1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

R. DANNY HUNTINGTON, Plaintiff, v. Civil Action No. 15-2249 (JEB) U.S. DEPARTMENT OF COMMERCE,
Defendant.

MEMORANDUM OPINION Plaintiff R. Danny Huntington ha s been on a quest to uncover ev erything he can about a confidential U.S. Patent and Tra demark Office program called th e Sensitive Application Warning System (SAWS). The program, which the USPTO recently a bandoned, was used to flag certain patent applicatio ns involving particularly sensiti ve subject matter. Seeking to learn more about SAWS, Plaintiff file d multiple Freedom of Informatio n Act requests with the USPTO, a component of Defendant U .S. Department of Commerce. A fter a search and the production of some, but not all, relevant documents, Huntingtonbrought this suit. In the second of two prior Opini ons, this Court ordered Defenda nt to resolve one remaining area of deficiency i n its search. Commerce has now f iled a Second Renewed Motion for Summary Judgment claiming tha t it has adequately done so. The Court agrees; as it finds that the USPTO has satisfied FOIA’s dictates, it will grant sum mary judgment in Defendant’s favor. Having successfully obtained another 67 pages of record s in this round, Plaintiff’s expedition – at least via this l awsuit – is finally finished.2 I. Background The Court’s first Opinion in thi s matter lays out the full deta ils of the controversy, see Huntington v. U.S. Dep’t of Com merce (Huntington I), 234 F. Sup p. 3d 94, 98-100 (D.D.C. 2017), so they are only briefly summarized here. In 1994, the USPTO implemented the SAWS program “to allow paten t examiners to alert leadership when a patent might issue on a sensitive matter.” S ee ECF No. 14-4 (Declaration of John Ricou Heaton), ¶ 21. This alert triggered an internal qua lity-assurance check, see ECF No. 18-1 (Supplemental Declarati on of John Ricou Heat on), ¶ 22, whi ch could affect whether an application was ultimately gr anted or denied. See Heaton Decl. , ¶ 9. If the patent was issued, then a SAWS report – describing t he invention and its sensitive nature – would be generated and, depending on the issue, sent up the chain of command. Id. SAW S reports were also sent to the Patent Trial and Appeal Board (PT AB) as part of the appeals pro cess. See Huntington I, 234 F. Supp. 3d at 108. The USPTO abandone d the program in March 2015 . Id. During the first half of 2015, Huntington submitted several FOI A requests to the USPTO seeking records relate d to SAWS. After Comme rce initially rele ased some documents, see ECF No. 11-4, Exh. 2-2 at B002, Huntington filed multiple unsuccess ful administrative appeals, id., Exhs. 2-3, 2-4, and then brought thi s suit in December 2015, al leging that Defendant had failed to both conduct an adequate sear ch and produce responsive recor ds. See ECF No. 1 (Complaint), ¶¶ 34-43. In respons e, the USPTO undertook “a mor e thorough subsequent search,” Heaton Decl., ¶ 23, a nd released 4,114 pages and five spreadsheets of mat erial, of which one document was redacted in f ull and 132 pages were redacted i n part pursuant to FOIA Exemptions 3, 5, and 6. Id., ¶ 50.3 Claiming that Defendant’s search w as inadequate and that certai n records were improperly withheld, Huntington moved for partial summary judgm ent. See ECF No. 11 (Pl. First MSJ). Commerce, conversel y, believed it had satisfied it s FOIA obligations and thus crossmoved for summary judgment. See ECF No. 14-2 (Def. First MSJ). Partially granting and partially denying these motions, t he Court ordered Defendant to (1) fix the facial deficiency in its search description, (2) describe its search in further detail, and (3) search the PTAB Chief Judges’ records. Huntin gton I, 234 F. Supp. 3d at 104-05, 108- 09. The Court, however, upheld all of Defendant’s withhol dings. Id. at 110. In response, the USPTO cured the facial deficiency, explained in more detail the search of various offices, and sea rched the PTAB Chief Judges’ records – releasing an additional 25 pages of documents, of whi ch four documents were redacted in part. See ECF No. 22-2 (Second Supplemental Declaration of John Ricou Heaton), ¶ 8. Contending that it had carrie d out the Court’s Order and thus f ully complied with FOIA, Defendant renewed its summary -judgment motion. See ECF No. 22 (Def. Second MSJ). Believing that Defendant’s searc h was still inad equate and that certain records continued to be improperly withheld, Plaintiff re newed his Cross-Motion as well . See ECF No. 23-1 (Pl. Second MSJ). Once again, the Court part ially granted and partially de nied both motions. See Huntington v. U.S. Dep’t of Com merce (Huntington II), 266 F. Su pp. 3d 264 (D.D.C. 2017). The Court found that the USPTO ha d generally satisfied its Orde r but that its search remained wanting inasmuch as it had failed t o search the files of PTAB A dministrative Patent Judges (APJs) in addition to those of Chief Judges. See id. at 274-75

. The Court thus ordered Defendantto either: (1) submit an addit ional declaration describing in detail the search of certain APJs’ records and a sufficient explanation of why more4 APJs’ files were not searched, or (2) search all APJs’ SAWS-rel ated records and provide a description thereof. Id. at 275. In response, the USPTO selec ted door number two, as will be detailed below. Maintaining tha t it has now carried out the Co urt’s Order and thus fully complied with FOIA, Defendant file s yet another Motion for Summ ary Judgment. See ECF No. 32 (Def. Second Renewed MSJ). Rej oining that Defendant’s searc h remains inadequate, Huntington renews his Cross-Mo tion as well. See ECF No. 33 (Pl . Second Renewed MSJ). Both are now ripe.
II. Legal Standard Summary judgment may be granted if “the movant shows that 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). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if the evidence is such that a reasona ble jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007) ; Liberty Lobby, 477 U.S. at 248. “A party asserting that a fact cannot be or is genuinely d isputed must support the assert ion” by “citing to particular parts of materials in the record” or “ showing that the materials cite d do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex C orp. v. Catrett, 477 U.S. 317, 323 (1986). In the event of conflicti ng evidence on a material iss ue, the Court is to construe the conflicting evidence in the lig ht most favorable to the non-mov ing party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).5 FOIA cases typically and appropr iately are decided on motions f or summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D. C. Cir. 2011). In a FOIA case, a court may grant summary judgment based solely on information pr ovided in an agency’s affidavits or declarations when t hey “describe the justificatio ns for nondisclosure with reasonably specific detail, demons trate that the information wi thheld logically falls within the claimed exemption, and are not cont roverted by either contrary evidence in the record nor by evidence of agency bad faith.” Larson v. Dep’t of State, 565 F .3d 857, 862 (D.C. Cir. 2009) (citation omitted). “Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arb itrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its actio n’ and directs th e district courts to ‘determine the matter de novo .’” DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).
III. Analysis What remains of the parties’ di spute revolves around one questi on: was the search conducted with regard to APJs ad equate? Although Defendant’s S econd Renewed Motion justifies both the adequacy of its latest search and the exempt ions it relied on in redacting several of the documents found, Plaintiff disputes only the former poin t. As such, the Court first discusses the legal standar d governing the ade quacy of searches and describes the most recent search conducted by the USPTO. It then examines each of Plaint iff’s objections in turn.
