United States District Court, District of Columbia
GRANT F. SMITH, Plaintiff,
UNITED STATES OF AMERICA, et. al, Defendants.
S. CHUTKAN UNITED STATES DISTRICT JUDGE.
Freedom of Information Act (“FOIA”) action,
Plaintiff Grant F. Smith, proceeding pro se, has
sued Defendants United States of America, John J. Sullivan,
Acting Secretary of the U.S. Department of State
(“DOS”), and Rick Perry, Secretary of the
Department of Energy (“DOE”) to compel compliance
under 5 U.S.C. § 552. (ECF No. 1
before the court are four motions. The DOS moves, pursuant to
Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), for
dismissal or, in the alternative, for summary judgment
pursuant to Rule 56. (ECF No. 14 (“Defs.’
Mot.”).) The DOE moves, pursuant to Rule 56, for
summary judgment. (Id.) Smith has filed two
cross-motions for summary judgment. (ECF Nos. 15
(“Pl.’s Cross-Mot.”); 16
(“Pl.’s Am. Cross-Mot.”).)
reasons set forth below, the DOS’ motion to dismiss
will be GRANTED and its motion for summary judgment will be
DENIED as moot, the DOE’s motion for summary judgment
will be GRANTED, and Smith’s motions for summary
judgment will be DENIED.
is an author, public interest researcher, and founder of the
Institute for Research: Middle Eastern Policy, Inc. (ECF No.
1 (“Compl.”) ¶ 7.)
February 18, 2015, Smith filed a FOIA request with the DOE,
seeking document WNP-136, “Guidance on Release of
Information Relating to the Potential for Israeli Nuclear
Capability.” (Id. ¶¶ 1, 8; ECF No.
15-1 (“7(h) Statement”) ¶ 1.) By letter
dated February 23, 2015, the DOE confirmed receipt of the
request and assigned it a tracking number. (Compl. Ex. A.)
August 20, 2015, the DOE sent Smith a final response,
informing him that it was releasing a redacted version of the
two-page document. (Id. Ex. B.) The redacted
material included information that the DOE determined was
protected by exemption 7(E) and that the DOS advised was
protected by exemption 1. (Id.) The final response
also informed Smith of his right to appeal the DOE’s
timely appealed the DOE’s decision on August 25, 2015.
(Compl. ¶ 11; 7(h) Statement ¶ 6.)
letter dated February 12, 2016, the DOE informed Smith that
his appeal was denied, and attached a Decision and Order
explaining the basis for its decision and informing him that
he could seek judicial review of the DOE’s final order.
(Compl. Ex. C.)
April 5, 2018, Smith filed this action against the United
States, the DOE, and the DOS, and on July 26, 2018,
Defendants filed their respective dispositive motions.
August 2, 2018, Smith filed a FOIA request with the DOS,
challenging its advice to withhold one sentence in WNP-136,
and seeking immediate release of the sentence. (Pl.’s
Cross-Mot. at 35; ECF No. 17-2 (“Pl.’s DOS FOIA
Request”).) By letter dated August 28, 2018, the DOS
informed Smith that the sentence was exempt from disclosure
because the information pertained to foreign relations or
foreign activities of the United States and the release of
the information could reasonably be expected to cause damage
to national security. (ECF No. 17-3 (“DOS’ FOIA
Response”).) The letter also appraised Smith of his
right to an administrative appeal. (Id.)
provides a ‘statutory right of public access to
documents and records’ held by federal government
agencies.” Citizens for Resp. & Ethics in Wash.
(“CREW”) v. U.S. Dep’t of Justice, 602
F.Supp.2d 121, 123 (D.D.C. 2009) (quoting Pratt v.
Webster, 673 F.2d 408, 413 (D.C. Cir. 1982)). FOIA
requires that federal agencies comply with requests to make
their records available to the public, unless such
“information is exempted under [one of nine] clearly
delineated statutory [exemptions].” CREW, 602
F.Supp.2d at 123 (internal quotation marks omitted); see
also 5 U.S.C. §§ 552(a)–(b).
district court conducts a de novo review of the
government’s decision to withhold requested documents
under any of FOIA’s specific statutory exemptions.
See 5 U.S.C. § 552(a)(4)(B). The burden is on
the government agency to show that nondisclosed, requested
material falls within a stated exemption. See Petroleum
Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d
1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. §
the nonmoving party is proceeding pro se, courts in
this jurisdiction will construe the non-moving party’s
filing liberally.” Cunningham v. U.S. Dep’t
of Justice, 40 F.Supp.3d 71, 82 (D.D.C. 2014),
aff’d, No. 14-5112, 2014 WL 5838164 (D.C. Cir.
Oct. 21, 2014). “However, a pro se litigant
still has the burden of establishing more than ‘[t]he
mere existence of a scintilla of evidence’ in support
of his position.” Id. (alteration in original)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986)).
Rule 12(b)(6) Motion to Dismiss
cases are typically decided on motions for summary judgment.
Defs. of Wildlife v. U.S. Border Patrol, 623
F.Supp.2d 83, 87 (D.D.C. 2009). However, where an agency
argues that the requester has failed to exhaust its
administrative remedies, courts analyze the matter under
Federal Rule of Civil Procedure 12(b)(6). See Tereshchuk
v. Bureau of Prisons, 851 F.Supp.2d 157, 161 (D.D.C.
2012) (analyzing motion to dismiss for failure to exhaust
administrative remedies under Rule 12(b)(6)); Jean-Pierre
v. Fed. Bureau of Prisons, 880 F.Supp.2d 95, 100 (D.D.C.
survive a [12(b)(6)] motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is plausible when it
alleges sufficient facts to permit the court “to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citation omitted).
When considering a defendant’s motion to dismiss for
failure to state a claim, the court must construe the
complaint in the light most favorable to the plaintiff and
must accept as true all reasonable factual inferences drawn
from well-pleaded factual allegations. See Schuler v.
United States, 617 F.2d 605, 608 (D.C. Cir. 1979),
aff’d on reh’g, 628 F.2d 199 (D.C. Cir.
1980) (“The complaint must be ‘liberally
construed in favor of the plaintiff, ’ who must be
granted the benefit of all inferences that can be derived
from the facts alleged.”).
Rule 56 Motion for Summary Judgment
judgment is appropriate where the record shows there is no
genuine issue of material fact and the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Waterhouse v. District of Columbia, 298 F.3d 989,
991 (D.C. Cir. 2002). In determining whether a genuine issue
of material fact exists, the court must view all facts in the
light most favorable to the non-moving party. See,
e.g., Adickes v. S.H. Kress & Co., 398 U.S.
144, 157 (1970). “A fact is ‘material’ if a
dispute over it might affect the outcome of a suit under
governing law; factual disputes that are ‘irrelevant or
unnecessary’ do not affect the summary judgment
determination.” Holcomb v. Powell, 433 F.3d
889, 895 (D.C. ...