Petition for Writ of Certiorari — Mark Geraghty Wonders, Petitioner v. Office of the Army General Counsel

Supreme Court briefJul 24, 2025

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MARK GERAGHTY WONDERS,

Plaintiff

Case No. l:23-cv-02770

(TNM)

DEPARTMENT OF THE ARMY OFFICE OF THE GENERAL

COUNSEL,

Defendant

MEMORANDUM OPINION

Fourteen years ago, the Department of the Army revoked

Mark Wonders’ security clearance. During the revocation

process, an Army attorney wrote a legal memorandum for

Wonders’ investigating officer and Army command. In 2012,

2014, and 2022, Wonders submitted three Freedom of

Information Act requests for this document. The Army denied

the first two requests, citing the attorney-client privilege under

FOIA Exemption 5. And it denied the last one, too, saying it was a

duplicate.

Wonders now challenges the Army’s response to his 2022

FOIA request. Wonders sued within the applicable statute of

limitations, and he exhausted his administrative remedies. But

the Army properly withheld the memorandum under the

attorney-client privilege. So the Court will grant summary

judgment to the Army and deny it to Wonders.

The Army revoked Wonders' security clearance in 2010. See Pl.'s

Opp’n and Cross-Mot. for Summ. J. ("Pl.'s X-MSJ"] Ex. G at 2,13 1

ECF No. 14-7. Under Army Regulation 15-6, Wonders’

investigating officer requested a legal memorandum, called the

"Legal Review," from an attorney at the Fort Rucker Office of the

Staff Judge Advocate ("OSJA"]. See Pl.’s X-MSJ Ex. B at 2, ECF No.

14-2. On July 27, 2010, Wonders’ investigating officer received

that document. And ever since, Wonders has tried to get a copy

of it.

He submitted FOIA requests to the Army in 2012 and 2014.

But both times the Army withheld the Legal Review. And it gave

the same reason each time: "The legal opinion is not releasable

to you in accordance with the attorney-client privilege of FOIA

13 The Court’s page citations refer to the pagination automatically generated

byCM/ECF.

Exemption 5 (5 U.S.C. § 552(b)[5])." Pl.’s X-MSJ Ex. P at 20-21,

ECF No. 14-16. In each denial letter, the Army told Wonders he

had a right to appeal the withholding decisions to the Secretary

of the Army. Id. Yet Wonders never appealed the 2012 or 2014

requests. Def.’s Mot. Summ. J. ("Def.’s MSJ"), J. Patrick Decl. ][ 3,

ECF No. 12-5 ("The Army General Counsel's Office advised me

that they... do not have any record of Plaintiff ever filing an

appeal with their office regarding our 2012 or

2014 denial letters.”).

Then Wonders tried again with a fresh FOIA request in 2022.

In response, the Army said

it was "taking no action on [the] request, as it is a duplicate of

previous FOIA requests [Wonders]

made in 2012 and 2014." Pl.’s X-MSJ Ex. P at 23. But this time

Wonders appealed the

determination to the Secretary. Id. at 24. His office denied the

appeal, concluding that the Army

had followed its policy "on duplicate requests." Id. Then the

Secretary told Wonders he could

"seek judicial review of this determination in the federal court

system in accordance with the

FOIA, 5 U.S.C. § 552(a)(4)(B)." Id.

Wonders followed through and filed this pro se lawsuit against

the Army. The Complaint claims the Army violated FOIA and

"due process" by withholding the Legal Review. See Compl. at 4,

ECF No. 1. The Army filed a Motion to Dismiss, or in the

alternative, Motion for Summary Judgment. See ECF No. 12.

Wonders opposed and filed a Cross-Motion for Summary

Judgment. See ECF No. 14. Those motions are ripe.

II.

The Army argues either for dismissal under Federal Rule of

Civil Procedure 12(b)(1) or for summary judgment under Rule

56(a). Def.’s MSJ at 1.

Start with the standard for dismissal under Rule 12(b)(1).

Federal courts "possess only that power authorized by the

Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377 (1994). So Rule 12(b)(1) gives defendants

the ability to make "a threshold challenge to a court’s

jurisdiction." Ctr. for Biological Diversity v. Jackson, 815 F.

