Freedom Watch, Inc. v. National Security Agency , 134 F. Supp. 3d 437 ( 2015 )


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  • UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    FREEDOM WATCH, INC., )
    )
    Plaintiff, )
    )
    )
    v ) Civil Case No. 14-1431 (RJL)
    )
    )
    NATIONAL SECURITY AGENCY, et al. )
    , FILED
    Defendants. ) SEP 30 2015
    Clark, US. District & Bankru tc
    Courts for the District of Coqunbia
    DUM OPINION
    2015 [Dkt. # 17]
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    Plaintiff Freedom Watch, Inc. brings this action under the Freedom of Information
    Act (“FOIA”), see 5 U.S.C. § 552, seeking information from the National Security
    Agency (“NSA”), Central Intelligence Agency (“CIA”), and Department of Defense
    (“DOD”), related to the August 6, 2011 shoot-down of a military helicopter in
    Afghanistan. Now before the Court is defendant NSA’s Motion to Dismiss. See Mot. to
    Dismiss [Dkt. # 5]. Having considered the parties’ pleadings, relevant law, and the entire
    record of this case, the Court will GRANT the NSA’s Motion to Dismiss and DISMISS
    this action as to defendant NSA.
    BACKGROUND
    On July 21, 2014, plaintiff Freedom Watch sent a FOIA request to the three
    defendants, including the NSA. Compl. ii 5. The FOIA request sought “the production
    of agency records relating to the shoot—down of Extortion 17, carrying in it thirty US.
    military servicemen who died on August 6, 2011.” Compl. 11 5.
    On August 8, 2014, the NSA responded to plaintiff’s 54-part FOIA request.
    Compl. 36. With respect to items 39 and 48 of the request, the NSA notified Freedom
    Watch that the agency had “conducted a search reasonably calculated to uncover any
    relevant documents,” but did not locate any responsive documents other than plaintiff’s
    request letter itself. Compl. 37. With respect to items 3, 4, 18, 19, and 53 of the FOIA
    request, the NSA informed Freedom Watch that it would deny plaintiff’s request pursuant
    to the first exemption of FOIA because the information was classified, and that it was
    further exempted pursuant to the third exemption. Compl. 37. The NSA advised
    Freedom Watch of its right to “file an appeal to the NSA/CSS Freedom of Information
    Act Appeal Authority,” stated that any such appeal must be postmarked within “60
    calendar days,” and provided an address to which an appeal must be sent. Compl. 37~3 8.
    Freedom Watch did not appeal the NSA’S decision, and the time for appeal has passed.
    See generally Mem. in Opp’n to Mot. to Dismiss (“Opp’n”) [Dkt. # 7]; Compl. 37.
    On August 21, 2014, Freedom Watch sued the NSA, CIA, and DoD. On October
    6, 2014, the NSA moved to dismiss for failure to state a claim pursuant to Federal Rule of
    Civil Procedure 12(b)(6).
    STANDARD OF REVIEW
    The Court may dismiss a complaint for failure to state a claim upon which relief
    may be granted. See Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss under
    Rule l2(b)(6), the court must “liberally” construe the complaint “in favor of the plaintiff,
    2
    who must be granted the benefit of all inferences that can be derived from the facts
    alleged.” Schuler v. United States, 
    617 F.2d 605
    , 608 (DC. Cir. 1979) (internal citation
    and quotation marks omitted). However, in considering the pleadings, the Court is not
    required to “accept legal conclusions cast in the form of factual allegations,” or to rely on
    inferences “unsupported by the facts set out in the complaint.” Kowal v. MCI Commc ’ns
    Corp, 
    16 F.3d 1271
    , 1276 (DC. Cir. 1994). Thus, to withstand dismissal, the
    allegations, when read in a light most favorable to the plaintiff, must “raise a right to
    relief above the speculative level.” Bell Atl. Corp. v. T wombly, 550 US. 544, 555 (2007).
