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Judicial Watch • Jw v Usaf Opp Mot Dismiss 03312011

Jw v Usaf Opp Mot Dismiss 03312011

Jw v Usaf Opp Mot Dismiss 03312011

Page 1: Jw v Usaf Opp Mot Dismiss 03312011

Category:General

Number of Pages:8

Date Created:April 1, 2011

Date Uploaded to the Library:February 20, 2014

Tags:Mot, 03312011, Opp, Dismiss, Usaf


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  • demand_answers

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JUDICIAL WATCH, JNC., 
Plaintiff, Civil Action No. 11-0349 (RJL) 
UNITED STATES AlR 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: 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 

both domestic and international travel). 
All travel reports for Majority Leader Harry Reid. 

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 Plaintiff's 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. 1M!5-7. Specifically, Defendant was served with the summons and complaint this matter February 15, 2011. i1. 
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 Plaintiff's generic e-mail 
address, 
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 FOIA request. Id. Plaintiffhas regularly updated filing system for processing incoming responses 
its FOlA requests, yet has record receiving Defendant's purported response letter 
January 11, 2011 prior February 16, 2011. Id. i11 
Defendant's February l5, 2011 e-mail and the attached letter was unusual for several additional reasons. First, Plaintiff does not ordinarily receive e-mail copies responses FOlA 
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 POIA 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. 
Jd. 
Defendant subsequently filed its motion dismiss March 17, 2011. 

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. Tei/abs, Inc. Makor Issues Rights, Ltd., 551 U.S. 308 (2007). Not only must the cowt accept the plaintiff's 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 F.2d 605, 608 (D.C. Cir. 1979). Thus, factual allegations briefs 
memoranda oflaw 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 
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. 
Ifthe 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 wel 
Ill. Conclusion. 
For all the above reasons, Plaintiff respectfully requests that Defendant's motion 
dismiss denied. 
Dated: March 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 
Attorneysfor Plaintiff 
JUDICIAL WATCH, INC., 
Plaintiff, Civil Action No. 11..0349 (RJL) 
UNITED STA TES AIR FORCE 
Defendant. 
AFFlDAVIT JOHN ALTHEN 
John Althen, being duly sworn, hereby slates follows: name John Althen. over eighteen years age, sound mind, 
and an1 fully competent make this affidavit. also have personal knowledge the factual 
statements contained herein. Judicial Watch, Inc. non-profit organization headquartered Washington, 
D.C. cunently employed Judicial Watch, Inc. and work the Depa1tment 
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 Information Act ("FOIA") requests. One regular duties and responsibilities make record ofFOIA 
correspondence received from federal agencies. Whenever receive response Judicial 
Watch FOJA request, promptly log into the Judicial Watch FOIA database which was designed specifically for that pw-pose. 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 familiar with Plaintiffs November 2010 FOli 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, FOlA 
request December 22, 2010. However, Plaintiff did not receive response any kind that 
date. February 15, 201 the date that service process was effected Defendant 
this case, Plaintiff received e-mail from Defendant its generic e-n:iail address 

This generic address checked only once per day and did not become 
aware Defendant's February 15, 2011 e-mail until the morning Fcbmary 16, 2011. Attached Defendant's February 15, 2011 e-mail was letter from Defendant purportedly sent January 
11, 2011 stating that documents responsive Plaintitrs November 2010 FOIA request had been located. have recollection receiving Defendant's document response letter prior Februaiy 16, 2011, and there record Judicial Watch's database that Defendant's January 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 F01A requests one month after the original has been sent mail. Second, neither 
the February 15, 2011 e-mail the letter attached state that Defendan'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, 

Executed March 31, 2011 Washington, D.C. 
John Althen THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

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

UNITED STATES AIR FORCE Defendant. 
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