Supp. 2d 85, 89 (D.D.C. 2011). And when a defendant brings such

a challenge, "the plaintiff bears the burden of establishing that

the court has jurisdiction." Id. (citing Lujan v. Defs. of Wildlife,

504 U.S. 555, 561 (1992)).

But Rule 12(b)(1) is an improper vehicle for the Army's

arguments, which address the statute of limitations, exhaustion,

and the merits. None of these arguments, at least in the context

of a FOIA case like this one, affect the Court’s subject matter

jurisdiction. FOIA derives its limitations period from 28 U.S.C. §

2401(a). See Spannaus v. DOJ, 824 F.2d 52, 55 (D.C. Cir.

1987). But "§ 2401(a)'s time bar is nonjurisdictional." Jackson v.

Modley, 949 F.3d 763, 778

(D.C. Cir. 2020).14 Similarly, FOIA's exhaustion requirement "is

not jurisdictional because the

FOIA does not unequivocally make it so." Hidalgo v. FBI, 344 F.3d

1256,1258 (D.C. Cir.

14 Jackson overruled Spannaus's jurisdictional treatment of § 2401(a). See

Jackson, 949 F.3d at 776 ("[W]e hold that [Supreme Court precedent]

overrules our precedent treating § 2401 (a)’s statute of limitations as

jurisdictional.”). But it did not disturb the remainder of Spannaus’s

reasoning on accrual and exhaustion in FOIA cases. Compare id. at 776-778,

with Spannaus, 824 F.2d at 56-59.

2003). And merits arguments, of course, are "not jurisdictional

but instead relate to the substance of [a] plaintiff s claim for

relief.” Jackson, 949 F.3d at 767 n.2. So these dismissal

arguments fit under Rule 12(b)(6), not Rule 12(b)(1). See, e.g., id.

at 767.

Yet even if the Army made its arguments under Rule 12(b)(6),

summary judgment offers the best path forward because both

parties rely on "materials that are not part of the pleadings."

Pinson v. DOJ, 61 F. Supp. 3d 164,172-73 (D.D.C. 2015). The

Army offers a declaration from a senior Army official. See ECF

No. 12-5. And Wonders pulls liberally from transcripts, emails,

memoranda, and other exhibits. See ECF Nos. 14-1 through 1416. Given the parties' reliance on external materials, "the Court

will evaluate" their motions "under the summary judgment

standard." Pinson, 61 F. Supp. 3d at 173 ("FOIA cases typically

and appropriately are decided on motions for summary

judgment.” (cleaned up)).

Summary judgment may be awarded when "the movant

shows that there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is

material when it can affect the substantive outcome of the

litigation. Anderson v. Liberty Lobby, Inc.,Ml U.S. 242, 248

(1986). And a dispute is genuine "if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party."

Id. At this stage the Court does not "weigh the evidence" but

determines "whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law." Id. at

251-52.

In a FOIA case "brought to compel production, an agency is

entitled to summary judgment if no material facts are in dispute

and if it demonstrates that each document that falls within the

class requested either has been produced ... or is wholly exempt

from [FOIA's] inspection requirements." Students Against

Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001)

(cleaned up).

Because Wonders sues pro se, the Court liberally construes his

filings and considers them all together. See Erickson v. Pardus,

551 U.S. 89, 94 (2007); cf. Brown v. Whole Foods Mkt. Grp., Inc.,

789 F.3d 146,152 (D.C. Cir. 2015). He must still, however,

comply with the Federal Rules of Civil Procedure. See Amiri v.

Nat'l Science Found., 664 F. Supp. 3d 1,10-11 (D.D.C. 2021), offd,

2022 WL 1279740 (D.C. Cir. Apr. 28, 2022).

III.

The Army argues that Wonders' suit founders on the statute of

limitations, the exhaustion requirement, and the merits. The

Court considers each argument in turn.

Consider first the Army's intertwined arguments on the

statute of limitations and exhaustion. FOIA incorporates the sixyear limitations period in 28 U.S.C. § 2401(a). This means a FOIA

requester must file any complaint "within six years after the

right of action first accrues.” 28 U.S.C. § 2401(a).

"A cause of action against an administrative agency 'first

accrues,' within the meaning of § 2401(a), as soon as (but not

before) the person challenging the agency action can institute

and maintain a suit in court." Spannaus, 824 F.2d at 56 (citing

Crown Coat Front Co. v. United States, 386 U.S. 503, 510-11

(1967)]. In turn, "a suit cannot be maintained in court—and a

cause of action does not 'first accrue’—until a party has

exhausted all administrative remedies whose exhaustion is a

prerequisite to suit." Id. at 56-57 (citing Crown Coat, 386 U.S. at

510-19).

