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Igoshev v. National Security Agency

United States District Court, D. Maryland

May 1, 2018

ARTEM IGOSHEV, Plaintiff,
v.
NATIONAL SECURITY AGENCY/ CENTRAL SECURITY SERVICE, Defendant.

          MEMORANDUM OPINION

          ELLEN LIPTON HOLLANDER UNITED STATES DISTRICT JUDGE

         Self-represented plaintiff Artem Igoshev, a Russian national, has sued the National Security Agency/Central Security Service (the “NSA”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(B), seeking judicial review of the NSA's denial of his FOIA request. ECF 8 (Amended Complaint).[1] At issue is plaintiff's FOIA request to the NSA, submitted on October 3, 2014, seeking (1) names of satellites with an indication of the country to which each belongs; (2) a description of the way in which the satellites are used; and (3) the full name of the person or people against whom the satellites were used with an indication of the period of time, especially with respect to plaintiff. See ECF 15-1 at 25.

         Both parties have filed dispositive motions concerning the issue of whether plaintiff's request was properly denied. The NSA filed a motion to dismiss or, in the alternative, for summary judgment (ECF 15), supported by a memorandum of law (ECF 15-2) (collectively, “NSA Motion”) and several exhibits, including the Declaration of David J. Sherman, Chief of Strategy, Plans & Policy at the NSA. ECF 15-1 (“Sherman Declaration”). Although the NSA Motion is styled as one to dismiss, “pursuant to Fed.R.Civ.P. 12(6) [sic], ” or for summary judgment under Fed.R.Civ.P. 56, it contains no discussion of a motion to dismiss. Therefore, I shall construe the NSA Motion as one for summary judgment.

         Plaintiff opposes the NSA Motion (ECF 18, “Opposition”), and filed a cross-motion for summary judgment. ECF 17 (“Plaintiff's Motion”). The NSA filed a combined opposition to Plaintiff's Motion and replied in support of the NSA Motion. ECF 19 (“NSA Reply”). Thereafter, plaintiff replied. ECF 23.

         No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I shall grant the NSA Motion and I shall deny Plaintiff's Motion.

         I. Factual Background

         As noted, plaintiff submitted a FOIA request to the NSA on October 3, 2014. ECF 8, ¶ 1. The substance of the request was written in Russian. See ECF 15-1, ¶ 11; see also ECF 15-1 at 18-19 (email FOIA request from plaintiff, dated October 3, 2014). The NSA interpreted plaintiff's request as seeking three items: “(1) names of satellites with an indication of the country to which each belongs; (2) a description of the way in which the satellites are used . . .; (3) the full name of the person or people against whom the satellites were used with an indication of the period of time, especially with respect to the Plaintiff.” ECF 15-1, ¶ 11.

         The NSA responded to plaintiff's request on October 7, 2014, and informed plaintiff that the request was denied on the basis that the information was classified in accordance with Executive Order (“E.O.”) 13526, and was therefore exempt from disclosure under FOIA. Id. ¶ 12. Further, the NSA stated that “the existence or nonexistence of the same information was also protected from release by statute, and thus also exempt from release. . . .” Id. As a result, the NSA refused to confirm or deny that it possessed such records. Id.; id. ¶ 18. Igoshev was also informed of his right to appeal the determination. Id. The decision neither to confirm nor deny the existence of information requested is known as a “Glomar response.”[2]

         On January 12, 2015, the NSA received a letter in a foreign language from plaintiff, which it interpreted to be an appeal. Id. ¶ 14. About two years later, on January 12, 2017, the NSA denied the appeal on the basis of the same two exemptions. Id. ¶ 17. This suit followed. ECF 1 (Complaint).[3]

         Plaintiff's Amended Complaint appears to suggest that the information he seeks will reveal the nature of some crime being committed against him by the Russian government. See, e.g., ECF 8, ¶ 3. He alleges that he “had planned to employ the received information for a trial in the European Court of Human Rights following my complaint against Russia.” Id. Plaintiff further alleges, id. ¶ 5: “The information requested by me indubitably evidences violation of the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment . . . .” Plaintiff also refers to “The Nuremburg Code” (id. ¶ 10) and the international norm of jus cogens. Id. ¶ 9.[4]

         II. Standard of Review

         A.