A. Standard and Description of Search “An agency fulfills its obligations under FOIA if it can demons trate beyond material doubt that its search was ‘reason ably calculate d to uncover all relevant documents.’” Valencia-6 Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quot ing Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). “[T]he issue to be res olved is not whe ther there m ight exist any other documents possibly responsive to the reque st, but rather whether the sear ch for those documents was adequate.” Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 ( D.C. Cir. 1984). The adequacy of an agency’s sear ch for documents requested unde r FOIA “is judged by a standard of reasonableness and de pends, not surprisingly, upon the facts of each case.” Id. To meet its burden, the agency may s ubmit affidavits or declaratio ns that explain the scope and method of its search “in reasona ble detail.” Perry v. Block, 6 84 F.2d 121, 127 (D.C. Cir. 1982). The affidavits or declarations s hould “set[] forth the search t erms and the type of search performed, and aver[] that all f iles likely to contain responsi ve materials (if s uch records exist) were searched.” Oglesb y v. Dep’t of Army, 920 F.2d 57, 68 (D.C . Cir. 1990). Without contrary evidence, such affidavits or declar ations are sufficient to sho w that an agency complied with FOIA. See Perry, 684 F. 2d at127. O n the other hand, if the r ecord “leaves substantial doubt as to the sufficiency of the searc h, summary judgment for the agen cy is not proper.” Truitt, 897 F.2d at 542. In this case, the USPTO supports its position that its search i s now sufficient by offering two declarations of John Ricou H eaton, an Associate Counsel for the Office of General Law and a FOIA officer at the USPTO. A ccording to Heaton, the USPTO co mplied with the request to search all APJs’ SAWS-related f iles by first ide ntifying curren t and former APJs and then proceeding to conduct searches of their records in a process al most identical to the one previously approved of by the Court. The USPTO contacted the O ffice of Human Recourses7 (OHR) and the Patent Trial and A ppeal Board, who jointly identi fied 205 current and 72 former APJs who had been PTAB APJs prio r to the termination of the SAW S program on March 2, 2015. See ECF No. 32-2 (Fourth Suppl emental Declaration of Joh n Ricou Heaton), ¶ 3. As in previous USPTO searches, the Cybe r Security Investigations Offi ce was then contacted to perform email searches of the 205 current APJs, as well as sear ches for emails or other electronic files of the 72 former APJs. I d., ¶ 4. The current APJs were additionally tasked with searching their laptops and any other electr onic file locations reasonabl y likely to have responsive records. Id., ¶ 5. All of the electronic se arches were conducted using the key terms “SAWS,” “special application,” and “sensitive application.” Id., ¶¶ 4-5. Curre nt APJs were also asked to search any paper records they kept, i d., ¶ 5, and the D eputy Chief Jud ge and Administrative Management Specialist of PTAB we re consulted to locate paper re cords of former ALJs. Id., ¶ 6. As a result of these searche s, the USPTO located and releas ed an additional 67 pages of responsive records, 10 of whic h contained redactions. See Four th Suppl. Heaton Decl., ¶ 8.
B. Plaintiff’s Objections Huntington’s challenges to this latest search fall generally in to three categories, which the Court addresses in turn.
1. Electronic Search His initial objection is that D efendant “failed to demonstrate that it searched for all responsive records from Board pe rsonnel for the full period fro m 1994 to Plaintiff’s FOIA request date of November 2, 2015.” Pl. Sec. Ren. MSJ at 3 (emp hasis deleted). Although both sides agree that APJs who start ed working after SAWS was abando ned on March 2, 2015, would not have relevant documents, Huntington nonetheless argues that the timeframe the USPTO used8 to identify relevant APJs – i.e. , ending on March 2, 2015 – was too narr ow for the records search. Id. In response, Defe ndant offers a supplemental decl aration from Heaton that resolves the issue: the briefer date ra nge was used only to identify rel evant APJs. See ECF No. 35-2 (Fifth Supplemental Declara tion of John Ricou Heaton), ¶ 4. A separate date range – going all the way up to when the FOIA request was received on November 9, 2015 – was used to delimit the search for relevant reco rds of identified APJs. Id. Plaintiff next takes issue wit h how many APJs were identified a s relevant by the USPTO. Huntington maintains that Defe ndant’s identification of 72 indi viduals is signi ficantly too low. See Pl. Sec. Ren. MSJ at 3-4. C iting a 1998 Department of Comm erce Audit Report, he claims that “[s]ubstantial evidence shows that, on average, about 9.7% of APJs have left the Board per year since 1994,” and it is thus r easonable to infer that the t urnover of APJs at PTAB over the 20-year period “may well have been about 200%.” Id. (citing De p’t of Commerce Inspector General Patent and Trademark Offi ce, Board of Patent Appeals an d Interferences: High Inventory and Inadequate Monitori ng Threaten Effectiveness of A ppeal Process, Audit Report No. BTD-10628-8-0001 at 9 (Sept ember 1998), available at www.oig.doc.gov/ORGPublicati ons/USPTO-BTD-10628-09-1998.pdf). Given this alleged high turnover rate, Plaintiff argues that “it is likely that . . . n ot all the