Augustus v. McHugh
Augustus v. McHugh
Opinion of the Court
MEMORANDUM OPINION
Pro se plaintiff Alma Augustus asserts a claim under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against the Secretary of the United States Army, arising from the Secretary’s redactions of a Report of Investigation (“ROI”) concerning a discrimination complaint Augustus filed against three Army employees.
BACKGROUND
Augustus, an African-American woman, was a Lieutenant Colonel in the United States Army National Guard Bureau (“NGB”) assigned to active duty as an Automation Officer at the Army National Guard Readiness Center in Arlington, Virginia. (Am. Compl. at 1.) See Augustus v. McHugh, 825 F.Supp.2d 245, 248-49 (D.D.C. 2011). She alleges that she was unlawfully denied a promotion and suffered from other unlawful forms of discrimination and retaliation after she voiced concerns about the NGB’s alleged discriminatory personnel policies and procedures. (Am. Compl. at 2-3.) See Augustus, 825 F.Supp.2d at 249.
Augustus asserts that the NGB’s discriminatory motives underlying its failure to promote her were memorialized in an ROI prepared by Major General Peter Gravett in March of 2001. (Am. Compl. at 5 ¶ 7.) See Augustus, 825 F.Supp.2d at 249. She claims that the ROI “substantiated [her] unlawful gender and race discrimination” claims and recommended that she be promoted retroactively to the rank of Colonel. (Am. Compl. at 5 ¶ 7.) See Augustus, 825 F.Supp.2d at 249. Augustus claims further that Lieutenant General Roger Schultz and Major General James T. Jackson approved a separate ROI and deemed Gravett’s ROI procedurally and substantively flawed and disregarded its recommendations. Augustus, 825 F.Supp.2d at
The Secretary now moves for summary judgment as to Augustus’s FOIA claim and his redactions under exemptions 6 and 7(C).
DISCUSSION
“ ‘[T]he central purpose of the summary judgment device ... is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.’ ” Moore v. Hartman, 730 F.Supp.2d 174, 178 (D.D.C. 2010) (quoting Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir. 1999)). Summary judgment is proper “when the pleadings and evidence show ‘that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Akers v. Beal Bank, 845 F.Supp.2d 238, 240 (D.D.C. 2012) (quoting Fed.R.Civ.P. 56(a)).
“ ‘To survive a motion for summary judgment, the party bearing the burden of proof at trial ... must provide evidence showing that there is a triable issue as to an element essential to that party’s claim.’ ” Etheridge v. FedChoice Fed. Credit Union, 789 F.Supp.2d 27, 32 (D.D.C. 2011) (quoting Arrington v. United States, 473 F.3d 329, 335 (D.C.Cir. 2006)); accord Moore v. Hartman, 571 F.3d 62, 66 (D.C.Cir. 2009). The nonmovant must “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” LaFavors v. Shinseki, Civil Action No. 10-1755(RLW), 2012 WL 640878, at *1 (D.D.C. Feb. 29, 2012) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
In considering a summary judgment motion, a court accepts as true the nonmovant’s evidence and draws “justifiable inferences ... in [her] favor.” Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123 (D.C.Cir. 2011). “[I]f the evidence presented on a dispositive issue is subject to conflicting interpretations, or reasonable persons might differ as to its significance, summary judgment is improper.” Etheridge, 789 F.Supp.2d at 32 (quotation marks and citation omitted). “[I]f undisputed facts point unerringly to a single, inevitable conclusion, [however,] summary judgment [is] warranted.” Keefe Co. v. Americable Int’l, Inc., 169 F.3d 34, 38 (D.C.Cir. 1999) (quotation marks and citation omitted).
However, “[i]n a FOIA case, the Court may grant summary judgment based solely on information provided in an agency’s affidavits or declarations if they are relatively detailed and when they describe ‘the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record [or] by evidence of agency bad faith.’ ” Thornton-Bey v. Exec. Office for U.S. Attorneys, 844 F.Supp.2d 159, 162 (D.D.C. 2012) (quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir. 1981)). “Such affidavits or declarations are accorded ‘a presumption of good faith, which cannot be rebutted by “purely speculative claims[.]” ’ ” Id. (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir. 1991)) (additional citation omitted).
