ALLEN V SOETORO (APPEAL - 9th CIRCUIT) - 9 - Appellee Answering Brief TransportRoom.9.0

Case: 11-15094 05/23/2011 Page: 1 of 23 ID: 7761098 DktEntry: 9
No. 11-15094
__________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
_____________
KENNETH LEE ALLEN,
Plaintiff-Appellant,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants-Appellees.
_____________
On Appeal From The United States District Court for the

District of Arizona (Frank R. Zapata, J.),
Case No. 4:09-cv-00373
_____________
BRIEF FOR APPELLEES

_____________
TONY WEST
Assistant Attorney General
DENNIS K. BURKE
United States Attorney
MARK B. STERN
(202) 514-5089
HELEN L. GILBERT
(202) 514-4826
Attorneys, Appellate Staff
Civil Division, Room 7261
U.S. Department of Justice
950 Pennsylvania Avenue N.W.
Washington, D.C. 20530-0001
__________________________________________________________________
TABLE OF CONTENTS
Page
STATEMENT OF JURISDICTION ................................................................................. 1
STATEMENT OF THE ISSUE ......................................................................................... 2
APPLICABLE STATUTES AND REGULATIONS ..................................................... 2
STATEMENT OF THE CASE .......................................................................................... 2
STATEMENT OF FACTS .................................................................................................. 3
A. USCIS FOIA Requests ................................................................................... 3
B. Department of State FOIA Requests ........................................................... 5
C. Prior Proceedings ............................................................................................ 7
SUMMARY OF THE ARGUMENT ................................................................................. 7
STANDARD OF REVIEW ................................................................................................. 8
ARGUMENT .......................................................................................................................... 8
The District Court Correctly Dismissed Plaintiff’s Suit For

Failure To Comply With Agency Regulations Requiring
Authorization To Release Documents Regarding A Third Party ........................ 8
CONCLUSION .................................................................................................................... 11
STATEMENT OF RELATED CASES
CERTIFICATE OF COMPLIANCE WITH

FED. R. APP. P. 32(a)(7)(B) AND NINTH CIRCUIT RULE 32-1
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
Cases: Page
Cal. State Foster Parent Ass’n v. Wagner,

624 F.3d 974 (9th Cir. 2010) ........................................................................................... 8
Dep’t of Justice v. Reporters Comm. for Freedom of the Press,

489 U.S. 749 (1989) ........................................................................................................ 10
Hymen v. Merit Systems Protection Bd.,

799 F.2d 1421 (9th Cir. 1986) ....................................................................................... 10
Rosenfeld v. U.S. Dep’t of Justice,

57 F.3d 803 (9th Cir. 1995) ............................................................................................ 10
In re Steele,
799 F.2d 461 (9th Cir. 1986) ..................................................................................... 8, 10
Strunk v. U.S. Dep’t of State,

