United States District Court, S.D. Georgia, Dublin Division
THOMAS W. SIKES, Plaintiff,
UNITED STATES DEPARTMENT OF THE NAVY, Defendant.
19, 2018, the Eleventh Circuit Court of Appeals remanded this
case to this Court to adjudicate the claim that the Defendant
United States Department of the Navy ("the Navy")
wrongfully withheld documents responsive to an
request submitted by Plaintiff Thomas W. Sikes. The Navy now
represents that it has complied with the subject FOIA request
and therefore seeks summary judgment on Plaintiff's
claim. For the reasons stated below, the Navy's motion
for summary judgment is GRANTED.
August 26, 2011, Plaintiff submitted a FOIA request for
"[s]everal memorandum notes, business cards, laminated
cards containing telephone numbers, and a six page
handwritten document which appear to be notes relating to
official business" recovered by the Naval Criminal
Investigative Service ("NCIS") from the vehicle
driven by Admiral Jeremy Michael Boorda shortly before his
suicide. This FOIA request has been referred to as
"Request 2" in this and in the prior lawsuit
between the parties, i.e., Sikes v. United States, et
al., Civil Action No. 312-045 (S.D. Ga. May 24, 2012)
("Sikes I") .
Plaintiff filed Sikes I, the Navy produced eleven
pages of records in response to Request 2. Thereafter,
Plaintiff did not challenge the sufficiency of the Navy's
response in the case. That is, he did not challenge the
adequacy of the Navy's search for responsive records or
the propriety of the redactions applied to those records.
Indeed, this Court found that records disclosed to Plaintiff
"appear to fully satisfy FOIA Request 2" and that
there was "no indication that [the Navy] withheld any
portion of the materials requested by Plaintiff."
(See Sikes I, Order of Dec. 6, 2013, Doc.
No. 43, at 37.) The Court dismissed Plaintiff's claim
respecting Request 2 as moot (although Plaintiff was awarded
attorney's fees on the claim). (See
Sikes J, Order of Jan. 10, 2013, Doc. No. 17, at
10-12 (dismissing the claim); and Order of Apr. 7, 2014, Doc.
No. 57 (awarding attorney's fees).)
April 30, 2014, Plaintiff submitted Request 5,  which sought
"an accurate and complete copy of the document requested
in FOIA Request 2" from Sikes J. (Am. Compl., Doc.
No. 19, ¶ 24.) The Navy provided no documents to
Plaintiff in response because it had already produced
documents in response to Request 2 in Sikes I.This
Court upheld the Navy's withholding of responsive
documents and dismissed Plaintiff's claim respecting
Request 5. (Order of Apr. 27, 2017, Doc. No. 29, at 9-11.)
Plaintiff appealed this decision.
appeal, the Eleventh Circuit explained that Request 5 was an
independent FOIA request and that the Navy could not rely
upon its prior production to withhold responsive documents
because no such exemption exists in the statute. Sikes v.
U.S. Dep't of the Navy, 896 F.3d 1227, 1234
(11th Cir. 2018) ("The problem for the Navy,
however, is that FOIA itself contains nothing that would
allow an agency to withhold records simply because it has
previously given them to the requester."). The Eleventh
Circuit further held that Plaintiff's claim is not
precluded by the prior litigation in Sikes I because
Plaintiff's "goal" is not to challenge the
sufficiency of the Navy's production, but to "see
whether the Navy will produce the same material now."
Id. at 1236. The circuit court explained that the
Navy's "failure to provide any records at
all is what Sikes argues violated FOIA. He does not argue
that the Navy must now give him something more than what he
received in 2012-in fact those same documents are
exactly what he seeks." Id. (emphasis
added). The circuit court then remanded Plaintiff's claim
respecting Request 5.
adopting the mandate of the Eleventh Circuit, this Court was
prepared to enter judgment in favor of Plaintiff because, as
the circuit court held, the Navy had wrongfully withheld
documents responsive to Request 5. (See Order of
Sept. 11, 2018, Doc. No. 43, at 2.) The Court then gave the
Navy fourteen days to show cause why judgment should not be
entered in favor of Plaintiff.
Navy timely filed the instant motion for summary judgment,
contending that it has now responded to Request 5 and is
therefore entitled to judgment in its favor. The Clerk gave
Plaintiff notice of the summary judgment motion and the
summary judgment rules, of the right to file affidavits or
other materials in opposition, and of the consequences of
default. (Doc. No. 45.) Therefore, the notice requirements of
Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir.
1985) (per curiam), are satisfied. Plaintiff filed a brief in
opposition to the motion for summary judgment,  the Navy filed a
reply brief, and Plaintiff has now filed a sur-reply. The
motion is ripe for consideration.
SUMMARY JUDGMENT STANDARD
Court should grant summary judgment only if "there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). The purpose of the summary judgment rule is to dispose
of unsupported claims or defenses which, as a matter of law,
raise no genuine issues of material fact suitable for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
considering a motion for summary judgment, all facts and
reasonable inferences are to be construed in favor of the
nonmoving party. Hogan v. Allstate Ins. Co., 361
F.3d 621, 625 (11th Cir.2004). Moreover,
[t]he mere existence of some factual dispute will not defeat
summary judgment unless the factual dispute is
material to an issue affecting the outcome of the
case. The relevant rules of substantive law dictate the
materiality of a disputed fact. A genuine issue of material
fact does not exist unless there is sufficient evidence
favoring the nonmoving party for a reasonable jury to return
a verdict in its favor.
Chapman v. AI Transp., 229 F.3d 1012, 1023
(11th Cir. 2000) (en banc) (quoted source
omitted) (emphasis supplied). The party opposing the summary
judgment motion, however, "may not rest upon the mere
allegations or denials in its pleadings. Rather, its
responses . . . must set forth specific facts showing that
there is a genuine issue to be tried." Walker v.
Darby, 911 F.2d 1573, 1576-77 (11th Cir.