    ANALYSIS
    Under FOIA, “[c]xhaustion of administrative remedies is generally required before
    seeking judicial review.” Wilbur v. CIA, 
    355 F.3d 675
    , 677 (DC. Cir. 2004) (per
    curiam). The exhaustion requirement “means that a requester under FOIA must file an
    administrative appeal within the time limit specified in an agency’s FOIA regulations or
    face dismissal of any lawsuit complaining about the agency’s response.” 
    Wilbur, 355 F.3d at 676
    (internal quotation marks omitted). The exhaustion requirement serves
    multiple purposes, including providing an agency the opportunity to “review its initial
    determination, apply its expertise, correct any errors, and create an ample record in the
    process.” Nat ’l Sec. Counselors v. CIA, 
    931 F. Supp. 2d 77
    , 99—100 (D.D.C. 2013). A
    FOIA action is subject to dismissal under Rule 12(b)(6) of the Federal Rules of Civil
    Procedure if the plaintiff has failed to exhaust administrative remedies. See Hidalgo v.
    FBI, 
    344 F.3d 1256
    , 1258 (DC. Cir. 2003); see Dettmann v. United States Dep’t of
    Justice, 
    802 F.2d 1472
    , 1477 (DC. Cir. 1986).
    3
    Freedom Watch does not dispute the fact that it failed to administratively appeal
    the NSA’s decision, or that the failure to appeal constitutes failure to exhaust
    administrative remedies. See generally Opp’n [Dkt. # 7]. Instead, Freedom Watch
    argues only that it did not need to appeal the NSA decision because, in its judgment, any
    appeal would have been futile. See Opp’n 2—3, 8—10 [Dkt. # 7]. Unfortunately for
    plaintiff, there is no futility exception to the exhaustion requirement in FOIA cases. As
    was the case in another FOIA action brought by Freedom Watch in this District:
    Freedom Watch has cited no caselaw establishing or
    addressing a futility exception to the exhaustion requirement in
    FOIA cases. Moreover, binding Circuit precedent could not be
    clearer: exhaustion of administrative remedies “is a mandatory
    prerequisite to a lawsuit under FOIA.” Wilbur v. CIA, 
    355 F.3d 675
    , 676 (DC. Cir. 2004) (emphasis added, internal quotation
    marks and citation omitted).
    Freedom Watch v. CIA, 
    895 F. Supp. 2d 221
    , 227 n.2 (D.D.C. 2012); compare 
    id. (noting Freedom
    Watch’s reliance on Sing/1 v. Ashcroft, 
    362 F.3d 1164
    , 1169 (9th
    Cir. 2004), with Opp’n 2*3 (reliance on same). The same holds true today.
    Even assuming, arguendo, that the FOIA exhaustion requirement were
    subject to a futility exception, Freedom Watch fails to demonstrate the futility of
    appealing the NSA’s decision. Our Circuit Court has held that the futility
    exception applies, in another context, only if “following the administrative remedy
    would be futile because of certainty of an adverse decision.” Randolph—Sheppard
    Vendors ofAm. v. Weinberger, 
    795 F.2d 90
    , 105 (DC. Cir. 1986) (internal
    quotation marks and citation omitted). An adverse decision may be “certain”
    where, for example, “an administrative agency lacks, or believes itself to lack,
    4
    jurisdiction to act upon the dispute.” 
    Id. Here, Freedom
    Watch does not come
    close to supporting its contention that an adverse decision by the NSA was certain.
    See Opp’n 8~10 (arguing NSA’s position appeared “set” based on the purported
    inadequacy of NSA’s response and its denial of request for expedited processing).
    Accordingly, the Court will dismiss this action as to defendant NSA pursuant to
    Federal Rule of Civil Procedure l2(b)(6).
    CONCLUSION
    Thus, for all the foregoing reasons, the Court GRANTS defendant NSA’S Motion
    to Dismiss, and DISMISSES this action as to defendant NSA. A separate Order
    accompanies this Memorandum Opinion.