13-527-cv
Platsky v. National Security Agency

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 16th day of December, two thousand thirteen.

PRESENT:

           JOSÉ A. CABRANES,
           ROBERT D. SACK,
           RICHARD C. WESLEY,
                                Circuit Judges.
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HENRY PLATSKY,

                     Plaintiff-Appellant

                               -v.-                                                              No. 13-527-cv

NATIONAL SECURITY AGENCY, CENTRAL INTELLIGENCE
AGENCY, FEDERAL BUREAU OF INVESTIGATION,

                      Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT:                                                  Henry Platsky, pro se, Brooklyn, NY.

FOR DEFENDANTS-APPELLEES:                                                 Varuni Nelson, Ameet B. Kabrawala, Assistant
                                                                          United States Attorneys, for Loretta E. Lynch,
                                                                          United States Attorney, Eastern District of
                                                                          New York, Brooklyn, NY.

       Appeal from the judgment, entered January 30, 2013, of the United States District Court for
the Eastern District of New York (Sandra L. Townes, Judge).


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     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.

         Plaintiff-appellant Henry Platsky, pro se, appeals the District Court’s grant of summary
judgment in favor of defendants-appellees the National Security Agency (“NSA”), Central
Intelligence Agency (“CIA”), and the Federal Bureau of Investigation (“FBI”), dismissing his
challenge to the appellees’ issuance of Glomar responses to his requests for information pursuant to
the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. We assume the parties’ familiarity with
the underlying facts, the procedural history of the case, and the issues on appeal.

        We review orders granting summary judgment de novo and focus on whether the District
Court properly concluded that there was no genuine issue of material fact and the moving party
was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292,
300 (2d Cir. 2003). To determine whether there are genuine issues of material fact, we must
“resolve all ambiguities and draw all permissible factual inferences in favor of the party against
whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal
quotations omitted). Summary judgment is appropriate “[w]here the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).

        We have approved the use of the Glomar response, holding that “an agency may refuse to
confirm or deny the existence of records where to answer the FOIA inquiry would cause harm
cognizable under a[] FOIA exception,” so long as the agency properly “tether[s]” its refusal to
respond to one of the nine FOIA Exemptions. Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 68 (2d Cir.
2009) (internal quotation marks omitted; first alteration in original). The District Court correctly
found that the NSA and CIA properly tethered their Glomar responses to Exemption 1, which
protects classified materials relating to national defense or foreign policy, and that the FBI properly
tethered its Glomar response to Exemption 7(E), which protects information compiled for law
enforcement purposes. We therefore affirm, for substantially the reasons set forth by the District
Court.

        In so doing, we also note Platsky’s argument that the FBI may not, consistent with due
process, place him or any citizen on a terrorist watch list without notice and an opportunity to be
heard. As to this claim, we agree with the District Court’s determination the Platsky does not have
standing, because he appears to be claiming a hypothetical and speculative injury. “The irreducible
constitutional minimum requires that (1) the plaintiff have suffered an injury in fact—an invasion
of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical, (2) the injury be fairly traceable to the challenged action of the
defendant, and (3) it be likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.” Hedges v. Obama, 724 F.3d 170, 188 (2d Cir. 2013) (internal quotation marks
omitted). Platsky does not allege that he has in fact been put on an FBI watch list, or even that he


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has been inordinately subjected to heightened searches while traveling, which could raise a plausible
inference that he had been placed on such a list. Accordingly, he does not have standing to assert a
due process claim.1

         Finally, we decline to consider Platsky’s request for an order directing the FBI to reveal all
names of United States citizens on any government watch list. He did not seek this relief below,
and whether it is construed as an argument in support of reversal or a new request for relief, it may
not be advanced for the first time on appeal. See Virgilio v. City of New York, 407 F.3d 105, 116 (2d
Cir. 2005) (new arguments, raised for the first time on appeal, will generally not be considered);
Cohen v. Flushing Hosp. & Med. Ctr., Local 1199, 68 F.3d 64, 69 (2d Cir. 1995) (“Under the law of this
circuit, a party may not seek on appeal relief that he failed to seek below.”).

       We have reviewed the record and considered all of plaintiff ’s remaining arguments; we find
them to be without merit. For the reasons set out above, we AFFIRM the judgment of the District
Court, entered January 30, 2013.

                                                         FOR THE COURT,
                                                         Catherine O’Hagan Wolfe, Clerk of Court




1   Even if Platsky had an articulable injury, a FOIA request would not be the proper means to bring a due process
     challenge. Congress has mandated the creation of “a timely and fair redress process for individuals who believe they
     have been delayed or prohibited from boarding a commercial aircraft because they were wrongly identified as a
     threat,” see 49 U.S.C. § 44926, in response to which the Department of Homeland Security created a Redress
     Program. See Shearson v. Holder, 725 F.3d 588, 590–91 (6th Cir. 2013) (describing Redress Program procedures for
     challenging inclusion on FBI’s terrorist watch list). This opinion in no way restricts Platsky’s right to pursue his
     administrative remedies through the Redress Program.


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