                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


SHARIF MOBLEY,

                        Plaintiff,
                                                        Civil Action No. 11-1437
                        v.                              Judge Beryl A. Howell

DEPARTMENT OF JUSTICE,

                        Defendant.


                                     MEMORANDUM OPINION

        Plaintiff Sharif Mobley is a United States citizen currently imprisoned in Yemen. He

believes that the United States had a role in his seizure and detention, and submitted a request

pursuant to the Freedom of Information Act (“FOIA”) and the Privacy Act (“PA”) to the

defendant Department of Justice for records relating to his incarceration. The defendant

identified thirteen records responsive to the plaintiff’s FOIA/PA request, but withheld these

documents citing statutory exemptions that allow the defendant to withhold information relating

to national security and privilege. The plaintiff subsequently initiated the instant lawsuit in an

effort to obtain the documents he requested. The defendant has moved to dismiss these claims,

pursuant to FED. R. CIV. P. 12(b)(6), arguing that the plaintiff fails to state a cognizable claim

because he does not allege that the defendant improperly withheld documents. The Court

disagrees. Accordingly, the defendant’s motion to dismiss is DENIED.

I.      BACKGROUND

        Plaintiff Sharif Mobley is currently imprisoned in Yemen. Compl. ¶ 3. Although the

details surrounding the plaintiff’s initial arrest are unclear, the plaintiff states that he is accused

of murdering a prison guard and his “defense to this charge relies on his ability to produce
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evidence of the United States government’s role in his arrest and incarceration.” Pl.’s Notice,

ECF No. 14.

       In an effort to obtain information, on July 22, 2010, the plaintiff submitted to the

defendant’s Office of Legal Counsel (OLC) a FOIA and Privacy Act request for records

pertaining to his seizure and detention in Yemen and the role of the U.S. government in his and

others’ situations. Compl. ¶ 6. On September 13, 2010, the defendant acknowledged receipt of

the plaintiff’s request and assigned it Request No. FY 10-73. Id. ¶ 7.

       Seven months later, on April 8, 2011, the defendant informed the plaintiff that it had

identified thirteen records responsive to his request, but was withholding all thirteen documents

in their entirety under FOIA exemption 5 U.S.C. § 552(b)(1), which exempts from disclosure

documents pertaining to national defense or foreign policy, and eleven documents in their

entirety under FOIA exemption (b)(5), citing the deliberative process and attorney-client

privileges. Id. ¶ 8. The plaintiff alleges that the defendant “did not invoke any Privacy Act

exemptions to justify its withholding determinations, nor did it provide any identifying

information about the withheld records.” Id. ¶ 9.

       On May 23, 2011, plaintiff’s counsel contacted the defendant to confirm that the

plaintiff’s request was to be processed under both FOIA and the Privacy Act and to request a list

of the withheld records. Id. ¶ 10. The defendant responded the following day, on May 24, 2011,

informing plaintiff’s counsel that it did not locate any responsive records in Privacy Act systems

of records, and further stated that the defendant would not comply with the plaintiff’s request for

a description of records that were withheld as “it would not be appropriate for [the defendant] to

provide such a description because the records are classified.” Id. ¶ 11.




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         Due to the defendant’s refusal to provide a list of the withheld documents, and “in an

attempt to forestall [] litigation,” on May 26, 2011, plaintiff’s counsel replied to the defendant by

email asking: “As the scope of [plaintiff’s] request is somewhat broader than just records about

Mr. and Mrs. Mobley, please clarify: do any of the withheld records directly refer to him or his

family? I am not asking if they are ‘located in a system of records’ of anything similar; I simply

need to know if they are general records about renditions and the like, or if they directly discuss

Mr. Mobley.” Id. ¶ 12. Later that day, the defendant responded that “[b]ecause these are

classified documents, [the defendant was] not at liberty to respond . . . .” Id. ¶ 13.

         On May 31, 2011, the plaintiff filed an administrative appeal to the defendant’s Office of

Information Policy (OIP) contesting the defendant’s refusal to provide a list of withheld records

and requesting that the defendant “[p]lease provide us with a legally sufficient denial letter as

soon as practicable.” 1 Id. ¶ 14.

         On August 8, 2011, the plaintiff filed a Complaint in this Court against the defendant

pursuant to FOIA, the Privacy Act, the Federal Declaratory Judgment Act, and the All Writs Act.

