Smith v. United States

GRANT F. SMITH, Plaintiff, v. UNITED STATES OF AMERICA, et. al, Defendants.

Civil Action No. 1:18-cv-00777 (TSC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

September 30, 2019

MEMORANDUM OPINION

In this Freedom of Information Act ("FOIA") action, Plaintiff Grant F. Smith, proceeding pro se, has sued Defendants United States of America, John J. Sullivan, Acting Secretary of the U.S. Department of State ("DOS"), and Rick Perry, Secretary of the Department of Energy ("DOE") to compel compliance under 5 U.S.C. § 552. (ECF No. 1 ("Compl.").)

Pending before the court are four motions. The DOS moves, pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), for dismissal or, in the alternative, for summary judgment pursuant to Rule 56. (ECF No. 14 ("Defs.' Mot.").) The DOE moves, pursuant to Rule 56, for summary judgment. (Id.) Smith has filed two cross-motions for summary judgment. (ECF Nos. 15 ("Pl.'s Cross-Mot."); 16 ("Pl.'s Am. Cross-Mot.").)

For the reasons set forth below, the DOS' motion to dismiss will be GRANTED and its motion for summary judgment will be DENIED as moot, the DOE's motion for summary judgment will be GRANTED, and Smith's motions for summary judgment will be DENIED.

I. BACKGROUND

Smith is an author, public interest researcher, and founder of the Institute for Research: Middle Eastern Policy, Inc. (ECF No. 1 ("Compl.") ¶ 7.)

On February 18, 2015, Smith filed a FOIA request with the DOE, seeking document WNP-136, "Guidance on Release of Information Relating to the Potential for Israeli Nuclear Capability." (Id. ¶¶ 1, 8; ECF No. 15-1 ("7(h) Statement") ¶ 1.) By letter dated February 23, 2015, the DOE confirmed receipt of the request and assigned it a tracking number. (Compl. Ex. A.)

On August 20, 2015, the DOE sent Smith a final response, informing him that it was releasing a redacted version of the two-page document. (Id. Ex. B.) The redacted material included information that the DOE determined was protected by exemption 7(E) and that the DOS advised was protected by exemption 1. (Id.) The final response also informed Smith of his right to appeal the DOE's decision. (Id.)

Smith timely appealed the DOE's decision on August 25, 2015. (Compl. ¶ 11; 7(h) Statement ¶ 6.)

By letter dated February 12, 2016, the DOE informed Smith that his appeal was denied, and attached a Decision and Order explaining the basis for its decision and informing him that he could seek judicial review of the DOE's final order. (Compl. Ex. C.)

On April 5, 2018, Smith filed this action against the United States, the DOE, and the DOS, and on July 26, 2018, Defendants filed their respective dispositive motions.

On August 2, 2018, Smith filed a FOIA request with the DOS, challenging its advice to withhold one sentence in WNP-136, and seeking immediate release of the sentence. (Pl.'s Cross-Mot. at 35; ECF No. 17-2 ("Pl.'s DOS FOIA Request").) By letter dated August 28, 2018, the DOS informed Smith that the sentence was exempt from disclosure because the information pertained to foreign relations orforeign activities of the United States and the release of the information could reasonably be expected to cause damage to national security. (ECF No. 17-3 ("DOS' FOIA Response").) The letter also appraised Smith of his right to an administrative appeal. (Id.)

II. LEGAL STANDARD

"FOIA provides a 'statutory right of public access to documents and records' held by federal government agencies." Citizens for Resp. & Ethics in Wash. ("CREW") v. U.S. Dep't of Justice, 602 F. Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982)). FOIA requires that federal agencies comply with requests to make their records available to the public, unless such "information is exempted under [one of nine] clearly delineated statutory [exemptions]." CREW, 602 F. Supp. 2d at 123 (internal quotation marks omitted); see also 5 U.S.C. §§ 552(a)-(b).

