UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) NANCY CRISMAN, et al., ) ) ) Plaintiffs, ) ) v. ) Case No. 12-cv-1871 (TSC) ) DEPARTMENT OF JUSTICE, et al., ) ) ) Defendants. ) )

MEMORANDUM OPINION

Plaintiffs Nancy Crisman and National Security Counselors (“NSC”) have brought suit

against the Department of Justice (“DOJ”), the Board of Governors of the Federal Reserve

System (“FRB”), the Department of Homeland Security (“DHS”), and the Office of the Director

of National Intelligence (“ODNI”), alleging violations of the Freedom of Information Act

(“FOIA”),

, et seq., as amended; the Privacy Act, 5 U.S.C. § 552a, et seq.; the

Administrative Procedure Act (“APA”),

, et seq.; and the Fifth Amendment of the

United States Constitution. Before the court are Defendants’ First Motion for Summary

Judgment (ECF No. 26) and Second Motion for Summary Judgment and to Dismiss (ECF No.

46). Upon consideration of the parties’ filings, and for the reasons stated herein, the court will

GRANT in part and DENY in part both motions.

I. BACKGROUND

A. The Financial Institution Security Association (“FISA”) Alert

In March 2004, the Financial Institution Security Association (“FISA”) sent a document

to the Federal Bureau of Investigations’ (“FBI”) Miami field office. ECF No. 1 (Compl.) ¶ 11. The document concerned Plaintiff Crisman and was titled “FISA Alert Report Form”

(hereinafter, “FISA Alert”).

It was marked “CONFIDENTIAL,” and stated “[w]e are

looking for any and all information on the above subjects or businesses, including, but not

limited to checking or savings accounts, safety deposit boxes, or any other pertinent information

where these individuals/businesses may have accounts.”

¶¶ 11–12. Although the FISA Alert

was a financial inquiry, the FBI erroneously characterized it as a record pertaining to the Foreign

Intelligence Surveillance Act.

. Crisman alleges that the mischaracterization resulted in

the termination of her employment as a nurse for Corporate Nurse, Inc. (“CNI”), her expulsion

from the FRB headquarters, and the subsequent termination of her assignment as a nurse at the

FRB headquarters—all of which occurred after the FISA Alert was sent to the FBI. See

.

Based on her expulsion from the FRB headquarters, Crisman also alleges that the

mischaracterization has resulted in her name appearing on “numerous national security and

homeland security watch lists which were disseminated to other federal security agencies and

DOJ components.”

.

B. Crisman’s Original FOIA Request

In June 2005, Crisman filed a FOIA and Privacy Act request with the FBI, requesting all

records about her—including the FISA Alert—from the FBI’s Miami Field Office (the “Original

Request”).

. The FBI refused to produce the FISA Alert, classifying the entire document

as “Confidential” and finding that it was entitled to withhold the document under FOIA

Exemption (b)(1) and Privacy Act Exemption (j)(2).

¶¶ 18–19. Crisman appealed the FBI’s

withholding decision, which the Office of Information Policy (“OIP”) affirmed on July 31,

2 2006.1

¶¶ 20–21. On October 8, 2008, after re-reviewing the FISA Alert, the FBI

declassified the document in full, releasing a redacted copy of the FISA Alert to Crisman on

February 13, 2009.

¶¶ 23–25. The document was redacted to withhold third parties’

personally identifiable information pursuant to FOIA Exemptions (b)(6) and (b)(7)(C).

.

In a lawsuit filed on March 31, 2011—Crisman v. Dep’t of Justice, No. 11-658 (EGS)

(D.D.C.)—Crisman challenged, inter alia, the adequacy of the FBI’s search for documents

responsive to her Original Request. See ECF No. 31-1, Ex. 2 ¶¶ 42–61. On November 8, 2011,

in a Stipulation of Dismissal with Prejudice, Crisman agreed not to further challenge (1) the

adequacy of the DOJ’s search for responsive records for the Original Request, or (2) the FBI’s

invocations of FOIA Exemptions (b)(6) and/or (b)(7)(C) to withhold information from the FISA

Alert. Compl. ¶ 26; ECF No. 31-1, Ex. 1 (Stipulation of Dismissal) at 1.

C. Crisman’s Subsequent FOIA and Privacy Act Requests

Shortly after agreeing to the Stipulation of Dismissal in the first lawsuit, Crisman sent

additional requests to the DOJ and other agencies relating to the FISA Alert and the termination

of her assignment at the FRB headquarters. Specifically, between December 2011 and June

2012, Crisman sent FOIA and/or Privacy Act requests to four agencies: the DOJ, FRB, DHS, and

ODNI. Her requests are set forth below:

 On December 27, 2011, Crisman requested that OIP, a DOJ component, search for: (1) all records pertaining to the classification of the FISA Alert; (2) all records pertaining to the subsequent declassification of the FISA Alert; and (3) all records pertaining to the administrative processing of Appeal No. 06-0524.

 On December 27, 2011, Crisman requested that the FBI, a DOJ component, search for: (1) all records pertaining to the classification of the FISA Alert; (2) all records pertaining to the subsequent declassification of the FISA Alert; and

1 Crisman’s appeal of the FBI’s withholding decision was assigned Appeal No. 06-0524. Compl. ¶ 20. 3 (3) all records pertaining to the administrative processing of the Original Request.

 On December 27, 2011, Crisman sent two additional requests to the FBI, requesting (1) all records in File 66F-MM-A55222 and (2) “all FBI records about her, including cross-references.” 2

 On January 9, 2012, Crisman submitted a request to the FRB for all records about her dated on or after March 26, 2004.

 On June 13, 2012, Crisman requested that the Justice Management Division (“JMD”), a DOJ component, search for all records created between 2004 and 2009 about her, the Original Request, or Appeal No. 06-0524.

Compl. ¶¶ 28, 34, 51, 57, 67, 78. Based on her belief that the mischaracterization of the FISA

Alert resulted in her placement on national security and homeland watch lists, Crisman also

submitted Privacy Act amendment requests requesting that all four agencies correct all records

“identifying her as a potential national security risk, or otherwise referencing the FISA Alert . . .

to reflect the benign nature of that document.”