former APJs” were included in the 72 identified by the USPTO. Id. This argument is speculative at best and misleading at worst. Even assuming the initial calculations are correct – and t he Court could not replicate th em – there is no reason to believe that the 1994-98 time period used a s the baseline for PTAB’s “c hurn rate” is representative of the next 17 years. In fact, the opposit e is likely true: not only has PTAB grown from 43 APJs in9 1998 to 205 today, but most of the depa rtures driving the alleg ed turnover occurred in one year (1994) in what the Audit Report de scribed as a “wave of retirem ents.” Audit Report at 9. For its part, Defendant point out that it undertook “a reasonable searc h to identify former APJs” by contacting OHR and PTAB and aski ng them to provide information as far back as available. See ECF No. 35 (Def. Reply) at 3. Def endant holds the stronger gro und; its affidavits and declarations describing its s earch cannot be rebutted by “purel y speculative claims about the existence and discoverability of other documents.” Ground Sauc er Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). Citing again the Audit Report, Pla intiff also expresses concern that the USPTO failed to identify any examiners who may ha ve been temporarily detailed a s APJs under a statute in effect until 2000. See Pl. Sec. Ren. MSJ at 4. But, as Heaton points out in his supplemental declaration, see Fifth Suppl . Heaton Decl., ¶ 4, and as noted i n the Audit Report itself, the detail program actually ended in 1997. See Audit Report at 9. Even i f that were not the case, OHR did not track and therefore has no w ay of identifying individuals w ho may have been detailed. See Fifth Suppl. Heaton Decl., ¶ 4. Finally, Huntington challenges th e USPTO’s search description i n three ways: (1) it is facially flawed, (2) it states t hat it merely “tasked” current APJs to search thei r files, and (3) it does not identify searches for ele ctronic files anywhere other than laptops and emails. See Pl. Sec. Ren. MSJ at 5-6. None of these points is availing. First , Plaintiff does not and cannot substantiate his facial challeng e, as Heaton sufficiently avers that the search “was reasonably calculated to uncover a ll responsive record s.” Fourth Suppl. H eaton Decl., ¶ 8 (emphasis added); see Am. Immigration Council v. U.S. Dep’t of Homeland Sec., 21 F. Supp. 3d 60, 71 (D.D.C.10 2014) (“[a]t a minimum, [the agency] ha[s] to aver that it has searched all files likely to contain relevant documents”) (emphasis added). Heaton similarly parrie s the second attack by clarifying that he not only tasked APJs wit h a search but also “verified w ith each of the 205 current APJ’s by email that they had completed t heir searches.” Fifth Suppl. Heaton Decl., ¶ 5. Last, Heaton explains that when APJs’ work c omputers were replaced by laptop s in 2011, USPTO procedure dictated the transfer of all file s to those laptops; there are thus no other locations to be searched for relevant files. Id., ¶ 6. U SPTO’s 30-day retention policy for electronic files, moreover, means that the only electronic r ecords for former ALJs that do exist are emails. Id. In light of these additional explanations, t he USPTO’s search of electronic records is adequate.
2. Paper Search Plaintiff’s next objection echoe s his previous challenges but a pplies them to the USPTO’s search for paper records. He poi nts out the “tasking” issue no ted earlier, questions why the USPTO did not consult with addi tional personnel, and critiques the lack of precision in Defendant’s description of its search. See Pl. Sec. Ren. MSJ a t 6-8. The “tasking” issue having been covered above, Heaton’s supple mental declaration satisfact orily explains that the search was “reasonably calculated to unc over all relevant documents,” Valencia-Lucena, 180 F.3d at 325 (citation omitted), as the t wo people consulted – namely, P TAB’s Deputy Chief Judge and its Administrative Management S pecialist – were the “most knowl edgeable about the current existence or location of paper records.” Fifth Suppl. Heaton D ecl., ¶ 3 (emphasis added). Finally, Huntington’s displeasure with the USPTO’s description – i.e. , that it fails to provide sufficient detail regarding reco rd maintenance and search metho dology, see ECF No. 37 (Pl. Reply) at 3-4 – is similarly unc onvincing. Heaton r eiterates a nd specifically refers to the11 description of the s earch for Chief Judge r ecords that the Cour t previously found adequate. See Huntington II, 266 F. Supp. 3d at 274 ( concluding that “[g]iven this agency diligence, Plaintiff no longer argues that the search of the PTAB Chief Judges’ reco rds was insufficient.”). The Court sees no reason to find Heaton’ s description any less adeq uate now. Plaintiff insists, more generally, that because no records have been found, the search must yet be incomplete or inadequate. Unfortunately for him, “mere speculation that as yet uncovered documents might exist, does not undermine the determination tha t the agency conducted an adequate search for the reque sted records.” Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004). Even if Huntington were granted the search of his dreams, there might just be no there there. He nonetheless argues that the USPTO’ s statutorily required record -disposition plan suggests that “the PTO must possess in its a rchives . . . files that are like ly to contain responsive records.” Pl.
