Michael Graybill v. National Security Agency

• Court: District Court, C.D. California
• Decided: January 3, 2025
• Docket: 2:23-cv-08754
• Status: Unknown

Opinion

1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 Case No.: 2:23-cv-08754-MEMF-JC 11 MICHAEL GRAYBILL,

12 Plaintiff, ORDER GRANTING MOTION TO DISMISS [ECF NO. 28] AND DENYING MOTION 13 v. FOR SANCTIONS [ECF NO. 42] 14 15 NATIONAL SECURITY AGENCY, et al., Defendants. 16 17

18 19 20 Before the Court is the Motion to Dismiss filed by Defendants National Security Agency and 21 Central Intelligence Agency. ECF No. 28. For the reasons stated herein, the Court hereby GRANTS 22 the Motion to Dismiss. 23 24 25 26 27 / / / 28 / / / 1 SUMMARY OF ORDER FOR PRO SE PLAINTIFF MICHAEL GRAYBILL 2 You filed this lawsuit on October 17, 2023, alleging that Defendants have withheld requested 3 | documentation that is not exempt from disclosure under the Freedom of Information Act and the 4 | Privacy Act. Defendants have moved to dismiss your case for lack of subject matter jurisdiction 5 | arguing that the information you requested is exempted, and have submitted affidavits to support 6 || their reasons for the classification. Therefore, you must provide evidence that shows the reasons 7 | given in Defendants’ affidavits are insufficient or that they are acting in bad faith. On this type of 8 || motion, the Court must consider evidence, not just allegations. As you have not provided any, the 9 | Order will therefore explain why it is granting Defendants’ Motion to Dismiss further below and will 10 || discuss legal authority that supports this conclusion. 11 Although you are a pro se litigant (meaning you do not have an attorney), you still have to 12 | follow Court orders, the Local Rules, and the Federal Rules of Civil Procedure. See C.D. Cal. L.R. 13 | 83-2.2.3. The Local Rules are available on the Court’s website, http://www.cacd.uscourts.gov/court- 14 | procedures/local-rules. 15 The Court cannot provide legal advice to any party, including you. There is a free “Pro Se 16 | Clinic” that can provide information and guidance about bringing a lawsuit in this Court. 17 e Public Counsel runs a free Federal Pro Se Clinic where pro se litigants can get information 18 and guidance. The Clinic is located at the Roybal Federal Building and Courthouse, 255 East 19 Temple Street, Los Angeles, CA 90012 Pro se litigants must call or submit an on-line 20 application to request services as follows: on-line applications can be submitted at 21 http://prose.cacd.uscourts.gov/los-angeles, or call (213) 385-2977, ext. 270. 22 e Public Counsel also has extensive resources for pro se litigants at its website located at 23 https://publiccounsel.org/services/federal-court/. 24 The Court is also informed that the LA Law Library, located across the street from the First 25 || Street Courthouse at 301 W. First Street, Los Angeles, CA 90012, also has extensive resources for 26 || pro se litigants. The LA Law Library can be reached via email at reference@lalawlibrary.org, or via 27 || telephone at (213) 785-2513. 28 | ///

1 ORDER ON MOTION TO DISMISS 2 I. Background 3 A. Factual Allegations1 4 On October 5, 2023, Plaintiff Michael Graybill submitted a Privacy Act request to Defendant 5 National Security Agency (“NSA”) for the timely disclosure of any and all documentation pertaining 6 to Graybill and his personal information. Compl. at 2. On October 11, 2023, NSA responded to the 7 request stating that after conducting a search, their records reflected that Graybill had never been 8 affiliated with the NSA, so no records would be produced. Id.2 In particular, the NSA claimed an 9 exemption from the production of documents under the Freedom of Information Act (“FOIA”) using 10 a “Glomar” response3—neither confirming nor denying the existence of any documents because 11 disclosure would presuppose that surveillance was or was not being conducted on Graybill. Id. 12 On October 5, 2023, Graybill submitted the same Privacy Act request to Defendant Central 13 Intelligence Agency (“CIA”). Id. However, the CIA has not acknowledged, responded, or otherwise 14 responded to Graybill’s request. Id.4 15 B. Procedural History 16 On October 17, 2023, Graybill filed his Complaint against Defendants alleging a cause of 17 action for access to certain documentation under the FOIA and the Privacy Act. See generally 18 Compl. On July 9, 2024, Defendants filed the instant Motion to Dismiss. ECF No. 28 (the 19 “Motion”). On August 26, 2024, Graybill filed his opposition and “cross motion for summary 20

