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Wonders v. Dep’t of the Army Off. of the Gen. Couns., No. 23-02770, 2024 WL 4144119 (D.D.C. Sept. 11, 2024) (McFadden, J.)

Date

Wonders v. Dep’t of the Army Off. of the Gen. Couns., No. 23-02770, 2024 WL 4144119 (D.D.C. Sept. 11, 2024) (McFadden, J.)

Re:  Request for legal memorandum concerning Army’s revocation of plaintiff’s security clearance

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiff’s motion for summary judgment

  • Litigation Considerations:  The court first notes that “[t]he Army argues either for dismissal under Federal Rule of Civil Procedure 12(b)(1) or for summary judgment under Rule 56(a).”  The court finds that “Rule 12(b)(1) is an improper vehicle for the Army’s arguments, which address the statute of limitations, exhaustion, and the merits. None of these arguments, at least in the context of a FOIA case like this one, affect the Court’s subject matter jurisdiction.” “Yet even if the Army made its arguments under Rule 12(b)(6), summary judgment offers the best path forward because both parties rely on ‘materials that are not part of the pleadings.’” “Given the parties’ reliance on external materials, ‘the Court will evaluate’ their motions ‘under the summary judgment standard.’”
     
  • Litigation Considerations, Statute of Limitations, Exhaustion of Administrative Remedies, Mootness and Other Grounds for Dismissal:  The court finds that “[t]o the extent that [plaintiff] seeks relief on his 2012 and 2014 requests, he never exhausted his administrative remedies.”  “[Defendant] explains that the Army General Counsel’s Office does ‘not have any record of [plaintiff] ever filing an appeal with their office regarding [the Army’s] 2012 or 2014 denial letters.’”  “[Plaintiff] does not dispute this.”  “So his choice to forgo administrative appeals ‘preclude[s] [him] from ever bringing suit on [those] request[s].’”

    “The Army argues that the statute of limitations also bars [plaintiff’s] claims on the 2012 and 2014 requests.”  “Not so.” “[A] cause of action accrues for statute-of-limitation purposes only after ‘a party has exhausted all administrative remedies.’”  “Because [plaintiff] failed to exhaust his administrative remedies for the 2012 and 2014 requests, no claim accrued – meaning the limitations period never began to run.”  “So the exhaustion requirement, not the limitations period, precludes judicial review of those requests.”

    “The exhaustion calculus changes for [plaintiff’s] 2022 request.”  “When the Army denied this request, [plaintiff] appealed to the Secretary.”  “In doing so, he exercised his right ‘to appeal to the head of the agency any adverse determination.’”  “The Army concedes this fact.”  “So on this request, [plaintiff] did all that FOIA requires of him; he exhausted his administrative remedies.” “And the six-year limitations period poses no independent bar to this 2022 request.”

    “Still, the Army insists that exhaustion bars review of this request.”  “In its view, [plaintiff’s] failure to exhaust his remedies on the 2012 and 2014 requests precludes him from ever exhausting his remedies on a future duplicate request (i.e., the one in 2022).”  “The Army backs this argument with a citation to Toensing v. U.S. Department of Justice, 890 F. Supp. 2d 121 (D.D.C. 2012).”  “To be sure, Toensingsays:  ‘When withholding decisions are made in an unexhausted request, a subsequent, identical request cannot cure a prior failure to exhaust’ administrative remedies.”  “But the Army overreads Toensing for two reasons.”  “First, that case addressed factually dissimilar circumstances.”  “The plaintiffs there never took ‘an administrative appeal on the merits.’”  “Instead, they ‘satisfied the exhaustion requirement through constructive exhaustion.’”  “Here, [plaintiff] actually appealed the 2022 request to the Secretary.”  “And the Secretary denied that appeal on procedural grounds.”  “Rather than grappling with the merits of the withholding decision, the Secretary told Wonders that the Army’s ‘decision complied with’ its policy ‘on duplicate requests.’”  “Toensing expressly distanced its reasoning from this factual scenario, where ‘administrative review of the withholding decision[ ] is not on the merits.’”  “Second, reviewing the 2022 request – despite the earlier exhaustion defects – ‘presents no risk of undermining the purposes and policies underlying the exhaustion requirement.’”  “Indeed, [plaintiff] ‘did not bypass the administrative review process but pursued it to its end.’”  “And once the Secretary denied his appeal, [plaintiff] ‘availed himself of the right to seek judicial review as the [Secretary] told him he could.’” “So allowing review will not ‘cut off the agency’s power to correct or rethink initial misjudgments or errors.’” “Nor does it matter that [plaintiff’s] 2022 request duplicated earlier requests.”  “The Army could have made fresh withholding decisions for the 2022 request.”  “Instead, the Army relied on its ‘policy concerning duplicate FOIA requests’ and denied the request without a second look.”  “While nothing in FOIA prohibits this practice, a duplicate request still gives the agency ‘an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision.’”  “An agency may decline the opportunity, but doing so will not preclude a requester from exhausting his administrative remedies.” “Yet the Army’s procedural arguments still have bite because [plaintiff] failed to address them.”  “‘Based on [plaintiff’s] failure to respond to the [Army’s] argument[s], the Court shall, in an exercise of its discretion, threat [them] as conceded.’”  “Even so, ‘exhaustion is a prudential consideration rather than a jurisdictional prerequisite.’”  “And the rule the Army advocates – that failure to fully exhaust an initial FOIA request forever bars the requester from obtaining those materials – is a harsh sanction unsupported by statute, precedent, or logic.”  “So the Court will alternatively examine and deny [plaintiff’s] 2022 request on the merits.”
     