FOIA also comes with an exhaustion requirement. Within 10

days, the agency must "determine ... whether to comply with" a

FOIA request, "immediately notify" the requester, and

tell him he has a right "to appeal to the head of the agency" any

"adverse determination."

5 U.S.C. § 552(a)(6) (A) (i). Then the agency must "make a

determination" on any appeal within 20 days. Id. §

552(a) (6) (A) (ii). And if the requester loses, the agency must tell

the requester of his right to seek "judicial review of that

determination." Id. "Courts have consistently confirmed that the

FOIA requires exhaustion of this appeal process before an

individual may seek relief in the courts." Oglesby v. U.S. Dep't of

Army, 920 F.2d 57, 61-62 (D.C. Cir. 1990) (collecting cases).

To bring things full circle, "a cause of action under FOIA first

accrues when the requester first exhausts his remedies."

Spannaus, 824 F.2d at 59. Only then does the clock begin ticking

on the six-year limitations period. See id.

To the extent that Wonders seeks relief on his 2012 and 2014

requests, he never exhausted his administrative remedies. In

support of its Motion, the Army attached the Declaration of John

P. Patrick, who serves in the Office of the Judge Advocate

General. See J. Patrick Decl. U A, ECF No. 12-5. He explains that

the Army General Counsel’s Office does "not have any record of

[Wonders] ever filing an appeal with their office regarding [the

Army's] 2012 or 2014 denial letters." Id. 1[ 3. Wonders does not

dispute this. So his choice to forgo administrative appeals

"preclude[s] [him] from ever bringing suit on [those] request[s]."

Oglesby, 920 F.2d at 65.

The Army argues that the statute of limitations also bars

Wonders' claims on the 2012 and 2014 requests. See Def.’s MS]

at 10. Not so. Under Spannaus, a cause of action accrues for

statute-of-limitation purposes only after "a party has exhausted

all administrative remedies." 824 F.2d at 57. Because Wonders

failed to exhaust his administrative remedies for the 2012 and

2014 requests, no claim accrued—meaning the limitations

period never began to run. So the exhaustion requirement, not

the limitations period, precludes judicial review of those

requests. See id.; see also Oglesby, 920 F.2d at 61-62.

The exhaustion calculus changes for Wonders’ 2022 request.

When the Army denied this request, Wonders appealed to the

Secretary. See PL's X-MSJ Ex. P at 24. In doing so, he exercised his

right "to appeal to the head of the agency any adverse

determination." 5 U.S.C. § 552 [a] (6) [A] (i). The Army concedes

this fact. See J. Patrick Decl.

3 ("Plaintiff filed an appeal to the

Army General Counsel's Officef.]"). So on this request, Wonders

did all that FOIA requires of him; he exhausted his

administrative remedies. See 5 U.S.C. § 552(a)(6)(A)(i)-(ii).

And the six-year limitations period poses no independent bar to

this 2022 request.

Still, the Army insists that exhaustion bars review of this

request. In its view, Wonders’ failure to exhaust his remedies on

the 2012 and 2014 requests precludes him from ever

exhausting his remedies on a future duplicate request (i.e., the

one in 2022]. See Def.’s MSJ at 11-12. The Army backs this

argument with a citation to Toensing v. U.S. Department ofJustice,

890 F. Supp. 2d 121 (D.D.C. 2012]. See id. To be sure, Toensing

says: "When withholding decisions are made in an unexhausted

request, a subsequent, identical request cannot cure a prior

failure to exhaust" administrative remedies. 890 F. Supp. 2d at

140.

But the Army overreads Toensing for two reasons. First, that

case addressed factually dissimilar circumstances. The plaintiffs

there never took "an administrative appeal on the merits." Id. at

138 n.7. Instead, they "satisfied the exhaustion requirement

through constructive exhaustion." Id. Here, Wonders actually

appealed the 2022 request to the Secretary. See Pl.'s X-MSJ Ex. P

at 24. And the Secretary denied that appeal on procedural

grounds. Rather than grappling with the merits of the

withholding decision, the Secretary told Wonders that the

Army’s "decision complied with" its policy "on duplicate

requests." Id. Toensing expressly distanced its reasoning from

this factual scenario, where "administrative review of the

withholding decisionf] is not on the merits." 890 F. Supp. 2d at

138 n.7.

