Vincent Michael Marino, Appellant v. United States Department of Justice, et al., Appellees (2017)

ORDER

Upon consideration of the motion for summary affirmance, the opposition thereto, and the reply, and the motion for leave to file a surreply, it is

ORDERED that the motion for leave to file a surreply be denied. It is

FURTHER ORDERED that the motion for summary affirmance be granted. The merits of the parties' positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). Appellant challenges the adequacy of the search by the U.S. Attorney's Office for the District of Massachusetts and the Executive Office for U.S. Attorneys. However, the district court correctly concluded that the search for responsive records was adequate under the Freedom of Information Act, 5 U.S.C. § 552 et seq. See Valencia-Lucia v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (discussing agency obligations under Freedom of Information Act). Appellant's unsupported and speculative allegations that there must be more responsive documents in the possession of the U.S. Attorney's Offices do not raise substantial doubt as to the adequacy of the search. See Iturralde v. Comptroller of Currency, 315 F.3d 311, 314 (D.C. Cir. 2003). Appellant argues that he is entitled to disclosure of certain information he requested from appellees under the Freedom of Information Act and the Privacy Act because the information is already in the public domain. Appellant, however, has failed to “point to ‘specific’ information” in the public domain that is “identical to that being withheld.” Davis v. Dep't of Justice, 968 F.2d 1276, 1280 (D.C. Cir. 1992). The district court also properly granted summary judgment to appellees as to appellant's Privacy Act claims. Pursuant to 5 U.S.C. § 552a(j)(2), the U.S. Attorney's Offices' criminal files have been exempted from the requirements of 5 U.S.C. § 552a(d). See 28 C.F.R. § 16.81(a)(4). It is

FURTHER ORDERED, on the court's own motion, that within 30 days from the date of this order, appellees inform the court whether the U.S. Attorney's Offices spent 320 hours searching their records, as was estimated in the fee letter to appellant dated November 20, 2012. If fewer than 320 hours were spent, appellees are directed to show cause why any overpayment should not be reimbursed to appellant. See 5 U.S.C. § 552(a)(4)(A)(iv). The response may not exceed 5,200 words. Appellant may file a reply, not to exceed 10 pages, within 30 days of service of appellees' response.

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41.

Per Curiam