. She further

requested that the DOJ, DHS, and ODNI remove her name “forthwith from any lists upon which

she was placed as a result of this error,”

, and that the FRB amend any

records “documenting her expulsion from the building in April 2004.”

.

D. Plaintiffs’ Allegations in the Current Case

In the case before this court, Plaintiffs allege, in a seventeen-count Complaint, that the

DOJ, FRB, DHS, and ODNI failed to comply with FOIA, the Privacy Act, the APA, and/or the

Fifth Amendment in responding to Crisman’s FOIA and/or Privacy Act requests. In Counts 1

through 5, Crisman alleges that the DOJ constructively or affirmatively denied her access to

certain records related to her, the FISA Alert and the Original Request in violation of FOIA

and/or the Privacy Act. Compl. ¶¶ 27–76. In Count 6, Crisman alleges that the FRB violated

2 Upon receiving the FISA Alert, the FBI placed it in File 66F-MM-A55222. Compl. ¶ 13. 4 FOIA and the Privacy Act by constructively denying her access to records responsive to her

request for “all records about her dated on or after 26 March 2004.”

¶¶ 77–85. Crisman

alleges in Counts 7 through 11 that the DOJ, DHS, ODNI, and FRB violated the Privacy Act,

APA, and/or the Fifth Amendment by refusing to amend (1) records indicating that she was a

national security risk, and/or (2) any watch list upon which she has been placed.

¶¶ 86–130.

In Counts 12 through 16, Plaintiffs allege FOIA and APA violations related to the DOJ’s

classification and withholding of the FISA Alert.

¶¶ 131–164. Lastly, in Count 17 Crisman

seeks damages to compensate her for the “adverse and harmful effects” she has suffered because

of the DOJ’s improper classification of the FISA Alert.

¶¶ 165–172.

In their motions for summary judgment on all claims, Defendants maintain that they have

complied with their obligations under FOIA, the Privacy Act, the APA, and the Fifth

Amendment in responding to Crisman’s FOIA and Privacy Act requests, and that there is no

evidence in the record indicating that Crisman was placed on a watch list.

E. Defendants’ Current Motions for Summary Judgment

On December 3, 2013, Defendants filed their First Motion for Summary Judgment as to

Crisman’s records denial claims (alleged in Counts 1 through 6) and Privacy Act damages claim

(alleged in Count 17). ECF No. 26-1 (Defs. First Mem.) at 8–37. That motion also seeks partial

summary judgment on Crisman’s Privacy Act amendment claims (alleged in Counts 7 through

11).

at 37–39. On June 10, 2014, Defendants filed a Second Motion for Summary Judgment

and to Dismiss as to Crisman’s APA and Fifth Amendment claims in Counts 7 through 10. See

ECF No. 46-1 (Defs. Second Mem.) at 2–10. Defendants also move for summary judgment on

Plaintiffs’ claims under the APA in Counts 14 and 16. See ECF No. 56 (Defs. Second Reply) at

16–19.

5 II. LEGAL STANDARD

A. Summary Judgment

Summary judgment is appropriate where there is no genuine issue of material fact and the

movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.

Catrett,

(1986); Waterhouse v. Dist. of Columbia,

(D.C.

Cir. 2002). In determining whether a genuine issue of material fact exists, the court must view

all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp.,

(1986). A fact is material if “a dispute over it

might affect the outcome of a suit under governing law; factual disputes that are ‘irrelevant or

unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell,

(D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc.,

(1986)).

An issue is genuine if “‘the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.’”

(quoting Anderson,

). The party seeking summary

judgment “bears the heavy burden of establishing that the merits of his case are so clear that

expedited action is justified.” Taxpayers Watchdog, Inc. v. Stanley,

(D.C. Cir.

1987) (citing Walker v. Washington,

(D.C. Cir. 1980)).

FOIA cases are “typically and appropriately . . . decided on motions for summary

judgment.” Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys.,

(D.D.C. 2011) (internal quotation marks and citation omitted). Upon an

agency’s request for summary judgment on the grounds that it has fully discharged its FOIA

obligations, all underlying facts and inferences are analyzed in the light most favorable to the

FOIA requester; only after an agency proves that it has fully discharged its FOIA obligations is

6 summary judgment appropriate. Moore v. Aspin,

(D.D.C. 1996) (citations

omitted).

B. Motion to Dismiss

When deciding a motion to dismiss for lack of subject matter jurisdiction under Rule

12(b)(1), a court has “an affirmative obligation ‘to consider whether the constitutional and

statutory authority exist’” for it to consider the claims. James Madison Ltd. v. Ludwig,

(D.C. Cir. 1996) (quoting Herbert v. Nat’l Academy of Scis,

(D.C.

Cir. 1992)). In analyzing whether a plaintiff has standing at the dismissal stage, the court “must

assume that [the plaintiff] states a valid legal claim.” Info. Handling Servs., Inc. v. Def.

Automated Printing Servs.,

(D.C. Cir. 2003) (citations omitted). The party

claiming subject matter jurisdiction bears the burden of proving that it exists, Khadr v. United

States,

(D.C. Cir. 2008), and while “the district court may consider

materials outside the pleadings,” it “must still accept all of the factual allegations in the

complaint as true.” Jerome Stevens Pharm., Inc. v. FDA,

(D.C. Cir.

2005) (citations and internal quotation marks omitted).