Second, reviewing the 2022 request—despite the earlier

exhaustion defects—"presents no risk of undermining the

purposes and policies underlying the exhaustion requirement."

Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). Exhaustion

exists "to prevent premature interference with agency processes,

to give the parties and the courts benefit of the agency's

experience and expertise and to compile an adequate record for

review." Id. Reviewing Wonders' 2022 request tinkers with none

of this. Indeed, Wonders "did not bypass the administrative

review process but pursued it to its end." Id. And once the

Secretary denied his appeal, Wonders "availed himself of the

right to seek judicial review as the [Secretary] told him he

could." Id.; see also Pl.'s XMSJ Ex. P at 24. So allowing review will

not "cut off the agency's power to correct or rethink initial

misjudgments or errors." Oglesby, 920 F.2d at 64.

Nor does it matter that Wonders' 2022 request duplicated

earlier requests. The Army could have made fresh withholding

decisions for the 2022 request. Instead, the Army relied on

its "policy concerning duplicate FOIA requests" and denied the

request without a second look. J. Patrick Decl.

2. While nothing

in FOIA prohibits this practice, a duplicate request still gives

the agency "an opportunity to exercise its discretion and

expertise on the matter and to make a factual record to support

its decision." Wilbur, 355 F.3d at 677 (cleaned up). An agency

may decline the opportunity, but doing so will not preclude a

requester from exhausting his administrative remedies. Cf.

Spannaus, 824 F.2d at 61 ("[N]othing" in FOIA "prevents

[someone] from requesting the same documents decade after

decade" because he may "simply refile his FOIA request... and

restart the process[.]").

Yet the Army’s procedural arguments still have bite because

Wonders failed to address

them. Compare Def.’s MS] at 5-6, with Pl.’s X-MSJ, and Pl.’s Reply,

ECFNo. 18. "[I]t is well

understood in this Circuit that when a plaintiff files an

opposition to a dispositive motion and addresses only certain

arguments raised by the defendant, a court may treat those

arguments that the plaintiff failed to address as conceded."

Hopkins v. Women's Div., Gen. Bd. of Glob. Ministries, 284 F. Supp.

2d 15, 25 (D.D.C. 2003). And "[t]his principle applies even to

parties proceeding without legal representation, like Wonders]."

Paul v. Didizian, 819 F. Supp. 2d 31, 36 (D.D.C. 2011). "Based on

[Wonders’] failure to respond to the [Army’s] arguments], the

Court shall, in an exercise of its discretion, threat [them] as

conceded." Id.

Even so, "exhaustion is a prudential consideration rather than

a jurisdictional prerequisite." Wilbur, 355 F.3d at 677. And the

rule the Army advocates—that failure to fully exhaust an initial

FOIA request forever bars the requester from obtaining those

materials—is a harsh sanction unsupported by statute,

precedent, or logic. So the Court will alternatively examine and

deny Wonders' 2022 request on the merits.

The Army withheld the Legal Review under FOIA Exemption

5. That exemption permits an agency to withhold "inter-agency

or intra-agency memorandums or letters that would not be

available by law to a party other than an agency in litigation with

the agency." 5 U.S.C. § 552(b)(5). "[T]he parameters of

Exemption 5 are determined by reference to the protections

available to litigants in civil discovery; if material is not

'available' in discovery, it may be withheld from FOIA

requesters." Burka v. U.S. Dep't of Health & Hum. Servs., 87 F.3d

508, 516 (D.C. Cir. 1996). This typically gives rise to three

protections: the attorney-client privilege, the attorney work

product privilege, and the deliberative process privilege. Coastal

States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 862 (D.C. Cir.

1980).

The Army argues the attorney-client privilege justifies its

withholding decision. Def.’s MSJ at 12-13. This "privilege

protects confidential communications from clients to their

attorneys made for the purpose of securing legal advice." Tax

Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997). It also shields

"communications from attorneys to their clients if the

communications rest on confidential information obtained from

the client." Id. (cleaned up). In a FOIA case like this one, "the

burden rests with the Government to prove, through 'detailed

and specific information/ that the withheld information falls

within the domain of the privilege." Cause ofAction Inst. v. DOJ,

330 F. Supp. 3d 336, 347 (D.D.C. 2018) (quoting Campbell v. DOJ,

164 F.3d 20, 30 (D.C. Cir. 1998)].

So the applicability of the privilege turns on the Army’s ability

to prove "five essential elements":

[1] The holder of the privilege is, or sought to be, a client;

[2] the person to whom the communication is made is a

member of the bar or his subordinate and, in connection

with the communication at issue, is acting in his capacity

as a lawyer;

[3] the communication relates to a fact of which the

attorney was informed by his client, outside the presence

of strangers, for the purpose of securing legal advice;

[4] the privilege has been claimed by the client;

[5] a fundamental prerequisite to the assertion of the

privilege is confidentiality both at the time of the

communication and maintained since.

