Robert v. The Central Intelligence Agency et al

Filing 110

MEMORANDUM & ORDER: SO ORDERED that Plaintiff's motion for summary judgment (Docket Entry 91) and letter motion for hearing (Docket Entry 109), and Defendants' cross motion for summary judgment (Docket Entry 98) are DENIED. As set forth mor e fully above, Plaintiff is directed to provide the Court with documentary evidence establishing that he filed a FOIA request with the CIA prior to the commencement of this action within fourteen (14) days of the date of this Memorandum and Order. De fendants are granted leave to renew their motion for summary judgment as to Plaintiff's claim against the CIA and move for summary judgment on Plaintiff's claim against the DOJ within sixty (60) days of the date of this Memorandum and Order. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the pro se Plaintiff. Ordered by Judge Joanna Seybert on 2/28/2017. (cm to pro se plaintiff via ecf/nef and USPS mail) (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------X
CHARLES ROBERT II, also known as
Snowflake 5391,
Plaintiff,
MEMORANDUM & ORDER
02-CV-6788(JS)(AKT)

-againstTHE CENTRAL INTELLIGENCE AGENCY and
THE DEPARTMENT OF JUSTICE,

Defendants.
-----------------------------------------X
APPEARANCES
For Plaintiff:
Charles Robert, II, pro se
441B West Broadway
Long Beach, NY 11561
For Defendants:

Diane C. Leonardo-Beckmann, Esq.
United States Attorney’s Office
610 Federal Plaza
Central Islip, NY 11722

SEYBERT, District Judge:
Presently pending before the Court in this Freedom of
Information Act (“FOIA”) action are Plaintiff Charles Robert’s
(“Plaintiff”) motion for summary judgment, (Pl.’s Mot., Docket
Entry 91), Defendants Central Intelligence Agency (“CIA”) and
Department of Justices’ (“DOJ” and, collectively, “Defendants”)
cross motion for summary judgment, (Defs.’ Mot., Docket Entry 98),
and Plaintiff’s letter motion requesting a hearing and/or the
scheduling of a settlement conference, (Pl.’s Ltr. Mot., Docket
Entry 109).
DENIED.

For the following reasons, the parties’ motions are

BACKGROUND1
Plaintiff alleges that on March 29, 1989, Federal Bureau
of Investigation (“FBI”) Agent Allison interviewed him regarding
allegations
Counsel

and

documents

Lawrence

Department

of

Walsh2

Health

that

Plaintiff

regarding

and

Human

the

sent

to

alleged

Services

funds

Independent

diversion
through

International Medical Center, Inc. (“IMC”) to the Contras.
Compl. ¶ 24.)

of
the
(Am.

Plaintiff further alleges that on October 30, 1995,

he filed a FOIA request with the National Archives and Records
Administration (“NARA”) seeking “the universe of documents that
were generated from the March 29, 1989 FBI interview by FBI Agent
Allison

.

.

.

regarding

the

diversion

of

unaudited

pooled

nonacquiescence funds by HHS General Counsel Juan del Real through
[IMC] with the knowledge of high level DOJ officials.” (Am. Compl.
¶ 29.)

Plaintiff alleges that NARA denied Plaintiff’s request and

appeals.

(Am. Compl. ¶¶ 30-39.)

Particularly, on April 3, 1996,

The following facts are taken from the Amended Complaint, (Am.
Compl., Docket Entry 16 and Defs.’ Ex. A, Am. Compl., Docket
Entry 100-1), the parties’ Local Rule 56.1 Statements, Orders in
Plaintiff’s other FOIA cases of which the Court has taken
judicial notice, and Defendants’ Declaration of Antoinette B.
Shiner, (Shiner Aff., Docket Entry 101). Any relevant factual
disputes are noted. All internal quotation marks and citations
have been omitted.
1

In 1986, Lawrence E. Walsh was appointed independent counsel to
investigate the Iran-contra scandal. Neil A. Lewis, Lawrence E.
Walsh, Prosecutor in Iran-Contra Scandal, Dies at 102, N.Y. TIMES,
Mar. 20, 2014, https://www.nytimes.com/2014/03/ 21/us/politics/
lawrence-e-walsh-iran-contra-prosecutor-dies-at-102.html.
2

2

NARA stated that “[a]fter consultation with the [CIA], we have
determined that we must continue to withhold portions of the
enclosed document under [FOIA] 5 U.S.C. 552(b)(3).”

