Piccone v. Lee et al

Filing 39

MEMORANDUM OPINION re Defendants Motion to Dismiss and Summary Judgment. Signed by District Judge James C. Cacheris on 10/27/15. (klau, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

LOUIS A. PICCONE,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
UNITED STATES PATENT AND
TRADEMARK OFFICE et al.
Defendants.

M E M O R A N D U M

1:15cv536 (JCC/TCB)

O P I N I O N

Four motions are now before the Court in this matter:
a motion to dismiss filed by Defendants Lee, Covey, Griffin, and
George [Dkt. 18]; and motions to dismiss and for summary
judgment filed by Defendant United States Patent and Trademark
Office (USPTO).

[Dkt. 22][Dkt. 23][Dkt. 24]

For the following

reasons, the Court grants Defendants’ motions to dismiss and
motion for summary judgement.
I. Background
At the motion to dismiss stage, the Court must read
the complaint as a whole, construe the complaint in a light most
favorable to the plaintiff, and accept the facts alleged in the
complaint as true.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The following facts, taken from the complaint,
parties’ briefs and the administrative record are undisputed

1

unless otherwise indicated.

Plaintiff Louis A. Piccone

(“Plaintiff” or “Piccone”), is an attorney licensed to practice
law in Pennsylvania who is also a registered practitioner before
the USPTO. (Compl. [Dkt. 1] ¶ 4.)

Plaintiff has been a

registered patent attorney before the USPTO since 1997.
¶ 6.)

(Id. at

In the years since 2008, Plaintiff has taken on a series

of Pro Bono child custody cases.

(Id. at ¶¶ 7-8.)

On December

10, 2014, the USPTO filed a complaint and notice of disciplinary
proceedings against Plaintiff, alleging that Plaintiff had
engaged in the unauthorized practice of law.

(Id. at ¶ 10.)

Specifically, the USPTO’s disciplinary complaint alleged that
Plaintiff had been suspended form the Pennsylvania Bar on
September 20, 2013, through August 13, 2014, but Plaintiff
prosecuted a trademark application on behalf of William Windsor
during this time period.

(Id. at ¶¶ 58-59; Individual

Defendants’ Memorandum [Dkt. 19] at 5.)

The disciplinary

complaint also alleged that Plaintiff had engaged in the
unauthorized practice of law by representing individuals in
matters in jurisdictions in which he was neither licensed nor
admitted pro hac vice. (Compl. at ¶ 7.)
The USPTO disciplinary complaint resulted from an Office of
Enrollment and Discipline (“OED”) investigation into Mr. Piccone
and subsequent determination that probable cause existed.
(Indiv. Def.’s Mem. at 5.)
2

The USPTO maintains a register of attorneys and agents
authorized to represent others in proceedings before the agency
according to a scheme set down at 37 C.F.R. §11 pursuant to
authority granted by 35 U.S.C. §2(b)(2)(D).

The OED

investigates allegations of misconduct on the part of
practitioners who are registered to represent others before the
agency. 37 C.F.R. § 11.19.

Such an investigation may begin

after the OED director receives a written submission that
presents possible grounds for discipline of a specified
practitioner. 37 C.F.R. § 11.1.

Upon conclusion of an

investigation, the OED Director may close the investigation with
no action; issue a warning, enter into an agreement with the
practitioner to settle the matter, or institute formal charges
upon the approval of the Committee on Discipline.
§11.22(i).

37 C.F.R.

The Committee on Discipline decides if probable

cause exists to bring disciplinary charges against the
practitioner.

37 C.F.R. §11.32.

Upon a determination of

probable cause by the Committee, the OED Director has discretion
to file a disciplinary complaint like the one filed against
Plaintiff, but is not required to file such a complaint.

Id.

Disciplinary proceedings are then heard by an administrative law
judge (“ALJ”) sitting as a “hearing officer” who is not under
the supervision of the USPTO Director or the OED Director.
C.F.R. §11.39.

Once disciplinary proceedings have been
3

37

instituted, the ALJ may authorize discovery, conducts a hearing
at which both parties may present documentary evidence and
witness testimony, and ultimately delivers a decision on the
complaint.

37 C.F.R. §§11.50-52.

Once the ALJ has issued a

decision, either party may appeal the decision to the director
of the USPTO.

