Robert v. CIA ( 2019 )

18‐1575‐cv
Robert v. CIA et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 15th day of October, two thousand nineteen.
4
5 PRESENT: GERARD E. LYNCH,
6 RAYMOND J. LOHIER, JR.,
7 RICHARD J. SULLIVAN,
8 Circuit Judges.
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10 CHARLES ROBERT, II, AKA SNOWFLAKE 5391,
11
12 Plaintiff‐Appellant,
13
14 v. No. 18‐1575‐cv
15
16 CENTRAL INTELLIGENCE AGENCY, UNITED
17 STATES DEPARTMENT OF JUSTICE,
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19 Defendants‐Appellees.
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1 FOR APPELLANT: CHARLES ROBERT, pro se, Long
2 Beach, NY.
3
4 FOR APPELLEES: VARUNI NELSON, Assistant
5 United States Attorney (Diane
6 C. Leonardo, Assistant United
7 States Attorney, on the brief), for
8 Richard P. Donoghue, United
9 States Attorney for the Eastern
10 District of New York, Central
11 Islip, NY.
12 Appeal from a judgment of the United States District Court for the Eastern
13 District of New York (Joanna Seybert, Judge).
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
15 AND DECREED that the judgment of the District Court is AFFIRMED.
16 Charles Robert appeals from a judgment of the District Court (Seybert, J.)
17 granting summary judgment in favor of the Central Intelligence Agency (CIA)
18 and the United States Department of Justice (DOJ). Robert alleged that both
19 agencies failed to adequately respond to his requests under the Freedom of
20 Information Act (FOIA), 5 U.S.C. § 552, for documents generally related to the
21 Iran‐Contra affair. On appeal, Robert principally argues that the District Court
22 erred by: (1) relying on declarations submitted by CIA and DOJ officials; and (2)
2
1 declining to apply Executive Order 13526 to his document requests. We assume
2 the parties’ familiarity with the underlying facts and the record of prior
3 proceedings, to which we refer only as necessary to explain our decision to
4 affirm.
5 1. The District Court’s Reliance on CIA and DOJ Declarations
6 Robert argues that the District Court should not have relied on the
7 supplemental declaration of CIA Information Review Officer Antoinette B.
8 Shiner because it falsely stated that “CIA FOIA Officers could not identify which
9 documents [Robert] was requesting.” Appellant’s Br. 36. But we agree with
10 the District Court that Robert failed to “set[] forth specific facts showing that
11 there is a genuine issue of material fact” with Shiner’s declaration in this regard.
12 Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996). Declarations like
13 Shiner’s “are accorded a presumption of good faith” and “cannot be rebutted by
14 purely speculative claims” or bare assertions. Grand Cent. P’ship, Inc. v.
15 Cuomo, 166 F.3d 473, 489 (2d Cir. 1999) (quotation marks omitted). And Robert
16 adduced no evidence that the CIA knew or should have known which
3
1 documents satisfied his “broad and vague” FOIA request. Dist. Ct. Dkt. No.
2 133, at 17.
3 We also reject Robert’s argument that the District Court erred in relying on
4 the declaration of John F. Boseker, Attorney Advisor for the Executive Office for
5 United States Attorneys, because Boseker allegedly “speculated” that certain
6 documents Robert sought “may have been destroyed in 2005.” Appellant’s Br.
7 47 (quotation marks omitted). The District Court correctly noted that Boseker’s
8 description of the availability of documents potentially related to Robert’s
9 request had no bearing on the summary judgment proceedings, which concerned
10 whether Robert’s FOIA requests were valid.
11 2. Executive Order 13526
12 Robert also claims that the District Court “erred when it arbitrarily did not
13 apply [Executive Order] 13526” to certain documents that Robert sought.
14 Appellant’s Br. 39. But Executive Order 13526 does not apply where, as here,
15 “none of the documents sought . . . were withheld based on a FOIA exemption
16 related to classified information.” Robert v. Dep’t of Justice, 439 F. App’x 32, 34
17 (2d Cir. 2011) (summary order). And even if the Executive Order did apply, it
4
1 clearly warns that it “is not intended to and does not create any right or benefit,
2 substantive or procedural, enforceable at law by a party against the United
3 States, its departments, agencies, or entities, its officers, employees, or agents, or
4 any other person.” Exec. Order No. 13526, § 6.2(d), 75 Fed. Reg. 707, 730–31
5 (Dec. 29, 2009). We therefore are not persuaded by Robert’s argument premised
6 on Executive Order 13526.
7 We have considered Robert’s remaining arguments and conclude that they
8 are without merit. For the foregoing reasons, the judgment of the District Court
9 is AFFIRMED.
10 FOR THE COURT:
11 Catherine O=Hagan Wolfe, Clerk of Court
12
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