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Judicial Watch • 2011 jw-v-usaf-opp2mot2dismiss-03312011

2011 jw-v-usaf-opp2mot2dismiss-03312011

2011 jw-v-usaf-opp2mot2dismiss-03312011

Page 1: 2011 jw-v-usaf-opp2mot2dismiss-03312011

Category:Legal Document

Number of Pages:8

Date Created:April 1, 2011

Date Uploaded to the Library:July 30, 2013

Tags:responses, allegations, Majority, specifically, prior, received, record, Civil, requests, senate, original, Pursuant, harry, letter, response, defendant, watch, plaintiff, request, travel, State, judicial, states, Washington, court, united, EPA, IRS, ICE, CIA


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THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

JUDICIAL WATCH, INC.,  
Plaintiff,  Civil Action No. 11-0349 (RJL)  

UNITED STATES AIR FORCE 
Defendant. 

PLAINTIFF'S OPPOSITION DEFENDANTS' MOTION DISMISS FOR 
FAILURE STATE CLAIM UPON WHICH RELIEF CAN GRANTED 

Plaintiff Judicial Watch, Inc. ("Judicial Watch"), counsel, respectfully submits this opposition Defendant United States Air Force's ("USAF") Motion Dismiss For Failure 
State Claim Upon Which Relief Can Granted. grounds therefor, Judicial Watch states 
follows: 
MEMORANDUM LAW Introduction. November 2010, Plaintiff sent FOIA request Defendant, seeking information 
about the travel former Senate Majority Leader Harry Reid. Specifically, Plaintiff sought access the following: 
All mission taskings for Senate Majority Leader Harry Reid's travel; 
All records costs operating military aircraft for Majority Leader Harry Reid's 

travel. 
All passenger manifests (DD-2131) for Majority Leader Harry Reid (including 
All travel reports for Majority Leader Harry Reid. 

both domestic and international travel). 
The time frame for the request was from January 2007 the present. See Complaint 
Pursuant U.S.C.  552(a)(6)(A) Defendant was required respond Plaintiffs request within business days receiving it, December 22, 2010. However, Plaintiff received substantive response its request that date and therefore filed this lawsuit February 10, 2011 force compliance with the FOIA. 
After filing the complaint, Plaintiff promptly effected service process Defendant. See Declaration Cristina Rotaru, attached Plaintiffs Notice Filing Proof Service, Docket No. 5-7. Specifically, Defendant was served with the summons and complaint this matter February 15, 2011. Id. 
Curiously, the very day that Plaintiff served its Complaint Defendant, Plaintiff finally received response from Defendant. See attached affidavit John Althen ("Althen Aff.") Defendant's response came the form e-mail sent Plaintiffs generic e-mail 

Id. Because this e-mail address only checked once per day, 
Plaintiff did not become aware the e-mail until February 16, 2011. Id. any event, attached Defendant's February 15, 2011 e-mail was letter purportedly dated January 11, 2011 which Defendant stated that had found records responsive Plaintiffs November 2010 FOJA request. Id. Plaintiff has regularly updated filing system for processing incoming responses its FOIA requests, yet has record receiving Defendant's purported response letter January 11, 2011 prior February 16, 2011. Id. 
Defendant's February 15, 2011 e-mail and the attached letter was unusual for several additional reasons. First, Plaintiff does not ordinarily receive e-mail copies responses FOJA requests one month after the original has been sent mail. Id. Second, neither the February 15, 2011 e-mail nor the letter attached stated that Defendant's document response letter had been mailed Plaintiff previously. Id. Third, the e-mail address the original FOIA requester, Ms. Tegan Millspaw, was included Plaintiffs November 2010 FOIA request, there was need for Defendant send its response Judicial Watch's generic e-mail address. 
Id. 
Defendant subsequently filed its motion dismiss March 17, 2011. 
II. 

