Doe v. Goss

• Court: District Court, District of Columbia
• Decided: May 11, 2009
• Docket: Civil Action No. 2004-2122
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ DOE (P), ) ) Plaintiff, ) ) v. ) Civil Action No. ) 04-2122 (GK) 1 Hon. LEON E. PANETTA ) et al., ) ) Defendants. ) ______________________________)

MEMORANDUM OPINION

Plaintiff Doe, a former employee of the Central Intelligence

Agency (“CIA”), brings this suit against Leon E. Panetta, Director

of the CIA; the CIA; James Pavitt, CIA Deputy Director of

Operations (“DDO”); and two Defendants Doe, whom Plaintiff

identifies as current or former agents, officers and employees of

the United States acting under color of Federal law. Plaintiff’s

true name and address are classified, and therefore he has been

allowed to file as “Doe.”

Plaintiff initially brought this action under the Privacy Act,

5 U.S.C. § 552a(g)(1), the Administrative Procedure Act (“APA”), 5

U.S.C. §§ 706(1) & 2(A)-(D), the Little Tucker Act, 28 U.S.C. §

1346(a)(2), and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§

2671 et seq. On January 12, 2007, Defendant’s Motion to Dismiss

1 Former CIA Director Porter Goss was named as the original lead respondent in this case. Pursuant to Federal Rule of Civil Procedure 25(d), the Court automatically substitutes the current director, Leon E. Panetta, as the new lead respondent. was granted in part and denied in part [Dkt. No. 43]. The Court

held that Counts I, III, and VI were precluded by the Civil Service

Reform Act. On January 6, 2009, Defendant Pavitt’s Motion to

Dismiss was granted, and the case was dismissed with prejudice as

to Defendant Pavitt. Only Count II (Privacy Act claim) and Count

V (Bivens claim) remain in the case.

This matter is now before the Court on Plaintiff’s Motion for

Partial Judgment on the Pleadings [Dkt. No. 64]. Upon

consideration of the Motion, Opposition, Reply, and the entire

record herein, and for the reasons stated below, Plaintiff’s Motion

is denied.

Defendants filed their Answer on February 28, 2007 [Dkt. No.

63]. Their Answer states that they need not respond to the

redacted portions of the Second Amended Complaint because they

contain classified information and that “[t]o the extent a response

is required, Defendants can neither confirm nor deny the accuracy

of the redacted allegations.” Answer at 4 n.4.

In his Motion, Plaintiff argues that Defendants’ Answer

constitutes an admission of the redacted information and that

Plaintiff is entitled to judgment on the pleadings as a result.

Pl.’s Mot. at 2.2

2 As Defendants correctly argue, Plaintiff’s Motion is “conceptually identical” to his Motion to Find that All Material Redacted from his Complaints by Defendants on the Grounds that it is Classified Constitutes an Admission of its Truth for Purposes of (continued...)

2 In response, Defendants argue that they are not required to

respond to “things that have been redacted from the Complaint”

because they “are not part of the Complaint. They are, quite

literally, not there.” Defs.’ Opp’n at 2. In the alternative,

they argue that if an answer is required, the Glomar response is

adequate. Id. at 5. Finally, Defendants argue that a judgment on

the pleadings is appropriate only when claims made in the pleadings

must be granted as a matter of law, and Plaintiff has not

“articulated any claim upon which he is entitled to judgment on the

pleadings.” Id. at 4.

Neither side provides sufficient legal support for its

position on whether a Glomar response applies outside the FOIA

context.3 Defendants cite to no case holding that a Glomar

response applies outside the FOIA context.4 Likewise, Plaintiff

cites to no case holding that a Glomar response is limited solely

to the FOIA context.

(...continued) this Litigation [Dkt. No. 46], which was denied on January 29, 2009 [Dkt. No. 108]. 3 In the FOIA context, an agency may use a Glomar response -- “refus[ing] to confirm or deny the existence of records” -- if answering the FOIA request would “cause harm cognizable under a FOIA exception.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)). 4 Defendants cite three cases in which a Glomar response was asserted in the answer to the complaint and was not subsequently challenged, but provide no case law holding that a Glomar response may be used in an answer. See Defs.’ Opp’n at 3.

3 In addition, Defendants are incorrect that their redactions of

the Complaint bar this Court from considering Plaintiff’s claims.

This case is not the first one involving highly-sensitive

information to be considered by this Court. See, e.g., Mohammed

Al-Adahi v. Barack H. Obama, No. 05-280 (D.D.C. filed Feb. 7, 2005)

(involving five detainees at Guantanamo Bay and numerous classified

filings). Nor is it the first time a district court has been asked

to address delicate issues of national security. See Wilson v.

Libby, 535 F.3d 697, 720 (D.C. Cir. 2008) (Rogers, J., concurring

in part and dissenting in part) (“[D]istrict courts are well-suited

to protect secrets from unwarranted disclosures.”) (citing

Boumediene v. Bush, --- U.S. ---, 128 S.Ct. 2229, 2276 (2008)). In

other cases, this Court has required the government to submit

documents in camera and has issued protective orders to protect

sensitive information. See, e.g., Wright v. FBI, No. 02-915, ---

F. Supp. 2d ---, 2009 WL 1241609, at *5 (D.D.C. May 6, 2009).

Defendants have presented no reason that this case is substantially

different from other sensitive cases that have come before the

Court.

Although Defendants are incorrect that they may effectively

terminate a case by redacting the Complaint,5 judgment on the

5 Plaintiff is correct when he states that the “[redacted] material clearly remains part of Plaintiff’s SAC [Second Amended Complaint]. It has merely been removed from public disclosure.” Pl.’s Reply at 2.

4 pleadings is not appropriate in this instance. A court may grant

judgment on the pleadings if the movant shows that “no material

fact is in dispute and that it is entitled to judgment as a matter

of law.” Askew v. Meridian Imaging Solutions, Inc., 601 F. Supp.

2d 173, 174 (D.D.C. Mar. 4, 2009) (citing Fed. R. Civ. P. 12(c)).

Here, Plaintiff’s allegations have not been admitted.

See Order (Jan. 29, 2009) [Dkt. No. 108] (denying Plaintiff’s

Motion to Find that All Material Redacted from his Complaints by

Defendants on the Grounds that it is Classified Constitutes an

Admission of its Truth for Purposes of this Litigation).

Therefore, Plaintiff has not demonstrated that “no material fact is

in dispute.” In addition, as the government correctly argues,

judgment on the pleadings is appropriate only when the stated

claims are sufficient as a matter of law, and Plaintiff has not

provided evidence that demonstrates his claims are sufficient as a

matter of law.

For the reasons set forth above, Plaintiff’s Motion for

Partial Judgment on the Pleadings is denied without prejudice. An

Order shall accompany this Memorandum Opinion.

/s/ May 11, 2009 Gladys Kessler United States District Judge

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