Hass v. US Air Force

• Decision Date: 11 March 1994
• Docket Number: No. 93-2099-JWL.,93-2099-JWL.
• Parties: Keely Ann HASS, Plaintiff, v. UNITED STATES AIR FORCE, Defendant.
• Court: U.S. District Court — District of Kansas

848 F. Supp. 926

Keely Ann HASS, Plaintiff, v. UNITED STATES AIR FORCE, Defendant.

No. 93-2099-JWL.

United States District Court, D. Kansas.

March 11, 1994.

Keely Ann Hass, pro se.

Christina L. Morris, Office of U.S. Atty., Kansas City, KS, for defendant.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

I. Introduction

This matter is currently before the court on defendant's motion to dismiss or, in the alternative, for summary judgment (Doc. # 20) against pro se plaintiff Keely Ann Hass. Defendant seeks dismissal of plaintiff's various claims under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1988), and the Privacy Act, 5 U.S.C. § 552a (1988).¹ Because the court has considered matters outside the pleadings in reaching its decision, it will treat this motion as one for summary judgment. See Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991). For the reasons set forth below, defendant's motion for summary judgment is granted. As a result, plaintiff's complaint is dismissed.

II. Facts

On February 27, 1991, plaintiff, while on active duty with the United States Air Force, sought permission to begin off-duty employment with a private investigations firm. This request was initially granted by her superior officer. In March of 1991, Air Force officials were informed of the possibility that plaintiff was using her Air Force security clearance access to obtain information for the private investigations firm. Air Force officials were also informed that plaintiff had allegedly misrepresented herself to local law enforcement authorities as a Special Investigations Agent. Plaintiff apparently disputes the accuracy of defendant's information. In response to the reports of her alleged misconduct, plaintiff's commanding officer ordered her to quit her off-duty job, based on a perceived conflict of interest.

In April of 1991, plaintiff's commander requested that plaintiff undergo a mental health evaluation in connection with the information received by plaintiff's superiors concerning her off-duty activities. Plaintiff also received a Letter of Reprimand and was placed on the Air Force's Control Roster pursuant to an Unfavorable Information File Action. The Air Force contends that these actions were taken in response to plaintiff's alleged off-duty misconduct. Plaintiff again claims that these actions were taken based upon incorrect information.

On May 6, 1991, plaintiff underwent a mental health evaluation. Plaintiff claims that she submitted a request to the officer who performed the evaluation, seeking to correct perceived mistakes in the evaluation report, but neither plaintiff nor defendant has produced a copy of such request.

On June 17, 1991, plaintiff made a request pursuant to the Freedom of Information Act, seeking access to information in connection with her legal claim to recover the $150 fee she had paid to obtain a private investigator's license. The parties agree that the Air Force complied with this FOIA request in part, but declined to disclose two documents, which have been submitted to the court for in camera review. Plaintiff properly appealed the nondisclosure of these documents through administrative channels.

On June 26, 1991, plaintiff requested access to her records under the Privacy Act, and was informed by her commander that the FOIA provided the proper procedures through which to make such a request. Thereafter, plaintiff requested access to her Personnel Information File, which request was granted on July 9, 1991. On July 12, she made another FOIA request, seeking documents she believed were missing from her personnel file and for documents concerning the Unfavorable Information File Action and Letter of Reprimand. The defendant neither found nor produced any documents in response, and informed plaintiff of her right to appeal administratively.

On July 29, 1991, plaintiff's security clearance was revoked, again in response to plaintiff's alleged off-duty misconduct. Sometime after July 1991, plaintiff was discharged from the Air Force, ostensibly for the same reasons.

On May 29, 1992, plaintiff filed a request, presumably pursuant to the FOIA, that her records be maintained in anticipation of litigation. This request was complied with. Plaintiff now brings this pro se complaint which, construed broadly, alleges several possible causes of action under the FOIA, Privacy Act, Federal Tort Claims Act, and Military Claims Act.

