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Sharif Mobley v. Department of Justice

February 27, 2012

SHARIF MOBLEY,
PLAINTIFF,
v.
DEPARTMENT OF JUSTICE, DEFENDANT.



The opinion of the court was delivered by: Judge Beryl A. Howell

MEMORANDUM OPINION

Plaintiff Sharif Mobley is a United States citizen currently imprisoned in Yemen. He believes that the United States had a role in his seizure and detention, and submitted a request pursuant to the Freedom of Information Act ("FOIA") and the Privacy Act ("PA") to the defendant Department of Justice for records relating to his incarceration. The defendant identified thirteen records responsive to the plaintiff's FOIA/PA request, but withheld these documents citing statutory exemptions that allow the defendant to withhold information relating to national security and privilege. The plaintiff subsequently initiated the instant lawsuit in an effort to obtain the documents he requested. The defendant has moved to dismiss these claims, pursuant to FED. R. CIV. P. 12(b)(6), arguing that the plaintiff fails to state a cognizable claim because he does not allege that the defendant improperly withheld documents. The Court disagrees. Accordingly, the defendant's motion to dismiss is DENIED.

I.BACKGROUND

Plaintiff Sharif Mobley is currently imprisoned in Yemen. Compl. ¶ 3. Although the details surrounding the plaintiff's initial arrest are unclear, the plaintiff states that he is accused of murdering a prison guard and his "defense to this charge relies on his ability to produce evidence of the United States government's role in his arrest and incarceration." Pl.'s Notice, ECF No. 14.

In an effort to obtain information, on July 22, 2010, the plaintiff submitted to the defendant's Office of Legal Counsel (OLC) a FOIA and Privacy Act request for records pertaining to his seizure and detention in Yemen and the role of the U.S. government in his and others' situations. Compl. ¶ 6. On September 13, 2010, the defendant acknowledged receipt of the plaintiff's request and assigned it Request No. FY 10-73. Id. ¶ 7.

Seven months later, on April 8, 2011, the defendant informed the plaintiff that it had identified thirteen records responsive to his request, but was withholding all thirteen documents in their entirety under FOIA exemption 5 U.S.C. § 552(b)(1), which exempts from disclosure documents pertaining to national defense or foreign policy, and eleven documents in their entirety under FOIA exemption (b)(5), citing the deliberative process and attorney-client privileges. Id. ¶ 8. The plaintiff alleges that the defendant "did not invoke any Privacy Act exemptions to justify its withholding determinations, nor did it provide any identifying information about the withheld records." Id. ¶ 9.

On May 23, 2011, plaintiff's counsel contacted the defendant to confirm that the plaintiff's request was to be processed under both FOIA and the Privacy Act and to request a list of the withheld records. Id. ¶ 10. The defendant responded the following day, on May 24, 2011, informing plaintiff's counsel that it did not locate any responsive records in Privacy Act systems of records, and further stated that the defendant would not comply with the plaintiff's request for a description of records that were withheld as "it would not be appropriate for [the defendant] to provide such a description because the records are classified." Id. ¶ 11.

Due to the defendant's refusal to provide a list of the withheld documents, and "in an attempt to forestall [] litigation," on May 26, 2011, plaintiff's counsel replied to the defendant by email asking: "As the scope of [plaintiff's] request is somewhat broader than just records about Mr. and Mrs. Mobley, please clarify: do any of the withheld records directly refer to him or his family? I am not asking if they are 'located in a system of records' of anything similar; I simply need to know if they are general records about renditions and the like, or if they directly discuss Mr. Mobley." Id. ¶ 12. Later that day, the defendant responded that "[b]ecause these are classified documents, [the defendant was] not at liberty to respond . . . ." Id. ¶ 13.

On May 31, 2011, the plaintiff filed an administrative appeal to the defendant's Office of Information Policy (OIP) contesting the defendant's refusal to provide a list of withheld records and requesting that the defendant "[p]lease provide us with a legally sufficient denial letter as soon as practicable."*fn1 Id. ¶ 14.

On August 8, 2011, the plaintiff filed a Complaint in this Court against the defendant pursuant to FOIA, the Privacy Act, the Federal Declaratory Judgment Act, and the All Writs Act. ECF No. 1. The plaintiff asserts that he "does not currently intend to challenge [the defendant's] withholding determinations, but does insist on his due process right to a list of records withheld in their entirety. [The defendant] has denied him of this right, forcing him to file this lawsuit to obtain a Vaughn index." Id. ¶ 17. The plaintiff notes that although he "does not currently intend to challenge OLC's withholding determinations," he "reserves his right to challenge some or all of the withholdings." Id. at 4 n.1. The plaintiff specifically requests, inter alia, an order directing the defendant "to immediately provide Plaintiff and the Court with a legally sufficient Vaughan index," and relief "including, but not limited to, ordering [the defendant] to release records to Plaintiff which he has identified after receipt of its Vaughn index as not properly exempt." Compl., Prayer for Relief.

On October 10, 2011, the defendant moved to dismiss the Complaint pursuant to FED. R. CIV. P. 12(b)(6), arguing that the plaintiff "explicitly disavows" that the defendant improperly withheld the requested records and therefore fails to state a claim upon which relief may be granted. Def.'s Mot. Dismiss, ECF No. 10. This motion is currently pending before the Court.

As explained below, contrary to the basis proffered by the defendant for its motion, the plaintiff has not "explicitly disavowed" that the requested documents were improperly withheld. Rather, he sets forth a general allegation that the plaintiff is challenging the defendant's withholdings. The Complaint therefore states a cognizable claim. Accordingly, the defendant's motion to dismiss is DENIED.

II.STANDARD OF REVIEW

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge[ ] [his or her] claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); FED. R. CIV. P. 12(b)(6). "[A] complaint [does not] suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted) (citing Twombly, 550 U.S. at 557). Instead, the complaint must plead facts that are more than "merely consistent with" a defendant's liability; "the plaintiff [must plead] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct ...


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