[89620] in Cypherpunks
NSA lawsuit recent documents
daemon@ATHENA.MIT.EDU (billp)
Fri Nov 7 11:53:05 1997
Date: Fri, 07 Nov 1997 09:47:42 -0800
From: billp <billp@nmol.com>
To: cypherpunks@cyberpass.net
Reply-To: billp <billp@nmol.com>
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Guys,
I think NSA tangled with the wrong groups.
Let's hope for settlement.
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
William H. Payne )
Arthur R. Morales )
)
Plaintiffs, )
)
v ) CIV NO 97 0266
) SC/DJS
)
Lieutenant General Kenneth A. Minihan, USAF )
Director, National Security Agency )
National Security Agency )
)
Defendant )
RESPONSE TO DEFENDANT'S MEMORANDUM OF
LAW IN SUPPORT OF DEFENDANT'S MOTION TO
DISMISS PLAINTIFF ARTHUR R. MORALES
1 COMES NOW plaintiffs Payne [Payne] and Morales [Morales]
[Plaintiffs], pro se litigants to exercise their rights
guaranteed under the Constitution, Rules of Civil Procedure, and
Local Civil Rules.
Defendant's MEMORANDUM and MOTION is stamped filed
97 SEP 23 and was served by mail.
Local Rule 7.6(a) states,
Timing. A response is due with (14) calendar days after
service of the motion.
2 Defendant's lawyer Jan Elizabeth Mitchell [Mitchell] claims,
It is Defendant's position that Arthur R. Morales has no
standing to bring this lawsuit as there is no "case or
controversy" involving Plaintiff. Mr. Morales has not met
the basic requirements to participate in this Freedom of
Information Act ("FOIA") action nor has he exhausted the
applicable administrative remedies required by law prior to
filing this lawsuit seeking release of records. Plantiff
Aruthur Morales must be dismissed from this lawsuit.
Plantiffs assert that Mitchell's claim to relief is
1 not supported by facts in law,
2 based of false statements of law
and, therefore, must be denied.
3 Mitchell states,
On February 28, 1887, pro se Plaintiffs William H. Payne
and Arthur R. Morales filed a Complaint for Injunctive
Relief (hereinafter "Complaint"). They assert the jurisdiction
of this Court pursuant to 5 U.S.C 552(a)(4)(B), and see the
disclosure and release of National Security Agency
("Agency") records allegedly improperly withheld from
Plaintiff William Payne by Defendant. In the Complaint
at 3, Plaintiff Arthur R. Morales is identified as "joining as
a concerned citizen . . . ."
Plaintiff agree.
4 Mitchell goes on to state,
Plaintiff William H. Payne made to FOIA requests of the
Agency in 1996. Complaint at 16 20; at 19 22. Arthur R.
Morales was named as a requester in either the request
submitted by Mr. Payne, no has he submitted any separate
request to the Agency for the records requested by Mr.
Payne or any other Agency records. In fact, Plaintiffs;
Complaint only alleges that Agnecy records were improperly
withheld from Mr. Payne. Paragraph 23 of the Complaint
states that only Mr. Payne appealed the Agency's failure
to repond to his requests, and paragraph 24 alleges that only
Mr. Payne has exhausted "applicable administrative
remedies."
Plaintiffs agree but see no statement in law that Morales
cannot participate. But, in fact, Mitchell provides citations
which clearly indicates Morales can participate in this lawsut
as a concerned citizen.
5 Mitchell proceeds to argue,
ARGUMENT
Title 5 U. S.C. section 552(a)(3) conditions an agency's duty
to make records available upon receipt of a request that is
made in accordance with published rules stating time, place,
fees, and procedures to be followed, and the reasonably
describes the records sought. 5 U. S. C . section 552
(a)(3)(A-B). By definition a "requester" is any person who
actually makes a request for documents. Upon receipt of such
a request, the agency must determine within the specified
period of time whether it will comply with the request and will
notify the person making the request of such determination
and the reasons therefore, and of the right of the requester
to appeal to the head of the agency any adverse
determination. The requesting individual must appeal in
adverse determination to the head of the agency before filing
suit in federal court 5. U.S.C. section 555(a)(4), (6)(A)(ii).