ECF No. 1. The plaintiff asserts that he “does not currently intend to challenge [the defendant’s]

withholding determinations, but does insist on his due process right to a list of records withheld

in their entirety. [The defendant] has denied him of this right, forcing him to file this lawsuit to

obtain a Vaughn index.” Id. ¶ 17. The plaintiff notes that although he “does not currently intend

to challenge OLC’s withholding determinations,” he “reserves his right to challenge some or all

of the withholdings.” Id. at 4 n.1. The plaintiff specifically requests, inter alia, an order

directing the defendant “to immediately provide Plaintiff and the Court with a legally sufficient

Vaughan index,” and relief “including, but not limited to, ordering [the defendant] to release

1
 The plaintiff states that on June 10, 2011, the defendant acknowledged the plaintiff’s appeal and assigned it Appeal
No. AP-2011-02085. Compl. ¶ 15. The plaintiff does not, however, indicate how, when, or if this administrative
appeal was resolved.

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records to Plaintiff which he has identified after receipt of its Vaughn index as not properly

exempt.” Compl., Prayer for Relief.

       On October 10, 2011, the defendant moved to dismiss the Complaint pursuant to FED. R.

CIV. P. 12(b)(6), arguing that the plaintiff “explicitly disavows” that the defendant improperly

withheld the requested records and therefore fails to state a claim upon which relief may be

granted. Def.’s Mot. Dismiss, ECF No. 10. This motion is currently pending before the Court.

       As explained below, contrary to the basis proffered by the defendant for its motion, the

plaintiff has not “explicitly disavowed” that the requested documents were improperly withheld.

Rather, he sets forth a general allegation that the plaintiff is challenging the defendant’s

withholdings. The Complaint therefore states a cognizable claim. Accordingly, the defendant’s

motion to dismiss is DENIED.

II.    STANDARD OF REVIEW

       To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff

need only plead “enough facts to state a claim to relief that is plausible on its face” and to

“nudge[ ] [his or her] claims across the line from conceivable to plausible.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007); FED. R. CIV. P. 12(b)(6). “[A] complaint [does not] suffice

if it tenders naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S.

662, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted) (citing Twombly, 550 U.S.

at 557). Instead, the complaint must plead facts that are more than “merely consistent with” a

defendant’s liability; “the plaintiff [must plead] factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1940, 1949;

Rudder v. Williams, No. 10-cv-7101, 2012 WL 119589, at *2 (D.C. Cir. Jan. 17, 2012). The

Court must “assume all the allegations in the complaint are true (even if doubtful in fact) . . .



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[and] must give the plaintiff the benefit of all reasonable inferences derived from the facts

alleged.” Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir.

2008) (internal quotations and citations omitted).

III.    DISCUSSION

       The defendant argues that the Complaint should be dismissed because the plaintiff

“explicitly disavows any claim that the [defendant] has ‘improperly withheld’ any agency

records” and therefore “fails to state a legally-valid claim under FOIA or any other provision of

law.” Def.’s Mem. in Supp. of Mot. Dismiss, ECF No. 10 (“Def.’s Mem”), at 3. According to

the defendant, the plaintiff’s Complaint seeks only a Vaughn index associated with the records

withheld by the defendant, and the Court may not order the defendant to produce a Vaughan

index “outside the context of a properly-pleaded and supported claim of ‘improper’ withholding

of agency records.” Def.’s Mem., ECF 10, at 1-2. Despite the defendant’s assertions, the

Complaint does not “explicitly disavow” that the defendant improperly withheld documents, but

rather sets forth general allegations sufficient to maintain a cognizable FOIA claim. The

defendant’s motion to dismiss is therefore denied.

       FOIA provides that “[o]n complaint, the district court of the United States in the district

[where venue is proper] has jurisdiction to enjoin [an] agency from withholding agency records

and to order the production of any agency records improperly withheld from the complainant.” 5

U.S.C. § 552(a)(4)(B). To state a valid claim under this statute, the plaintiff must allege that the

defendant (1) improperly; (2) withheld; (3) agency records. Consumer Fed’n of Am. v. Dep’t of

Agric., 455 F.3d 283, 287 (D.C. Cir. 2006) (quoting Kissinger v. Reporters Comm. for Freedom

of the Press, 445 U.S. 136, 150 (1980)); 5 U.S.C. § 552(a)(4)(B).




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       The defendant contends that the plaintiff “explicitly disavows any claim” that the

defendant improperly withheld responsive documents, but that is an over-reading of the

Complaint. The defendant’s characterization ignores the fact that the Complaint actually stated

that the plaintiff “does not currently intend to challenge OLC’s withholding determinations,” and

states in an associated footnote that the plaintiff “reserves his right to challenge some or all of the

withholdings” following his review of the Vaughn index. Compl. at 4 n.1. Indeed, the plaintiff

includes in his Prayer for Relief a request for an order directing the defendant “to release records

to Plaintiff which he has identified after receipt of [the] Vaughn index as not properly exempt.”

