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Stalcup v. Department of Defense

United States District Court, D. Massachusetts

October 15, 2018

THOMAS STALCUP, Plaintiff,
v.
DEPARTMENT OF DEFENSE, Defendant.

          MEMORANDUM AND ORDER ON MOTION FOR SUMMARY JUDGMENT, (DOC. NO. 95)

          Leo T. Sorokin United States District Judge

         In 2010 and 2011, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, pro se plaintiff Thomas Stalcup filed three requests for records related to the July 17, 1996, crash of TWA Flight 800 and missile activity by the government around the time of the crash from the Missile Defense Agency (“MDA”), the Office of the Secretary of Defense (“OSD”), and the Joint Staff, all entities within the Department of Defense (“DOD”). After somewhat lengthy proceedings before this Court in which DOD produced, for the first time, documents after the filing of suit, produced further documents upon the Court's prompting, and supplemented its summary judgment submission in response to a Court order, this Court entered judgment in favor of DOD. Stalcup appealed. The First Circuit affirmed in part and vacated in part the Court's decision, remanding the matter for further proceedings. Before the Court are a motion for summary judgment from DOD, Doc. No. 95, and a motion for discovery from Stalcup, Doc. No.

         I. FACTS AND PROCEDURAL HISTORY

         Stalcup has filed three FOIA requests to the MDA, OSD, and the Joint Staff, each of which is a component within DOD. On March 28, 2010, Stalcup sent a records request to the OSD and the Joint Staff seeking:

l) the names and dates of all Naval, Joint, Defense Program, and/or contractor exercises, operations, and/or tests conducted on the East Coast of the United States in June, July, and August 1996; 2) any and all follow-up reports, observer reviews, and Joint Universal Lessons Learned Reports from all such exercises, operations, and/or tests that included intercept and/or target missiles or drones off the East Coast of the United States between May 1996 and October 1996; and 3) all memos, reports, emails, or other communications related to the downing of a commercial aircraft (simulated or otherwise) during any such event listed above.

Doc. No. 1-1 at 2. On that same date, Stalcup sent a request to the MDA, requesting:

1) all Test and Evaluation Master Plan's for all systems involved in Missile Defense for FYl996; 2) All information regarding Live Fire Test and Evaluation exercises that included intercept and/or target missiles off the East Coast of the United States between May 1996 and October 1996; 3) any and all Joint Universal Lessons Learned Reports from all exercises that included intercept and/or target missiles off the East Coast of the United States between May 1996 and October 1996; and 4) all memos, reports, emails, or other communications related to the downing of a commercial aircraft (simulated or otherwise) during any exercise conducted in 1996 or 1997.

Doc. No. 1-2 at 2. Finally, on February 15, 2011, Stalcup requested of the OSD and the Joint Staff:

any and all submissions to the Office of the Secretary of Defense regarding the “analysis of, and conclusions regarding, the conduct and results” of any test or exercise conducted from June l, 1996 to October 30, 1996 on or off the East Coast of the United States involving the launching of one or more missiles. This request includes, but is not limited to all submissions to the Office of the Secretary of Defense as required by subsection (c)(2) of section 237 of the National Defense Authorization Act for Fiscal Year 1994.

Doc. No. 1-3 at 2. Because DOD had not provided documents that responded to Stalcup's requests, Stalcup brought this action in August 2013. Doc. No. 1 at 3. Over the next two years, DOD performed records searches addressed to Stalcup's concerns and produced responsive documents. This production did not resolve Stalcup's concerns, and DOD moved for summary judgment on January 5, 2015, arguing that it had complied with all of its obligations under FOIA. Doc. No. 27. In support of its motion, DOD submitted two affidavits from Mark Herrington, an agency attorney, that described the agency's search for responsive documents, Docs. No. 28-1, 49-1, and an affidavit from David Bagnati, the Chief of Staff of the MDA, that described that component's searches, Doc. No. 49-2. After staying DOD's summary judgment motion to allow further production, the Court granted the motion as to the records request to the MDA on September 18, 2015, ordering DOD to further supplement the record on the other requests. Doc. No. 57. DOD then submitted two additional affidavits from Herrington with further description of the agency's records search.[1] Docs. No. 62, 69-1. After further briefing, the Court found that DOD had met its FOIA responsibilities with respect to all three of the agency components and granted DOD's summary judgment motion in its entirety. Doc. No. 72.

         Stalcup then appealed this Court's order to the First Circuit, which, in a per curiam opinion issued on January 3, 2018, vacated the order in part and remanded the action to this Court for further proceedings. Doc. No. 79. The First Circuit found that DOD's records search was inadequate in different ways with respect to each of the three agency components to which Stalcup sent requests, the specifics of which are discussed below. Id. On remand, DOD submitted to the Court another affidavit from Herrington that provided additional information about the agency's records searches, Doc. No. 88, and renewed its motion for summary judgment, Doc. No. 95. Stalcup opposed, Doc. No. 98, and filed a motion for discovery, Doc. No. 101. DOD filed a reply to Stalcup's opposition to summary judgment and opposition to his motion for discovery, Doc. No. 104, to which Stalcup filed a surreply, Doc. No. 107.

         II. LEGAL STANDARD

         In its judgment vacating in part this Court's prior summary judgment order, the First Circuit described the relevant legal standard for evaluating a motion for summary judgment in FOIA litigation:

To win summary judgment on the adequacy of a search conducted in response to a FOIA request, “the agency must demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995); see Moffat[] v. U.S. Dep't of Justice, 716 F.3d 244, 254 (1st Cir. 2013). The burden is on the agency to justify its response to plaintiff's FOIA request. 5 U.S.C. § 552(a)(4)(B). An agency may satisfy its burden by submitting affidavits by responsible agency officials, provided they are not controverted by contrary evidence or evidence of bad faith, Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see Moffat[], 716 F.3d at 254, and are “reasonably detailed . . ., ‘setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials . . . were searched,' . . . as well as a general description of the structure of the agency's file system demonstrating why further search would be overly burdensome.” Maynard v. CIA, 986 F.2d 547, 563 (1st Cir. 1993) (quoting Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). “An agency's affidavit is ‘accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.'” Maynard, 986 F.2d at 560 (quoting SafeCard Servs., Inc. v. SEC, 926 ...

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