III. ANALYSIS

A. Defendants’ First Motion for Summary Judgment

1. Preclusive Effect of Prior Stipulation

As explained above, Crisman entered into a stipulation in Crisman v. Dep’t of Justice,

No. 11-658 (EGS) (D.D.C), in which she agreed not to “bring any further actions seeking to

challenge” (1) the adequacy of the DOJ’s search for responsive records for the Original Request

or (2) the FBI’s invocations of FOIA Exemptions (b)(6) and/or (b)(7)(C) to withhold information

from the FISA Alert. Stipulation of Dismissal at 1; Compl. ¶ 26. Defendants argue that “[t]o the

7 extent that [Plaintiffs’] claims violate the stipulation,” they are precluded by judicial or equitable

estoppel as well as contract law. Defs. First Mem. at 3, 8–9. However, Defendants do not

indicate which claims the stipulation arguably precludes, and therefore have failed to address this

issue with sufficient specificity for the court to decide whether the stipulation has preclusive

effect.3 See, e.g., Wilson v. Dist. of Columbia,

(D.D.C. 2011) (failing

to decide an issue on summary judgment where “the parties . . . failed to address [the] issue with

sufficient specificity for the Court to rule”). Thus, based on the record before it, the court cannot

find that judicial or equitable estoppel preclude Plaintiffs’ claims.

2. Claims Regarding the Adequacy of the Agencies’ Searches and Applicability of Exemptions

In cases involving the adequacy of an agency’s search efforts and the applicability of

exemptions, summary judgment may be based on information provided in the agency’s

supporting declarations. See, e.g., ACLU v. Dep’t of Def.,

(D.C. Cir.

2011); Students Against Genocide v. Dep’t of State,

(D.C. Cir. 2001). An

agency may prove the reasonableness of its search via the declaration of a responsible agency

official, so long as the declaration is reasonably detailed and not controverted by contrary

evidence or evidence of bad faith. Military Audit Project v. Casey,

(D.C. Cir.

1981) (citations omitted). There is no requirement that an agency search every record system,

but it must conduct a good faith, reasonable search of those systems of records likely to possess

the requested information. See Oglesby v. Dep’t of Army,

(D.C. Cir. 1990). The

agency declaration can demonstrate reasonableness by “setting forth the search terms and the

3 In a footnote in their Reply in support of their Second Motion, Defendants state that the stipulation precludes the claims in Count 12 but fail to provide any argument or evidence to support this assertion. Defs. Second Reply at 19 n.7. 8 type of search performed, and averring that all files likely to contain responsive materials (if such

records exist) were searched.”

Once an agency has provided adequate affidavits, the burden

reverts to the plaintiff to demonstrate the lack of a good faith search. Leopold v. Nat’l Sec.

Agency,

(D.D.C. 2016). The presumption of good faith “cannot be

rebutted by ‘purely speculative claims about the existence and discoverability of other

documents.’” SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991) (quoting

Ground Saucer Watch, Inc. v. CIA,

(D.C. Cir. 1981)).

With respect to exemptions, if “an agency’s affidavit describes the justifications for

withholding the information with specific detail, demonstrates that the information withheld

logically falls within the claimed exemption, and is not contradicted by contrary evidence in the

record or by evidence of the agency’s bad faith, then summary judgment is warranted on the

basis of the affidavit alone.” ACLU,

. Ultimately, “an agency’s justification for

invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’”

(quoting

Larson v. Dep’t of State,

(D.C. Cir. 2009)). However, an agency’s “affidavits

must show, with reasonable specificity, why the documents fall within [a given] exemption. The

affidavits will not suffice if the agency’s claims are conclusory, merely reciting statutory

standards, or if they are too vague or sweeping.” Hayden v. Nat’l Sec. Agency,

(D.C. Cir. 1979) (citations omitted).

i. Counts 1, 4 and 5

Crisman, in electing “to only challenge some of Defendants’ positions” in their First

Motion for Summary Judgment, does not oppose Defendants’ motion with respect to Counts 1, 4

and 5. ECF No. 41 (Pls. First Opp.) at 5–6. She maintains that her position “should not be

construed as a concession of the appropriateness of any agency action left unchallenged.”

at

9 5. However, “[w]here a party fails to address arguments raised by the opposing party’s motion

for summary judgment, the Court may treat those arguments as conceded.” 4 Comptel v. FCC,

(D.D.C. 2013); see also Paleteria La Michoacana, Inc. v. Productos

Lacteos Tocumbo S.A. De C.V.,

(D.D.C. 2014) (“When a party fails to

address an issue in its opposition brief, the Court may regard that issue as conceded and grant

summary judgment to the moving party.”) (citing Comptel,

). Accordingly,

the court finds that Defendants are entitled to summary judgment on Counts 1, 4 and 5.

ii. Count 2 – FBI’s Alleged Constructive Records Denial

In Count 2, Crisman alleges that the FBI has constructively denied her access to records

in response to her December 27, 2011 FOIA and Privacy Act request, which asks for “(1) all

records pertaining to the classification of the FISA Alert; (2) all records pertaining to the

subsequent declassification of the FISA Alert; and (3) all records pertaining to the administrative

processing of the Original Request.” Compl. ¶¶ 33–43; ECF No. 31-1, Ex. 3 (Second

Declaration of David M. Hardy, Second Hardy Decl.) ¶ 16. The FBI initially produced four

pages in response to this request. Compl. ¶ 35; see also Second Hardy Decl. ¶ 12 n.3. Three

months later, the FBI released the FISA Alert. Second Hardy Decl. ¶ 19; see also Compl. ¶ 39.

Crisman filed an administrative appeal with OIP, contesting the adequacy of the FBI’s

search and its redactions to the produced documents. Compl. ¶ 36; Second Hardy Decl. ¶ 13.

On September 25, 2012, OIP remanded the December 27, 2011 request to the FBI “‘for a further

search for additional responsive records.’” Second Hardy Decl. ¶ 21 (quoting Second Hardy

4 Crisman also indicates that she does not oppose Defendants’ motion with respect to Count 3. See Pls. First Opp. at 6. But, as Crisman points out, “Defendants’ Motion and brief are silent on Count[] 3,” id. at 4, and therefore Defendants have not demonstrated that they are entitled to summary judgment on Count 3. 10 Decl., Ex. M); see also Compl. ¶ 40. By a letter dated November 21, 2012, the FBI released all

non-exempt material, totaling eight pages, to Crisman. Second Hardy Decl. ¶ 22. An additional

search, “[i]n response to this litigation,” resulted in six additional pages of responsive records.

Id. ¶ 43.