A federal count should not serve as a "forum in which to air ...
generalized grievance about the conduct of the government."
Flast v. Cohen, 392 U.S. 83, 101 (1953). ...
Flast v Cohen involved,
Action by federal taxpayers to enjoin expenditure of federal
funds for purchase of textbooks and other instructional
materials for use in parochial schools. A three judge panel
of the United States District Court for the Southern District
of New York, 271 F. Supp.1, dismissed complaint on ground
that plaintiffs lack standing to maintain the Action., and
plaintiffs appealed. The Supreme Court, Mr. Chief Justice
Warren, held that federal taxpayers has standing to sue to
prevent such expenditures on ground that such expenditures
were prohibited by the Establishment Clause of the First
Amendment.
88 SUPREME COURT REPORTER, 1984.
Mitchell's unreferenced quote appears to apply to Flast v
Cohen action in which Flast WON on appeal in the Supreme
Court. And DID air a generalized grievance about the
conduct of the government. The government is NOT FREE
to spend money in violation of the Constitution.
Michell misstates law for the FIRST time.
And, of course, Flast, as a concerned citizen even filed
a although not personally involved in the goverment misdeed.
6 Mitchell continues,
There is "no case or controversy" conferring standing on
Plaintiff Morales because only when a person make a
request user the FOIA and the petitioned agency denies
that request does a "case or controversy" exists. United
States v. Richardson, 418 U.S. 166, 171 (1974).
In United Sates et al v Richardson,
Respondent, as a federal taxpayer, brought this suit for the
purpose of obtaining a declaration for unconstitutionality
of the Central Intelligence Agency, which permits the CIA to
account for its expenditures "solely on the certification of the
Director ...." 50 U.S.C. section 403j(b). The complaint alleged
that the Act violated Art I, section 9, cl. 7, of the Constitution
insofar as that clause requires a regular statement and account
of public funds. The District Court's dismissal of the
complaint for, inter alia, respondent's lack of standing under
Flast v. Cohen 392 U. S. 83, was reversed by the Court of
Appeals. That court held that respondent had standing as
a taxpayer on the ground that he satisfied Flast's
requirements that that the allegations (1) challenge an
enactment ...
Payne made the request under the FOIA. Morales, as stated
in the complaint, joins as a concerned citizen to force
compliance with the rules of the FOIA.
Therefore, Morales, HAS STANDING as decided in United
States et al v Richardson. Morales, like Richardson and Flast,
were standing as concerned citizen too.
Michell misstates law for the SECOND time.
7 Mitchell states next,
In McDonnell v. United States, 4 F.3d 1227, 1236-7 (3rd Cir.
1993), the Court stated:
We think that a person whose name does not appear on a
request has not made a formal request for documents within
the meaning of the statute. Such a person, regardless of his
or her personal interest in disclosure of the requested
documents, . . . or notice of an agency decision to withhold
the documents ... Accordingly, a person . . . whose name
does not appear on a FOIA request for records may not sue
in district court when the agency refuses to release
requested documents because he has not administratively
asserted a right to receive them in the first place.
See also, Gillen v. Internal Revenue Service, 980 F .2d 819,
823 n.3 (lst Cir. 1992); Gale v. United Sates Government, 786
F.Supp. 697, 699 n. 1. (N.D. Ill. 1990). Thus, Plaintiff Morales
lacks standing to bring this lawsuit.
McDonell v United States involved,
Plaintiffs seek disclosure under the Freedom of Information
Act.., of certain information the Government has withheld
concerning the 1934 Morro Castle disaster. The Morro
Castle disaster occurred when a fire broke out on an
ocean liner just off the cost of New Jersey on September
3, 1934.
United States, 4 F.3d 1227, 1236-7 (3rd Cir. 1993) states at 1227
"Case of controversy" conferring standing to bring suit
to bring suit under the Freedom of Information Act (FOIA)
rises only when person makes request for information under
FOIA and petitioned agency denies that request; ...