Id., Prayer for Relief, ¶ 5. The plaintiff concedes in his opposition to the defendant’s motion to

dismiss that “it is very likely that the records are properly classified and accordingly exempt

under FOIA exemption (b)(1),” Pl.’s Mem. in Opp’n to Mot. Dismiss, ECF No. 11 (“Pl.’s

Mem.”), at 2, but this frank assessment of his own case does not negate the fact that the plaintiff

initiated the instant lawsuit because he suspects that the defendant improperly withheld

documents, and states in his Complaint that he intends to contest withholdings that he deems to

be improper. This is sufficient to support a claim under 5 U.S.C. § 552(a)(4)(B).

       Given that the Complaint sets forth a cognizable FOIA claim, the Court need not reach

the plaintiff’s argument that “agencies are required to provide requesters with at least a list of

records that are withheld in their entirety at the administrative stage,” as well as the contention

that failure to provide such a list constitutes denial of Due Process. Pl.’s Mem., ECF 11, at 4.

The Court is skeptical of the plaintiff’s argument, however. The plaintiff relies on Shermco

Indus. v. Sec’y of the U.S. Air Force, 452 F. Supp. 306, 317 n.7 (N.D. Tex. 1978), rev’d on other

grounds, 613 F. 2d 1314 (5th Cir. 1980), for the proposition that a FOIA requester “cannot

effectively appeal a decision about the releasability of documents . . . if he is not informed of at



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least a list of the documents to which he was denied access . . . and why those were made.” Pl.’s

Mem., ECF 11, at 4. Aside from this dicta in Shermco, and three cases citing it without

extensive discussion, 2 there is scant support for the position that agencies are required to provide

a list of all withheld documents in response to a FOIA request. 3 Indeed, the statutory text belies

such a conclusion.

        FOIA requires each agency receiving a request for disclosure of documents to “notify the

person making such request of [its] determination and the reasons therefor,” and, inter alia,

“make a reasonable effort to estimate the volume of any [denied] matter” and “provide any such

estimate to the person making the request.” 5 U.S.C. §§ 552(a)(6)(A)(i); (F). The plain text of

the statute does not require agencies to provide a list of withheld documents, but only to make a

reasonable effort to estimate the volume of the documents withheld. The volume of withheld

documents may be indicated by the number of pages, number of records, or both, or for large

volumes of records, by other measures such as number of boxes, or linear feet of file cabinet

drawers. See FOIA Update, Vol. XVIII, No. 2 (Spring 1997), at 2 (“FOIA Counselor: Questions

& Answers”), available at http://www.justice.gov/oip/foia_updates/Vol_ XVIII_2/page2.htm.

Given that the unambiguous text of the statute imposes no procedural requirement on agencies to

provide a list of withheld documents at the administrative stage, the Court declines to devise one

here. See Schindler Elevator Corp. v. U.S. ex rel. Kirk, 131 S.Ct. 1885, 1893 (2011) (“In

interpreting a statute, [the Court’s] ‘inquiry must cease if the statutory language is

unambiguous,’” quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)).

2
 See Va. Transformer Corp. v. DOE, 628 F. Supp. 944, 947 (W.D. Va. 1986); Reith v. IRS, No. 80-cv-87, 1980 U.S.
Dist. LEXIS 14188, *13 (N.D. Ind. Sept. 10, 1980); Marschner v. Dep’t of State, 470 F. Supp. 196, 199 (D. Conn.
1979).
3
  The defendant further asserts that “[a]ll four of the cited cases addressed a different provision of FOIA not in
question in this case. Those cases asked whether a particular agency response constituted a ‘determination’ under 5
U.S.C. § 552(a)(6)(A) on a FOIA request for purposes of triggering the requirement of exhaustion of administrative
remedies.” Def.’s Reply Mem., ECF 12, at 3.

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IV.    CONCLUSION

       For the reasons stated above, the Court concludes that the plaintiff has set forth a

cognizable FOIA claim. Consequently, the defendant’s Motion to Dismiss is DENIED. An

Order consistent with this Memorandum Opinion shall be entered.


DATED: FEBRUARY 27, 2012                                     /s/Beryl A. Howell        ____
                                                             BERYL A. HOWELL
                                                             United States District Judge




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