(Am. Compl.

¶ 34.)
I.

The NARA Action
On May 13, 1998, Plaintiff filed a FOIA suit against

NARA in this District under Docket Number 98-CV-3598 (the “NARA
Action”).

The NARA Action concerned Plaintiff’s October 1995

request for “the universe of documents generated from a 1989
interview of Plaintiff by FBI Agent Carol Allison, and documents
relating to the [IMC], which documents were alleged to have been
held in the Office of Independent Counsel Lawrence Walsh.”

Robert

v. The National Archives, No. 98-CV-3598, Docket Entry 31, at 2
(E.D.N.Y. May 22, 2000).

NARA located documents relating to the

IMC but failed to locate documents created by Agent Allison.

Id.

On May 22, 2000, Judge Leonard D. Wexler granted NARA’s
motion to dismiss.

Id.

The court noted that Plaintiff appealed

NARA’s decision to redact a government employee’s name from one of
the IMC documents and that he “claim[ed] in this action that
defendant has unlawfully withheld the documents first requested in
October of 1995.”

Id. at 4.

Judge Wexler held that NARA

demonstrated that it conducted a thorough search and the documents
created by Agent Allison were not in its possession.

Id. at 6.

On January 12, 2001, the Second Circuit affirmed Judge Wexler’s
3

decision.

Robert v. National Archives, 1 F. App’x 85 (2d Cir.

2001).
II.

The First CIA Action
On July 25, 2000, Plaintiff filed a FOIA action against

the CIA, “seeking an order directing the CIA to release documents
which allegedly had been transferred to it from NARA” regarding
the IMC.

Robert v. The Central Intelligence Agency, No. 00-CV-

4325, Docket Entry 20, at 2-3 (E.D.N.Y. Jul. 16, 2001) (the “First
CIA Action”).

(See also Defs.’ Ex. B, Robert v. CIA, July 16,

2001 Mem. & Order, Docket Entry 100-2.)

On July 16, 2001, this

Court dismissed Plaintiff’s complaint based on his failure to file
a FOIA request with the CIA prior to commencement and held that
Plaintiff’s FOIA request and complaint to NARA did not constitute
an

exhaustion

of

administrative

remedies.

Id.

at

6.

Parenthetically, this Court noted that after Plaintiff filed his
lawsuit, he “filed a Freedom of Information request for the
documents.”3

Id. at 3.

III. Instant Action
On December 31, 2002, Plaintiff commenced this FOIA
action against the CIA and DOJ.

On October 7, 2003, Plaintiff

However, the Court also noted that the CIA “d[id] not challenge
the Plaintiff’s explanation that dismissal is warranted so that
he might resubmit his document request for CIA review under the
new Administration.” Robert v. CIA, July 16, 2001 Mem. & Order
at 8.
3

4

filed his Amended Complaint.

(Am. Compl.)

The Amended Complaint

alleges that Plaintiff made two FOIA requests: (1) a FOIA request
to the CIA for “documents, denominated as the North Notebook
documents, which were identified by the National Archives in a
prior FOIA [action] seeking the release of the FBI Agent Allison
documents, which were withheld pursuant to FOIA Exemption 3,” (Am.
Compl. ¶ 2), and (2) “[DOJ] documents denominated as the DOJ-CIA
documents, which were the DOJ documents generated in defending
Robert v. CIA, [00-CV]-4325 (Seybert, J),” (Am. Compl. ¶ 3).
A.

