be others.
Please limit the search to June 10, 2010 to July
14,2010. I also request the attachment to an email
sent
by
Yvette
Armstead,
AGC-30,
to
Cynthia
Wheeler,
Quentin
Barrett,
and
Scott
Cooper
on
September 16, 2010 at 8:52am. The subject line is
'probationary template.1
I request any and all
emails between Anne Bechdolt, AGC-220,
and Laura
Montgomery, AGC-240, between April 28, 2010 and May
16,

2010.

On July 31, 2012, the FAA informed Plaintiff that it had

received his FOIA requests and combined them into one request,

Request 2012-6972.

Generally, the FAA's protocol regarding FOIA

requests is to identify the request with a tracking number and
determine the divisions of the FAA most likely to have
responsive documents.

Requests are then sent to particular

divisions to respond accordingly.

When a FOIA request seeks

documents or information located in email accounts,

the FAA

initially instructs employees likely to have responsive emails

to search their accounts.

The FAA maintains disaster recovery

tapes that back up the FAA's email accounts.

The disaster

recovery tapes are stored by a private contractor at a privately
owned subterranean storage facility.

The FAA does not search

disaster recovery tapes in response to a FOIA request for email
documents unless a search of the tapes is specifically
requested,

as searching those tapes is logistically difficult

and expensive.

After a FOIA request has been responded to, a

requester may appeal to the Assistant Administrator for Finance
and Management.

Upon receipt of Plaintiff's request on July 27, 2012,

the

FAA identified the divisions within the agency likely to have
documents responsive to the request; the International Law,

Legislation, and Regulations Division ("Regulations Division"),

Flight Standards Services ("AFS"), and the Personnel and Labor
Law Division ("Labor"), and distributed Plaintiff's request to
those divisions.

In the Regulations Division, Rebecca MacPherson,
Assistant Chief Counsel of the Division,

formerly

initially received

Plaintiff's request and identified two portions of the request
that the Division may have responsive documents for.

Rebecca

MacPherson reviewed the request for interpretation from Keith

Stamper in order to help define her search and then did a
comprehensive search of Anne Bechdolt's email account,

specifically searching the term "Stamper" and the regulatory
provisions mentioned in the request.

The content of emails sent

during the request time period were reviewed, with special
attention given to emails to and from employees in the AFS

division.
conducted.

A review of Anne Bechdolt's paper documents was also
Rebecca MacPherson also reviewed her own emails

communications to and from Anne Bechdolt,

and asked Laura

Montgomery to review her own emails for relevant content.
result of these searches,

for

As a

seventeen pages of responsive

documents were produced by the Regulations Division to Plaintiff
without redaction on August 27, 2012.
The AFS Division identified its constituent division,

200 as the section that may have responsive documents.

Roach,

AFS-

Jarad

the AFS-200 employee responsible for FOIA responses

identified the AFS-200 employees likely to have documents

responsive to Plaintiff's request: Jodi Baker and Dale Roberts.
Plaintiff also listed Richard Clarke,
200,

a former employee of AFS-

in his request as an individual likely to have responsive

documents.

However,

Richard Clarke had retired from the FAA

several months before Plaintiff's FOIA request,

and his email

account no longer existed at the time of the request.

Jodi

Baker and Dale Roberts searched their records extensively by
reviewing individual emails and searching folders, neither
discovered responsive documents.

Jodi Baker searched both her

inbox and archives,

including subfolders,

searched his inbox,

sent,

and Dale Roberts

draft and trash folders using the term

"Pardo", the regulatory provisions at issue, and "Stamper".
Dale Roberts did not have the archives

feature enabled and

therefore did not have archives to search.

Mark Blazy was

tasked with searching AFS-200's tracking system and shared hard

drive using the terms "Pardo," "121.471," "§ 121.471(d)," and
"Stamper", as a result one responsive document was found.

In

October 2012, Raymond Towles, informed Plaintiff of the
additional responsive document that had been found, and the
document was produced along with the letter.
On October 21,

2012 Plaintiff appealed the response to his

FOIA request to the Assistant Administrator for Finance and

Management alleging that the FAA conducted an inadequate search
of records.

In the appeal Plaintiff reiterated his request for

all documents related to Keith Stamper's Request for

Interpretation and indicated that, "[if] such emails or other
documents are not available,

a reasonable search would involve

any appropriate backup tapes or files."

In November 2012, the

FAA responded to Plaintiff's appeal, informing him that his

appeal was premature at that time due to the fact that the Labor
Division had not yet responded to Plaintiff's initial request.
On January 4, 2013 Plaintiff filed the case now before the
Court,

and on February 25 he filed an Amended Complaint.

In January 2013,

the Labor Division received Plaintiff's

FOIA appeal reiterating his request.