Crisman argues that the FBI’s productions are deficient because the FBI (1) failed to

produce certain relevant documents, and (2) improperly relied on FOIA Exemption (b)(5) to

withhold information. See Pls. First Opp. at 10–13, 17–19. With regard to the first assertion,

Crisman argues that the FBI failed to produce six documents that were “clearly referenced” in

the FBI’s initial production and which she requested on appeal. Id. at 11–13 (detailing the “six

clearly referenced documents”).

However, “mere reference to other files does not establish the existence of documents

that are relevant to [a] FOIA request.” Steinberg v. Dep’t of Justice,

(D.C. Cir.

1994). Crisman asserts that the six cross-referenced documents “are responsive to Count 2,” Pls.

First Opp. at 13, but fails to provide any evidence or information to support this assertion. She

also proffers no evidence demonstrating that the six cross-referenced records—all referenced in

notes that were made at least two years prior to Crisman’s FOIA request—still exist. Absent

such evidence, Crisman’s suggestion that the six records exist and are relevant to her FOIA

request is speculative and does not undermine the reasonableness of the FBI’s search. See, e.g,

Steinberg,

(finding that “‘mere speculation that as yet uncovered documents may

exist does not undermine the finding that the agency conducted a reasonable search’”) (quoting

SafeCard Servs., Inc.,

); see also Am. Immigration Council (“AIC”) v. Dep’t of

Homeland Sec.,

(D.D.C. 2013) (finding plaintiff’s suggestion that

11 correspondences exist “largely speculative” where there was no evidence demonstrating that the

defendant “saved the meeting minutes” or “retained their correspondence”).

Crisman’s argument that the six cross-referenced documents were “clear and certain”

indications of the existence of additional documents that the FBI could not “in good faith

ignore,” Pls. First Opp. at 12–13, does not convince the court otherwise. None of the cases on

which Crisman relies for this argument hold that cross-references in a responsive document

qualify as “clear and certain” leads, requiring agencies to conduct additional searches. Indeed,

the D.C. Circuit has suggested that the opposite is true. See Steinberg,

(“[M]ere

reference to other files does not establish the existence of documents that are relevant to [a]

FOIA request. If that were the case, an agency responding to FOIA requests might be forced to

examine virtually every document in its files, following an interminable trail of cross-referenced

documents like a chain letter winding its way through the mail. . . . FOIA clearly does not

impose this burden upon federal agencies.”); see also Morley v. CIA,

(D.C.

Cir. 2007) (finding that the CIA’s failure to search for records referenced in responsive

documents did not render the CIA’s search inadequate). Accordingly, given that Crisman’s only

challenge to the reasonableness of the FBI’s search is based on speculation regarding cross-

referenced documents, the court finds that the FBI’s search was adequate.

Crisman also argues that the FBI improperly relied on Exemption (b)(5) to withhold

information on three pages. Exemption (b)(5) allows federal agencies to withhold records if the

requested documents include “inter-agency or intra-agency memorandums or letters that would

not be available by law to a party other than an agency in litigation with the agency.”

(b)(5). In determining whether information was properly withheld under Exemption (b)(5),

a court must ensure that the information satisfies two conditions: “its source must be a

12 Government agency, and it must fall within the ambit of a privilege against discovery under

judicial standards that would govern litigation against the agency that holds it.” Dep’t of Interior

v. Klamath Water Users Protective Ass’n,

(2001). The FBI contends that the

redacted information is protected by the deliberative process and attorney work product

privileges.

To justify summary judgment, “a declaration must provide detailed and specific

information demonstrating ‘that material withheld is logically within the domain of the

exemption claimed.’” Campbell v. Dep’t of Justice,

(D.C. Cir. 1998) (quoting

King v. Dep’t of Justice,

(D.C. Cir. 1987)). The court finds that the FBI has

failed to do so here. David Hardy—the Section Chief of the Record/Information Dissemination

Section, Record Management Division of the FBI—states that the withheld information “is

deliberative as it reflects the internal discussion between FBI personnel regarding opinions and

proposed recommendations in the handling of plaintiff’s FOIPA requests.” Second Hardy Decl.

¶ 59. He further states that the redacted “information is predecisional because the FBI evaluated

preliminary opinions and analysis made by FBI personnel which eventually resulted in its

response to plaintiff’s FOIPA request.”

He does not address the work product privilege at

all.

Hardy’s generalized, conclusory statements do not aid the court in determining whether

the redacted information provides an “opinion” or “recommendation” regarding Crisman’s FOIA

request, and therefore do not adequately demonstrate that the deliberative process privilege

applies in this case. See Coastal States Gas Corp. v. Dep’t of Energy,

(D.C.

Cir. 1980) (“The [deliberative process privilege] exemption thus covers recommendations, draft

documents, proposals, suggestions, and other subjective documents which reflect the personal

13 opinions of the writer rather than the policy of the agency.”) Indeed, the Declaration does

nothing more than recite the legal standards of the deliberative process privilege, and therefore

cannot justify summary judgment with respect to the FBI’s withholdings under Exemption

(b)(5). See, e.g., Hayden,

(emphasizing that an agency’s affidavits will not

suffice if they “are conclusory, merely reciting statutory standards, or if they are too vague or

sweeping”).

In sum, the court finds that the FBI is entitled to summary judgment on the adequacy of

the FBI’s search, but not on its withholding of information under Exemption (b)(5). The court

will order the FBI to submit another declaration that provides more detail regarding the

application of the deliberative process and work product privileges to the information withheld.

iii. Count 6 – FRB’s Alleged Constructive Records Denial

In Count 6, Crisman alleges that the FRB failed to adequately search for records

responsive to her January 9, 2012 FOIA and Privacy Act request, which asked for “all records

about her dated on or after March 26, 2004.” Compl. ¶ 78. In response, the FRB submitted a 15-

page declaration from David G. Caperton—Special Counsel for Oversight Reviews in the Legal

Division of the Board of Governors of the FRB. See ECF No. 31-2, Ex. 5 (Declaration of David

G. Caperton, Caperton Decl.). Caperton explained that the FRB conducted two searches. In the

first, the FRB searched four components of its Management Division—Human Resources,

Health and Employee Relations, Finance and Accounting, and Law Enforcement. Id. ¶¶ 16, 19.