Id.

The Army satisfies each element. The Army counts as a client,

and it communicated with an attorney at the Fort Rucker OSJA.

See Tax Analysts, 117 F.3d at 618 (explaining that "the ‘client’

may be the agency and the attorney may be an agency lawyer’’);

J. Patrick Decl. K 5. The relevant communication—the Legal

Review—concerned facts about Wonders’ conduct that the

Army shared with the attorney. J. Patrick Decl. U 5(a)-(b). Based

on that information, the attorney gave legal advice to Wonders’

investigating officer and Army command. Id. 1J 5(c). For instance,

the attorney evaluated "(w]hether [Wonders’] investigation

complies with legal requirements" and "[w]hether sufficient

evidence supports the findings of the investigation." Id. ]J

5(b)(1), (b)(3). Finally, the Army asserts it "has maintained

confidentiality of this July 27, 2010 attorney-client

communication." Id. U 5(d).

Wonders objects to this last element. He claims the Army

shared the Legal Review with third parties, vitiating the

privilege. See Pl.’s X-MSJ at 9. Specifically, he says the Army gave

the Legal Review to two outside officials: a Security Adjudicator

at the Army’s Central Clearance Facility ("CCF") and an

Administrative Law Judge at the Defense Office of Hearings

and Appeals ("DOHA"). See Pl.'s X-MSJ at 2; Pl.'s Reply at 3, ECF

No. 18.

Assuming Wonders is right about those disclosures, the Legal

Review remains privileged. Of course, confidentiality is "a

fundamental prerequisite to assertion of the privilege." Coastal

States Gas Corp., 617 F.2d at 863. But "[w]hen the client is by

nature a group, as is true of both the government and

corporations, the courts have agreed that the privilege should

not be defeated by some limited circulation beyond the attorney

and the person within the group who requested the advice." Id.

The test, according to the D.C. Circuit, "is whether the agency

is able to demonstrate that the documents, and therefore the

confidential information contained therein, were circulated no

further than among those members of the organization who are

authorized to speak or act for the organization in relation to the

subject matter of the communication." Id. (cleaned up). Put

another way: A communication may remain privileged unless it

has "been made known to persons other than those who need to

know" about it. Id.

An adjudicator and an ALJ needed to know about the

"confidential facts" that the Army gave to the attorney who

authored the Legal Review. Id. The subject matter of that

document concerned "whether [Wonders] committed a security

breach" that merited "adverse administrative action." J. Patrick

Decl. If 5(a)(1). And both the adjudicator and the ALJ were

"authorized to speak or act for the [Army]” on that very issue.

Coastal States Gas Corp., 617 F.2d at 863. Indeed, CCF

adjudicators make personnel security determinations for the

Army.15 And ALJs at DOHA "issue[] decisions in personnel

security clearance cases for contractor personnel doing classified

work for all [Department of Defense] components."16

In sum, the Army only distributed the Legal Review on a

"need to know basis ... to [individuals] that were authorized to

speak or act for the [Army]" on Wonders' security clearance.

F.T.C. v. GlaxoSmithKline, 294 F.3d 141,147 (D.C. Cir. 2002]

[extending privilege to documents shared with outside

contractors). So "[t]he disclosure of [the Legal Review] to the

15 See DoD 5200.2-R at App’x 8, Dep't of Defense Personnel Security Program

[Jan. 1987, reissued incorporating changes Feb. 23,1996); see also Central

Clearance Facility, Personnel Security Appeals Board, https://perma.cc/V9ZU852W (last visited Aug. 19, 2024). The Court takes judicial notice of this

website, and the one in the following footnote, because they are both

official websites of the U.S. Government. See Cannon v. District of Columbia,

717 F.3d 200, 205 n.2 (D.C. Cir. 2013).

16 Defense Office of Hearings and Appeals, https://perma.cc/MDL8-MTRC

(last visited Aug. 19,2024); see also DoDD 5220.6 at E3.1.2, Defense Industrial

Personnel Security Clearance Review Program (Jan. 2,1992).

