United States District Court, N.D. California
ORDER DENYING ADMINISTRATIVE MOTION TO SET A FURTHER
CASE MANAGEMENT CONFERENCE
William Pickard has filed an Administrative Motion asking the
Court to set a case management conference. See
generally Admin. Mot. (dkt. 271). The Motion asserts
that, while the Court's November 15, 2016 Order Granting
Motion for De Novo Review and Holding that Government May
Withhold Materials (hereinafter “Order”) (dkt.
268) resolved some of the issues in this case, it did not
resolve all of them. Id. Pickard argues that the
Order only resolved the parties' dispute about three
categories of materials (DEA informant Gordon Skinner's
name, his NADDIS number, and the information Skinner
voluntarily disclosed to the public), but did not
“countenance the government's decision to withhold
every word from every page of hundreds of pages of responsive
records.” Id. at 1. Pickard asks for a CMC
“so that the parties may seek the Court's guidance
concerning further briefing and resolving the remaining
issues in the case.” Id. at 2. The government
responds that there is nothing left for the Court to decide,
and asks the Court to direct entry of judgment in its favor.
See generally Opp'n (dkt. 272).
the parties' latest dispute requires a (further)
recitation of the extensive procedural history of this
case. In January 2005, Plaintiff submitted a
request to the DEA, seeking information and documents
pertaining to Skinner. D 4th MSJ (dkt. 184) at 2.
Specifically, he sought any information on
(1) Skinner's criminal history (including records of
arrests, convictions, warrants, or other pending cases), (2)
records of all case names, numbers, and judicial districts
where he testified under oath, (3) records of all monies paid
in his capacity as a federal government informant, (4) all
records of instances where the DEA intervened on his behalf
to assist him in avoiding criminal prosecution, (5) all
records of administrative sanctions imposed for dishonesty,
false claims, or other deceit, (6) all records of any
benefits of any nature conferred, (7) all records of
deactivation as a confidential informant and the reasons for
deactivation, and (8) all records concerning Skinner's
participation in criminal investigations.
Id. In February 2005, the DEA denied this request,
citing FOIA Exemptions 6 and 7(C), without confirming or
denying the existence of any records about Skinner.
Id. The Office of Information and Privacy upheld
that response. Id.
2006, Plaintiff brought suit in this court. Id. The
government moved for summary judgment, and, in 2007, the
Court denied the motion without prejudice, holding that the
DEA had not adequately demonstrated that a Glomar
response (a refusal to confirm or deny the existence of
records pertaining to an individual) was appropriate. Order
Denying MSJ (dkt. 62) at 5-6. The government then brought a
second motion for summary judgment, fully briefing the
Glomar response issue. See Pickard v. Dep't
of Justice, 653 F.3d 782, 784-85 (9th Cir. 2011). The
Court granted that motion in 2008, finding that Skinner's
identity as a confidential informant had not been
“officially confirmed” under the Privacy Act, and
that a Glomar response was appropriate under
Exemptions 7(C) and 7(D). Id. at 785.
2011, the Ninth Circuit reversed and remanded, holding that,
because the government had publicly disclosed Skinner's
status as a confidential informant in open court in the
course of official proceedings, a Glomar response
was no longer appropriate. Id. at 787-88. The court
explained, “[t]his is not to say that the DEA is now
required to disclose any of the particular information
requested by Pickard.” Id. at 788. The
government was to produce a Vaughn index, “raise
whatever other exemptions may be appropriate, and let the
district court determine whether the contents, as
distinguished from the existence, of the officially
confirmed records may be protected from disclosure under the
DEA's claimed exemptions.” Id.
March 2012, the government filed its third Motion for Summary
Judgment but did not file a Vaughn index. See
generally D 3rd MSJ (dkt. 140). Plaintiff filed a
cross-motion for summary judgment. See generally P
3rd MSJ (dkt. 152). The Court denied both motions and ordered
the government to file a Vaughn index within 5 days.
See Minutes (dkt. 165). The government did so.
See Vaughn Index (dkt. 166).
January 2014, the government filed a fourth motion for
summary judgment as to all of the records at issue.
