united states district court for the … the district of connecticut ) ... [email protected]...

ORAL ARGUMENT IS NOT REQUESTED

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF CONNECTICUT

)

EUGENE R. FIDELL, )

)

Plaintiff, )

)

v. ) Civil Action No. 3:16-cv-359-AWT

) Judge Alvin W. Thompson

DEPARTMENT OF DEFENSE, )

)

Defendant. )

)

DEFENDANT’S PARTIAL MOTION TO DISMISS

Defendant, Department of Defense, by and through its undersigned counsel,

hereby moves to dismiss Plaintiff Eugene Fidell’s second claim found in paragraph 26 of

his Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). Accompanying this

motion is a memorandum of law in support. Defendant respectfully requests that the

Court grant the motion for the reasons described in the memorandum.

Dated: April 29, 2016 Respectfully submitted,

BENJAMIN C. MIZER

Principal Deputy Assistant Attorney General

MARCIA BERMAN

Assistant Branch Director, Federal Programs Branch

/s/ Kevin M. Snell

KEVIN M. SNELL (N.Y. Bar)

Trial Attorney

United States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Avenue N.W., Room 6108

Washington, D.C. 20530

Tel.: (202) 305-0924

Fax: (202) 616-8460

E-mail: [email protected]

Case 3:16-cv-00359-AWT Document 13 Filed 04/29/16 of 3

Attorneys for Defendant


CERTIFICATE OF SERVICE

I hereby certify that on April 29, 2016, I filed the attached Partial Motion

to Dismiss electronically with the Clerk of the United States District Court for the

District of Connecticut through the CM/ECF system, which caused the following

counsel of record to be served by electronic means:

Dennis E. Curtis

403 St. Ronan St.

New Haven, CT 06511

(203) 772-4910

[email protected]

Attorney for Plaintiff

Dated: April 29, 2016 /s/ Kevin M. Snell


Trial Attorney





Tel.: (202) 305-0924

Fax: (202) 616-8460





)

EUGENE R. FIDELL, )

)

Plaintiff, )

)




)

Defendant. )

)

DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF ITS PARTIAL

MOTION TO DISMISS

Case 3:16-cv-00359-AWT Document 13-1 Filed 04/29/16 Page 1 of 10

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................................................................... ii

INTRODUCTION ....................................................................................................................... 1

BACKGROUND ......................................................................................................................... 1

STANDARD ................................................................................................................................ 3

ARGUMENT ............................................................................................................................... 3

The Court Lacks Jursidction Over Fidell’s Second Claim ................................................. 3

CONCLUSION ............................................................................................................................ 5


ii

TABLE OF AUTHORITIES

Cases Bigwood v. U.S. Dep't of Def., No. 11-CV-0602 (KBJ),

2015 WL 5675769 (D.D.C. Sept. 25, 2015) ................................................................... 4

EQT Infrastructure Ltd. v. Smith,

861 F. Supp. 2d 220 (S.D.N.Y. 2012)............................................................................ 1

Estate of Ghais Abduljaami v. U.S. Dep't of State,

No. 14-CV-7902 (RLE), 2016 WL 94140 n.2 (S.D.N.Y. Jan. 7, 2016) ........................ 2

Gortat v. Capala Bros.,

257 F.R.D. 353 (E.D.N.Y. 2009) ................................................................................... 1

Inner City Press/Cmty. on the Move v. Bd. of Governors of Fed. Reserve Sys.,

No. 98 CIV. 4608 (DLC), 1998 WL 690371 (S.D.N.Y. Sept. 30, 1998) ...................... 5

Johnson v. Exec. Office for U.S. Attorneys,

310 F.3d 771 (D.C. Cir. 2002) ....................................................................................... 4

Kennecott Utah Copper Corp. v. U.S. Dep’t of Interior,

88 F.3d 1191 (D.C. Cir. 1996) ....................................................................................... 5

Kissinger v. Reporters Comm. for Freedom of the Press,

445 U.S. 136 (1980) ....................................................................................................... 4

