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Robert v. The Central Intelligence Agency

United States District Court, E.D. New York

February 28, 2017

CHARLES ROBERT II, also known as Snowflake 5391, Plaintiff,

          For Plaintiff: Charles Robert, II, pro se 441B

          For Defendants: Diane C. Leonardo-Beckmann, Esq. United States Attorney's Office


          JOANNA SEYBERT, District Judge

         Presently pending before the Court in this Freedom of Information Act (“FOIA”) action are Plaintiff Charles Robert's (“Plaintiff”) motion for summary judgment, (Pl.'s Mot., Docket Entry 91), Defendants Central Intelligence Agency (“CIA”) and Department of Justices' (“DOJ” and, collectively, “Defendants”) cross motion for summary judgment, (Defs.' Mot., Docket Entry 98), and Plaintiff's letter motion requesting a hearing and/or the scheduling of a settlement conference, (Pl.'s Ltr. Mot., Docket Entry 109). For the following reasons, the parties' motions are DENIED.

         BACKGROUND [1]

          Plaintiff alleges that on March 29, 1989, Federal Bureau of Investigation (“FBI”) Agent Allison interviewed him regarding allegations and documents that Plaintiff sent to Independent Counsel Lawrence Walsh[2] regarding the alleged diversion of Department of Health and Human Services funds through the International Medical Center, Inc. (“IMC”) to the Contras. (Am. Compl. ¶ 24.) Plaintiff further alleges that on October 30, 1995, he filed a FOIA request with the National Archives and Records Administration (“NARA”) seeking “the universe of documents that were generated from the March 29, 1989 FBI interview by FBI Agent Allison . . . regarding the diversion of unaudited pooled nonacquiescence funds by HHS General Counsel Juan del Real through [IMC] with the knowledge of high level DOJ officials.” (Am. Compl. ¶ 29.) Plaintiff alleges that NARA denied Plaintiff's request and appeals. (Am. Compl. ¶¶ 30-39.) Particularly, on April 3, 1996, NARA stated that “[a]fter consultation with the [CIA], we have determined that we must continue to withhold portions of the enclosed document under [FOIA] 5 U.S.C. 552(b)(3).” (Am. Compl. ¶ 34.)

         I. The NARA Action

          On May 13, 1998, Plaintiff filed a FOIA suit against NARA in this District under Docket Number 98-CV-3598 (the “NARA Action”). The NARA Action concerned Plaintiff's October 1995 request for “the universe of documents generated from a 1989 interview of Plaintiff by FBI Agent Carol Allison, and documents relating to the [IMC], which documents were alleged to have been held in the Office of Independent Counsel Lawrence Walsh.” Robert v. The National Archives, No. 98-CV-3598, Docket Entry 31, at 2 (E.D.N.Y. May 22, 2000). NARA located documents relating to the IMC but failed to locate documents created by Agent Allison. Id.

         On May 22, 2000, Judge Leonard D. Wexler granted NARA's motion to dismiss. Id. The court noted that Plaintiff appealed NARA's decision to redact a government employee's name from one of the IMC documents and that he “claim[ed] in this action that defendant has unlawfully withheld the documents first requested in October of 1995.” Id. at 4. Judge Wexler held that NARA demonstrated that it conducted a thorough search and the documents created by Agent Allison were not in its possession. Id. at 6. On January 12, 2001, the Second Circuit affirmed Judge Wexler's decision. Robert v. National Archives, 1 F. App'x 85 (2d Cir. 2001).

         II. The First CIA Action

         On July 25, 2000, Plaintiff filed a FOIA action against the CIA, “seeking an order directing the CIA to release documents which allegedly had been transferred to it from NARA” regarding the IMC. Robert v. The Central Intelligence Agency, No. 00-CV-4325, Docket Entry 20, at 2-3 (E.D.N.Y. Jul. 16, 2001) (the “First CIA Action”). (See also Defs.' Ex. B, Robert v. CIA, July 16, 2001 Mem. & Order, Docket Entry 100-2.) On July 16, 2001, this Court dismissed Plaintiff's complaint based on his failure to file a FOIA request with the CIA prior to commencement and held that Plaintiff's FOIA request and complaint to NARA did not constitute an exhaustion of administrative remedies. Id. at 6. Parenthetically, this Court noted that after Plaintiff filed his lawsuit, he “filed a Freedom of Information request for the documents.”[3] Id. at 3.

         III. Instant Action

         On December 31, 2002, Plaintiff commenced this FOIA action against the CIA and DOJ. On October 7, 2003, Plaintiff filed his Amended Complaint. (Am. Compl.) The Amended Complaint alleges that Plaintiff made two FOIA requests: (1) a FOIA request to the CIA for “documents, denominated as the North Notebook documents, which were identified by the National Archives in a prior FOIA [action] seeking the release of the FBI Agent Allison documents, which were withheld pursuant to FOIA Exemption 3, ” (Am. Compl. ¶ 2), and (2) “[DOJ] documents denominated ...

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