21 1All facts stated herein are taken from the allegations in Plaintiff’s Complaint unless otherwise indicated. ECF No. 1 (“Compl.”). For the purposes of this Motion, the Court treats these factual allegations as true, but at this 22 stage of the litigation, the Court makes no finding on the truth of these allegations, and is therefore not—at 23 this stage—finding that they are true. 2 The Court has summarized the allegations as set forth in the Complaint. The Court notes, however, that it 24 appears that the actual responses—attached by the Defendants to their Motion—asserted that to the extent that Graybill’s request called for records that were not intelligence records or classified information, a search was 25 conducted and no records were located. See ECF No. 28-1 at 16, 28; 28-2 at 28. 26 3 The Court has summarized the allegations as set forth in the Complaint. The Court notes, however, that it appears the actual responses—attached by the Defendants to their Motion—only claimed the exemption to the 27 extent the request called for intelligence records or classified information. Id. 4 The Court notes that it appears the CIA did acknowledge and respond to Graybill’s request, although it is 28 1 judgment.”5 ECF No. 33 (“Opposition”). On September 3, 2024, Defendants filed their reply. ECF 2 No. 35 (“Reply”). On October 29, 2024, the Court deemed this matter appropriate for resolution 3 without oral argument and vacated the hearing. ECF No. 41; see also C.D. Cal. L.R. 7-15.6 4 II. Applicable Law 5 Under the FOIA, “federal jurisdiction is dependent upon a showing that an agency has (1) 6 improperly (2) withheld (3) agency records.” See Kissinger v Reporters Comm. for Freedom of the 7 Press, 445 U.S. 136, 150 (1980) (internal quotations omitted). Federal Rule of Civil Procedure 8 12(b)(1) authorizes a party to seek dismissal of an action for lack of subject-matter jurisdiction. In 9 the context of a 12(b)(1) motion, the plaintiff bears the burden of establishing Article III standing to 10 assert the claims. Id. Rule 12(b)(1) jurisdictional challenges can be either facial or factual. Safe Air 11 for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 12 When a motion to dismiss attacks subject-matter jurisdiction on the face of the complaint, the 13 court assumes the factual allegations in the complaint are true and draws all reasonable inferences in 14 the plaintiff’s favor. Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009). Moreover, the standards 15 set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 16 (2009), apply with equal force to Article III standing when it is being challenged on the face of the 17 complaint. See Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012) (applying Iqbal). 18 Thus, in terms of Article III standing, the complaint must allege “sufficient factual matter, accepted 19 20