Makarova v. United States,

201 F.3d 110 (2d Cir. 2000)........................................................................................... 3

McCarthy v. Dun & Bradstreet Corp.,

482 F.3d 184 (2d Cir. 2007)........................................................................................... 1

Minnesota v. DOE, No. 4-81-434,

1982 U.S. Dist. LEXIS 18390 (D. Minn. Dec. 14, 1982) .............................................. 4

Open Am. v. Watergate Special Prosecution Force,

547 F.2d 605 (D.C. Cir. 1976) ....................................................................................... 2

Scelsa v. City Univ. of New York,

76 F.3d 37 (2d Cir. 1996)............................................................................................... 3

Sterling v. United States,

798 F. Supp. 47 (D.D.C. 1992) ...................................................................................... 5

Statutes 5 U.S.C. § 552 ......................................................................................................... 2, 3, 4, 5

Rules Fed. R. Civ. P. 12(b)(1)....................................................................................................... 3

Regulations 32 C.F.R. § 286.4(d)(2) ....................................................................................................... 2


1

INTRODUCTION

In February 2016, Plaintiff Eugene Fidell submitted a Freedom of Information

Act (“FOIA”) request to Defendant Department of Defense (“DoD”) seeking

communications between Congress and the Office of the Secretary of Defense. Pl.’s

Request, Ex. 1; Compl. ¶ 6, ECF No. 1.1 In addition to these records, Fidell sought

expedited processing of his request. Compl. ¶ 6. DoD denied expedited processing

because Fidell had not demonstrated how the requested information would lose its value

if not processed on an expedited basis. Interim Resp., Ex. 2, at 1; Compl. ¶¶ 7-9. Also,

DoD placed the request in the processing queue designated for “complex” requests—

rather than the queue for “simple” requests—because it could not respond within 20 days.

Interim Resp., Ex. 2, at 1.

Fidell now challenges both of these determinations. Because no jurisdiction

exists to adjudicate his claim that DoD incorrectly placed his FOIA request in the

complex processing queue, Compl. ¶ 26, that claim should be dismissed.2

BACKGROUND

Due to a high volume of requests, resource limitations, or other reasons, many

1 The materials that may be considered on a motion to dismiss are limited to “the facts

asserted within the four corners of the complaint, the documents attached to the

complaint as exhibits, and any documents incorporated in the complaint by reference.”

McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). A document

may be deemed incorporated by reference where the complaint “refers to” the document.

EQT Infrastructure Ltd. v. Smith, 861 F. Supp. 2d 220, 224 n.2 (S.D.N.Y. 2012). DoD’s

attached exhibits are referred to in Fidell’s Complaint. 2 DoD moves to dismiss only Fidell’s second claim, found in paragraph 26 of the

Complaint. The filing of a partial motion to dismiss tolls the deadline to file an answer as

to the remaining claim concerning the denial of expedited processing. See, e.g., M.A. v.

City of Torrington, No. 3:10-CV-1890 (JBA), at *12 n.12, 2011 U.S. Dist. LEXIS

156139 (D. Conn. Apr. 4, 2011) (holding partial motion to dismiss suspends time to

respond to remaining claims); Gortat v. Capala Bros., 257 F.R.D. 353, 366 (E.D.N.Y.

2009) (same).


2

agencies, including DoD, have adopted the court-sanctioned practice of handling FOIA

requests on a “first-in, first out” basis. See Open Am. v. Watergate Special Prosecution

Force, 547 F.2d 605, 616 (D.C. Cir. 1976).3 Moreover, FOIA provides agencies a

mechanism for dealing with voluminous requests and agency limitations by expressly

authorizing agencies to use multiple tracks for processing requests “based on the amount

of work or time (or both) involved in processing requests.” 5 U.S.C. § 552(a)(6)(D)(i).