The search resulted in 13 responsive documents. Id. ¶ 8. In response to Crisman’s appeal, the

FRB conducted a second search of the relevant Management Division components. Id. ¶ 21.

The second search revealed no additional documents. Id. ¶ 22–24.

Crisman appears to no longer contest the adequacy of the FRB’s searches. Instead, she

14 argues that the FRB should have conducted yet another search based on her claim that FRB

security personnel informed her that they found “something in her FBI file.” Compl. ¶¶ 15–16;

Caperton Decl. ¶ 13. During a June 20, 2012 telephone call, Caperton informed Plaintiff’s

attorney that if he could provide the FRB with the “name of the security person who said

something about the FBI,” and that person still worked at the FRB, “[they] could ask that person

. . . if they have any records related to the incident.” Caperton Decl., Ex. H; Caperton Decl. ¶ 14.

Crisman’s counsel did not provide a name until January 13, 2014, over a year after the

Complaint was filed and almost three years after the FRB conducted its searches. See ECF No.

45 (Defs. First Reply) at 4; see also Pls. First Opp. at 13–14. Crisman cannot rely on this late-

supplied information to argue that the FRB’s search was inadequate or to request another

search.5 Mobley v. CIA,

, 582–83 (D.C. Cir. 2015) (finding that “[b]ecause

agencies are not required to perform additional searches once their search is concluded, the court

cannot conclude that the FBI failed to conduct an adequate search”). The court therefore finds

that there is no genuine issue of material fact as to the adequacy of the FRB’s searches and grants

Defendants summary judgment on Count 6.6

5 Crisman also requests that the court, if it “agrees with Crisman that FRB’s search was inadequate,” order the FRB “to take three other records . . . into account when performing a supplemental search.” Pls. First Opp. at 14 –15. The records are attached to Plaintiffs’ Opposition as exhibits D through F. Having determined that FRB’s search was adequate, the court will not order the FRB to conduct another search based on these additional records. 6 In Count 11, Crisman alleges that the FRB failed to amend “all FRB records identifying her as a potential national security risk, or otherwise stemming from the FISA Alert” and “all FRB records documenting her expulsion from the building in April 2004.” Compl. ¶ 125. Caperton explains that the FRB’s search—which the court has determined was adequate—returned “‘no records identifying Ms. Crisman as a potential national security risk or pertaining to her alleged expulsion from the Federal Reserve Building in April 2004.’” Caperton Decl. ¶ 11 (quoting Caperton Decl., Ex. F). Because there are no records for the FRB to amend, the court finds that the FRB is also entitled to summary judgment on Count 11. 15 iv. Count 9 – DHS’s Alleged Refusal to Search for Records

On December 27, 2011, Crisman submitted a Privacy Act amendment request to DHS, in

which she informed DHS of the erroneously characterized FISA Alert and explained that she had

“reason to believe” that the FISA Alert “led to the creation of an FBI record classifying [her] as a

potential national security risk.” ECF No. 30-1 (Declaration of James V.M.L. Holzer, I, Holzer

Decl.), Ex. A, at 1. She further explained that she had “reason to believe that this information

has been disseminated to other federal agencies, not least of which is DHS.”

Accordingly,

she requested that “all DHS records (regardless of location) identifying her as a potential national

security risk, or otherwise stemming from the 2004 ‘FISA Alert,’ be corrected immediately to

reflect the utterly benign nature of that document, and that her name be removed forthwith from

any lists upon which she was placed as a result of this mischaracterization.”

In response,

DHS explained that “the limited information provided by [Crisman] was not sufficient for the

agency to conduct an adequate search,” Holzer Decl. ¶ 4, and that it would “undertake a search

for responsive records” once additional information was provided. Holzer Decl., Ex. D, at 1. In

Count 9, Crisman alleges, in part, that DHS’s failure to process Crisman’s request was improper.

The court disagrees.

FOIA does not require an agency to “honor a request that requires ‘an unreasonably

burdensome search,’” Am. Fed’n of Gov’t Emps., Local 2782 v. Dep’t of Commerce,

(D.C. Cir. 1990) (quoting Goland v. CIA,

(D.C. Cir. 1978)), or that

requires the agency “to locate, review, redact, and arrange for inspection a vast quantity of

material.” Am. Fed’n of Gov’t Emps.,

. Here, Plaintiffs request that DHS

conduct a search for “all DHS records (regardless of location)” relating to the FISA Alert

without providing information regarding “the type of records [they] are seeking, the DHS

16 component [they] believe created and/or controls the records,” “the precipitating event that

[they] believe warranted the creation of the records,” or “the time period that [they] believe the

records or files were created and compiled.” See Holzer Decl., Ex. D, at 1. While the court

appreciates that Crisman may not have access to some of this information because of the nature

of her request, Crisman has failed to take any steps to narrow her request or assist DHS in its

search.

Indeed, in response to DHS’s request for additional information, Crisman did not suggest

a timeframe for DHS’s search or provide guidance as to the types of records DHS should search

for, but instead assumed that the requested information “is exclusively under the control of DHS

and the FBI.” Holzer Decl., Ex. E, at 1. Thus, to fulfill Crisman’s request, DHS—which does

not maintain a central index of records about individuals—would have to take on the

burdensome task of examining and sifting through numerous records, without guidance as to the

timeframe, location, or likely format of the records Plaintiffs seek. Neither FOIA nor the Privacy

Act require DHS to do so. See, e.g., Assassination Archives & Research Ctr. v. CIA,

(D.D.C. 1989) (“FOIA was not intended to reduce government agencies to full-

time investigators.”); see also Sack v. CIA,

(D.D.C. 2014) (noting that

seeking “additional guidance from the [FOIA] requester and, when none was provided, clos[ing]

the file” was “a reasonable path” when the requester failed to provide sufficient information

regarding the records sought); SAI v. TSA,

, 248–49 (D.D.C. 2018) (finding a

plaintiff’s FOIA and Privacy Act request “vastly overbroad” and thus not demanding a “response

commensurate with the request”).