CIA Request
Plaintiff alleges that on September 29, 2000, he filed

a FOIA request with the CIA seeking “the CIA documents withheld
pursuant to FOIA Exemption 3 by [NARA] . . . as identified in [its]
April 4, 1996 page two attachment,” and his request was docketed
as F-2001-000176 on January 6, 2001.

(Am. Compl. ¶ 53-54.)

On

December 7, 2001, the CIA denied Plaintiff’s FOIA request and
“advised that no records responsive to the request were located.”
(Am. Compl. ¶ 56.)

Plaintiff alleges that he appealed and the

denial of his request was affirmed, with the CIA indicating that
“[a]t this time I must inform you that this agency has identified
no records responsive to your request.”
Plaintiff

has

submitted

(Am. Compl. ¶ 59.)

redacted

documents

dated

April 22, 1985, September 6, 1985, September 16, 1985, and October
1, 1985 (collectively, the “North Notebooks”), that he alleges are
5

in the custody of NARA and were fully or partially classified
pursuant to determinations made by the CIA, Department of Defense,
and/or FBI.

(See generally Pl.’s 56.1 Stmt., Docket Entry 58,

¶¶ 3, 6-7, 10-11, 14-15, 18, Exs. C-F; see also Pl.’s Aff., Docket
Entry 93, ¶ 3 (“[o]ver the last thirteen years the plaintiff has
winnowed down his FOIA requests for documents to four one-page CIA
classified redacted 1985 North Notebook documents”).)
Defendants have submitted the Affidavit of Antoinette
Shiner

(“Shiner”),

an

Information

Review

Officer

Litigation Information Review Office at the CIA.
¶ 1.)

for

the

(Shiner Aff.

Shiner asserts that the CIA has no record of receiving a

FOIA request from Plaintiff prior to July 2010. (Shiner Aff. ¶ 5.)
Shiner alleges that on July 27, 2010, Plaintiff submitted a FOIA
request for the following items: (1) “9/3/85 North-FBI Revell
‘North Notebook’ log entry,” (2) “9/6/85 North-CIA-FBI Exemptions
1, 3 and NHAO,” (3) “9/16/85 North-Call to Perot Exemptions 1 and
3,” (4) “10/1/85 CIA-DOD FOIA Exemption 1 and 3 and reference to
medivac

[sic]

helos,”

and

(5)

exclusion’ ex parte Declarations.”

“All

Robert

II

v.

CIA

‘c(3)

(Shiner Aff. ¶ 6.)

Shiner further avers that by letter dated September 22,
2010, the CIA declined to process Plaintiff’s first four requested
items and advised him that the records he sought came “under the
purview of [NARA]” and the “CIA is not authorized to release
records originated by other government agencies even if we were to
6

locate any.” (Shiner Aff. ¶ 7.) With respect to Plaintiff’s fifth
request, the CIA accepted the request and assigned it reference
number F-2010-01579.

(Shiner Aff. ¶ 7.)

Subsequently, the CIA

advised Plaintiff that it accepted his fifth request “in error”
and explained that a FOIA exclusion c(3) was applicable because
Plaintiff sought records maintained by the FBI. (Shiner Aff. ¶ 8.)
The CIA closed the case file and declined to process Plaintiff’s
request.

(Shiner Aff. ¶ 8.)
Shiner alleges that on December 20, 2010, NARA advised

the CIA that it received a FOIA request from Plaintiff seeking the
first four documents Plaintiff requested from the CIA on July 27,
2010.

(Shiner Aff. ¶ 9, n.1.)

NARA also enclosed three documents

responsive to Plaintiff’s request for CIA review.
¶ 9.)

(Shiner Aff.

On January 26, 2011, the CIA “provided redacted copies of

the documents back to NARA and advised that certain information
contained within all three documents must be withheld on the basis
of FOIA exemptions (b)(1) and (b)(3).”
B.

(Shiner Aff. ¶ 10.)