DoD has established a three-tiered track system, with all tracks “based on a first-

in, first out concept, and rank ordered by the date of receipt of the request.” See 32

C.F.R. § 286.4(d)(2). One track is dedicated for simple requests, another for complex

requests, and a third for expedited processing. Id.

In February 2016, Fidell submitted a FOIA request seeking:

“All communications between any member, committee or staff member of

either House of Congress and the Office of the Secretary of Defense

(including but not limited to the Office of Legislative Affairs) from May

31, 2014 to the date of your response that relate in any way to SGT Robert

B. (Bowe) Bergdahl, as well as any documents summarizing,

memorializing or reflecting oral communications.”

Request, Ex. 1. Along with this request, Fidell requested expedited processing. Id. DoD

denied this request because he had not carried his burden of demonstrating how the

information requested would lose its value if not processed on an expedited basis.

Interim Resp., Ex. 2, at 1. Moreover, DoD informed Fidell that although it had “already

begun processing [his] request,” the agency placed the request in the complex processing

3 “Courts in the Second Circuit frequently cite FOIA decisions from the D.C. Circuit as it

is a jurisdiction with considerable experience on FOIA matters.” Estate of Ghais

Abduljaami v. U.S. Dep't of State, No. 14-CV-7902 (RLE), 2016 WL 94140, at *5 n.2

(S.D.N.Y. Jan. 7, 2016) (collecting cases).


3

queue due to circumstances that may delay production, where it would “be worked in the

order [it] was received.” Id.

Fidell administratively appealed the placement of his request in the complex

queue to the Office of the Deputy Chief Management Officer. Appeal, Ex. 3; Compl.

¶ 13. That office affirmed the complex determination because multiple components

within the Office of the Secretary of Defense and Joint Staff or other federal agencies

may be required to review any responsive records. Appeal Resp., Ex. 4; Compl. ¶ 14.

Now, Fidell has sued DoD, alleging two separate claims. First, he argues that

DoD should have granted his FOIA request expedited processing. Compl. ¶ 25. Second,

he asserts that DoD incorrectly placed the FOIA request in the complex processing

queue. Compl. ¶ 26. Because FOIA provides no jurisdiction to adjudicate in district

court an agency’s complex-simple determination, Fidell’s second claim should be

dismissed.

STANDARD

A claim is appropriately dismissed for lack of subject matter jurisdiction under

Federal Rule of Civil Procedure 12(b)(1) if the Court lacks the statutory or constitutional

power to adjudicate it. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). As

the plaintiff, Fidell bears the burden of establishing this Court’s jurisdiction to adjudicate

his claim. See Scelsa v. City Univ. of New York, 76 F.3d 37, 40 (2d Cir. 1996).

ARGUMENT

The Court Lacks Jurisdiction Over Fidell’s Second Claim

Pointing to 5 U.S.C. § 552(a)(4)(B), Fidell argues that this Court has jurisdiction

to review DoD’s determination that his request belonged in the “complex” queue. See

Compl. ¶ 5. In pertinent part, that statute provides, “[o]n complaint, the district court . . .


4

has jurisdiction to enjoin the agency from withholding agency records and to order the

production of any agency records improperly withheld from the complainant.” 5 U.S.C.

§ 552(a)(4)(B). This statute makes “federal jurisdiction . . . dependent upon a showing

that an agency has (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records.’” Kissinger v.

Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980).

