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Sikes v. United States Department of Navy

United States District Court, S.D. Georgia, Dublin Division

April 27, 2017

THOMAS W. SIKES, Plaintiff,
v.
UNITED STATES DEPARTMENT OF THE NAVY, Defendant.

          ORDER

         On 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.

         On 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 consideration.[1]

         I. BACKGROUND

         Plaintiff's 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").

         A. Sikes I[2]

         In the 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. No. 43.)

         In FOIA 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.[3] 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.)

         On April 7, 2014, the Court awarded Plaintiff $45, 845.58 in attorney's fees and expenses and closed the case.

         B. The Instant FOIA Case

         In the 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.[4] Thus, there are two counts in Plaintiff's amended complaint.

         FOIA 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. ¶ 63.)

         Plaintiff's 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."[5] (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.[6] (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."[7] 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.)

         In its 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 ...


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