Nonetheless, the court is not inclined to grant Defendants summary judgment, and risk

denying Crisman access to potentially responsive documents, when it appears that neither party

17 has made a concerted effort to come to an agreement on the contours of DHS’s search. Based on

the record, DHS, too, has failed to propose ways to define and narrow the scope of Crisman’s

request. See Holzer Decl., Ex. D at 1 (letter detailing DHS’s need for additional information but

failing to propose DHS components that may contain responsive records). Thus, the court will

deny summary judgment on Count 9 as to DHS’s failure to search for responsive records and

order the parties to meet, confer, and attempt to define and narrow the scope of DHS’s search for

responsive records.

3. Privacy Act Amendment Claims (Counts 7–11, 17)

In Counts 7 through 11, Crisman alleges that the National Security Division (“NSD”) of

the DOJ, the FBI, DHS, ODNI, and the FRB violated the Privacy Act in failing to amend their

records “identifying her as a potential national security risk, or otherwise stemming from the

FISA Alert . . . to reflect the benign nature of [the FISA Alert].” See Compl. ¶¶ 87, 95, 107, 117,

125. Crisman further alleges that NSD, FBI, DHS, and ODNI improperly denied her request that

“her name be removed forthwith from any lists upon which she was placed as a result of [the]

error.”

¶¶ 87–92, 95–103, 107–13, 117–21. Additionally, Crisman alleges that the FRB

improperly refused to amend its records “documenting her expulsion from the building in April

2004 . . . to reflect that this action was solely taken as a result of” the improper classification of

the FISA Alert. Id. ¶ 125. In Count 17, Crisman seeks damages under the Privacy Act for the

“adverse and harmful effects” she has suffered as result of the DOJ’s misclassification of the

FISA Alert. Id. ¶¶ 170, 172. She requests “relief in the form of a declaratory order that DOJ

violated the Privacy Act and an award of damages.” Id. ¶ 172.

18 Crisman voluntarily withdrew her Privacy Act claims in Counts 7, 8, 9, and 10. 7 Pls.

First Opp. at 6 n.8. The only Privacy Act claims remaining are Counts 11—Crisman’s failure to

amend claim against the FRB—and Count 17—a claim for damages stemming from the DOJ’s

failure to properly classify the FISA Alert. As discussed above, this court has found that because

the FRB’s search returned no records “‘identifying Ms. Crisman as a potential national security

risk or pertaining to her alleged expulsion from the Federal Reserve Building in April 2004,’”

Caperton Decl. ¶ 11 (quoting Caperton Decl., Ex. F), there were no documents to amend, and

therefore Defendants are entitled to summary judgment on Count 11.

In Count 17, Crisman alleges that she is entitled to damages under the Privacy Act’s

accuracy provision, 5 U.S.C. § 552a(e)(5), because the FBI failed to follow the procedures of

Executive Order 12958 and its own internal memorandum in classifying the FISA Alert. See

Compl. ¶¶ 165–72. Defendants respond that they are entitled to summary judgment on Count 17

for two reasons. First, that Crisman was aware on February 9, 2009, when she received the

“FISA Alert Report Form,” “of the potential for a Privacy Act claim regarding the proper

classification of the record,” and therefore her November 2012 claim for damages is untimely.

Defs. First Mem. at 37–38. In response, Crisman argues that the FBI “mistakes the nature of the

alleged violation.” Pls. First Opp. at 19. She explains that she is contesting the FBI’s failure to

follow the proper classification procedures detailed in Executive Order 12958 and its own

internal memorandum in classifying the FISA Alert—which she learned about in May 2012—

7 Crisman maintains her claims in Counts 7, 8, 9, and 10 under the APA and the Fifth Amendment. Additionally, as discussed previously, Crisman also maintains her claims under Count 9 to the extent they challenge DHS’s failure to search for records responsive to her FOIA and Privacy Act request. 19 and not the misclassification itself.8 Id. at 20. Therefore, Crisman argues, the two-year time

frame for seeking damages under the Privacy Act did not begin to run until May 2012.

The Privacy Act permits complainants to bring actions “within two years from the date

on which the cause of action arises.” 5 U.S.C. § 552a(g)(5). A cause of action arises under the

Privacy Act when “the plaintiff knows or should know of the alleged violation.” Tijerina v.

Walters,

(D.C. Cir. 1987) (citation omitted). Here, Crisman maintains that

she did not learn “that FBI had actually improperly classified the ‘FISA Alert’ by not following

the governing Executive Order or DOJ regulations” until May 2012. Pls. First Opp. at 20.

Defendants have not offered any evidence or information to suggest otherwise. Given that

Plaintiffs filed their Complaint on November 19, 2012—less than six months after Crisman

learned of the FBI’s allegedly improper conduct—the court finds that Crisman’s claim for

damages under the Privacy Act is not time-barred.

Second, Defendants argue that Crisman is not entitled to relief on Count 17 because

DOJ’s records are exempt from the accuracy and amendment provisions of the Privacy Act.

Defendants explain that “[t]he Privacy Act allows an agency’s Director to promulgate

regulations that exempt any system of records within the agency from” certain provisions of the

Privacy Act. Defs. First Mem. at 39 (citing 5 U.S.C. § 552a(j)(2)). In his declaration, Hardy

points out that all records that are a part of the FBI’s Central Records System, including the

FISA Alert, are exempt from disclosure under the Privacy Act, as prescribed by

. Second Hardy Decl. ¶53. Pursuant to

, the FISA Alert is also exempt

from the Privacy Act’s accuracy provisions—5 U.S.C. § 552a(e)(5) and

The FBI released the FISA Alert with declassification markings to Crisman on May 31, 2012. See Second Hardy Decl. ¶¶ 19–20. 20 552a(g)(1)(C)—which require agencies to maintain any record concerning an individual “with . .

