Mikhashov v. Dep't of Def.

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ANDREY MIKHASHOV, Plaintiff, v. DEPARTMENT OF DEFENSE et al., Defendants.

Civil Action No. 22-3485 (BAH)

United States District Court, District of Columbia

September 26, 2024

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge.

Plaintiff Andrey Mikhashov, a soldier in the U.S. Army, filed a four-count complaint against defendants U.S. Department of Defense (“DoD”), the Defense Counterintelligence and Security Agency (“DCSA”), and U.S. Department of the Army (“Army”), challenging, in Counts I and II, defendants' responses to two requests seeking records regarding an “investigation” into a “possible security violation” by plaintiff Compl. ¶¶ 3, 18, 39, ECF No. 1, and the possible “suspension” or “revocation” of plaintiff's “security clearance for classified information,” pursuant to the Privacy Act of 1974, 5 U.S.C. § 552a, and the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, see Compl. ¶¶ 42-54; id., Ex. A, FOIA Request to Ft. Huachuca (“Ft. Huachuca FOIA Request”) at 2, ECF No. 1-1 (capitalization omitted); id., Ex. C FOIA Request to Army Intelligence and Security Command (“INSCOM”) (“INSCOM FOIA Request”) at 10, ECF No. 1-1 (capitalization omitted). In addition plaintiff claims, in Counts III and IV, alleged “unequal enforcement of SEAD 4,” which plaintiff describes as a “directive issued by the executive branch guiding the issuance of security clearance,” Compl. ¶ 56 (capitalization omitted), and that unnamed “John Does 1-10 and the federal government” violated plaintiff's “constitutional rights,” “denied [] Plaintiff due process,” “committed the unequal application of SEAD 4,” carried out “other violations of applicable laws, regulation, and/or policies,” and “otherwise acted in a manner that harmed” plaintiff, id. ¶ 64.

Defendants have moved for summary judgment, pursuant to Federal Rule of Civil Procedure 56, on Counts I and II, brought under the Privacy Act and FOIA, respectively, and to dismiss, pursuant to Rules 12(b)(1), (b)(2), and (b)(6), Counts III and IV. See Defs.' Partial Mot. Dismiss & Partial Mot. Summ. J. (“Defs.' Mot.”), ECF No. 19; Defs.' Mem. Supp. Partial Mot. Dismiss & Partial Mot. Summ. J. (“Defs.' Mem.”), ECF No. 19-1; Defs.' Opp'n Pl.'s Cross-Mot. Summ. J. & Reply Supp. Defs.' Partial Mot. Dismiss & Partial Mot. Summ. J. (“Defs.' Reply”) at 5, ECF No. 24.^[1]Plaintiff, in turn, has cross-moved for partial summary judgment on Counts I and II. See Pl.'s Mem. Supp. Partial Cross-Mot. Summ. J. & Opp'n Defs.' Partial Mot. Dismiss & Partial Mot. Summ. J. (“Pl.'s Mem.”), ECF No. 21; Pl.'s Cross-Mot. Summ. J., ECF No. 22.

For the reasons set forth below, defendants' motion is granted and plaintiff's cross motion is denied.

I. BACKGROUND

The background underlying plaintiff's FOIA and Privacy Act requests is described below, followed by a review of plaintiff's requests and defendants' responses.

A. Factual Background

From what may be gleaned from the complaint and the exhibits attached thereto, as of the filing date of the Complaint, plaintiff was a North Carolina resident and U.S. Army soldier assigned to the 501st, 524th, and 525th Military Intelligence Brigades. See Compl. ¶¶ 2, 33; id., Ex. L, at 41, ECF No. 1-1 (plaintiff's email describing himself as “a Soldier in the 501st MI BDE/524th MI BN”).^[2] The complaint alleges that plaintiff sought “disclosure and release of agency records” held by Army components Ft. Huachuca, Arizona, and INSCOM, Compl. ¶¶ 1, 3, 5, 10, which records plaintiff contends “may be used to suspend or revoke his [security] clearance,” Pl.'s Mem. at 1.^[3]

According to records attached to plaintiff's Complaint, plaintiff was apparently observed at Fort Huachuca, Arizona, using Google Translate to “assist him with classified reports.” Compl., Ex. I, Apr. 28, 2022 Suppl. Inf. Request (“SIR”) at 33, ECF No. 1-1 (capitalization omitted); see also id., Ex. R, May 18, 2021 Mem. at 74-75, ECF No. 1-1. As summarized in a memorandum, dated June 3, 2021, Army Counterintelligence Command (“ACI”) “opened/terminated an investigation” of plaintiff, concluding that although “several witnesses [] reconfirmed [plaintiff] used translation software on his computer to assist him with classified reports,” the “case [did] not meet the threshold to open a full field investigation.” Id., Ex. S, June 3, 2021 ACI Mem. at 7980, ECF No. 1-1; see also id. ¶¶ 38-39.