See D 4th MSJ at 1 (“Did the Drug Enforcement
Administration . . . properly withhold the requested
documents under applicable FOIA exemptions?”). Pickard
cross-moved for partial summary judgment, requesting release
of three categories of information. See P 4th MSJ
(dkt. 188) at 1 (“Pickard seeks partial summary
judgment for withholdings that are demonstrably improper,
even on the meager factual basis the agency now provides.
These withholdings include Skinner's name, information
Skinner has voluntarily disclosed to the public, and his
NADDIS number.”). In May 2014, the Court denied the
government's fourth motion for summary judgment after
finding its Vaughn index “supremely unhelpful.”
MSJ Order (dkt. 198) at 1, 7, 11. The Court also denied
Pickard's cross-motion. Id. at 11. The Court
found that without an adequate Vaughn index, “the Court
[could not] know if releasing something as basic as
Skinner's name would compromise an important privacy
interest, endanger any individual's (including
Skinner's) physical safety, or run afoul of one of the
other claimed exemptions.” Id. at 9. The Court
then ordered the government “to submit (1) an adequate
Vaughn index and (2) all of the responsive documents that the
government continues to withhold in full or in part to
Magistrate Judge Nathanael Cousins for review of
‘whether the contents, as distinguished from the
existence, of the officially confirmed records may
be protected from disclosure under the DEA's claimed
exemptions.'” Id. at 11 (citations
Cousins understood his task as determining “whether,
per Pickard's request, the Court should release three
categories of materials in the 325 documents.” Cousins
Order (dkt. 243) at 1. Following an in camera review, he
ordered the three categories of materials released.
Id. at 1-2, 4. The government then sought de novo
review of the Cousins Order. See Motion for De Novo
Review (dkt. 244); Order Terminating Motion (dkt. 255); 2d
Mot. for De Novo Review (dkt. 260). The parties and the Court
understood that the Second Motion for De Novo Review was only
about the three categories of materials at issue in the
Cousins Order. The Court even observed in its Order that
Pickard's only seeking “the three categories that
he [did made] the Court's task unusual. . . . [and] more
difficult.” See Order at 2.
Court therefore accepts Pickard's contention that the
Order only adjudicated whether the government could withhold
the three categories of materials. See Admin. Mot.
at 1. But the Court rejects Pickard's suggestion
that, having chosen to pursue disclosure of only a subset of
all of the materials responsive to his initial FOIA request,
he may now pursue other subsets.
cases are almost always resolved on summary judgment, rather
than trial. See Animal Legal Defense Fund v. U.S.
F.D.A., 836 F.3d 987, 989 (9th Cir. 2016) (“Most
FOIA cases are resolved by the district court on summary
judgment, with the district court entering judgment as a
matter of law.”); Lawyers' Comm. for Civil
Rights of S.F. Bay Area v. U.S. Dep't of the
Treasury, 534 F.Supp.2d 1126, 1131 (N.D. Cal. 2008)
(“As a general rule, all FOIA determinations should be
resolved on summary judgment.”). Plaintiff chose
to file a motion for partial summary judgment. “Partial
motion for summary judgment is a mechanism through which the
court deems certain issues established before trial, ”
and is “‘intended to avoid a useless trial of
facts and issues over which there was never any controversy.
. . .'” See Holguin v. City of San Diego,
135 F.Supp.3d 1151, 1158 (S.D. Cal. 2015) (quoting Lies
v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir.
1981)). Pickard had no reasonable expectation that the
remaining materials-those not falling within the three
categories-would be the subject of a FOIA trial.
Pickard made a strategic decision to pursue what he perceived
to be low-hanging fruit: Skinner's name, NADDIS number,
and information Skinner voluntarily disclosed. See P
4th MSJ at 1 (“Pickard seeks partial summary judgment
for withholdings that are demonstrably improper, even on the
meager factual basis the agency now provides.”).
Whether he intended to move subsequently for partial summary
judgment on the remaining materials, see Joint Case
Management Statement of 3/2/16 (dkt. 236) at 4 (Plaintiffs
Statement: “Following the government's compliance
with [Judge Cousins's tentative order requiring
disclosure of the three categories], the parties should meet
and confer to determine if further litigation will be
necessary and, if so, whether it is possible to narrow the
issues or documents that remain in dispute”), ...