Doe v. Goss ( 2009 )

  •                    UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA
    DOE (P),                       )
              Plaintiff,           )
         v.                        )    Civil Action No.
                                   )    04-2122 (GK)
    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
            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
             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
           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.
    this Litigation [Dkt. No. 46], which was denied on January 29, 2009
    [Dkt. No. 108].
           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)).
           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.
           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.
    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
           Although Defendants are incorrect that they may effectively
    terminate a case by redacting the Complaint,5 judgment on the
            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.
    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.
    May 11, 2009                               Gladys Kessler
                                               United States District Judge
    Copies to: Attorneys of record via ECF