III. Standard for Summary Judgment

When considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the nonmoving party. Langley v. Adams County, Colorado, 987 F.2d 1473, 1476 (10th Cir. 1993). A moving party who bears the burden of proof at trial is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Anthony v. United States, 987 F.2d 670, 672 (10th Cir.1993). If the moving party does not bear the burden of proof at trial, it must show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986).

Once the movant meets these requirements, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). The nonmovant may not merely rest on the pleadings to meet this burden. Id. Genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250, 106 S.Ct. at 2511; Tersiner v. Union Pacific R.R., 740 F.Supp. 1519, 1522-23 (D.Kan. 1990). More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex, 477 U.S. at 327, 106 S.Ct. at 2555.

The court recognizes that a pro se complaint must be construed broadly and liberally, and its pleadings be held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1974). Furthermore, courts must take added precautions before ruling on a motion for summary judgment when a pro se litigant is involved: "The rights of pro se litigants require careful protection where highly technical requirements are involved, especially when enforcing these requirements might result in a loss of the opportunity to prosecute or defend a lawsuit on the merits." Jaxon v. Circle K Corp., 773 F.2d 1138, 1140 (10th Cir.1985) (quoting Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir.1984)). Even a pro se litigant, however, "does not escape the essential burden under summary judgment standards of establishing that there is a genuine issue as to a fact material to her case in order to avert summary judgment." Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990), cert. denied, 500 U.S. 933, 111 S.Ct. 2056, 114 L.Ed.2d 461 (1991). Furthermore, "pro se litigants are subject to the same rules of procedure that govern other litigants." DiCesare v. Stuart, 12 F.3d 973, 979 (10th Cir.1993). Keeping these standards in mind, the court now turns to the merits of defendant's motion.

IV. Analysis

A. Plaintiff's Freedom of Information Act Claims

Plaintiff's complaint may be broadly construed to state a claim for improper denial of FOIA requests. See 5 U.S.C. § 552(a)(4)(B) (1988). The FOIA provides a statutory procedure for administrative appeal for a claimant who believes that an agency has wrongly denied a FOIA request. See § 552(a)(6)(A)(ii).² Courts have confirmed that the FOIA requires that a plaintiff exhaust this appeal process before bringing an action in court. Oglesby v. United States Dept. of Army, 920 F.2d 57, 61 (D.C.Cir. 1990); Brumley v. United States Dept. of Labor, 767 F.2d 444, 445 (8th Cir.1985). In this case, plaintiff may or may not have made proper FOIA requests to the Air Force on June 26, 1991, July 12, 1991, and May 29, 1992. This court need not concern itself with specifics of these requests because it is uncontroverted for the purposes of this motion that plaintiff did not appeal these requests (other than the June 17th request) to a higher authority within the Air Force.³ Therefore, to the extent that plaintiff's pleadings state an FOIA claim for improper denial of access in connection with these requests, this court grants defendant's motion for summary judgment due to plaintiff's failure to exhaust her administrative remedies. These claims are hereby dismissed without prejudice. If plaintiff completes the administrative appeals process in connection with these requests, this court will consider any validly stated claim under the FOIA.

The June 17th FOIA request presents an entirely different issue. The parties agree that plaintiff has exhausted her administrative appeals regarding this request, and that defendant has complied with the request except for two documents that defendant claims are entitled to exemption from FOIA disclosure requirements. Defendant has submitted these documents for in camera review. Having carefully reviewed these documents, this court finds that the Air Force properly withheld these documents. Thus, summary judgment is appropriate on this issue.

In refusing to disclose the documents at issue, defendant relies upon exemption five of the FOIA disclosure requirements, which exempts "inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency." 5 U.S.C. § 552(b)(5). Exemption five incorporates several discovery privileges, including the "deliberative process" privilege, which protects advice, recommendations, opinions and other material that is part of the deliberative decisionmaking processes of a government agency. See ...