. accuracy, relevance, timeliness, and completeness.” 5 U.S.C. § 552a(e)(5); see also 5 U.S.C. §

552a(g)(1)(C). Accordingly, the FBI’s regulations prohibit Crisman from advancing a Privacy

Act amendment or accuracy claim against it, and therefore the court will grant summary

judgment on Count 17.

B. Defendants’ Second Motion for Summary Judgment and to Dismiss

In their Second Motion for Summary Judgment and to Dismiss, Defendants seek

dismissal or summary judgment on Counts 7 through 10, 9 in which Crisman seeks, pursuant to

the Privacy Act, APA and the Fifth Amendment, the removal of her name from any watch list on

which she was placed following the mischaracterization of the FISA Alert. See Compl. ¶¶ 87,

95, 107, 117. As discussed above, Crisman voluntarily withdrew her claims under the Privacy

Act amendment provisions in response to Defendants’ First Motion for Summary Judgment. See

Pls. First Opp. at 6 n.8. In their Second Motion, Defendants request the dismissal of Counts 7

through 10 in their entirety, challenging Crisman’s allegations under the APA and Fifth

Amendment. ECF No. 46 (Defs. Second Mot.) at 1.

9 Both parties reference Count 11 in their briefs. See, e.g., Defs. Second Reply at 4 (titling a subsection of their brief “Plaintiff’s Claims 7-11 are not Actionable and Should Be Dismissed”); ECF No. 50 (Pls. Second Opp.) at 16 n.8 (“While it is not explicitly stated, Defendants’ standing argument appears to only apply to Counts 7-11.”). The court has already granted summary judgment on Count 11 with respect to Crisman’s claims under the Privacy Act. See supra at 15 n.6. Moreover, in Count 11, Crisman does not allege violations under the APA or the Fifth Amendment—the focal points of Defendants’ second motion. Defs. Second Mot. at 1 (noting that the second motion “focuses primarily on additional claims advanced under the Administrative Procedure Act and the Fifth Amendment to the U.S. Constitution”). Therefore, the court will not address Count 11 in its analysis of Defendants’ second motion. 21 1. Standing

Defendants first argue that Crisman’s amendment claims should be dismissed pursuant to

Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Defs. Second

Reply at 8. Specifically, Defendants argue that Crisman fails to “articulate any injury—actual,

threatened, or imminent—entitling [her] to relief,” and therefore lacks standing to bring the APA

and Fifth Amendment claims alleged in Counts 7 through 10. Defs. Second Mem. at 2. The

court agrees.

Under Article III of the United States Constitution, a federal court cannot consider the

merits of a claim until the party seeking to invoke the jurisdiction of the court can establish the

requisite standing to sue. Whitmore v. Arkansas,

, 154–55 (1990). To do so, a

plaintiff “must have suffered or be imminently threatened with a concrete and particularized

‘injury in fact’ that is fairly traceable to the challenged action of the defendant and likely to be

redressed by a favorable decision.” Lexmark Int’l, Inc. v. Static Control Components, Inc.,

(2014) (quoting Lujan v. Defenders of Wildlife,

(1992)). When

injunctive or declaratory relief is sought, a plaintiff “must show he is suffering an ongoing injury

or faces an immediate threat of [future] injury.” Dearth v. Holder,

(D.C. Cir.

2011) (citations omitted). Past injuries do not themselves “‘show a present case or controversy

regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.’”

Veitch v. England,

(D.C. Cir. 2006) (quoting City of Los Angeles v.

Lyons,

(1983)).

Crisman alleges that “[u]pon information and belief, the FBI Miami Field Office . . .

placed [her] on numerous national security and homeland security watch lists which were then

disseminated to other federal security agencies and DOJ components.” Compl. ¶ 14. However,

22 she also “admits . . . that there is a chance that her name was not placed on a watchlist in 2004.”

Pls. Second Opp. at 4 n.2. Crisman does not allege that the dissemination of these lists has

resulted in “ongoing injury,” such as the inability to travel or recurring, intrusive delays while

traveling. Nor does she allege that there is a threat that such harms will occur in the immediate

future. Rather, she asserts that after allegedly being placed on a watch list in 2004, her

“belongings were searched,” “she was escorted out of FRB Headquarters,” “[h]er contract was

terminated” and “she was subsequently fired by CNI.” Compl. ¶ 15. She also argues that due to

her alleged placement on a watch list, she was required to undergo “extra screening” both times

she traveled by air since 2004, once in March 2009 and again in August 2011. Pls. Second Opp.

at 12; ECF No. 50-4 (Pls. Second Opp., Ex. D) ¶¶ 8–9. All of these alleged harms—the search,

contract termination, job termination, and “extra screenings”— occurred at least a year before

Plaintiffs filed their Complaint, and are therefore not sufficiently “imminent” or “ongoing” to

demonstrate that “a present case or controversy” exists. Veitch,

.

Moreover, even if Crisman’s alleged harms were imminent and ongoing, she has failed to

demonstrate that these harms are “fairly traceable” to her alleged placement on a watch list. As

noted above, Crisman is herself unsure of whether her name was actually placed on a watch list,

and makes her assertion based on “information and belief.” Compl. ¶ 14; see also Pls. Second

Opp. at 4 n.2. Despite this concession, Crisman maintains that her “name was entered into a

watch list—possibly [Violent Gang and Terrorist Organizations File] VGTOF, possibly the

[Terrorist Screening Database] TSDB—by an FBI agent in the Miami Field Office in March or

April 2004.” Pls. Second Opp. at 9.

Crisman’s main argument in support of this assertion is that because she was escorted out

of FRB headquarters due to “something in her FBI file,” her name must have been placed on a

23 watch list. Id. at 11. However, aside from quoting from a standard notice relating to the VGTOF

and TSDB watch lists that FRB Security “would likely have read,” id. at 11–12, Crisman

provides no evidence establishing that the “something in her FBI file” was a notice or other

evidence indicating that her name was placed on a watch list.