Plaintiff Payne made the FOIA request and, and therefore
qualifies to bring suit.
Morales, as a concerned citizen, joins lawsuit to ensure
compliance of government with FOIA requirement. This
procedure has been accepted in the courts in Flast v Cohen
and United States et al v Richardson.
Mitchell inappropriately compares several authors' attempt
to gain information about the 1934 Morro Castle disaster
with
1 documents which will show NSA cryptographic lack
of ability and expertise,
2 documents related to the effects an uncovered spy sting
on the nation of Iran.
Both of are current international interest, as seen on
Internet at jya.com, click cryptome, catch the thread
at August 29, 1997.
Further, Mitchell CITES NO LAW which prevents Morales
from joining Payne in a lawsuit. But rather Mitchell
attempts to rely on faulty or inapplicable case law.
In Gillen v Internal Revenue Service,
Taxpayer filed pro se Freedom on Information Act (FOIA)
action against the Internal Revenue Service (IRS). The
United States District Court for the District of New
Hampshire, Shane Devine, J., deemed adequate and granted
summary judgment for the agency, and the taxpayer
appealed. The Court of Appeals held that: (1) IRS satisfied
its burden with respect to each of the five categories of
documents identified in the request; (2) IRS was exempt from
disclosure of information related to mathematical technique
used to identify tax returns most in need of examination or
audit; and (3) request did not reasonably describe records
of IRS's failed examination of taxpayer's tax returns.
Gillen v Internal Revenue Service HAS NOTHING TO DO about
exhausting administrative remedies.
Michell misstates law for the THIRD time.
8 Mitchell states,
In addition, the law is well-settled that a plaintiff must
exhaust administrative remedies prior to requesting judicial
review of an agency's handling of a FOIA request. Dettman v.
Department of Justice, 802 F2.d 1472, 1476-77 (D.C.Cir. 1986)
(FOIA lawsuit lawsuit subject to dismissal for lack of subject
matter jurisdiction if plaintiff fails to timely exhaust
administrative remedies); accord Hymen v Merit Systems
Protection Bd., 799 F2.d 1421, 1423 (9th Cir. 1986), cert.
denied, 481 U.S. 1019 (1987). See also McDonnell, 4 F 3.d at
1227, 1236-7; Oglesby v. Department of the Arym, 920 F2.d 57,
61 (D.C.Cir 1990), ; Pollack v. Department of Justice, 49 F3.d
115, 119 (4th Cir.) cert. denied 115 S.Ct. 130 (1995); Crooker
v. United States Secret Service, 577 F.Supp 1218, 1219
(D. D.C.) In Oglesby, the Court explained that exhaustion
was necessary in order to allow the agency from which the
records are being requested an opportunity to exercise its
"discretion and expertise on the matter and to make a factual
records to support its decision" and allows top managers of
an agency to "correct mistakes mad at lower levels and
thereby obviates unnecessary judicial review." Id.
In Hymen v Merit Systems Protection Board,
Plaintiff instituted pro se suit alleging discrimination in
employment. The United States District Court for the
Central District of California, Pamela Ann Rymer, J., dismissed
and appeal was taken. The Court of Appeals held that: (1)
complaint was jurisdictionally defective by failing to name
postmaster General as defendant, and (2) plaintiff was not
entitled to amend complaint because attempted amendment
occurred well after 30-day limitations period for bringing
an action to review decision of Merits System Protection
Board.
Gillen v Internal Revenue Service HAS NOTHING TO DO about
exhausting administrative remedies.
Michell misstates law for the FOURTH time.
In Pollack v. Department of Justice,
Suit was filed to enforce request for documents made under
the Freedom of Information Act (FOIA). Motion of
Department of Justice for summary judgment was granted by
the United States District Court for the District of Mayland,
John R. Hargrove, Senior District Judge, and requestor
appealed. The Court of Appeals, Niemeyer, Circuit Judge,
held that: (1) lack of timely response to plaintiff's request
resulted in constructively exhaustion of administrative
remedies, ...
Pollack DID exhaust administrative remedies.
Mitchell's citation does not support her argument.