The relevant section of

Plaintiff's request was an alleged email attachment sent by
Yvette Armstead to Cynthia Wheeler,

Quentin Barrett,

and Scott

Cooper on September 16, 2010 at 8:52am with subject line

"probationary template."
the Labor Division,

Elizabeth Head, a Senior Attorney in

instructed Yvette Armstead to search her

email for the document and a responsive document was identified.
On January 31, 2013,

Stephen Dunn, an attorney in the Office of

General Counsel produced the document attachment to Plaintiff.

AFS conducted a supplemental search of records in January
2013.

An additional document was found in the tracking system

as Mark Blazy had inadvertently failed to search the archives of

the tracking system.

Jodi Baker also expanded her search and

found one additional responsive document in her archives folder.
The documents were produced to Plaintiff on January 31, 2013,

along with a fee estimate for three different search options
regarding the FAA's disaster recovery tapes to have in the event

that Plaintiff determined that request to be necessary.

On

February 4th, the FAA became aware that Jodi Baker's email was
not included in the January 31 production and that email was

then produced on February 5.

Due to an error in email settings,

the recipient information was not produced with the email,

but

Plaintiff received the full version of the email including
recipient information on February 28.

As of February 28, 2013

the FAA believed that it had completed an exhaustive search of

all locations likely to have responsive documents to Plaintiff's

request, and all responsive documents had been produced.
The Court must grant summary judgment when "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.

"The burden of the moving party . . .

be discharged by simply pointing out

Athat there is an absence

of evidence to support the nonmoving party's case.'"
Deeds,

453 F.3d 593,

v. Catrett,

477 U.S.

608
317,

(4th Cir.
325

may

Carr v.

2006), citing Celotex Corp.

(1986).

The Court construes all reasonable inferences in favor of

the non-moving party when determining whether there is a genuine
issue of material fact.

U.S. 242, 255 (1986).

Anderson v. Liberty Lobby,

Inc.,

477

The mere existence of some disputed facts

does not merit a trial unless the disputed facts are material to

an issue necessary for proper resolution of the case and the

quality and quantity of the evidence offered to support a
question of fact are adequate to support a jury verdict.
Thompson Everett,

Inc. v. Nat'l Cable Adver.,

1317, 1323 (4th Cir. 1995).

L.P.,

57 F.3d

If the nonmovant fails to identify

specific facts that demonstrate a genuine and material issue for
trial, then the Court will grant summary judgment "to prevent

^factually unsupported claims and defenses'
trial."

Felty v. Graves-Humphreys Co.,

from proceeding to

818 F.2d 1126,

1128

(4th

Cir.

1987)

(quoting Celotex Corp.,

Anderson v. Liberty Lobby,

Inc.,

477 U.S.

477 U.S.

at 324-25); see

242,

247-48

(1986).

"Mere unsupported speculation is not sufficient to defeat a

summary judgment motion if the undisputed evidence indicates
that the other party should win as a matter of law."
Booz,

Allen & Hamilton,

(citing Felty,

Inc.,

452 F.3d 299,

308

Francis v.

(4th Cir.

2006)

818 F.2d at 1128).

FOIA cases are properly resolved on summary judgment once

documents responsive to the FOIA request at issue have been
identified.

1994).

Wickwire v. Gavin,

356 F.3d 588,

590

(4th Cir.

To obtain summary judgment in a FOIA case, the agency

must show that there is no genuine dispute of material fact with

regard to the agency's compliance with FOIA, viewing the facts
in the light most favorable to the plaintiff.

See Rein v. U.S.

Patent and Trademark Office,

(4th Cir.

Wickwire,
FOIA,

356 F.3d at 590.

553 F.3d 353,

358

2009);

To fulfill its obligations under

an agency need only conduct a search that is "reasonably

calculated to uncover all relevant documents."

F.3d at 362; see also Ethyl Corp.

Agency, 25 F.3d 1241,

See Rein,

553

v. Environmental Protection

1246 (4th Cir.

1994)

("In judging the

adequacy of an.agency search for documents the relevant question
is not whether every single potentially responsive document has
been unearthed,

but whether the agency has demonstrated that it

conducted a search reasonably calculated to uncover all relevant
8

documents." (internal citations and quotations omitted).

"A

^reasonably calculated search' does not require that an agency
search every file where a document could possibly exist, but
rather requires that the search be reasonable in light of the
totality of the circumstances."

Further,

Rein,

553 F.3d at 364.

agencies are not required to look beyond the four

corners of a request in formulating a search, "nor [are] they
required to chase rabbit trails that may appear in documents
uncovered during their search."

Rein,

553 F.3d at 365.

To show the adequacy of its search in a motion for summary

judgment, the FAA "may rely upon reasonably detailed,
nonconclusory affidavits and declarations submitted in good
faith."