         As noted, the NSA has moved to dismiss or, alternatively, for summary judgment. ECF 15. A motion styled in the alternative, to dismiss or for summary judgment, implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Vol. Fire Dept, Inc. v. Montgomery Cty., 788 F.Supp.2d 431, 436-37 (D. Md. 2011). Ordinarily, a court “is not to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss.” Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters outside of the pleadings, pursuant to Rule 12(d). If the court does so, “the motion must be treated as one for summary judgment under Rule 56, ” and “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). But when, as here, the movant expressly captions its motion “in the alternative, ” as one for summary judgment, and submits matters outside the pleadings for the court's consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court “does not have an obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).

         A district judge has “complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it.” 5C Alan Wright & Arthur Miller et al., Federal Practice & Procedure § 1366 (3d ed.). This discretion “should be exercised with great caution and attention to the parties' procedural rights.” Id. In general, courts are guided by whether consideration of extraneous material “is likely to facilitate the disposition of the action, ” and “whether discovery prior to the utilization of the summary judgment procedure” is necessary. Id.

         Ordinarily, summary judgment is inappropriate “where the parties have not had an opportunity for reasonable discovery.” E.I. du Pont de Nemours & Co. v. Kolan Industries, Inc., 637 F.3d 435, 448-49 (4th Cir. 2011); see Putney v. Likin, 656 Fed.Appx. 632, 638-640 (4th Cir. 2016) (per curiam); McCray v. Maryland Dep 't of Transp., 741 F.3d 480, 483 (4th Cir. 2014). However, “the party opposing summary judgment ‘cannot complain that summary judgment was granted without discovery unless that party has made an attempt to oppose the motion on the grounds that more time was needed for discovery.'” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)); see also Dave & Buster's, Inc. v. White Flint Mall, LLLP, 616 Fed.Appx. 552, 561 (4th Cir. 2015).

         To raise adequately the issue that discovery is needed, the nonmovant typically must file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, “for specified reasons, it cannot present facts essential to justify its opposition, ” without needed discovery. Fed.R.Civ.P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing the affidavit requirement of former Rule 56(f)). A nonmoving party's Rule 56(d) request for additional discovery is properly denied “where the additional evidence sought for discovery would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment.” Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see Amirmokri v. Abraham, 437 F.Supp.2d 414, 420 (D. Md. 2006), aff'd, 266 F. App'x. 274 (4th Cir. 2008) (per curiam).

         If a nonmoving party believes that further discovery is necessary before consideration of summary judgment, the party who fails to file a Rule 56(d) affidavit does so at his peril, because “‘the failure to file an affidavit . . . is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate.'” Harrods, 302 F.3d at 244 (quoting Evans, 80 F.3d at 961); see also Dave & Buster's, Inc., 616 Fed.Appx. at 561. But, the nonmoving party's failure to file a Rule 56(d) affidavit does not obligate a court to issue a summary judgment ruling that is obviously premature.

         Although the Fourth Circuit has placed “‘great weight'” on the Rule 56(d) affidavit, and has said that a mere “‘reference to Rule 56(f) [now Rule 56(d)] and the need for additional discovery in a memorandum of law in opposition to a motion for summary judgment is not an adequate substitute for [an] affidavit, '” the appellate court has “not always insisted” on a Rule 56(d) affidavit. Harrods, 302 F.3d at 244 (quoting Evans, 80 F.3d at 961). According to the Fourth Circuit, the failure to file an affidavit may be excused “if the nonmoving party has adequately informed the district court that the motion is pre-mature and that more discovery is necessary, ” and the “nonmoving party's objections before the district court ‘served as the functional equivalent of an affidavit.'” Id. at 244-45 (quoting First Chicago Int'l v. United Exchange Co., LTD, 836 F.2d 1375, 1380-81 (D.C. Cir. 1988)).

         Plaintiff has not filed a Rule 56(d) affidavit. Nor does it appear that discovery would aid the decisional process. Indeed, plaintiff has filed his own motion for summary judgment. See ECF 17. Accordingly, I am satisfied that it is appropriate to construe the NSA ...


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