Sec. Ren. MSJ at 8. As Heaton’s supplementary declaration make s clear, however, the recorddisposition plan Plaintiff refers to was superseded in 2011 by a plan with a much shorter retention period that was applie d retroactivel y. See Fifth Sup pl. Heaton Decl., ¶ 8. There is good reason to believe the documents Plaintiff is looking for n o longer exist.
3. Search Strategy Plaintiff’s final attempt to cha llenge the USPTO’s search strat egy also gains no traction. He first criticizes Defendant’s exclusive use of singular-form search terms as inadequately narrow, arguing that terms such a s “sensitive application” excl ude documents that contain the words “sensitive applications.” This is simply incorrect. Hun tington cites cases where searches using only plural forms were he ld to be unreasonably narrow. S ee Pl. Reply at 5. These decisions are inapplicable here , however, as, unlike plural-for m-only searches, those using12 singular forms include documents containing the plural form. I n fact, the Outlook manual Plaintiff cites explai ns that “if you type ray into the Search box, Outlook will return messages that contain . . . rays, but not disarray or tray.” Microsoft, Lear n to narrow your search criteria for better searches in Outlook, https://support.office.com/en-u s/article/Learn-to-narrow-yoursearch-criteria-for-better-sear ches-in-Outlook-d824d1e9-a255-4c 8a-8553-276fb895a8da (cited by Pl. Sec. Ren. MSJ at 9). As Defendant points out, moreover, the singular-form search terms used by the USPTO to search the ele ctronic files of APJs are th e exact same terms the USPTO has been using in all its previ ous searches. See Heaton Decl., ¶ 43; Second Suppl. Heaton Decl., ¶¶ 4, 6, 7. Up to this point, the a dequacy of these search ter ms has gone uncontested by Plaintiff, and he offers no basis for why he ha s waited to raise this issu e until now. The USPTO “has discretion to craft a list of s earch terms that it believes is reasonably tailored to uncover documents responsive to the FOI A request,” Coffey v. Bureau of Land Mgmt., 249 F. Supp. 3d 488, 498 (D.D.C. 2017) (internal citation and brackets omitted) , and it has done so here. Plaintiff proceeds to argue that the USPTO’s search description was inadequate because it did not describe the search-te rm algorithm and search strate gy it used to conduct its search. See Pl. Reply at 4-5. “An agenc y’s affidavits need not be prec ise but they must provide basic information on what records were searched, by whom, and in what manner.” Schrecker v. Dep’t of Justice , 217 F. Supp. 2d 29, 33 (D.D.C. 2002) (citation omitted). Alth ough the USPTO did not provide specific details on the search formula it used, it does not follow that its search description is inade quate. In fact, courts in this Circuit hav e universally found the opposite. See Bigwood v. United States Dep’t of Def., 132 F. Supp. 3d 124, 14 1-42 (D.D.C. 2015) (finding search description sufficient de spite absence of information co ncerning Boolean operators or13 connectors used in electronic se arch); Citizens for Responsibil ity and Ethics in Wash. v. Nat’l Indian Gaming Comm. , 467 F. Supp. 2d 40, 50 (D.D.C. 2006) (same, adding that “FOIA does not demand this degree of detail”) . The Court finds similarly here.
IV. Conclusion In sum, having fully complied with the Court’s multiple Orders, Defendant has shown that it carried out the search in a manner reasonably calculate d to locate documents responsive to Huntington’s FOIA requests. F or the foregoing reasons, Defenda nt’s Second Renewed Motion for Summary Judgment will be gra nted and Plaintiff’s will be de nied. A separate Order so stating will issue this day. /s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

Date: January 31, 2018