37 C.F.R. § 11.55.

Once the USPTO Director has

entered a final decision, the practitioner may then file a
petition for review of the USPTO’s decision before the United
States District Court for the Eastern District of Virginia.

See

35 U.S.C. § 32; 37 C.F.R. § 11.57.
On September 15, 2014, Plaintiff filed a Freedom of
Information Act (“FOIA”) Request to obtain documents concerning
the USPTO investigation of Plaintiff’s conduct.
12).

(Compl. At ¶

William Griffin, the FOIA coordinator for the OED,

identified the OED staff attorneys responsible for the
investigation of Plaintiff, Dahlia George and Leonardo
Villarreal Alejandro, as well as OED paralegal Hannah Robinson,
as the individuals most likely to have responsive documents nd
asked them to respond to the request.
at 6.)

(USPTO’s Mem. [Dkt. 26]

After a search of their files, Ms. George and Mr.

Villarreal found only information protected from disclosure
because it related to the ongoing law enforcement investigation
against Plaintiff, and disclosure at this stage would have
impeded the investigation.

(Id.)
4

Ms. Robinson collected all

official correspondence regarding Mr. Piccone from OED’s
proprietary database and provided them to the USPTO FOIA Office
for release.

(Id. at 6-7.)

The USPTO then responded to

Plaintiff’s FOIA request on October 20, 2014, noting that it had
construed Plaintiff’s request as solely for records relating to
any OED investigation and that he would need to submit a more
specific request if he had intended the USPTO to search for any
other files, and producing to Plaintiff 410 pages of documents.
(Id.; Compl. at ¶ 12).

On November 10, 2014, Plaintiff appealed

the initial FOIA response. (Compl. at ¶ 17.)

On December 2,

2014, in response to this appeal, Ms. Robinson, Ms. George, and
Mr. Villareal conducted a second search of their emails,
including variations of Mr. Piccone’s name and investigatory
file number.

(USPTO’s Mem. at 7.)

Ms. Robinson also conducted

a second search of OED’s record system, and also checked a
central computer drive and a SharePoint site used in
investigations for records regarding Mr. Piccone.

(Id.)

All of

the documents identified in this second search were protected
because, inter alia, they related to the ongoing law enforcement
investigation against Plaintiff, and disclosure at this stage
would have impeded the investigation.

(Id. at 8.)

On December

10, 2015, the USPTO denied Plaintiff’s FOIA appeal of November
10, 2014, explaining that the USPTO had correctly applied the
FOIA exemptions identified in its October 20, 2014 response.
5

(Id.; Compl. at ¶ 18.)

On April 23, 2015, Mr. Piccone filed the

complaint in the instant action seeking recovery for alleged
constitutional violations by individual-capacity defendants,
declaratory relief from the disciplinary policies and
proceedings of the USPTO, and alleging that the USPTO had
violated the Privacy Act and seeking review of Plaintiff’s
September 18, 2014 FOIA request.

(Compl. at ¶¶ 40-93.)

On

August 3, 2015, the USPTO issued a supplemental release to
Plaintiff of 1538 pages of documents from his investigatory file
as responsive to his September FOIA request upon determination
by the USPTO that release of the documents would no longer
impede the law enforcement investigation against Plaintiff.
(USPTO’s Mem. at 9.)

Mr. Piccone’s disciplinary proceedings are

still pending; his hearing is set for some time this month,
October, 2015.

(Id. at 6.)
II. Legal Standard

Defendants move to dismiss Plaintiff’s claims pursuant
to Federal Rule of Civil Procedure 12(b)(6) and Federal Rule of
Civil Procedure 12(b)(1), and move for summary judgement
pursuant to Federal Rule of Civil Procedure 56.

“While the

court must accept well-pleaded allegations as true when ruling
on a Rule 12(b)(6) motion, the court need not accept as true
legal conclusions disguised as factual allegations.
Iqbal, 556 U.S. 662, 679-81 (2009).
6

Ashcroft v.

Therefore, a pleading that

offers only a “formulaic recitation of the elements of a cause
of action will not do.”

Iqbal, 556 U.S. at 678; Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 557 (2007).

Nor will a complaint that

tenders mere “naked assertion[s]” devoid of “further factual
enhancement.”

Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557.

“The purpose of a Rule 12(b)(6) motion is to test the
sufficiency of a complaint; importantly, [a Rule 12(b)(6)
motion] does not resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.”

Edwards

v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999)
(citation omitted) (internal quotation marks omitted).
“[I]n passing on a motion to dismiss, whether on the
ground of lack of jurisdiction over the subject matter or for
failure to state a cause of action, the allegations of the
complaint should be construed favorably to the pleader.”
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other
grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982).

A motion

pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure challenges the Court’s subject matter jurisdiction
over the pending action.

“Federal courts are courts of limited

jurisdiction, and we presume that a cause lies outside this
limited jurisdiction.

The burden of establishing the contrary

rests upon the party asserting jurisdiction.”

7

Wheeling Hosp.,

Inc. v. Health Plan of the Upper Ohio Valley, Inc., 683 F.3d
577, 583-84 (4th Cir. 2012) (citation omitted).
Summary judgment is appropriate when the pleadings and
the record demonstrate that “there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law.”

Fed. R. Civ. P. 56(c). In reviewing the

record on summary judgment, the Court “must draw any inferences
in the light most favorable to the non-movant” and “determine
whether the record taken as a whole could lead a reasonable
trier of fact to find for the non-movant.”

Brock v. Entre

Computer Ctrs., Inc., 933 F.2d 1253, 1259 (4th Cir. 1991)
(citations omitted).

“[A]t the summary judgment stage the

judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 256 (1986), 477 U.S. at 249.

Where there is

conflicting evidence, the court must credit the evidence of both
sides and acknowledge that there is a genuine issue of material
fact that cannot be resolved by summary judgment.

See Tolan v.

Cotton, 134 S. Ct. 1861, 1868-69 (2014) (stating that summary
judgment is inappropriate where each side has put forward
competent evidence that raises a dispute about a material fact).
III. Analysis
The Court first addresses the individual-capacity
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Defendants’ 12(b)(6) motion to dismiss Plaintiff’s Bivens claim
before turning to Defendant USPTO’s 12(b)(6) motion to dismiss
Plaintiff’s “Privacy Act” claim, then to USPTO’s 12(b)(1) motion
to dismiss Plaintiff’s requests for declaratory judgement, and
finally to USPTO’s Rule 56 motion for summary judgement on
Plaintiff’s FOIA claim.
A. Plaintiff’s Bivens Action
Because a Bivens action is a judicially-created
remedy, the first question the Court must face is whether a
Bivens remedy is the correct remedy for the particular violation
of a constitutional right alleged.
537, 549-550 (2007).

Wilkie v. Robbins, 551 U.S.

A Bivens remedy “is not an automatic

entitlement no matter what other means there may be to vindicate
a protected interest, and in most instances [the Supreme Court
has] found a Bivens remedy unjustified.”

Id.

When determining

whether to create a Bivens cause of action in response to a new
alleged violation of constitutional rights, “expansion of a
Bivens-based cause of action . . . is the exception, not the
rule.” Cioca v. Rumsfeld, 720 f.3d 505, 510 (4th Cir. 2013).
See also Correctional Servs. Corp. v. Malesko, 534 U.S. 61,68
(2001)([the Court has] consistently refused to extend Bivens
liability to any new context or new category of defendants.”).
“The Court has therefore on multiple occasions declined to
extend Bivens because Congress is in a better position to decide
9

whether or not the public interest would be served by the
creation of new substantive legal liability.”

Holly v. Scott,

434 F.3d 287, 290 (4th Cir. 2006)(internal citations omitted).
In determining whether or not to create a new Bivens
remedy, the Court employs a two step analysis: first, is there
some alternative remedial process; and second, if an alternative
remedial process is unavailable, the Court must consider whether
or not there are special factors counselling against creation of
a new cause of action.
Cir. 2012).

Lebron v. Rumsfeld, 670 F. 3d 540 (4th

Here, Plaintiff has an adequate alternative process

by which he can seek relief from Defendants’ alleged wrongful
prosecution of his USPTO disciplinary action by pursuing the
extensive and satisfactory hearing and appeal procedures laid
down in 37 C.F.R. §11 pursuant to the authority granted by
Congress in 35 U.S.C. §2(b)(2)(D).