DOJ Request
Plaintiff alleges that on March 1, 2001, he filed a FOIA

request regarding the “DOJ CIA Litigation documents which were the
documents relied upon by Attorney General Ashcroft’s attorneys
when

they

litigated

Robert

v.

CIA[.]”

(Am.

Compl.

¶

61.)

Plaintiff alleges that on May 1, 2001, his “FOIA appeal” was
“closed” pursuant to a DOJ letter stating, among other things,
7

that “[i]nasmuch as this Office lacks the authority to compel the
[Executive Office of the United States Attorney] to conduct the
investigation you requested, I am closing your appeal file in this
office.”

(Am. Compl. ¶ 64.)

Plaintiff alleges that he appealed

this decision and requested that DOJ issue a final decision.

(Am.

Compl. ¶¶ 66-68.)
DISCUSSION
Summary

judgment

will

be

granted

where

the

movant

demonstrates that there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a).

A genuine factual issue exists where “the

evidence is such that a reasonable jury could return a verdict for
the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 106 S. Ct. 2505, 91 L.Ed 2d 202 (1986).

In determining

whether an award of summary judgment is appropriate, the Court
considers

the

pleadings,

deposition

testimony,

interrogatory

responses, and admissions on file, together with other firsthand
information that includes but is not limited to affidavits.

Nnebe

v. Daus, 644 F.3d 147, 156 (2d Cir. 2011).
The movant bears the burden of establishing that there
are no genuine issues of material fact.

Gallo v. Prudential

Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).

Once

the movant makes such a showing, the non-movant must proffer
specific facts demonstrating “a genuine issue for trial.”
8

Giglio

v. Buonnadonna Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at
*4 (E.D.N.Y. Sept. 25, 2009) (internal quotation marks and citation
omitted).

Conclusory allegations or denials will not defeat

summary judgment.

Id.

However, in reviewing the summary judgment

record, “‘the court is required to resolve all ambiguities and
draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.’”

Sheet Metal Workers’

Nat’l Pension Fund v. Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL
6449420, at *2 (E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler
Corp., 109 F.3d 130, 134 (2d Cir. 1997)).
On

a

motion

for

summary

judgment,

the

Court

must

liberally construe a pro se litigant’s complaint and “read a pro
se litigant’s supporting papers liberally, interpreting them to
raise the strongest arguments that they suggest.”

Adeyi v. U.S.,

No. 06-CV-3842, 2010 WL 520544, at *3 (E.D.N.Y. Feb. 8, 2010)
(internal quotation marks and citation omitted).

However, the

Court notes that while Plaintiff is proceeding pro se in this
action, he was formerly a practicing attorney and “appeared in
this Circuit and this District on numerous occasions.”

Robert v.

Dep’t of Justice, No. 05-CV-2543, 2005 WL 3371480, at *1, 14
(E.D.N.Y. Dec. 12, 2005), aff’d as modified on other grounds, 439
F. App’x 32 (2d Cir. 2011) (collecting cases).

Additionally,

Plaintiff filed twenty-four FOIA actions between 1985 and 2005.
Id. at *14.
9

FOIA provides that “‘any member of the public is entitled
to have access to any record maintained by a federal agency, unless
that record is exempt from disclosure under one of the Act’s nine
exemptions.’”

Roman v. C.I.A., No. 11-CV-5944, 2013 WL 210224, at

*3 (E.D.N.Y. Jan. 18, 2013) (quoting A. Michael’s Piano, Inc. v.
FTC, 18 F.3d 138, 143 (2d Cir. 1994)).

While FOIA empowers

district courts to enjoin an agency from improperly withholding
agency records and to order the production of agency records,
“‘jurisdiction is dependent on a showing that an agency has (1)
improperly (2) withheld (3) agency records.’”

Roman, 2013 WL

210224, at *3 (quoting U.S. Dep’t of Justice v. Tax Analysts, 492
U.S. 136, 142, 109 S. Ct. 2841, 2846, 106 L. Ed. 2d 112 (1989)).
It

is

well

established

that

“exhaustion

of

administrative remedies is a mandatory prerequisite to a lawsuit
under FOIA.”