Crisman further argues that there are three additional events demonstrating her placement

on a watch list: (1) the FRB’s Assistant Director of Human Resources’ indication that Crisman

had been “Removed, Based on Suitability or Security Determination,” (2) the fact that she was

“singled out for extra screening” at the airport, and (3) DOJ’s observation that the “FBI’s

procedures for tracking and removing names from the TSDB were far from optimal.” Id. 12–14.

But again, Crisman fails to provide any evidence clearly connecting these events to her name

being placed on a watch list.10 See, e.g., Pls. Second Opp. at 12 (arguing that “being singled out

for extra screening” is “consistent with”—not indicative of— “placement on the Transportation

Security Administration (“TSA”) Selectee List or Expanded Selectee List”).

This court cannot rely on Crisman’s speculative and conclusory assertions to find that the

FISA Alert led to her placement on a watch list, let alone that her alleged harms are “fairly

traceable” to such placement or to the FISA Alert. Winpisinger v. Watson,

(D.C. Cir. 1980) (finding no standing where the court “would have to accept a number of very

10 On September 9, 2014, Plaintiffs filed a Motion for Leave to File Additional Exhibits. ECF No. 52. The court will grant Plaintiffs’ motion. However, Plaintiffs’ first additional exhibit— Exhibit I—does not alter the court’s analysis regarding whether Crisman has established that she was placed on a watch list. Exhibit I is a document Plaintiffs believe “demonstrates that [the 66F files designation] was used for watch list issues in May 2003.” ECF No. 52 at 1. Plaintiffs appear to argue that this fact coupled with the fact that the FISA Alert was designated as a 66F file, Compl. ¶ 13, supports their argument that Crisman’s name was placed on a watch list in 2004. But, absent evidence demonstrating that the FISA Alert was designated a 66F file because Crisman was placed on a watch list, the court does not find that such a designation establishes her placement on a list. 24 speculative inferences and assumptions in an endeavor to connect the alleged injury with [the

challenged conduct]”); see also Am. Sports Council v. Dep’t of Educ.,

(D.D.C. 2012) (“A ‘mixture of speculation and conclusory assertion . . . does not satisfy the

Supreme Court’s requirement for specific, concrete facts demonstrating injury, and particularized

allegations of fact.’”) (quoting Block v. Meese,

(D.C. Cir. 1986)).

Accordingly, the court finds that Crisman lacks standing to advance her Fifth Amendment and

APA claims alleged in Counts 7 through 10, and that the claims are therefore dismissed. 11

2. Defendants’ Additional Arguments

Defendants also argue that Counts 7 through 10, to the extent they advance claims under

the Fifth Amendment and APA, should be dismissed for their failure to state a claim. Having

determined that Crisman lacks standing to bring her Fifth Amendment and APA claims raised in

Counts 7 and 10, the court need not address these additional arguments.

3. Plaintiffs’ Remaining Claims

In Counts 12 through 16, Plaintiffs allege that the FBI failed to follow the procedures of

Executive Order 12958 and its own internal memorandum when classifying the FISA Alert. See

Compl. ¶¶ 131–72. Although Defendants purport to address Counts 12, 13 and 15 in their

second motion, they have not provided argument with regard to these counts. 12 See Defs. Second

Reply at 16 (titling a subsection of its reply brief “The Complaint Does Not State an APA Claim

(Counts 7-10, 12-16)” but failing to address why summary judgment or dismissal is warranted on

11 As discussed previously, Count 9 survives Defendants’ motions to the extent that Defendants are required to meet, confer, and attempt to define and narrow the scope of DHS’s search for records responsive to Plaintiffs’ FOIA and Privacy Act request. 12 As stated previously, Defendants assert that the stipulation precludes the claims in Count 12 but fail to provide any argument or evidence to support this assertion. Defs. Second Reply at 19 n.7. 25 Counts 12, 13 and 15). In light of Defendants’ failure to provide a basis for their motion, the

court will deny summary judgment and dismissal on Counts 12, 13 and 15.

Defendants do address Counts 14 and 16, which allege violations under the APA, arguing

that summary judgment should be granted on those counts because “FOIA provides for review”

of Plaintiffs’ claims, and therefore “Plaintiff may not seek review under the more generalized

provisions of the APA.” Defs. Second Reply at 18 (noting that the APA, at

,

provides that judicial review is warranted under the APA only when “there is no other adequate

remedy” in a court); see also

at 18 n.6 (“APA relief in FOIA cases suggests that the breadth

of the relief available under FOIA may leave little need for reliance on the APA as a remedial

measure.”). Plaintiffs do not dispute that their allegations under the APA can be brought under

FOIA, alleging the APA violations in Counts 14 and 16 only “as alternatives to the FOIA

arguments made in Counts 13 and 15, respectively.” Pls. Second Opp. at 23; see also Payne

Enters., Inc. v. United States,

(D.C. Cir. 1988) (“FOIA imposes no limits on

courts’ equitable powers in enforcing its terms,” and where an agency’s actions in response to a

FOIA request “violate the intent and purpose of the FOIA . . . the courts have a duty to prevent

these abuses.”) (citation omitted); Mutitt v. United States Cent. Command,

(D.D.C. 2011) (“[W]here a plaintiff challenges an alleged pattern and practice of violating

procedural requirements of FOIA in connection with the processing of the plaintiff’s FOIA

requests[,] the Court has the power under FOIA and Payne to provide the requested declaratory

and injunctive remedies.”). Given that the APA claims advanced in Counts 14 and 16 are

properly brought under FOIA in Counts 13 and 15, the court will grant summary judgment on

Counts 14 and 16.

26 IV. CONCLUSION

For the foregoing reasons, Defendants’ First Motion for Summary Judgment and Second

Motion for Summary Judgment and to Dismiss will be GRANTED in part and DENIED in part.

The court will grant Defendants summary judgment on and/or dismiss Counts 1, 4, 5, 6, 7, 8, 10,

11, 14, 16 and 17. The court will deny summary judgment as to Counts 3, 12, 13 and 15. The

court will grant in part and deny in part summary judgment on Counts 2 and 9.

A corresponding order will issue separately.

Date: September 18, 2018

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

27