[adjudicator and ALJ] did not waive the privilege.” Cause of

Action Institute v. DOJ, 330 F. Supp. 3d 336, 351 (D.D.C. 2018);

accord Pub. Emps.for Env't Resp. v. U.S. Env't Prot. Agency,

211 F. Supp. 3d 227, 233 (D.D.C. 2016).

Even so, the Army faces two final hurdles to justify its

withholding decision. First, the

Army can withhold the Legal Review "only if' it "reasonably

foresees that disclosure would

harm an interest protected by" FOIA Exemption 5. 5 U.S.C. §

552(a)(8)(A)(i)(I). It does. The Legal Review contains the

"opinions, advice, analysis and recommendations" of an OSJA

attorney who was advising Wonders’ investigating officer and

Army command. J. Patrick Decl.

6. The Army claims that

disclosing this memorandum "would harm the full and free

discussion of attorney-client privileged matters within the

agency" and "seriously disrupt open communication between the

command and attorneys." Id. It also expects that disclosure

would "deprive government decision-makers of the full and

candid advice of their counsel." Id. This counts as a "non

generalized explanation" of reasonably foreseeable harm65

especially given the attorney-client privilege context, where "the

risk of harm through disclosure is more self-evident and the

potential for agency overuse is attenuated." Reps. Comm, for

Freedom of the Press v. U.S. Customs & Border Prot., 567 F. Supp.

3d 97,120,124 (D.D.C. 2021]; cf. also Emuwa v. DHS, — F.4th —-,

2024 WL 4019115, at *3 (D.C. Cir. Sept. 3, 2024) (noting, in

deliberative process discussion, that "foreseeability of harm"

may be "manifest from the very context and purpose of the

communications" (cleaned up)).

Second, the Army must also "consider whether partial

disclosure of information is possible" and "take reasonable steps

necessary to segregate and release nonexempt information."

5 U.S.C. § 552(a)(8)(A)(ii). In short, the agency must

"demonstrate that all reasonably segregable material has been

released." Johnson v. EOUSA, 310 F.3d 771, 776 (D.C. Cir. 2002).

The Legal Review is not reasonably segregable. A senior Army

official swears he "reviewed the document, page-by-page and

line-by-line," and concluded "that there are no non-exempt

portions that can be segregated from the exempt portions and

produced." J. Patrick Decl.

8. He "determined that the

document is intricately intertwined with legal analysis and no

portions of it may be released beyond what was previously"

given to Wonders. Id. These statements entitle the Army “to a

presumption that [it] complied with the obligation to disclose

reasonably segregable material." Sussman v. U.S. Marshals Serv.,

494 F.3d 1106,1117 (D.C. Cir. 2007).

And Wonders has produced no evidence to rebut this

presumption. Id. So the Army has satisfied its segregability

obligation.

Finally, Wonders' filings include passing references to a due

process claim. E.g., Compl. at 4; Pl.'s X-MSJ at 9. Assuming he has

made "a short and plain statement" of this claim, Fed. R. Civ. P.

8(a)(2), it would not be "a claim upon which relief can be

granted," Fed. R. Civ. P. 12(b)(6).

The Fifth Amendment says: "No person shall be ... deprived of

life, liberty, or property, without due process of law." U.S. Const,

amend. V. In its procedural and substantive forms, a due process

claim turns on the existence of "a protected liberty or property

interest." Deryckv. Dep'tofDef., No. l:22-cv-3290, 2023 WL

3303832, at *3 (D.D.C. May 8, 2023) (citing Gen. Elec. Co. v.

Jackson, 610 F.3d 110,117 (D.C. Cir. 2010) (procedural due

process) and George Wash. Univ. v. District of Columbia, 318 F.3d

203, 206 (D.C. Cir. 2003) (substantive due process)).

Neither exist here. FOIA does not give Wonders "a property

interest in the document^ he seeks." Id. "And because [Wonders]

does not 'ha[ve] a right to a security clearance,’ the revocation of

his clearance 'cannot serve as a predicate liberty or property

interest.”’ Id. (first quoting Doe v. Cheney, 885 F.2d 898, 909 (D.C.

Cir. 1989), then quoting Palmieri v. United States, 72 F. Supp. 3d

191, 206-07 (D.D.C. 2014), affd, 896 F.3d 579 (D.C. Cir. 2018)).