In fact, Plaintiff is

already pursuing those alternative avenues by contesting the
disciplinary complaint before the ALJ.

(see USPTO’s Mem. at 6.)

Even if Plaintiff loses his case before the ALJ, 37 C.F.R. §11
provides further procedures including appeal to the USPTO
Director and then, later, to this Court.

Because Plaintiff’s

claims regarding the baseless nature and political motivations
of Defendants’ investigation and prosecution are questions
properly raised and resolved through the thorough, entirely
adequate regulatory scheme the USPTO has devised pursuant to the
10

valid authorization of Congress, this Court will not create a
Bivens action to create a parallel avenue for Plaintiff to
recover financial damages where Congress has not done so.
Accordingly, the Court dismisses the first Count III.
B. Plaintiff’s “Privacy Act” Claim
The Court assumes that Plaintiff means to allege a
claim under 5 U.S.C. § 552 when he asserts his “Privacy Act”
claim.

(Compl. ¶¶ 47-53.)

In order to recover under a 5 U.S.C.

§ 552 theory of wrongful disclosure Plaintiff must prove (1)a
violation of a Privacy Act provision; (2) that the agency’s
decision was intentional or willful; (3) that the violation
caused “adverse effects”; and (4) that the plaintiff suffered
actual damages.
(D.D.C. 2005).

Thompson v. Dep’t of State, 400 F. Supp.2d1, 8
Here, Plaintiff’s complaint alleges no actual

facts which would satisfy any of these four requirements past a
recitation of the elements of a Privacy Act Claim and an
unsupported assertion that “The PTO has failed to maintain
accurate information about Plaintiff in its records in order to
prejudice Plaintiff.”

(Compl. ¶¶ 47-53) Plaintiff’s complaint

with regards to his Privacy Act claim is, as with most of the
other claims advanced by Plaintiff, nothing more than exactly
the kind of “formulaic recitation of the elements of a cause of
action [which] will not do.”

Iqbal, 556 U.S. at 678; Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 557 (2007).
11

Plaintiff attempts

to bolster his factual allegations in his Memorandum in
Opposition to the USPTO’s Motion to Dismiss, alleging that his
claim is based upon “the Defendants mailing copies of requests
for information (“RFI”) containing allegations of the
unauthorized practice of law to various addresses at which
Plaintiff has not now, nor ever in the past, resided.”
Opp’n to USPTO at 40.)

(Pl.’s

However, these allegations appear

nowhere in the complaint, and raising them now, in his
opposition to Defendant’s motion to dismiss, cannot save
Plaintiff’s facially deficient complaint.

Even if it could,

Plaintiff fails to explain how even these allegations are
sufficient to prove a violation of the privacy act if true,
merely making a conclusory assertion that they do.

As Plaintiff

fails to allege facts which would make out a successful claim
under the Privacy Act, the Court grants Defendants’ motion and
dismiss Count II of Plaintiffs complaint.
C. Plaintiff’s Claims for Declaratory Relief
Plaintiff brings claims Second Count Three1 through
Count Sixteen under the guise of the Declaratory Judgment Act
(“DJA”), 28 U.S.C. § 2201.

However, the DJA “permits federal

courts to issue declaratory judgments only in cases of ‘actual
controversy’” Bell Atlantic Cash Balance Plan v. E.E.O.C., 976
F. Supp. 376, 379 (E.D. Va. 1997)(quoting Aetna Life Ins. Co. v.
1

Plaintiff’s complaint contains 2 “Count III”s.
12

Haworth, 300 U.S. 227,239-40 (1937).

The DJA does not confer

jurisdiction where the underlying federal question is not yet
ripe for decision.

Id.

Plaintiff’s USPTO disciplinary hearing

is still ongoing. (USPTO’s Mem. at 8.)

In Automated

Merchandising Systems, Inc. v. Lee, 782 F.3d 1376 (Fed. Cir.
2015), the Federal Circuit determined that the USPTO’s decision
to initiate proceedings against a patentee did not constitute a
final agency action.

Likewise, the mere decision to initiate

disciplinary proceedings against Plaintiff is not a final agency
action.