Fidell’s second claim does not claim that DoD improperly withheld any agency

records. Instead, the claim challenges only the “placement of [his] FOIA request in the

complex processing queue.” Compl. ¶ 26. Section 552(a)(4)(B), however, does not

recognize a cause of action for a plaintiff to challenge an agency’s determination about

the queue in which to place his FOIA request, or about whether a FOIA request is

“simple” or “complex.” Therefore, this provision does not provide this Court jurisdiction

over Fidell’s second claim. See Kissinger, 445 U.S. at 150 (“Judicial authority to devise

remedies and enjoin agencies can only be invoked, under the jurisdictional grant

conferred by § 552, if the agency has contravened all three components of this

obligation.”); Minnesota v. DOE, No. 4-81-434, 1982 U.S. Dist. LEXIS 18390, at *21-23

(D. Minn. Dec. 14, 1982) (finding no jurisdiction to review withholding of records under

agency’s “discretionary disclosure” regulation because no statute, including FOIA,

granted federal courts authority to do so); accord, e.g., Bigwood v. U.S. Dep’t of Def.,

No. 11-CV-0602 (KBJ), 2015 WL 5675769, at *9 (D.D.C. Sept. 25, 2015) (holding that

“a FOIA petitioner cannot dictate the search terms for his or her FOIA request” and

warning that “‘FOIA, requiring as it does both systemic and case-specific exercises of

discretion and administrative judgment and expertise, is hardly an area in which the court


5

should attempt to micro manage the executive branch.’”) (quoting Johnson v. Exec.

Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002)).

Nor can Fidell rely on any other FOIA provision to establish the Court’s

jurisdiction over his second claim. Although FOIA provides for review of the denial of

expedited processing, see 5 U.S.C. § 552(a)(6)(E)(iii) (“Agency action to deny or affirm

denial of a request for expedited processing . . . shall be subject to judicial review.”), no

provision provides for judicial review of DoD’s simple-complex designation. Indeed, as

mentioned supra, FOIA expressly allows for multitrack processing, id. § 552(a)(6)(D)(i),

but does not provide for judicial review of agency decisions related to it, see id.4

Lacking a remedy under the statute, Fidell’s claim must be dismissed. See, e.g.,

Kennecott Utah Copper Corp. v. U.S. Dep’t of Interior, 88 F.3d 1191, 1202 (D.C. Cir.

1996) (affirming dismissal of claim for lack of jurisdiction where plaintiff sought court-

ordered publication of information and court concluded that no such remedy exists under

FOIA); Inner City Press/Cmty. on the Move v. Bd. of Governors of Fed. Reserve Sys., No.

98 CIV. 4608 (DLC), 1998 WL 690371, at *6 (S.D.N.Y. Sept. 30, 1998) (dismissing

claim where FOIA did not provide jurisdiction to grant relief requested); Sterling v.

United States, 798 F. Supp. 47, 48 (D.D.C. 1992) (dismissing claim seeking damages

because such relief is not authorized under FOIA), aff’d, No. 93-5264, 1994 WL 88894

(D.C. Cir. Mar. 11, 1994) (per curiam).

CONCLUSION

For the foregoing reasons, the Court should dismiss Fidell’s second claim.

4 Not surprisingly, undersigned counsel was unable to locate any cases addressing a claim

like Fidell’s.


6

Dated: April 29, 2016 Respectfully submitted,

BENJAMIN C. MIZER

Principal Deputy Assistant Attorney General

MARCIA BERMAN

Assistant Branch Director, Federal Programs Branch

/s/ Kevin M. Snell


Trial Attorney





Tel.: (202) 305-0924

Fax: (202) 616-8460


Attorneys for Defendant


CERTIFICATE OF SERVICE

I hereby certify that on April 29, 2016, I filed the attached Memorandum

of Law in Support of Defendant’s Partial Motion to Dismiss electronically with

the Clerk of the United States District Court for the District of Connecticut

through the CM/ECF system, which caused the following counsel of record to be

served by electronic means:

Dennis E. Curtis

403 St. Ronan St.

New Haven, CT 06511

(203) 772-4910

[email protected]

Attorney for Plaintiff

Dated: April 29, 2016 /s/ Kevin M. Snell


Trial Attorney





Tel.: (202) 305-0924

Fax: (202) 616-8460





)

EUGENE R. FIDELL, )

)

Plaintiff, )

)




)

Defendant. )

)

EXHIBIT 1


Re( uester Details To modify detai ls click on "My Account" in the left panel. If the link is not avai lable contact the FOTA Office to have the changes made. Mr. Eugene R. Fidell Esq. 227 Church Street Apartment 61 New Haven, CT 06510 efidell@gmai I .com

Requester Default Category: Other FEB 2 0 2016 Custom Fields Requester Control # Previous Address 2

Submit New Request Please complete all the required fields marked \\.ith an asterisk ( * ).

