United States District Court, S.D. Georgia, Dublin Division
THOMAS W. SIKES, Plaintiff,
UNITED STATES DEPARTMENT OF THE NAVY, Defendant.
January 5, 2017, Defendant United States Department of the
Navy (the "Navy") filed a motion to dismiss
Plaintiff Thomas W. Sikes's complaint. Thereafter,
Plaintiff, who is proceeding pro se, moved to amend
his complaint to supplement his second cause of action. The
Navy did not oppose the amendment. Accordingly, by Order of
the Court, Plaintiff's amended complaint was filed on
February 13, 2017; it is the operative complaint in this
case. Plaintiff filed a response to the motion to dismiss on
February 13, 2017.
February 28, 2017, the Navy filed a motion to dismiss
Plaintiff's amended complaint. Plaintiff responded on
March 9, 2017. The motion to dismiss is ripe for
amended complaint seeks relief pursuant to the Freedom of
Information Act ("FOIA"), 5 U.S.C. § 552 et
seg. To put the amended complaint in context, it is necessary
to recap Plaintiff's first FOIA lawsuit filed in this
Court in May of 2012. See Sikes v. United States of
America, Civil Action No. 3:12-045 (S.D. Ga. May 24,
2012) (Bowen, J., presiding) ("Sikes I").
first FOIA case, Plaintiff, who was represented by counsel,
sought documents pursuant to two separate FOIA requests to
the Navy. In FOIA Request 1, Plaintiff sought "a
complete list of all invitees and attendees for the April 24,
1994 CNO change of command ceremony, including individuals,
their spouses, and the invitees' guests." The
subject ceremony was held for the purpose of swearing in the
incoming Chief of Naval Operations ("CNO"), Admiral
Jeremy Michael Boorda. Ultimately, the Court granted summary
judgment in Plaintiff's favor and ordered the production
of an unredacted invitation list for the ceremony.
(See Order of Dec. 6, 2013, Sikes I, Doc.
Request 2, Plaintiff requested " [s]everal memorandum
notes, business cards, laminated cards containing telephone
numbers, and a six page handwritten document which appear to
be notes relating to official business, " which were
removed by the Naval Criminal Investigative Service
("NCIS") from the back seat of Admiral Boorda's
car on May 16, 1996. Request 2 additionally requested
"Exhibit 36, " which is the vehicle inventory of
Admiral Boorda's official vehicle, wif and to
the extent that such might differ from the above."
According to Plaintiff, Admiral Boorda drove that vehicle
immediately after his morning staff meetings at the Pentagon
and less than two hours before his apparent suicide. The Navy
moved to dismiss Plaintiff's claim respecting FOIA
Request 2 because it had produced the requested material to
Plaintiff on June 27, 2012, after the filing of the lawsuit.
More specifically, the United States Attorney's Office
transmitted by email to Plaintiff's counsel an
eleven-page document as the Navy's response to FOIA
Request 2. Plaintiff did not challenge this
production as incomplete, erroneous, or otherwise
non-responsive; thus, the Court dismissed this claim as moot
(although Plaintiff's motion for attorney's fees in
prosecuting the claim remained). (See Order of Dec.
6, 2013, in Sikes I, Doc. No. 43.)
April 7, 2014, the Court awarded Plaintiff $45, 845.58 in
attorney's fees and expenses and closed the case.
Instant FOIA Case
amended complaint in this case, Plaintiff explains that
following Sikes I. he sent eight additional FOIA
requests related to Admiral Boorda. According to Plaintiff,
only two of the eight additional requests are relevant to
this litigation. Thus, there are two counts in
Plaintiff's amended complaint.
Request 5, which is the basis of the first count of the
amended complaint, seeks "an accurate and complete copy
of the document requested in FOIA Request 2" from
Sikes I. (Am. Compl. ¶ 24.) More specifically,
Plaintiff asks the Courtwto obtain from the Navy
for purposes of in camera review an authentic copy
of the entire NCIS Report of Investigation of Admiral
Boorda's suicide, to enable the Court to see explicitly
what Plaintiff believes to be the substitution(s) made in
(portions of) Exhibit 36 at the time the Navy responded to
FOIA Request 2 in June of 2012." (Id. ¶
FOIA Request 10, which is the basis of the second count of
the amended complaint, seeks "a complete unredacted copy
of the 1996 NCIS Report of Investigation of the suicide of
Admiral Boorda." (Id. ¶ 30.) Despite this
comprehensive request, Plaintiff's cause of action
focuses only on Admiral Boorda's suicide note to his
wife. In responding to FOIA Request 10, the Navy withheld the
suicide note under the privacy exemption. However, the Navy
produced a photograph of the note on Admiral Boorda's
desk, but the note itself is illegible in the
photograph. (See Compl., Ex. K2, at 34.) Even
so, Plaintiff claims to have a copy of the actual suicide
note, which he refers to in the amended complaint as the
"Putative Copy." In this second cause of action,
Plaintiff seeks the contents of the suicide note to Admiral
Boorda's wife either through production of a copy of the
actual note itself or through some certification that his
purported copy reflects the actual contents of the note.
Specifically, "Plaintiff asks the Court to direct the
Navy to provide on the record a copy of the Admiral's
final note to his wife, or to provide evidence verifiable by
the Court that the Admiral's final note to his wife is
different from a certain Putative Copy offered by
Plaintiff, if indeed they are different." (Am. Compl.
¶ 43 (emphasis in original).) Later in the amended
complaint, Plaintiff repeats his request that the Court order
the Navy "to furnish on the record a copy of the
Admiral's final note to his wife . . . ."
(Id. ¶ 91.)
motion to dismiss, the Navy argues that both FOIA counts must
be dismissed under Federal Rule of Civil Procedure 12(b)(1)
for lack of subject matter jurisdiction and under 12(b) (6)
for failure to state a claim upon which relief can be
granted. The Navy also argues that the ...