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McKanney v. Department of The Navy

United States District Court, Second Circuit

November 4, 2013




Pro se plaintiff Silvester McKanney seeks review of defendant Department of the Navy's denial of his request for documents under the Freedom of Information Act ("FOIA"), 5 U.S.C. ยง 522, and his subsequent appeals of that denial. Plaintiff filed this action on March 7, 2013 seeking, in substance, his "closed or sealed military field service jacket, " which he alleges the Navy is improperly withholding. (Compl. at 3[1], ECF No. 1.)

On April 18, 2013, the parties appeared for a pretrial conference, at which the Court set a briefing schedule for motions to dismiss and motions for summary judgment. (ECF No. 7.) The Court also ordered the Navy to notify the Court of the measures it had taken to locate the records plaintiff seeks, as well as the results of those measures. (ECF No. 8.) In response, on May 27, 2013, the Navy submitted a nine-page letter supported by several exhibits that carefully explained the searches it has conducted and their finding - that the records plaintiff seeks do not exist. (ECF No. 10.) On June 28, 2013, the Navy made a timely motion to dismiss the complaint or, in the alternative, for summary judgment. (ECF No. 12.) Plaintiff was ordered to respond to the Navy's motion by July 31, 2013, and a copy of that order was sent to the address listed on the docket. (ECF No. 11.) To date, plaintiff has not done so. Accordingly, the Court will consider defendant's motion as unopposed.

For the reasons set forth below, defendant's motion is GRANTED.


Plaintiff served in the Navy from 1978 to 1981. (Compl. at 7; Dursa Decl. Ex. F, ECF No. 15.) He refers to the records he seeks in his FOIA request alternately as a "closed field service jacket, " a "sealed/closed military record, " "part of his sealed FBI file, " a "missions file, " or a "command file." (Compl. at 3, 5, 7, 19.) He states that these records were kept separately from his regular personnel file. ( Id. at 19.) According to plaintiff, the requested documents are records related to his Navy service, including medical evaluations, financial documents, and "a sealed FBI file." ( Id. at 5-6.)

Plaintiff submitted his FOIA request on January 27, 2012. ( Id. at 7.) The Chief of Naval Operations confirmed receipt of the request on March 16, 2012; because plaintiffs Naval service had concluded more than thirty years ago, his request was referred to the National Archives and Records Administration's National Personnel Records Center ("NPRC") in St. Louis, Missouri. ( Id. at 10.) On March 28, 2012, the NPRC responded to plaintiff, stating that they did not have any such records on file and noting that they had provided plaintiff a copy of "every personnel document in your military file and informed you that there was nothing else on file." (Dursa Decl. Ex. A)

Plaintiff appealed on or about April 2, 2012, again requesting the same files. (Compl. at 11, 13, 16, 19, 22.) On May 1, 2012, the Navy Office of the Judge Advocate General ("OJAG") denied plaintiffs appeal, confirmed the adequacy of the searches that were previously undertaken for responsive records, and noted that it no longer had authority to further adjudicate the NPRC's determination that there were no responsive records. ( Id. at 20-21.)

On June 26, 2012, the Office of the Secretary of the Navy ("SECNAV") wrote plaintiff in response to a telephone call he placed on June 11, 2012 regarding his request; SECNAV reported its understanding that OJAG had already given plaintiff a final decision of "No Records, " and formally closed its file on plaintiffs FOIA request. ( Id. at 22.)

On July 10, 2012, plaintiff faxed correspondence to OJAG seeking additional review of the denial of his appeal. (Dursa Decl. Ex. B at 1.) OJAG responded, on August 22, 2012, that OJAG had already provided a final determination as to plaintiffs request and appeal, which was that no responsive records were located. (Id.) OJAG informed plaintiff that his "recourse was to seek judicial review." (Id.) Additionally, OJAG contacted the Modern Military Records Branch ("MMRB") in Adelphi, Maryland to determine if they had any records responsive to plaintiffs request. (Id.) Because MMRB had already received a FOIA request from plaintiff for the records, OJAG told plaintiff that MMRB would respond directly to him. (Id.)


Defendant moves to dismiss the complaint under both Federal Rule of Civil Procedure 12(b)(1) and 56(a).

Under Rule 12(b)(1), a case may be dismissed for lack of subject matter jurisdiction when the district court "lacks the statutory or constitutional power to adjudicate it." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed.R.Civ.P. 12(b)(1). The court must accept a plaintiffs factual allegations in his complaint as true and draw all reasonable inferences in the plaintiffs favor. See Famous Horse Inc. v. 5th Ave. Photo Inc. , 624 F.3d 106, 108 (2d Cir. 2010). To survive a motion to dismiss under Rule 12(b)(1), a plaintiff has the burden of proving jurisdiction by a preponderance of the evidence. Makarova , 201 F.3d at 113 (citing Malik v. Meissner , 82 F.3d 560, 562 (2d Cir. 1996)).

Summary judgment may not be granted unless all of the submissions on such a motion, taken together, "show that there is no genuine issue as to any material fact and that the movant entitled to judgment as a matter of law." Fed.R.Civ.P. 56. The moving party bears the burden of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). In determining whether that party has met its burden, the Court must "construe all evidence in the light most favorable to the nonmoving party, drawing all inferences and resolving all ambiguities in its favor." Dickerson v. ...

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