IV.

The exhaustion requirement bars review of Wonders' first

two tries to retrieve the Legal Review. And the Court grants as

conceded the Army’s procedural arguments on his last attempt.

Alternatively, the Army properly invoked FOIA Exemption 5 for

the Legal Review. And to the extent that Wonders asserts a due

process claim, it too fails on the merits.

A corresponding Order will issue today.

Dated: September 11, 2024 /s/ TREVOR N. McFADDEN, U.S.D.J.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MARK GERAGHTY WONDERS,

Plaintiff

(TNM)

Case No. l:23-cv-02770

DEPARTMENT OF THE ARMY OFFICE OF THE GENERAL

COUNSEL,

Defendant

ORDER

Upon consideration of Defendant's Motion to Dismiss or, in

the Alternative, Motion for Summary Judgment, Plaintiffs

Opposition and Cross-Motion for Summary Judgment, related

legal memoranda, the pleadings, relevant law, and the entire

record of this case, for the reasons set forth in the accompanying

Memorandum Opinion, it is hereby

ORDERED that Defendant's [12J Motion for Summary

Judgment is GRANTED. It is further

ORDERED that Plaintiffs [14] Cross-Motion for Summary

Judgment is DENIED.

The Clerk of Court is requested to close this case. This is a

final, appealable order. See Fed. R. App. P. 4(a].

SO ORDERED.

Dated: September 11, 2024 /s/ TREVOR N. McFADDEN, U.S.D.J.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Mark Geraghty Wonders,

Appellant

Appeal No. 24-5214

l:23-cv-02770 (TNM)

Department of the Army

Office of the General Counsel,

Appellee

Filed February 28, 2025

ORDER

Upon consideration of the motion for summary affirmance

and the supplement thereto, the opposition to the motion for

summary affirmance, the amicus brief in support of appellant,

and the reply, it is

ORDERED that the motion for summary affirmance be

granted. The merits of the parties' positions are so clear as to

warrant summary action. See Taxpayers Watchdog, Inc. v.

Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam).

Appellant has not raised any meritorious challenge to the

district court’s holding that the Army legal memorandum at

issue here, related to the revocation of appellant’s security

clearance, was exempt from disclosure under the attorney-client

privilege component of Freedom of Information Act (“FOIA")

Exemption 5. See 5 U.S.C. § 552(b)(5). The district court properly

rejected appellant’s argument that the Army’s release of the legal

memorandum to a security adjudicator precluded application of

the privilege. See generally FTC v. GlaxoSmithKline, 294 F.3d

141,147 (D.C. Cir. 2002). Furthermore, appellant's conclusory

arguments concerning alleged misconduct during the revocation

proceedings, an administrative law judge's order discussing

release of certain documents to appellant, and a prior version of

Army Regulation 15-6 do not show any error in the district

court’s analysis. Moreover, appellant’s brief argument

concerning foreseeable harm is based on an unsupported factual

assertion regarding routine release of legal memoranda, and the

arguments in the amicus's brief regarding foreseeable harm are

forfeited because appellant did not raise them in district court or

in his opposition to summary affirmance. See District of

Columbia v. Air Florida, Inc., 750 F.2d 1077,1084 (D.C. Cir. 1984)

("It is well settled that issues and legal theories not asserted at

the District Court level will ordinarily not be heard on appeal.");

MetLife, Inc. v. Financial Stability Oversight Council, 865 F.3d

661, 666 n.4 (D.C. Cir. 2017) ("Nor may amici expand an appeal’s

scope to sweep in issues that a party has waived"); Huerta v.

Ducote, 792 F.3d 144,151 (D.C. Cir. 2015) ("[O]rdinarily this

court will not entertain an amicus's argument if not presented by

a party."). Appellant has also failed to show any error in the

district court’s segregability analysis.

Finally, appellant has failed to meaningfully address the

district court’s holding that he lacked an interest protected by

the due process clause, and he has therefore forfeited any

challenge to that ruling. See City of Waukesha v. EPA, 320 F.3d

228, 250 n.22 (D.C. Cir. 2003).

Pursuant to D.C. Circuit Rule 36, this disposition will not be

published. The Clerk is directed to withhold issuance of the

mandate herein until seven days after resolution of any timely

petition for rehearing or petition for rehearing en banc. See Fed.