Michell misstates law for the FIFTH time.
9 Mitchell writes,
If Mr. Morales is attempting to file a FOIA request by
joining this lawsuit, such an attempt will not suffice to
exhaust administrative remedies.
Morales is NOT attempting to filing a FOIA request.
Payne filed the FOIA request. Administrative remedies have
been exhausted as stated in the Complaint,
October 24, 1996 Payne appeals the non-response FOIA
denial to NSA's director Minihan. 31 December 1996 NSA
FOIA/PA Appeals Authority, William P. Crowell, writes,
Because the process of your request has not
progressed to a point where there have been any
initial, substantive Agency determination of the
release or withholding of responsive records, I can
offer you no administrative remedy.
10 Mitchell writes,
In Muhammad v. United States Bureau of Prisons, 789
F.Supp 449 (D.D.C. 1992), the plaintiff filed his FOIA and
Privacy Act requests with the court.
Payne filed his FOIA requests with the NSA, not the court.
11 Mitchell continues,
The court found that his FOIA and Privacy Act claims were
premature and dismissed them, stating that plaintiff's failure
to request the documents directly from the agencies holding
the records constituted a failure to exhaust administrative
remedies. Id. at 450.
Mitchell's argument is inapplicable. Payne properly filed two
FOIAs with NSA.
Payne exhausted administrative remedies.
Payne and Morales, as a concerned citizen, filed suit for
documents legally due Payne under the FOIA.
12 Mitchell concludes,
Plantiff Morales has failed to comply with even the most basic
requirement, that is, to make a request for Agency records.
Based up the allegations contained in Plaintiff's Complaint
and the absensce of any evidence that Arthur R. Morales
has ever filed a FOIA request with the Agency, Mr. Morales
has no standing to bring this cause of action, he has failed
to exhaust his administrative remedies as required under
FOIA, and this Court lack jurisdiction over Mr. Morales
Complaint.
CONCLUSION
For the above-stated reasons, Plaintiff Arthur R. Morales
must be dismissed from this lawsuit.
13 Plaintiffs' conclude,
1 Mitchell fails to constructively show that there is any law
preventing Morales from joining with Payne in a FOIA
lawsuit.
2 Mitchell cites Flast v Cohen and United Sates et al v
Richardson. In both cases actions were brought by
concerned citizens. Therefore, even case law does not
appear to support Mitchell's contention that Morales cannot
join Payne in a FOIA lawsuit.
Writ of mandamus has been requested from Supreme
Court Judge Antonin Scalia for judges Svet and Campos
attempt to usurp power from the Federal Rules of Civil
Procedure by illegally limited Plaintiffs' right to discovery.
Criminal complaint affidavits have been issued against
Svet and Campos for violating Plaintiffs' civil rights
guaranteed under the Constitution and Federal Rules of
Civil Procedure.
Plaintiffs do not need "leave of court" to begin Discovery
as Svet and Campos ordered. Discovery, according to
the Rules of Federal Procecdure being "without leave of
court.
Accused judges, who committed their crime in writing,
should disqualify themselves from this lawsuit for (1)
reasons of justice and (2) an even more civil rights
criminal violation will result.
WHEREFORE,
14 Take no action in this case until Scalia properly acts
on both the writ of mandamus to restore Plaintiff's
right to Discovery guaranteed by the Federal Rules of
Civil Procedure and Constitution and criminal complaint
affidavits.
15 Have a new judge DENY Mitchell's fraudently submitted
MOTION.
16 Sanction Mitchell for violation of the False Statement Act
for having mistated law in her MEMORANDUM and MOTION
dated 97 SEP 23.
4 GRANT such other relief as the Court may deem just and proper.
Respectfully submitted,
_________________________
William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111
_________________________
Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107
Pro se litigants
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing demand was mailed
to Lieutenant General Kenneth A. Minihan, USAF, Director,
National Security Agency, National Security Agency, 9800 Savage
Road, Fort George G. Meade, MD 20755-6000 and hand delivered to
John J. Kelly, US Attorney, 525 Silver SW, ABQ, NM 87102 this
Monday October 6, 1997.
