Doe v. Goss ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
DOE (P), )
)
Plaintiff, )
)
v. ) Civil Action No.
) 04-2122 (GK)
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Hon. LEON E. PANETTA )
et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
Plaintiff Doe, a former employee of the Central Intelligence
Agency (“CIA”), brings this suit against Leon E. Panetta, Director
of the CIA; the CIA; James Pavitt, CIA Deputy Director of
Operations (“DDO”); and two Defendants Doe, whom Plaintiff
identifies as current or former agents, officers and employees of
the United States acting under color of Federal law. Plaintiff’s
true name and address are classified, and therefore he has been
allowed to file as “Doe.”
Plaintiff initially brought this action under the Privacy Act,
5 U.S.C. § 552a(g)(1), the Administrative Procedure Act (“APA”), 5
U.S.C. §§ 706(1) & 2(A)-(D), the Little Tucker Act, 28 U.S.C. §
1346(a)(2), and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§
2671 et seq. On January 12, 2007, Defendant’s Motion to Dismiss
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Former CIA Director Porter Goss was named as the original
lead respondent in this case. Pursuant to Federal Rule of Civil
Procedure 25(d), the Court automatically substitutes the current
director, Leon E. Panetta, as the new lead respondent.
was granted in part and denied in part [Dkt. No. 43]. The Court
held that Counts I, III, and VI were precluded by the Civil Service
Reform Act. On January 6, 2009, Defendant Pavitt’s Motion to
Dismiss was granted, and the case was dismissed with prejudice as
to Defendant Pavitt. Only Count II (Privacy Act claim) and Count
V (Bivens claim) remain in the case.
This matter is now before the Court on Plaintiff’s Motion for
Partial Judgment on the Pleadings [Dkt. No. 64]. Upon
consideration of the Motion, Opposition, Reply, and the entire
record herein, and for the reasons stated below, Plaintiff’s Motion
is denied.
Defendants filed their Answer on February 28, 2007 [Dkt. No.
63]. Their Answer states that they need not respond to the
redacted portions of the Second Amended Complaint because they
contain classified information and that “[t]o the extent a response
is required, Defendants can neither confirm nor deny the accuracy
of the redacted allegations.” Answer at 4 n.4.
In his Motion, Plaintiff argues that Defendants’ Answer
constitutes an admission of the redacted information and that
Plaintiff is entitled to judgment on the pleadings as a result.
Pl.’s Mot. at 2.2
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As Defendants correctly argue, Plaintiff’s Motion is
“conceptually identical” to his Motion to Find that All Material
Redacted from his Complaints by Defendants on the Grounds that it
is Classified Constitutes an Admission of its Truth for Purposes of
(continued...)
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In response, Defendants argue that they are not required to
respond to “things that have been redacted from the Complaint”
because they “are not part of the Complaint. They are, quite
literally, not there.” Defs.’ Opp’n at 2. In the alternative,
they argue that if an answer is required, the Glomar response is
adequate. Id. at 5. Finally, Defendants argue that a judgment on
the pleadings is appropriate only when claims made in the pleadings
must be granted as a matter of law, and Plaintiff has not
“articulated any claim upon which he is entitled to judgment on the
pleadings.” Id. at 4.
Neither side provides sufficient legal support for its
position on whether a Glomar response applies outside the FOIA
context.3 Defendants cite to no case holding that a Glomar
response applies outside the FOIA context.4 Likewise, Plaintiff
cites to no case holding that a Glomar response is limited solely
to the FOIA context.
(...continued)
this Litigation [Dkt. No. 46], which was denied on January 29, 2009
[Dkt. No. 108].
3
In the FOIA context, an agency may use a Glomar response --
“refus[ing] to confirm or deny the existence of records” -- if
answering the FOIA request would “cause harm cognizable under a
FOIA exception.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)
(quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)).
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Defendants cite three cases in which a Glomar response was
asserted in the answer to the complaint and was not subsequently
challenged, but provide no case law holding that a Glomar response
may be used in an answer. See Defs.’ Opp’n at 3.
3
In addition, Defendants are incorrect that their redactions of
the Complaint bar this Court from considering Plaintiff’s claims.
This case is not the first one involving highly-sensitive
information to be considered by this Court. See, e.g., Mohammed
Al-Adahi v. Barack H. Obama, No. 05-280 (D.D.C. filed Feb. 7, 2005)
(involving five detainees at Guantanamo Bay and numerous classified
filings). Nor is it the first time a district court has been asked
to address delicate issues of national security. See Wilson v.
Libby, 535 F.3d 697, 720 (D.C. Cir. 2008) (Rogers, J., concurring
in part and dissenting in part) (“[D]istrict courts are well-suited
to protect secrets from unwarranted disclosures.”) (citing
Boumediene v. Bush, --- U.S. ---, 128 S.Ct. 2229, 2276 (2008)). In
other cases, this Court has required the government to submit
documents in camera and has issued protective orders to protect
sensitive information. See, e.g., Wright v. FBI, No. 02-915, ---
F. Supp. 2d ---, 2009 WL 1241609, at *5 (D.D.C. May 6, 2009).
Defendants have presented no reason that this case is substantially
different from other sensitive cases that have come before the
Court.
Although Defendants are incorrect that they may effectively
terminate a case by redacting the Complaint,5 judgment on the
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Plaintiff is correct when he states that the “[redacted]
material clearly remains part of Plaintiff’s SAC [Second Amended
Complaint]. It has merely been removed from public disclosure.”
Pl.’s Reply at 2.
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pleadings is not appropriate in this instance. A court may grant
judgment on the pleadings if the movant shows that “no material
fact is in dispute and that it is entitled to judgment as a matter
of law.” Askew v. Meridian Imaging Solutions, Inc., 601 F. Supp.
2d 173, 174 (D.D.C. Mar. 4, 2009) (citing Fed. R. Civ. P. 12(c)).
Here, Plaintiff’s allegations have not been admitted.
See Order (Jan. 29, 2009) [Dkt. No. 108] (denying Plaintiff’s
Motion to Find that All Material Redacted from his Complaints by
Defendants on the Grounds that it is Classified Constitutes an
Admission of its Truth for Purposes of this Litigation).
Therefore, Plaintiff has not demonstrated that “no material fact is
in dispute.” In addition, as the government correctly argues,
judgment on the pleadings is appropriate only when the stated
claims are sufficient as a matter of law, and Plaintiff has not
provided evidence that demonstrates his claims are sufficient as a
matter of law.
For the reasons set forth above, Plaintiff’s Motion for
Partial Judgment on the Pleadings is denied without prejudice. An
Order shall accompany this Memorandum Opinion.
/s/
May 11, 2009 Gladys Kessler
United States District Judge
Copies to: Attorneys of record via ECF
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