21 5 Graybill requests a finding that there are no genuine disputes “concerning the Defendants’ unlawful surveillance, hacking, impersonation of federal authorities, and obstruction of judgment,” thus warranting 22 summary judgment, immediate disclosure of all documents, confirmation of whether he is a target of any other investigations, injunctive relief, and a hearing for sanctions. Opposition at 24–25. The Court DENIES 23 the cross motion for summary judgment as it is not in compliance with the Court’s Standing Order for filing 24 motions for summary judgment. Civil Standing Order at 8. 6 On October 31, 2024, Graybill filed a Motion for Sanctions against counsel for Defendants without meeting 25 and conferring. ECF No. 42 (“Sanctions Motions”). On November 4, 2024, Defendants filed an opposition. ECF No. 43 (“Sanctions Opp.”). The Court denies the Sanctions Motion based on Graybill’s failure to abide 26 by Local Rule 7-3, but regardless finds the motion unmeritorious. The Sanctions Motion argues that counsel for Defendants misrepresented her status as an attorney, unlawfully accessed Graybill’s email account, and 27 has manipulated court proceedings. See Sanctions Motion. Graybill has submitted no evidence supporting any of these claims—rather, as the Court has previously reiterated, the orders issued on the docket are from this 28 1 as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting 2 Twombly, 550 U.S. at 570). 3 In a factual challenge, the moving party “disputes the truth of the allegations that, by 4 themselves, would otherwise invoke federal jurisdiction.” Id. “When the defendant raises a factual 5 attack, the plaintiff must support her jurisdictional allegations with competent proof under the same 6 evidentiary standard that governs in the summary judgment context.” Leite v. Crane Co., 749 F.3d 7 1117, 1121 (9th Cir. 2014) (citation and quotation marks omitted). The court need not accept the 8 allegations in the complaint as true. Safe Air for Everyone, 373 F.3d at 1039. The Court’s review of 9 evidence beyond the pleadings on a factual attack of subject matter jurisdiction does not convert the 10 motion into a summry judgment. Id. The plaintiff bears the burden of proving subject-matter 11 jurisdiction by a preponderance of the evidence. Leite, 749 F.3d at 1121. 12 III. Discussion 13 Defendants seek dismissal under Federal Rule of Civil Procedure 12(b)(1), asserting that 14 Graybill cannot show that this Court has subject matter jurisdiction because he cannot show that 15 Defendants have improperly withheld agency records under FOIA. The “FOIA entitles private 16 citizens to access government records,” but in addition to nine exemptions that the government may 17 invoke, “a government agency may issue a ‘Glomar Response,’ that is, refuse to confirm or deny the 18 existence of certain records, if the FOIA exemption would itself preclude the acknowledgment of 19 such documents.” Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996). “The agency resisting disclosure 20 of requested information has the burden of proving the applicability of an exemption,” a burden 21 which may be met “by submitting a detailed affidavit showing that the information ‘logically falls 22 within the claimed exemptions.’” Id. “In evaluating a claim for exemption, a district court must 23 accord ‘substantial weight’ to CIA affidavits, provided the justifications for nondisclosure ‘are not 24 controverted by contrary evidence in the record or by evidence of CIA bad faith.’” Id. Defendants 25 bring their Motion asserting that the Glomar responses given to Graybill fall under FOIA exemptions 26 5 U.S.C. § 552(b)(1) and (b)(3), as well as Privacy Act Exemptions (k)(1) and (j)(1). As explained 27 next, the Court finds that the information requested is exempt from disclosure, and that the Glomar 28 1 responses were appropriate. Accordingly, Graybill has failed to show subject matter jurisdiction and 2 his complaint must be dismissed under Rule 12(b)(1). 3 5 U.S.C. § 552(b)(1) provides an exemption from disclosure to matters that are “specifically 4 authorized under criteria established by an Executive order to be kept secret in the interest of 5 national defense or foreign policy and [] are in fact properly classified pursuant to such Executive 6 order.” 5 U.S.C. § 552(b)(1). Defendants argue that Graybill’s request in part calls for intelligence 7 records7 that qualify for exemption under E.O. 13526, which provides classification “under section 8 1.4 of Executive Order 13,526 which protects, among other things . . . ‘intelligence activities [and] 9 intelligence sources or methods . . .’” Hamden v. U.S. Dept. of Justice, 797 F.3d 759, 773 (9th Cir. 10 2015). 11 Although Graybill asserts that a Glomar response “is an extraordinary response that should 12 be used sparingly,” and that “[c]ourts have rejected broad applications” of the response, Opposition 13 at 17–18, he has failed to show that the Glomar response here was inappropriate. To the contrary, the 14 Court finds that the Defendants have logically justified the potential harm from disclosure, that this 15 justification falls under the scope of E.O. 13526, and therefore a Glomar response is appropriate 16 here. In particular, the NSA has submitted a declaration explaining that acknowledging the existence 17 or nonexistence of responsive records on particular individuals or organizations, if responded to on a 18 collective level, “would provide adversaries with critical information about the capabilities and 19 limitations of the NSA,” “to the detriment of the national security of the United States.” See ECF 20 No. 28-1 (“Newman Decl.”) ¶¶ 22–23. The CIA has submitted a declaration explaining that it 21 consistently refuses to confirm or deny the existence or nonexistence of requested records “where 22 the existence of responsive records appears to be of little consequence or when the CIA does not 23 possess responsive records,” because to do otherwise would be “tantamount to an admission that 24 such records existed and would thereby undermine the very information the CIA is obligated to 25