Freeman v. U.S.

1986 WL 18310, at *2

Dep't of Justice,

(4th Cir.

Dec.

Case No.

29, 1986).

86-1073,

This Court,

therefore, may award summary judgment based upon information in
the declarations when they show that the agency conducted a

reasonable search.

See Rein,

552 F.3d at 377

(affirming summary

judgment that agency's search was adequate where searches
described

in declarations

were

reasonable

and court

had no

reason to doubt credibility of the declarants).

Upon receipt of Plaintiff's request for documents pursuant
to FOIA,

5 U.S.C.

§ 552 et seq.,

the FAA conducted a

comprehensive search of every FAA location likely to have

documents responsive to Plaintiff s request and subsequently

produced all responsive documents, in their entirety, to
Plaintiff.

The FAA began its search by identifying all

appropriate search locations likely to contain responsive
documents in light of Plaintiff's request.

Plaintiff identified

multiple individuals in his request and each of their divisions
of employment were identified as locations to be searched.

Individual requests were transmitted to the International Law,

Legislation, and Regulations Division,

Flight Standards

Services, and the Personnel and Labor Law Division,

and FAA

employees within those divisions conducted extensive and

specific searches pursuant to Plaintiff's request.

The FAA has

produced declarations detailing its comprehensive search of each
location.

The declarations

indicate that each location

identified by Plaintiff was searched, as well as additional

locations likely to contain documents,

and each search was

conducted in good faith and in a manner reasonably calculated to
uncover all

relevant

documents.

Plaintiff has conceded to the fact that the FAA has mostly
complied with its obligations under FOIA,

and narrows the issues

in this case to the lack of a search of Dale Roberts'

email

archives and the lack of a search of the FAA's disaster recover

tapes, which he argues is required in order to adequately
produce all responsive documents.
declarations,

According to the submitted

Dale Roberts did not enable his email archives

10

feature and therefore does

not

have archives to search.

Dale

Roberts searched all of his email folders upon the initial
request,

and at the time of Plaintiff's appeal,

evidence to the contrary,
Additionally,

there is no

and his search was adequate.

throughout the administrative process,

Plaintiff never requested a search of the FAA's disaster

recovery tapes.

Plaintiff's initial FOIA request made no

specific mention of the disaster recovery tapes, nor did his
administrative appeal.

Plaintiff's administrative appeal did,

however, assert his opinion that a reasonable search would
involve any appropriate backup tapes or files.

Plaintiff did

not submit an additional or supplemental search request

regarding the disaster recovery tapes, but instead, in his
appeal of his initial request,

stated his belief that a

responsive search by the FAA under FOIA would include backup
tapes.

If Plaintiff at any point determined that the scope of

his initial FOIA request was insufficient,

he had the

opportunity to then submit an additional request.

In the event

that the Plaintiff chose to do so, the FAA provided him with a
cost estimate and various options to search the disaster
recovery tapes,

in January 2013.

Plaintiff asserts that he is

exempt from payment of the fees because 5 U.S.C.A. §

552(a) (4) (A) (viii) provides that an agency cannot asses search
fees if they fail to comply with the time limit.
11

Title 5

U.S.C.A.

552(a)(6)(A)

requires that the agency determine within

20 days of the receipt of a request,

excluding weekends and

public holidays, whether to comply or notify the requestor
otherwise, and a determination as to an appeal must be within 20
days as well.

Plaintiff's asserted opinion in an appeal

document as to how the FAA should conduct its search does not

create a new request,

nor does it begin to run the 20 day period

outside of which Plaintiff would not be required to pay the fee
associated with the search of the disaster recovery tapes.

Plaintiff has not pointed to anything that would require
the FAA to search the disaster recovery tapes.
Plaintiff has

received the

fee estimate for a

Additionally,
search of the

disaster recovery tapes and has not yet selected which search

option he prefers, or attempted to the pay the fee.

Therefore,

Plaintiff cannot now argue that a search of the tapes was

required to make the search adequate and responsive under FOIA

based on an initial request that did not reference backup or
disaster recovery tapes,

and an appeal that made passing

reference to back up tapes.

Lastly, the FAA has made a showing that a search of the
disaster recovery tapes would be unduly burdensome and would be
unlikely to recover responsive documents in addition to those
already produced to Plaintiff.

The search conducted by the FAA

was responsive to Plaintiff's request,
12

and was adequate and

reasonable in light of Plaintiff's request.

The FAA complied

with its FOIA obligations and therefore summary judgment should
be granted to Defendant.

An appropriate order shall issue.

JsL
Claude M. Hilton

United States District Judge
Alexandria, Virginia

July J0_, 2013

13