The standard review for motion dismiss for failure state claim upon which relief can granted well settled. The motion must decided solely based the allegations the Plaintiffs complaint. See Fed.R.Civ.P. 12(d). The court does not decide disputed issues fact; instead, must assume that all material facts the plaintiffs complaint are true. Tellabs, Inc. Makor Issues Rights, Ltd., 551 U.S. 308 (2007). Not only must the court accept the plaintiffs allegations true, but also must accept true all reasonable factual inferences drawn from Plaintiffs allegations. See Kowal MCI Comm 'ns Corp., F.3d 1271, 1276 (D.C. Cir 1994); Schuler United States, 617 .2d 605, 608 (D.C. Cir. 1979). Thus, factual allegations briefs memoranda law generally may not considered when deciding Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged the complaint. Henthorn Dept. Navy, F.3d 682, 688. (D.C. Cir. 1994). Defendant Has Failed Demonstrate that This Case should Dismissed. 
Defendant's motion based entirely the Declaration Theodore Martin, FOIA Disclosure Officer for the U.S. Air Force. While the factual allegations contained Mr. Martin's declaration might relevant motion dismiss jurisdictional grounds pursuant Rule 12(b)( l), Defendant's has moved dismiss pursuant Rule 12(b)(6). Therefore, this point 
the instant litigation, Plaintiff respectfully submits that the Court should disregard Mr. Martin's 
claims that Defendant substantively responded Plaintiffs FOIA request prior the filing this 
lawsuit. Because Defendant has not otherwise shown that Plaintiffs complaint fails state 
claim upon which relief can granted, Defendant's motion must denied. the Court inclined view Defendant's motion Rule 12(b)(l) motion dismiss motion for summary judgment pursuant Rule 12(d), Plaintiff respectfully submits that has demonstrated that genuine issue material fact exists. Defendant's motion should denied these alternate grounds well. 
III. Conclusion. 
For all the above reasons, Plaintiff respectfully requests that Defendant's motion 
dismiss denied. 
Dated: March 31, 2011 	Respectfully submitted, JUDICIAL WATCH, INC. 
Isl Jason Aldrich 
D.C. 
Bar No. 495488 Paul Orfanedes 

D.C. 
Bar No. 429716 Suite 800 

425 Third Street, S.W. Washington, 20024 
(202) 646-5172 
Attorneys for Plaintiff THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

JUDICIAL WATCH, INC.,  
Plaintiff,  Civil Action No. 11-0349 (RJL)  

UNITED TES AIR FORCE 
Defendant. 

AFFIDAVIT JOHN THEN 
John Althen, being duly sworn, hereby states follows: name John then. over eighteen years age, sound mind, 
and fully competent make this affidavit. also have personal knowledge the factual 
statements contained herein. Judicial Watch, Inc. non-profit organization headquartered Washington, 
D.C. currently employed Judicial Watch, Inc. and work the Department 
Investigations and Research. have served this capacity Judicial Watch, Inc. since 
September 2009 and the course carrying out duties and responsibilities have made and 
received responses dozens Freedom oflnformation Act FOIA") requests. One regular duties and responsibilities make record FOIA 
correspondence received from federal agencies. Whenever receive response Judicial 
Watch FOIA request, promptly log into the Judicial Watch FOIA database which was designed 
specifically for that purpose. This database, among other things, contains the date the FOIA 
request, brief description the subject matter the FOIA request, the agency agencies 
which the FOIA request was sent, the date correspondence sent responding agencies, the 
date the correspondence was received, and brief description the documents produced, any. familiar with Plaintiffs November 2010 FOIA request Defendant United 
States Air Force, and understand that the subject matter the above-captioned litigation. Defendant was required respond Judicial Watch's November 2010, FOIA request December 22, 2010. However, Plaintiff did not receive response any kind that date. February 15, 2011, the date that service process was effected Defendant 
this case, Plaintiff received e-mail from Defendant its generic e-mail address 

This generic address checked only once per day and did not become 
aware Defendant's February 15, 2011 e-mail until the morning February 16, 2011. Attached Defendant's February 15, 2011 e-mail was letter from Defendant purportedly sent January 11, 2011 stating that documents responsive Plaintiffs November 2010 FOIA request had been located. have recollection receiving Defendant's document response letter prior February 16, 2011, and there record Judicial Watch's database that Defendant's January 11, 2011 records response was received Judicial Watch prior February 15, 2011. found Defendant's Febrnary 15, 2011 e-mail and the attached letter unusual 
for several reasons. First, experience, federal agencies not gratuitously e-mail copies responses FOIA requests one month after the original has been sent mail. Second, neither the February 15, 2011 e-mail the letter attached state that Defendant's document response letter had been mailed previously. Third, the e-mail address the original FOIA requester, Ms. Tegan Millspaw, was included Plaintiffs November 2010 FOIA request, 
there was need for Defendant send its response Judicial Watch's generic e-mail address. declare under penalty perjury that the foregoing true and correct. Executed March 31, 2011 Washington, D.C. THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

JUDICIAL WATCH, INC., 
Plaintiff, Civil Action No. 11-0349 (RJL) UNITED STATES AIR FORCE Defendant. 

PROPOSED ORDER 
Upon consideration Defendant's Motion Dismiss, Plaintiff's opposition 
thereto, and the entire record herein, this day 

20__, hereby ORDERED that: Defendant's motion denied. 
Richard Leon 
UNITED STATES DISTRICT JUDGE