26 7 It does not appear that Graybill is disputing Defendants’ assertion that no documents reflecting a public 27 affiliation with Defendants exist—rather, Graybill’s claim appears to specifically take issue with the categorization of documents outside of a public affiliation with the agencies as classified and Defendants’ 28 1 protect in the interest of national security.” ECF No. 28-2 (“Williams Decl.”) ¶ 21. As the Court 2 does not find any evidence of bad faith or contrary evidence on the record, the Court must give 3 “substantial weight” to these declarations. See Minier, 88 F.3d at 800; see also Hunt v. CIA, 981 4 F.2d 1116, 1119 (9th Cir. 1992) (finding Glomar response appropriate where an affidavit “explain[s] 5 the Agency’s conclusion that a Glomar response is required to protect intelligence sources and 6 methods”). 7 Graybill also argues that Section 1.7(a)8 prevents classification of the information “[d]ue to 8 the crimes committed againt [him] by [Defendants],” as it prevents classification of information “in 9 order to conceal violations of law,” among other “government misconduct.” Opposition at 11–12, 10 19.9 However, there are no allegations supporting any crime or other misconduct in Graybill’s 11 Complaint.10 Therefore, the Court does not find that Section 1.7(a) applies to prohibit classification 12 under Section 1.4. 13 Accordingly, the Court finds the Glomar response appropriate in Defendants’ responses to 14 Graybill.11 As the Court finds that Defendants’ Glomar response appropriate, the Court does not find 15 that an in camera review of any documents is warranted. The Court also does not address Graybill’s 16 allegations regarding illegal surveillance, hacking, impersonation of federal authorities, and 17 18 19 20 8 Graybill cites this as Section 1.6(a), but the section quoted is from Section 1.7(a). 21 9 The Government states that Section 1.7 is expressly limited to “information that does not require protection in the interest of national security,” but that limitation is only in subsection (a)(4), and does not appear to 22 apply to the other subsections. Reply at 3. 10 To the extent that the Court considers the additional allegations in Graybill’s opposition for purposes of 23 considering allowing leave to amend, the Court does not find they are sufficient to survive a factual challenge 24 to subject matter jurisdiction. In a factual challenge, the Court does not “need to presume the truthfulness of [a plaintiff’s] allegations,” and it would be Graybill’s burden to furnish the necessary evidence to establish 25 subject matter jurisdiction. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000); Savage v. Glendale Union High School, Dist. No. 205, Maricopa County, 343 F.3d 1036, 1039 at n.2 (9th Cir. 2003). Graybill has not 26 done so here, as he relies solely on allegations set forth in his briefing. 11 The Court therefore need not reach whether § 552(b)(3) and the Privacy Act provides additional grounds 27 for exemption, which Graybill fails to address in his briefing. However, the Court notes that the Ninth Circuit has observed that (b)(3)’s statutory exemption “give[s] the CIA a near-blanket FOIA exemption,” and thus the 28 | | obstruction of justice which Graybill asserts requests immediate relief as the Court does not find 2 | them relevant to the issues raised on this Motion. 3 IV. Conclusion 4 For the foregoing reasons, the Court hereby GRANTS Defendants’ Motion to Dismiss S | WITHOUT LEAVE TO AMEND.” 6 7 IT IS SO ORDERED. g Uf ——— 9 || Dated: January 3, 2025 10 MAAME EWUSI-MENSAH FRIMPONG 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 | ———______ 25 '? The Court has previously denied Graybill’s ex parte applications based on similar allegations. See ECF Nos. 22, 39. 26 | 8 Although leave to amend is generally granted freely, a court need not do so when amendment would be futile. See Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008). Here, the Court has 27 considered the additional proposed allegations set forth in Graybill’s briefing. Even considering those 28 allegations, his claim still fails. Accordingly, the Court finds that any amendment to this pleadings would be futile. See fn. 13, supra.