I. ADMISSIBILITY OF CHALLENGED EVIDENCE
Augustus challenges as unauthenticated the Secretary’s citations to the first administrative record that was filed but cannot now be located in the Clerk’s Office, his citations to “derivative” administrative records filed thereafter, the Gravett ROI the Secretary filed as an attachment to his summary judgment motion, and the declaration that explains each redaction of Gravett’s ROI. The Secretary counters that the administrative record evidence Augustus challenges relates only to a different claim that has already been resolved, and that his submissions satisfy the summary judgment requirements in a FOIA case.
Here, as is explained below, the Secretary has proffered a declaration detailing the justifications for the redactions in the report she seeks, as well as a copy of that redacted report. Those are the documents that bear upon whether the redactions in the ROI were legally permissible. Augustus has not challenged those documents with contrary evidence or evidence of agency bad faith. The declaration is accorded a presumption of good faith and provides an ample basis for deciding the Secretary’s motion. In any event, Augustus offers no factual basis to establish that these documents are inauthentic or that the declarant and Gravett could not testify that the submitted copies of their writings are what they purport to be. See Fed. R.Evid. 901. These documents are appropriate to consider in connection with the Secretary’s motion.
II. FOIA EXEMPTIONS 6 and 7(C)
Under FOIA, “ ‘a federal agency must disclose agency records unless they may be withheld pursuant to. one of the nine enumerated exemptions listed in § 552(b).’ ” Clemmons v. U.S. Army Crime Records Ctr., Civil Action No. 05-02353(RCL), 2007 WL 1020827, at *5 (D.D.C. Mar. 30, 2007) (quoting U.S. Dep’t of Justice v. Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988)). “[T]he agency resisting disclosure bears the bur
The Secretary invokes FOIA exemptions 6 and 7(C) (Def.’s Mem. at 10-16), which exempt from disclosure (1) “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;” and (2) “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6), (7)(C). The Secretary argues that the declaration he filed serves as the Vaughn index for all redacted portions of the Gravett ROI. (Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. for Summ. J. at 5.) Specifically, the declaration
apportioned codes to the redacted information, correlated the codes to a specific FOIA exemption, and explained that the redacted information was comprised of names and identifying information of witnesses, personal information of the Investigating Officer and Panel Members, names and identifying information of persons against whom the Plaintiff made allegations, and names and identifying information of third parties, as well as social security numbers of these individuals.
(Id. at 6.)
As is noted above, the declaration enjoys a presumption of good faith which Augustus has not rebutted with contrary evidence in the record or evidence of agency bad faith. Indeed, despite the February 3, 2012 Order (Dkt. No. 205) warning Augustus that any unanswered arguments may be treated as conceded, her opposition did not challenge the Secretary’s proffered justifications under FOIA for having redacted the Gravett ROI. These arguments will be deemed conceded, and summary judgment will be entered in favor of the Secretary. See Iweala v. Operational Tech. Services, Inc., 634 F.Supp.2d 73, 80-81 (D.D.C. 2009) (deeming conceded an employer’s exhaustion argument in its motion for summary judgment where the plaintiff failed to respond to it in her opposition); Franklin v. Potter, 600 F.Supp.2d 38, 60 (D.D.C. 2009) (treating defendant’s argument in motion for summary judgment as conceded where plaintiff failed to address it in his response); see also Fed. Deposit Ins. Corp. v. Bender, 127 F.3d 58, 67 (D.C.Cir. 1997) (concluding that the district court did not abuse its discretion in granting a motion for summary judgment as conceded for the plaintiffs failure to timely oppose it).
There are no material factual disputes regarding the Secretary’s FOIA redactions, and his unopposed arguments entitle him to judgment as a matter of law. His motion for summary judgment will be granted. A separate order accompanies this memorandum opinion.
. Other claims in this action have been resolved or dismissed.
. The background of this case is more fully discussed in an earlier memorandum opinion issued on September 29, 2004, and in Augustus v. McHugh, 825 F.Supp.2d 245 (D.D.C. 2011).
. In Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.Cir. 1973), the D.C. Circuit held that an agency must provide an "itemized explanation” for its withholding documents requested under the FOIA. A filing setting forth those specific justifications is commonly termed a Vaughn index.
Reference
- Full Case Name
- Alma T. AUGUSTUS v. John McHUGH, Secretary of the Army
- Cited By
- 13 cases
- Status
- Published