As there has been no final agency action taken on the

disciplinary proceeding against Plaintiff, his claim is not yet
ripe for review, and he has no article III standing.
Atlantic Cash Balance Plan 976 F. Supp. at 379.

Bell

Because this

court has no Article III jurisdiction over agency actions which
are not final, a threshold issue, it will not address the merits
of Plaintiffs various claims for declaratory relief, and will
dismiss Counts Second Three through Sixteen.
D. Plaintiff’s FOIA claim
The Court begins by noting that “the FOIA does not
require a perfect search, only a reasonable one.”

Rein v. U.S.

Patent & Trademark Office, 553 F.3d 353, 362 (4th Cir. 2009).
search may still be reasonable even if it is “limited to the
places most likely to contain responsive documents.”

Carter,

Fullerton, & Hayes, LLC v. FTC, 601 F. Supp. 2d 728, 735 (E.D.
13

A

Va. 2009)(quoting Defenders of Wildlife v. U.S. Dept. of
Interior, 314 F. Supp.2d 1, 10 (D.C. Cir. 2004)).
Agency affidavits regarding the scope and thoroughness
of a FOIA search “enjoy a presumption of good faith, which will
withstand purely speculative claims about the existence and
discoverability of other documents.” Ground Saucer Watch, Inc.
v. C.I.A., 692 F.2d 770, 771 (D.C. Cir. 1981).

Here Defendant

USPTO argues that “it thoroughly searched the records of every
individual involved in the investigation into Mr. Piccone’s
misconduct, as well as OED’s internal database that tracks
correspondence for investigations.”

(USPTO’s Mem. at 24 (citing

DEX 6 (Robinson Decl.) [Dkt. 26-6] ¶¶ 3-4, 7-8, 11, 14-15.))
While this search was “limited to only those individuals
involved in the investigation into Mr. Piccone’s misconduct,” it
was also “expansive enough to encompass all of the individuals
most likely to contain responsive information.”

(Id. (citing

DEX 1 (George Decl.) [Dkt. 26-1] ¶ 2; DEX 7 (Villarreal Decl.)
[Dkt. 26-7] ¶¶ 3-5.))

The USPTO further avers that “[i]n

conducting this search, OED personnel searched their electronic
records for various permutations and misspellings of Mr.
Piccone’s name and investigative file number [and] OED personnel
searched their paper records, and communal network drives and
databases.” (Id.; see also DEX 1 (George Decl.) ¶¶ 5-8; DEX 6
(Robinson Decl.) ¶¶ 3-4,7-8,11,14-15; DEX 7 (Villarreal Decl.)
14

¶¶3-5.)

As these searches were undeniably thorough, and the

USPTO has averred that these searches were reasonably calculated
to find all information responsive to Plaintiff’s request, the
burden is on the Plaintiff to point to some “evidence sufficient
to put the Agency’s good faith into doubt.”
Watch, 692 F.2d at 771.

Ground Saucer

Plaintiff proposes seven arguments

suggesting Defendant USPTO has acted in bad faith.

None of

those arguments holds water.
First, Plaintiff argues that any adequate search would
necessarily contain the OED Director’s files, as he claims that
only a written grievance can to the OED Director can validly
begin an expectation, and “only” the OED Director is “authorized
by law: 1) to order the investigation of a practitioner such as
Plaintiff; 2) to order the submission of a probable cause
determination to the Committee on Discipline, and 3) to initiate
the prosecution of practitioner by signing a complaint
initiating a disciplinary case.” (Pl.’s Opp’n at 5-7).

However,

as Defendants explain, C.F.R. §11.22(a) states that “[a]n
investigation may be initiated when the OED Director receives a
grievance, information or evidence from any source suggesting
possible grounds for discipline.”

(emphasis added)

Defendants

also explain that it was not the OED Director who made the
decision to institute the investigation into Plaintiff, but

15

Deputy Director Griffin, to whom the Director has delegated that
authority.

(DEX 9 (Griffin Decl.) [Dkt. 35-1] ¶2.)
Second, Plaintiff argues that the USPTO must have

inadequately searched its records because of references in
released documents to communications to “interested third-party
governing bodies via email and phone”, yet the released
documents only contain messages with one interested third party,
the Massachusetts Board of Bar Examiners.
13.