R. App. P. 41(b); D.C. Cir. Rule 41.

Per Curiam

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Mark Geraghty Wonders,

Appellant

Appeal No. 24-5214

l:23-cv-02770 (TNM)

Department of the Army

Office of the General Counsel,

Appellee

Filed March 10, 2025

MOTION FOR REHEARING OR PETITION FOR REHEARING EN

BANC

Comes now the Appellant’s Motion for Rehearing or

Petition for Rehearing En Banc in response to the 28 February

2025 ORDER:

With respect to the COURT the Appellant disagrees that

no meritorious challenge to the district court’s holding that the

Army legal memorandum at issue here, related to the revocation

of appellant’s security clearance, was exempt from disclosure

under the attorney-client privilege component of Freedom of

Information Act ("FOIA") Exemption 5. See 5 U.S.C. § 552(b)(5),

or that the district court properly rejected appellant’s argument

that the Army’s release of the legal memorandum to a security

adjudicator precluded application of the privilege, for the

following central reasons.

The Administrative Judge overseeing security

action ordered both Legal Reviews considered in

the action be released to the Appellant

This fact, along with the evidence previously submitted to

the COURT memorializing these facts were never challenged

by the Appellee.

The Agency released one of the two legal reviews

II.

ordered by the Administrative Judge

Again, this fact, along with the submitted evidence, was

never challenged by the Appellee.

III.

The Agency cited Army Regulations that were not

in effect during either the security procedure or

subsequent FOIA requests for said legal review

According to established law, there was no legal reason to

withhold this document at any time.

Conclusion

The lawful order of the Administrative Judge to release

both legal reviews simply guts any Appellee claim to

attorney-client privilege or legal justification to withhold this

legal review.

For the above cited reasons, the Appellant respectfully

request a review of the 28 February 2025 decision.

I certify that the above pleading is true and accurate to the

best of my knowledge.

Signature

Date

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CERTIFICATE OF SERVICE

I, Mark Geraghty Wonders, do hereby Certify that a true

and correct copy of the foregoing has been furnished

electronically on this 10th day of March 2025, to:

Individuals

U.S. Court of Appeals for the District of Columbia Circuit

333 Constitution Avenue, N.W.

Washington, D.C. 20001

Special Assistant U.S. Attorney Alane E. Ballweg

Civil Division, U.S. Attorney’s Office

601 D. Street, N.W.

Washington, D.C. 20530

Phone: (202) 252-2574

alane.ballweg@usdoj.gov

Signature

Date

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Mark Geraghty Wonders,

Appellant

Appeal No. 24-5214

l:23-cv-02770 (TNM)

Department of the Army

Office of the General Counsel,

Appellee

Filed May 13, 2025

BEFORE: Childs, Pan, and Garcia, Circuit Judges

ORDER

Upon consideration of the petition for rehearing, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Mark Geraghty Wonders,

Appellant

Appeal No. 24-5214

l:23-cv-02770 (TNM)

Department of the Army

Office of the General Counsel,

Appellee

Filed May 13, 2025

BEFORE: Srinivasan, Chief Judge, and Henderson, Millett,

Pillard, Wilkins, Katsas, Rao, Walker, Childs, Pan, and Garcia,

Circuit Judges

ORDER

Upon consideration of the petition for rehearing en banc, and

the absence of a request by any member of the court for a vote, it

is ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Mark Geraghty Wonders,

Appellant

Appeal No. 24-5214

l:23-cv-02770 (TNM)

Department of the Army

Office of the General Counsel,

Appellee

Filed May 21, 2025 [2116707]

MANDATE

In accordance with the order of February 28, 2025, and pursuant

to Federal Rule of Appellate Procedure 41, this constitutes the

formal mandate of this court.

FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Mark Geraghty Wonders,

Appellant

Appeal No. 24-5214

l:23-cv-02770 (TNM)

Department of the Army

Office of the General Counsel,

Appellee

Filed July 8, 2025

BEFORE: Childs, Pan, and Garcia, Circuit Judges

ORDER

Upon consideration of the motion to stay the mandate, which the

court construes as a motion to recall the mandate, it is

ORDERED that the motion be denied. This court’s inherent

authority to recall its mandate "can be exercised only in

extraordinary circumstances,” Calderon v. Thompson, 523 U.S.

538, 550 (1998), and appellant has shown no such

circumstances in this case.

Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Michael C. McGrail

Deputy Clerk

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