General Infornrntion *Request Type Requester Category

Shi l lino Address *Street I Street2 *City *State *Country *Zip Code

Rl'( uest Information Attachment *Description

Date Range for Record Search

Fee Information Willing Amount

Custom Fields Requester#

FOIA Other

227 Church Street Apartment 6J New Haven Connecticut Unjted States 06510

All communications between any member, committee or staff member of either House of Congress and the Office of the Secretary of Defense (including but not limited to the Office of Legislative Affairs) from May 31 , 2014 to the date of your response that relate in any way to SGT Robert B. (Bowe) Bergdahl, as well as any documents summarizing, memorializing or reflecting oral communications. A notarized authorization from SGT Bergdahl is attached.

Expedited consideration is requested. From 05/31 /2014 To 12/31/2016

1000




)

EUGENE R. FIDELL, )

)

Plaintiff, )

)




)

Defendant. )

)

EXHIBIT 2


Mr. Eugene R. Fidell Esq. 227 Church Street Apartment 61 New Haven, CT 06510

Dear Mr. Fidell:

DEPARTMENT OF DEFENSE OFFICE OF FREEDOM OF INFORMATION

1155 DEFENSE PENTAGON WASHINGTON, DC 20301-1155

J:EB 2 4 2016 Ref: 16-F-0598

This is an interim response to your enclosed February 20, 2016, Freedom of Information Act (FOIA) request for "all communications between any member, committee or staff member of either House of Congress and the Office of the Secretary of Defense (including but not limited to the Office of Legislative Affairs) from May 31, 2014 to the date of your response that relate in any way to SGT Robert B. (Bowe) Bergdahl, as well as any documents summarizing, memorializing or reflecting oral communications." Your request was received in this office on February 22, 2016 and assigned FOIA case number 16-F-0598. We ask that you use this number when referring to your request.

Expedited processing may be granted when the requester demonstrates a compelling need for the information and shows that the information has a particular value that would be lost if not processed on an expedited basis. A key word here is "demonstrates." Therefore, it is incumbent upon you to demonstrate that the requested records will serve an urgency purpose and that they will also be meaningful in the sense that they will provide a greater understanding of actual or alleged federal government activity on the part of the public-at-large than that which existed before such information was disseminated. Consequently, it must be clearly demonstrated that such information has a particular value that will be lost if not disseminated quickly. After carefully considering your request, this Office finds that you have not clearly demonstrated how the information will lose its value if not processed on an expedited basis. For this reason, your request for expedited processing is denied.

You should know that although we have already begun processing your request, we will not be able to respond to your request within the FOIA's 20-day statutory time period as there are unusual circumstances which impact our ability to quickly process your request. These unusual circumstances are (a) the need to search for and collect records from a facility geographically separated from this office; (b) the potential volume ofrecords responsive to your request; and ( c) the need for consultation with one or more other agencies or DoD components having a substantial interest in either the determination or the subject matter of the records. For these reasons, your request has been placed in our complex processing queue and will be worked in the order the request was received. Our current administrative workload is 1,624 open requests. We regret the anticipated delay in responding to your request and your continued patience is appreciated.


If you have any questions, please contact the Action Officer assigned to your request, Curtis Gibbens, at [email protected] or 571-372-0412.

