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NURSE v. SECRETARY OF THE AIR FORCE

November 14, 2002

CHARLES A. NURSE, PLAINTIFF,
V.
SECRETARY OF THE AIR FORCE, DEFENDANT



The opinion of the court was delivered by: Reggie B. Walton, District Judge.

MEMORANDUM OPINION

This matter comes before the Court upon the defendant's motion to dismiss the plaintiff's complaint under either Rules 12(b)(1) or 12(b)(6) of the Federal Rules of Civil Procedure. Pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2000), and the Privacy Act, 5 U.S.C. § 552a (2000), the plaintiff has made requests to the defendant for a form that he allegedly signed in 1955 when he was a member of the United States Air Force ("Air Force") that is titled "Volu[n]teer for Duty Above and Beyond the Call of Duty" and "all of the records obtain[ed] by this program."*fn1 Complaint ("Compl.") at 1. For the reasons set forth below, the Court will grant the defendant summary judgment and dismiss the complaint because the plaintiff's request lacks the degree of specificity required under both the FOIA and the Privacy Act.

I. Factual Background

The plaintiff, proceeding pro se, originally filed a request with the defendant on September 23, 1998, for a copy of a purported agreement between himself, the Air Force and the Central Intelligence Agency ("CIA") titled "Above the Call of Duty" or "Special Duty Other Than Regular Military Duties" or "Volunteer for Duties Other Than Military Duties." Defendant's Motion to Dismiss ("Def.'s Mot.") Exhibit ("Ex.") A, Attachment ("Attach.") 1. The plaintiff further described this form as "a single page with various questions" and he provided examples of some of these questions. Id. On October 8, 1998, the defendant responded to the plaintiff's request by informing him that they were "unable to process [his] request with the information [he] provided." Def.'s Mot., Ex. A, Attach. 2. The defendant informed the plaintiff that "[i]n order to process [his] request [they would] need to know the number of the form [he was] requesting and the name of the organization where [he was] assigned" and that it would cease to process the plaintiff's request if no additional information was received by October 23, 1998. Id. On October 19, 1998, the plaintiff responded to the defendant's request for additional information, but failed to provide the specific information requested by the defendant.*fn2 Def.'s Mot., Ex. A, Attach. 3. The plaintiff subsequently filed an appeal on January 13, 1999, with the defendant restating much of the same information contained in his previous two letters. Def.'s Mot., Ex. B. After not receiving the information he requested, the plaintiff filed his complaint with this Court on August 28, 2001. Compl. at 1.

II. Standards of Review

The defendant has sought dismissal of the plaintiff's claims pursuant to either Rules 12(b)(1) or 12(b)(6) of the Federal Rules of Civil Procedure. While the Court must undertake an initial examination into whether it has the subject matter jurisdiction under Rule 12(b)(1) to entertain the plaintiff's claims, the Court's consideration of whether the plaintiff's pleading stated a claim upon which relief could be granted under Rule 12(b)(6) has led it to consider matters outside of the pleadings. Federal Rule of Civil Procedure 12(b) states, in part, that:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Upon realizing that matters outside of the pleadings should be considered to resolve the defendant's motion, the Court notified the parties and granted them an opportunity to supplement the record with any additional material pertinent to a motion under Rule 56. Subsequently, the plaintiff submitted two responses essentially reiterating his prior allegations and attached copies of his previously submitted FOIA and Privacy Act requests and a copy of the Thirteenth Amendment to the United States Constitution. The defendant filed a response indicating that it did not wish to submit any additional information. Therefore, this Court will examine the plaintiff's claims pursuant to Rule 12(b)(1) and Rule 56.

(1) Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) requires that the plaintiff bear the burden of establishing by a preponderance of the evidence that the court has jurisdiction to entertain his claims. Fed.R.Civ.P. 12(b)(1); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp.2d 9, 13 (D.D.C. 2001) (holding that the court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority."); Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp.2d 15, 18 (D.D.C. 1998); Darden v. United States, 18 Cl. Ct. 855, 859 (Cl. Ct. 1989). While the Court must accept as true all the factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993), because the plaintiff has the burden of proof to establish jurisdiction, the "`plaintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge of Fraternal Order of Police, 185 F. Supp.2d at 13-14 (citation omitted). However, in deciding a Rule 12(b)(1) motion, the Court is not limited to the allegations in the complaint but may consider "`such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction in the case.'" Id. at 14 (citations omitted).

(2) Rule 56

Summary Judgment is generally appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In assessing a summary judgment motion, the Supreme Court has explained that a trial court must look to the substantive law of the claims at issue to determine whether a fact is "material", Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and must treat a "genuine issue" as "one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action", Sanders v. Veneman, 211 F. Supp.2d 10, 14 (D.D.C. 2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson, 477 U.S. at 248).

While it is generally understood that when considering a motion for summary judgment a court must "draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true," Greene v. Amritsar Auto Servs. Co., 206 F. Supp.2d 4, 7 (D.D.C. 2002) (citing Anderson, 477 U.S. at 255), the non-moving party must establish more than "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position", Anderson, 477 U.S. at 252. To prevail on a summary judgment motion, the moving party must demonstrate that the non-moving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. The District of Columbia Circuit has stated that the non-moving party may not rely solely on mere conclusory allegations. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. ...


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