Pl.’s Opp’n. at 12-

Defendants more than adequately explain this apparent

discrepancy however, by pointing out that the documents
Plaintiff points to themselves reference “email and phone”
communications.

(USPTO’s Mem. at 15 (citing DEX 5 (Siehndel

Decl.) [Dkt. 26-5], Att. C.))

While there were records of the

email communications with the Massachusetts Board of Bar
Examiners which could be discovered and disclosed, there were no
records of phone conversations with the Pennsylvania Board of
Bar Examiners.

(USPTO’s Mem. at 16).

Third, Plaintiff argues that the presence of twenty
draft declarations authored by a paralegal on the Vaughan Index
without any accompanying emails is somehow a sign that e-mails
have escaped the USPTO’s search.

(Pl.’s Opp’n. at 16.)

The

suggestion that a paralegal would send every draft of every
declaration on which he worked to a colleague via e-mail is
utterly incredible and does not merit serious discussion.
16

Even

if the lack of emails to accompany these draft declarations did
tend to show that some emails escaped the USPTO’s search, it
says nothing about the reasonableness of the USPTO’s search, and
“the FOIA does not require a perfect search, only a reasonable
one.”

Rein 553 F.3d at 362.
Fourth, Plaintiff flatly challenges the the USPTO’s

search terms as unreasonable because they did not include a
search for just his initials or a search for his patent bar
registration number.

(Pl.’s Opp’n. at 17-18.)

The USPTO did,

however, run searches for various permutations of his name and
his investigatory case file number.

(DEX 1 (George Decl.) ¶¶ 5-

8; DEX 6 (Robinson Decl.) ¶¶ 3-4,7-8,11,14-15; DEX 7 (Villareal
Decl.) ¶¶ 3-5; DEX 13 (Mendel Decl.) ¶5; DEX 14 (Oleksa Decl.) ¶
3; DEX 15 (Kepler Decl.) ¶ 4.)

Furthermore, Plaintiff’s

conclusory assertion that the USPTO’s selected search terms were
unreasonable is not sufficient to overcome the “presumption of
good faith” to which Agency affidavits are entitled. SafeCard,
926 F.2d at 1200.
Fifth, Plaintiff alleges that the USPTO has
inadequately described the types and potential locations of
files maintained by the OED, and thus there may be additional
files which were missed in the FOIA response.
18-19.)

(Pl.’s Opp’n at

However, the Robinson Declaration explains that the OED

maintains files in “(1) OEDIS ... (2) the official OED file,
17

which consists of a tri-fold paper file; (3) OED’s shared
computer drive; (4) an

OED SharePoint site; and (5) each OED

attorney’s personal files.”

(USPTO’s Mem. at 18 (citing DEX 12

(Supp. Robinson Decl.) [Dkt. 35-4] ¶4).)

In the absence of any

specific evidence presented by Plaintiff suggesting there are
relevant files stored elsewhere, Plaintiff cannot show that this
list is unreasonable.
Sixth, and finally, Plaintiff asserts that the USPTO
must turn over records of telephone calls related to the
investigation against him to be reasonable.

However, as

Defendants explain, “no telephone records specific to his OED
investigation – or even OED investigations generally – exist.”
(USPTO’s Rep. at 18.) (citing DEX 12 (Supp. Robinson Decl.) ¶¶
6-7; DEX 10 (Supp. George Decl.) ¶¶ 3-4.)

The USPTO has no way

of knowing which phone calls in their call logs were related to
Plaintiff’s case.

It is therefore reasonable not to include

call logs in their response to Plaintiff’s FOIA request.
Ultimately, the Plaintiff fails in his FOIA action
because he has not demonstrated that he can point to anything
other than the “purely speculative claims about the existence
and discoverability of other documents,” which will not be
sufficient to defeat the presumption of good faith which follows
Agency affidavits.

Ground Saucer Watch, 692 F.2d at 770, 771.

18

Accordingly, the Court grants Defendant’s Motion for Summary
Judgment on Count One.

IV. Conclusion
For the foregoing reasons, the Court grants
Defendants’ Motion for Summary Judgment on Count One, and
Defendants’ motions to dismiss Counts Two through Sixteen. An
appropriate Order shall issue.

October 27, 2015
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

19