United States District Court, D. Columbia
FREEDOM WATCH, INC., Plaintiff: Larry E. Klayman, LEAD
ATTORNEY, LAW OFFICES OF LARRY KLAYMAN, Washington, DC.
NATIONAL SECURITY AGENCY, CENTRAL INTELLIGENCE AGENCY,
DEPARTMENT OF DEFENSE, Defendants: Eric J. Soskin, LEAD
ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.
OPINION [Dkt. # 17]
J. LEON, United States District Judge.
Freedom Watch, Inc. brings this action under the Freedom of
Information Act (" FOIE" ), see 5 U.S.C.
§ 552, seeking information from the National Security
Agency (" NSA" ), Central Intelligence Agency
(" CIA" ), and Department of Defense ("
DAD" ), 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 [Dot. # 5]. Having considered the
parties' pleadings, relevant law, and the entire
Afghanistan. Now before the Court is defendant NSA's
Motion to Dismiss. See Mot. to record of this case,
the Court will GRANT the NSA's Motion to Dismiss and
DISMISS this action as to defendant NSA.
21, 2014, plaintiff Freedom Watch sent a FOIE request to the
three defendants, including the NSA. Compel. ¶ 5. The
FOIE request sought " the production of agency records
relating to the shoot-down of Extortion 17, carrying in it
thirty U.S. military servicemen who died on August 6,
2011." Compel. ¶ 5.
August 8, 2014, the NSA responded to plaintiff's 54-part
FOIE request. Compel. 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. Compel. 37. With respect to items 3, 4, 18,
19, and 53 of the FOIE request, the NSA informed Freedom
Watch that it would deny plaintiffs request pursuant to the
first exemption of FOIE because the information was
classified, and that it was further exempted pursuant to the
third exemption. Compel. 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. Compel. 37-38. Freedom Watch did not appeal the
NSA's decision, and the time for appeal has passed.
See generally Memo. in Opp'n to Mot. to Dismiss
(" Opp'n" ) [Dot. # 7]; Compel. 37.
August 21, 2014, Freedom Watch sued the NSA, CIA, and DAD. On
October 6, 2014, the NSA moved to dismiss for failure to
state a claim pursuant to Federal Rule of Civil Procedure
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
12(b)(6), the court must " liberally" construe the
complaint " in favor of the plaintiff, 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, 199 U.S.App.D.C. 23 (D.C.
Cir. 1979) (internal citation and quotation macros 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 Commons Corp., 16 F.3d 1271, 1276, 305
U.S.App.D.C. 60 (D.C. 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 A. Corp.
v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007).
FOIE, " [e]xhaustion of administrative remedies is
generally required before seeding judicial review."
Wilbur v. CIA, 355 F.3d 675, 677, 359 U.S.App.D.C.
380 (D.C. Cir. 2004) (per curia). The exhaustion requirement
" means that a requester under FOIE must file an
administrative appeal within the time limit specified in an
agency's FOIE regulations or face dismissal of any
lawsuit complaining about the agency's response."
Wilbur, 355 F.3d at 676 (internal quotation macros
omitted). The exhaustion requirement serves multiple