  • Exemption 5, Attorney-Client Privilege:  The court holds that “the Army properly invoked FOIA Exemption 5 for the Legal Review.”  The court finds that “[t]he Army counts as a client, and it communicated with an attorney at the Fort Rucker [Office of the Staff Judge Advocate].”  “The relevant communication – the Legal Review – concerned facts about [plaintiff’s] conduct that the Army shared with the attorney.”  “Based on that information, the attorney gave legal advice to [plaintiff’s] investigating officer and Army command.”  “Finally, the Army asserts it ‘has maintained confidentiality of this July 27, 2010 attorney-client communication.’”

    “[Plaintiff] objects to this last element.”  “He claims the Army shared the Legal Review with third parties, vitiating the privilege.” “Specifically, he says the Army gave the Legal Review to two outside officials:  a Security Adjudicator . . . and an Administrative Law Judge . . . .” “Assuming [plaintiff] is right about those disclosures, the Legal Review remains privileged.  Of course, confidentiality is ‘a fundamental prerequisite to assertion of the privilege.’”  “But ‘[w]hen the client is by nature a group, as is true of both the government and corporations, the courts have agreed that the privilege should not be defeated by some limited circulation beyond the attorney and the person within the group who requested the advice.’”  “A communication may remain privileged unless it has ‘been made known to persons other than those who need to know’ about it.” “An adjudicator and an ALJ needed to know about the ‘confidential facts’ that the Army gave to the attorney who authored the Legal Review.”
     
  • Exemption 5, Foreseeable Harm and Other Considerations:  The court relates that “the Army can withhold the Legal Review ‘only if’ it ‘reasonably foresees that disclosure would harm an interest protected by’ FOIA Exemption 5.” The court finds that “[i]t does.” “The Legal Review contains the ‘opinions, advice, analysis and recommendations’ of an OSJA attorney who was advising [plaintiff’s] investigating officer and Army command.” “The Army claims that disclosing this memorandum ‘would harm the full and free discussion of attorney-client privileged matters within the agency’ and ‘seriously disrupt open communication between the command and attorneys.’”  “It also expects that disclosure would ‘deprive government decision-makers of the full and candid advice of their counsel.’”  “This counts as a ‘non-generalized explanation” of reasonably foreseeable harm – especially given the attorney-client privilege context, where ‘the risk of harm through disclosure is more self-evident and the potential for agency overuse is attenuated.’”
     
  • Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing: The court holds that “[t]he Legal Review is not reasonably segregable.”  “A senior Army official swears he ‘reviewed the document, page-by-page and line-by-line,’ and concluded ‘that there are no non-exempt portions that can be segregated from the exempt portions and produced.’”  “He ‘determined that the document is intricately intertwined with legal analysis and no portions of it may be released beyond what was previously’ given to [plaintiff].”  “These statements entitle the Army ‘to a presumption that [it] complied with the obligation to disclose reasonably segregable material.’”
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Attorney-Client Privilege
Litigation Considerations, Exhaustion of Administrative Remedies
Litigation Considerations, Foreseeable Harm Showing
Litigation Considerations, Mootness and Other Grounds for Dismissal
Litigation Considerations, Supplemental to Main Categories
Litigation Considerations, “Reasonably Segregable” Requirements
Updated October 17, 2024