Wilber v. CIA, 355 F.3d 675, 676 (D.C. Cir. 2004).

While the Second Circuit has not yet determined whether exhaustion
is jurisdictional under FOIA, this Court previously adopted the
prevailing view in this Circuit that a party’s failure to exhaust
his administrative remedies does not impact jurisdiction.

Buckley

v. Amos, No. 14-CV-6055, 2015 WL 12564208, at *4 (E.D.N.Y. Oct. 16,
2015) (collecting cases).

In the absence of additional guidance

from the Supreme Court or the Second Circuit, the Court declines
to depart from its prior holding and considers exhaustion to be a
“prudential consideration” under FOIA.
10

See Wilbur, 355 F.3d at

677.

See also, e.g., Schwarz v. Dep’t of Justice, No. 10-CV-0562,

2010 WL 2836322, at *3 (E.D.N.Y. Jul. 14, 2010), aff’d, 417 F.
App’x 102 (2d Cir. 2011) (“[i]f [plaintiff] has failed to comply
with the [FOIA] statutory exhaustion requirement, her claim may be
dismissed for that jurisprudential reason, but that failure to
comply with the statute does not deprive the Court of subject
matter jurisdiction”).
The Court liberally construes the Amended Complaint as
asserting FOIA claims based on two separate document requests:
(1) Plaintiff’s alleged September 29, 2000, FOIA request to the
CIA “seeking the CIA documents withheld pursuant to FOIA Exemption
3 by [NARA] . . . as identified in [its] April 4, 1996 page two
attachment,”

(Am.

Compl.

¶

53),

and

(2)

Plaintiff’s

March 1, 2001, FOIA request to DOJ, (Am. Compl. ¶ 61).

alleged

The Court

will address the respective claims against the CIA and DOJ in turn.
I. CIA
The Court construes Defendants’ brief as arguing that
Plaintiff failed to exhaust his administrative remedies based on
his failure to file a FOIA request with the CIA prior to the
commencement of this action.
(citing Shiner Decl. ¶ 5).)

(Defs.’ Br., Docket Entry 99, at 4
As set forth more fully above, Shiner

attested that Plaintiff did not file a FOIA request with the CIA
until 2010.

(Shiner Aff. ¶ 5.)

11

In response, Plaintiff cites the portions of the Amended
Complaint alleging that he filed a FOIA request on September 29,
2000 for the “‘North Notebook’ documents”; on January 6, 2001,
that request was docketed as F-2001-000176; on December 7, 2001,
Plaintiff’s request was denied based on the CIA’s failure to locate
responsive documents; and he unsuccessfully appealed the CIA’s
denial of that request.

(Pl.’s Reply Br., Docket Entry 106, at 4-

5; Am. Compl. ¶¶ 53-59.)

Plaintiff also notes that the Court’s

Order in the First CIA Action states that he filed a FOIA request
after the commencement of that action.

(Pl.’s Reply Aff., Docket

Entry 107, ¶ 8 (quoting Robert v. CIA, July 16, 2001 Mem. & Order
at 2-3).)

Nevertheless, Plaintiff fails to submit any documentary

evidence regarding his alleged FOIA request and subsequent appeal.
Clearly

there

is

a

factual

dispute

as

to

whether

Plaintiff filed a FOIA request with the CIA and exhausted his
administrative

remedies.

While

the

Court

is

troubled

by

Plaintiff’s failure to submit his alleged correspondence with the
CIA regarding his FOIA request, the Court will permit Plaintiff
one final opportunity to submit documentary evidence supporting
his allegation that he filed a FOIA request with the CIA and
unsuccessfully appealed the CIA’s denial of that request prior to
the commencement of this action within fourteen (14) days of the
date of this Memorandum and Order.