The district court conducts a de novo review of the government's decision to withhold requested documents under any of FOIA's specific statutory exemptions. See 5 U.S.C. § 552(a)(4)(B). The burden is on the government agency to show that nondisclosed, requested material falls within a stated exemption. See Petroleum Info. Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)).

"Where the nonmoving party is proceeding pro se, courts in this jurisdiction will construe the non-moving party's filing liberally." Cunningham v. U.S. Dep't of Justice, 40 F. Supp. 3d 71, 82 (D.D.C. 2014), aff'd, No. 14-5112, 2014 WL 5838164 (D.C. Cir. Oct. 21, 2014). "However, a pro se litigant still has the burden of establishing more than '[t]he mere existence of a scintilla of evidence' in support of his position." Id. (alteration in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

A. Rule 12(b)(6) Motion to Dismiss

FOIA cases are typically decided on motions for summary judgment. Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). However, where an agency argues that the requester has failed to exhaust its administrative remedies, courts analyze the matter under Federal Rule of Civil Procedure 12(b)(6). See Tereshchuk v. Bureau of Prisons, 851 F. Supp. 2d 157, 161 (D.D.C. 2012) (analyzing motion to dismiss for failure to exhaust administrative remedies under Rule 12(b)(6)); Jean-Pierre v. Fed. Bureau of Prisons, 880 F. Supp. 2d 95, 100 (D.D.C. 2012) (same).

"To survive a [12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible when it alleges sufficient facts to permit the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). When considering a defendant's motion to dismiss for failure to state a claim, the court must construe the complaint in the light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. See Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979), aff'd on reh'g, 628 F.2d 199 (D.C. Cir. 1980) ("The complaint must be 'liberally construed in favor of the plaintiff,' who must be granted the benefit of all inferences that can be derived from the facts alleged.").

B. Rule 56 Motion for Summary Judgment

Summary judgment is appropriate where the record shows there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144,157 (1970). "A fact is 'material' if a dispute over it might affect the outcome of a suit under governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson, 477 U.S. at 248). "An issue is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id.

In cases where the applicability of certain FOIA exemptions is at issue, agencies may rely on supporting declarations that are reasonably detailed and non-conclusory. The declarations must provide enough information "to afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding." King v. U.S. Dep't of Justice, 830 F.2d 210, 218 (D.C. Cir. 1987). "If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone." Am. Civ. Liberties Union v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted). However, a motion for summary judgment should be granted in favor of the FOIA requester where "an agency seeks to protect material which, even on the agency's version of the facts, falls outside the proffered exemption." Coldiron v. U.S. Dep't of Justice, 310 F. Supp. 2d 44, 48 (D.D.C. 2004) (quoting Petroleum Info. Corp., 976 F.2d at 1433).

III. ANALYSIS¹

A. DOS' Motion to Dismiss, or, in the Alternative, for Summary Judgment

The DOS moves to dismiss Smith's claims, in part, because Smith did not file an administrative appeal before filing suit in federal court.² (See Defs.' Mot. at 8-9; ECF No. 17 ("Defs.' Reply") at 2-3.) Smith acknowledges that he filed a FOIA request with the DOS after he brought this case, (Pl.'s Cross-Mot. at 35), and does not dispute Defendants' representation that he did not file an administrative appeal.

The "exhaustion of administrative remedies in a FOIA case is treated as an element of a FOIA claim, which, as with all elements of any claim, must be proved by the plaintiff in order to prevail." Bonner v. Soc. Sec. Admin., 574 F. Supp. 2d 136, 139 (D.D.C. 2008). "Failure to exhaust administrative remedies is not a mere technicality, and a court must decline to decide the merits of an unexhausted FOIA claim when the plaintiff fails to comply with procedures for administrative review." Nat'l Sec. Counselors v. C.I.A., 931 F. Supp. 2d 77, 99 (D.D.C. 2013) (emphasis in original). However, exhaustion of administrative remedies is required only when, within twenty business days of the request, an agency makes and communicates its...