Nevertheless, ACI referred the matter to DoD's Consolidated Adjudications Facility (“CAF”), now the DCSA Consolidated Adjudication Services (“CAS”), “for any action deemed appropriate.” Id., Ex. S, June 3, 2021 ACI Mem. at 79-80; id., Ex. O, Sept. 26, 2022 SIR at 61, ECF No. 1-1 see also id. ¶ 40. Concluding that the “disclosed information [] may have a bearing on [plaintiff's] eligibility for access to classified information,” on plaintiff's “assignment to duties that have been designated national security sensitive,” and/or on his “access to Sensitive Compartmented Information,” id., Ex. I at 33, DCSA issued three SIRs to plaintiff, in April, September, and October 2022, id. ¶¶ 18, 29, 34; see also id., Ex. I at 33, Apr. 28, 2022 SIR at 33; id., Ex. O, Sept. 26, 2022 SIR at 61; id., Ex. Q, Oct. 24, 2022 SIR at 67, ECF No. 1-1. Plaintiff contends he was prompted to “provide a sworn statement . . . without being read his [Uniform Code of Military Justice (‘UCMJ')] Article 31(b) rights”-the “civilian equivalent to Miranda rights,” Compl. ¶¶ 19, 21, 29-30-and apparently provided a sworn statement to the first request, and contends he “need[s]” the records requested pursuant to FOIA and the Privacy Act “in order to properly and thoroughly respond to” the outstanding SIRs, Pl.'s Mem. at 1; see Compl. ¶ 31 (as to September 26, 2022 request, plaintiff asserting he “did not respond to the questions because the document was actually intended to be a request to Plaintiff's command to answer” (emphasis omitted)); id. ¶¶ 34-36 (as to October 24, 2022 request, plaintiff asserting “DCSA CAS issued a third Supplemental Information Request” with no mention of a response by plaintiff). Plaintiff's Battalion Commander acknowledged, in response to plaintiff's complaint alleging violation of his Article 31(b) rights in connection with the first SIR, that plaintiff “should have been read his Article 31(b) rights before issuing him the questions to answer,” Compl. ¶ 23, but that the individual “who obtained the 20 May 2022 statement did so without a deliberate intention to act outside the requirements of Article 31(b),” id., Ex. K, Mem. Resp. to Initial Request for Redress at 38, ECF No. 1-1. The Commander “confirm[ed]” that the statement had not been and was not intended to be “transmitted . . . to DOD CAF,” and invited plaintiff “to provide a statement in response to the DOD CAF inquiry after he is advised of his Article 31(b) rights.” Id., Ex. K, Mem. Resp. to Initial Request for Redress at 38.

Unsatisfied with the response to his complaints about the first SIR, plaintiff submitted, on June 25, 2022, a formal complaint under UCMJ Article 138, alleging violation of his Article 31(b) rights. Id., Ex. L, June 25, 2022 Art. 138 Compl. at 41-43, ECF No. 1-1; see also UCMJ art. 138 (providing that “[a]ny member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer”). This Article 138 complaint allegedly remained unanswered as of the filing date of plaintiff's Complaint. See Compl. ¶ 27.^[4]

Roughly one month after receiving the second SIR, and after plaintiff's command purportedly “said they supported the closure of the security clearance concerns in favor of the Plaintiff” but failed to “submit any paperwork to that effect,” Compl. ¶ 32, plaintiff submitted, on October 25, 2022, “a second Article 138 complaint . . . through his new command, the 525 Military Intelligence Brigade,” id. ¶ 33; see also id., Ex. P, Oct. 25, 2022 Art. 138 Compl., at 64, ECF No. 1-1.

B. Plaintiff's Two FOIA Requests

Concerned by the Army's investigation into his continuing eligibility for a security clearance, and by his apparently unresolved UCMJ complaints, plaintiff submitted, in June 2022, the two record requests at issue in this lawsuit-one request to INSCOM and one request to Ft. Huachuca, the Army installation where plaintiff allegedly committed the security violation. See Compl. ¶¶ 5, 10; Defs.' Mot., Att. 2, Defs.' Statement of Material Facts Not in Genuine Dispute (“Defs.' SMF”) ¶¶ 1, 3, ECF No. 19-2.^[5] Each request is discussed in turn.

1. INSCOM Request

On June 22, 2022, plaintiff submitted a FOIA request to INSCOM seeking records relating to the “revocation of [plaintiff's] security clearance for classified information” and requesting “expedited processing.” INSCOM FOIA Request at 10-12 (capitalization omitted); see also Defs.' SMF ¶ 1. Specifically, plaintiff made requests for four categories of records: (1) “[a]ll emails from 2019 to the present referencing” seven specified search terms relating to plaintiff or plaintiff's command, the 501st Military Intelligence Brigade, as contained within the emails of sixteen listed “Soldiers[] and Staff sections[]” with plaintiff's command; (2) “[a]ll interagency and intra-agency records related to” plaintiff; (3) “[a]ll investigation and standard forms pertaining to the above,” which, if construed to refer to the prior categories of requested records, relate to plaintiff; and (4) “[a]ll records held by INSCOM and their subordinate units including, but not limited to, Any Counterintelligence.” INSCOM FOIA Request at 10-11 (capitalization omitted). Notably, while the first three categories of requested records made clear the records...