If you are not satisfied with this action, you have the right to appeal to the appellate authority, the Director for Oversight and Compliance, Office of the Secretary of Defense, by writing directly to the Director of Oversight and Compliance, 90 I 0 Defense Pentagon, Washington, DC 20301-9010. Your appeal must be postmarked within 60 calendar days of the date of this response. Alternately, you may submit your appeal electronically within 60 calendar days of the date of this response at the following link: http://pal.whs.mil/palMain.aspx. Your appeal should cite case number 16-F-0598 and be clearly marked "Freedom of Information Act Appeal."

Enclosure: As stated

Sincerely,

ut1 ~~ .~ Stephanie L. Carr

Chief




)

EUGENE R. FIDELL, )

)

Plaintiff, )

)




)

Defendant. )

)

EXHIBIT 3


Re ucstcr Details To modify details click on "My Account" in the left panel. If the lmk 1s not available contact the FOIA Office to have the changes made. Mr. Eugene R. Fidell Esq. 227 Church Street Apartment 6J New Haven, CT 06510 [email protected]

Requester Default Category: Other FEB 2 4 2016 Custom Fields Requester Control # Previous Address 2

Submit New Appeal

Please complete all the required fi elds marked with an asterisk ( * ).

General Information *Appeal Type Appeal Sub Type Requester Category Reference No.

Shi ino Address *Street! Street2 *City *State *Country *Zip Code

A cal Information Attachment *Description

Date Range for Record Search

Fee Information Willing Amount

Appeal Interim Response Other I 6-F-0598

227 Church Street Apartment 6J New Haven Connecticut United States 065 10

16-F-0598 Interim Response.pdf I hereby appea l from the initial response (a copy of which is attached) and object to any delay in responding substantively to my entirely straightforward FOIA request.

None of the three reasons the initial response cites for needing more time apply to my very simple and focused FOlA request. There is no bas is fo r relegating it to the "complex processing queue." 1 reserve the right to sue immediately upon expiration of the period prescribed in the statute.

Expedited consideration is requested on this admin istrative appeal. The requested records are needed for United States v. Bergdahl, an Army genera l court-maitial in which I am lead defense counsel. That trial is scheduled to commence on August 8, 201 6. I have attached my client's authorization, along with a copy of the interim response.

Very respectfully,

Eugene R. Fide ll

1000




)

EUGENE R. FIDELL, )

)

Plaintiff, )

)




)

Defendant. )

)

EXHIBIT 4


OFFICE OF THE DEPUTY CHIEF MANAGEMENT OFFICER 9010 DEFENSE PENTAGON

OVERSIGHT AND COMPLIANCE

Mr. Eugene R. Fidell, Esq. 227 Church Street Apartment 6J New Haven, CT 06510

Dear Mr. Fidell:

WASHINGTON , DC 20301·9010

February 25, 2016 Ref: 16-A-0598-Al

16-F-0598

This is in response to your February 24, 2016, Freedom oflnformation Act (FOIA) appeal concerning the Office of Freedom oflnformation' s (OFOI) placement of your FOIA request in the complex queue and the need to consult with other agencies for records pertaining to your February 20, 2016, FOIA request referenced above.

I consulted with OFOI to determine the status of your initial request 16-F-0598. To obtain any records which may be responsive to your request, OFOI will task the Executive Services Directorate to conduct electronic and hard copy searches. Upon OFOI receiving any responsive records, multiple components within the Office of the Secretary of Defense and Joint Staff or other federal agencies may be required to review any records containing equities to determine releasability. For these reasons, your request was placed in the complex queue and will be processed in the order the request was received. Please note that the OFOI action office is processing the case with all due diligence.

Because the actions necessary to complete your initial request are yet to be accomplished, I am remanding this request to OFOI for completion. Once OFOI issues their final response, you will receive appeal rights for any possible denials. This action will close your appeal and allow the necessary, remaining processes to take place in response to your initial request.

You have the right to judicial review of this decision in a United States District Court, in accordance with 5 U.S.C. § 552(a)(4)(B).

Sincerely,

James P. Hogan Chief, DoD FOIA Policy

Copy to: OFOI


united states district court for the … the district of connecticut ) ... [email protected]...

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