To the extent the parties

reference Plaintiff’s 2010 FOIA request to the CIA, that request
12

significantly postdates both the filing of this action in 2002 and
the filing of the Amended Complaint in 2003 and will not be
considered in connection with Plaintiff’s FOIA claim.
The

Court

acknowledges

that,

as

set

forth

above,

exhaustion is a prudential consideration in the FOIA context and
does not preclude determination of the merits of Plaintiff’s claim.
However, it is impossible for the Court to determine whether the
CIA

improperly

withheld

agency

records

absent

a

review

of

Plaintiff’s specific FOIA request and the CIA’s alleged response,
particularly in light of the CIA’s position that Plaintiff failed
to file any FOIA requests prior to 2010.
Accordingly, the parties’ motions for summary judgment
are DENIED with respect to Plaintiff’s claim against the CIA.
However, in light of the Court’s directive regarding Plaintiff’s
submission of evidence regarding exhaustion, the CIA is granted
leave to renew its motion for summary judgment within sixty (60)
days of the date of this Memorandum and Order.

If necessary, the

Court will address the merits of Plaintiff’s claim at that time.
II. DOJ
In a footnote, Defendants assert that “[b]ased upon
Plaintiff’s summary judgment motion, it appears that any other
purported

claims

in

the

Amended

Complaint

have

been

abandoned . . . [and] many of Plaintiff’s abandoned claims cannot
be addressed because of the lack of specificity, i.e., lack of a
13

FOIA request number or any documentation.” (Defs.’ Br. at 2, n.1.)
Defendants request the opportunity to submit further briefing to
the extent the Court finds Plaintiff did not waive other FOIA
claims.

(Defs.’ Br. at 2, n.1.)

In response, Plaintiff appears

to assert that his summary judgment motion was limited to his claim
against the CIA and he has not “abandoned his FOIA request for the
‘DOJ-CIA’ documents.”

(Pl.’s Reply Br. at 11.)

As set forth above, the Court construes the Amended
Complaint

as

asserting

a

claim

against

the

DOJ

regarding

Plaintiff’s alleged FOIA request for the “DOJ CIA Litigation
documents.”

(Am. Compl. ¶ 61.)

Plaintiff appears to indicate

that his pending motion was a partial motion for summary judgment
and the Court finds no basis to deem his claim against the DOJ
waived.

Parenthetically, while the Amended Complaint does not

allege that an initial docket number was assigned to Plaintiff’s
DOJ FOIA request, it does allege that on March 15, 2001, his appeal
was docketed as 01-1619.

(Am. Compl. ¶ 62.)

Accordingly, the

Court construes the parties’ motions as motions for partial summary
judgment with respect to Plaintiff’s claim against the CIA and
GRANTS the DOJ leave to move for summary judgment within sixty
(60) days of the date of this Memorandum and Order.
III. Motion for Hearing
The Court DENIES Plaintiff’s motion for hearing (see
Pl.’s Ltr. Mot.), and finds that oral argument is not warranted at
14

this time.
settlement

The Court will address Plaintiff’s request for a
conference,

if

necessary,

in

connection

with

Defendants’ second motion for summary judgment.
CONCLUSION
For

the

foregoing

reasons,

Plaintiff’s

motion

for

summary judgment (Docket Entry 91) and letter motion for hearing
(Docket Entry 109), and Defendants’ cross motion for summary
judgment (Docket Entry 98) are DENIED.

As set forth more fully

above, Plaintiff is directed to provide the Court with documentary
evidence establishing that he filed a FOIA request with the CIA
prior to the commencement of this action within fourteen (14) days
of the date of this Memorandum and Order.

Defendants are granted

leave to renew their motion for summary judgment as to Plaintiff’s
claim against the CIA and move for summary judgment on Plaintiff’s
claim against the DOJ within sixty (60) days of the date of this
Memorandum and Order.
The Clerk of the Court is directed to mail a copy of
this Memorandum and Order to the pro se Plaintiff.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

February
28 , 2017
Central Islip, New York
15