693 F. Supp. 2d 112 (D.D.C. 2010) ............................................................................. 11
Wilbur v. C.I.A.,
355 F.3d 675 (D.C. Cir. 2004) ....................................................................................... 10
Statutes:
6 C.F.R. § 5.3(a) ................................................................................................................... 8, 9
6 C.F.R. § 5.21(f ) ................................................................................................................ 4, 9
22 C.F.R. § 171.12(a) ...................................................................................................... 6, 8, 9
22 C.F.R. § 171.32(c)(3) ......................................................................................................... 9
5 U.S.C. § 552(a)(3)(A) ....................................................................................................... 7, 8
5 U.S.C. § 552(a)(4)(b) ............................................................................................................ 1
ii
28 U.S.C. § 1291 ...................................................................................................................... 2
28 U.S.C. § 1331 ...................................................................................................................... 1
iii
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
No. 11-15094
KENNETH LEE ALLEN,
Plaintiff-Appellant,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants-Appellees.
BRIEF FOR APPELLEES
STATEMENT OF JURISDICTION
Plaintiff invoked the jurisdiction of the district court pursuant to 28 U.S.C.
§ 1331 and 5 U.S.C. § 552(a)(4)(b). SER 13.1 The court dismissed plaintiff’s claims
related to information plaintiff seeks regarding President Barack Obama and “Barry
Soetoro” on February 2, 2010. SER 2. Plaintiff appealed this non-final order on
February 4, 2010. SER 11. This Court dismissed the appeal for lack of jurisdiction on
March 10, 2010. SER 85. The parties stipulated to dismiss the remaining claims on
December 29, 2010. SER 8. The district court dismissed plaintiff’s remaining claims
1
“SER” refers to the supplemental excerpts of record filed by defendants-
appellees.
with prejudice on January 4, 2011. SER 1. Plaintiff filed a new notice of appeal on
January 12, 2011. SER 6. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
STATEMENT OF THE ISSUE
Whether the district court properly dismissed plaintiff’s Freedom of
Information Act (“FOIA”) claims for certain records pertaining to President Barack
Obama and “Barry Soetoro” for failure to comply with agency regulations requiring
plaintiff to obtain authorization from third parties to release their information.
APPLICABLE STATUTES AND REGULATIONS
All applicable statutes and regulations are contained in the addendum bound
with this brief.
STATEMENT OF THE CASE
Plaintiff filed a total of four FOIA requests with two federal agencies, the U.S.
Department of State and the U.S. Citizenship and Immigration Service (“USCIS”).
Plaintiff requested personal information regarding President Obama, “Barry Soetoro,”
Stanley Dunham, and Lolo Soetoro. The Department of State and USCIS both
informed plaintiff that the agencies’ regulations require plaintiff to obtain a waiver
from living third parties to allow him to access their personal information. Plaintiff
failed to do so, and both agencies denied his request for information regarding
2
President Obama and “Barry Soetoro.”2
Plaintiff filed suit in the United States District Court for the District of
Arizona. SER 86-87. The district court dismissed plaintiff’s claims relating to his
request for information regarding President Obama and “Barry Soetoro.” SER 4-5.
The court held that plaintiff failed to comply with both agencies’ regulations requiring
that he obtain and submit authorization from President Obama and “Barry Soetoro”
to release these records. SER 4.
The district court later dismissed plaintiff’s remaining claims with prejudice
following the parties’ stipulation to dismiss. SER 1. Plaintiff appealed the dismissal
of his claims related to President Obama and “Barry Soetoro.” SER 6.
STATEMENT OF FACTS
Plaintiff Kenneth Allen submitted a total of four Freedom of Information Act
(“FOIA”) requests to two federal agencies, the U.S. Department of State and the U.S.
Citizenship and Immigration Service (“USCIS”), which is a component of the U.S.
Department of Homeland Security (“DHS”).
A. USCIS FOIA Requests.
Plaintiff sent his first request to USCIS on February 9, 2009. SER 28. He
2
Both agencies subsequently released documents responsive to plaintiff’s
request for information regarding Stanley Dunham and Lolo Soetoro, who are both
widely known to be deceased.
3
requested a variety of records regarding President Obama, including “an original
copy” of the President’s birth certificate, “immigration records,” naturalization
records, name-change records, and passports. SER 28-30; see also SER 15. USCIS
responded to this request on February 19, 2009, and informed plaintiff that “DHS
regulations require, in the case of third party information requests, a statement from
the individual verifying his or her identity and certifying that individual’s agreement
that records concerning him or her may be accessed, analyzed and released to a third
party.” SER 32-33 (citing 6 C.F.R. § 5.21(f )); see also SER 15. USCIS requested that
Allen provide the necessary privacy waiver within thirty days and informed Allen that
his FOIA request would be administratively closed for failure to comply after that
time. SER 33.
Instead of responding to USCIS’s February 19 letter, plaintiff submitted a new
FOIA request dated March 1, 2009. SER 35-37; see also SER 15-16. In this second
request, Allen sought many of the same documents (not including the birth
certificate), but altered the request to refer to “Barry Soetoro” instead of President
Obama. SER 35-36. In addition, Allen sought copies of “Stanley Ann Obama, aka
Stanley Ann Dunhams, aka Stanley Ann Soetoro’s” passport, as well as the “passport
history of Lolo Setoro, M.A.” SER 36. USCIS received this request on March 18,
2009, and responded the same day by again requesting the appropriate third party
waiver, signed by the “subject of record.” SER 39; see also SER 15, 21.
4
On March 31, 2009, plaintiff filed an administrative appeal with USCIS
regarding the agency’s response to his second FOIA request. SER 42-43, 53. Plaintiff
argued, among other things, that federal privacy laws, such as the Privacy Act and the
privacy-related exemptions embodied in the FOIA, apply only to U.S. citizens and
permanent resident aliens. SER 46; see also SER 16. At the time this lawsuit was
commenced, on July 6, 2009, this appeal remained pending before USCIS.
On September 17, 2009, USCIS affirmed in part and modified in part its prior
determination regarding plaintiff’s request. SER 55-57. USCIS stated that by DHS
regulation, a valid consent to disclosure (or “waiver of confidentiality”) is required
before USCIS will search its files for records concerning a living person. SER 55-56.
USCIS also stated that this requirement applies regardless of that person’s alleged
citizenship. SER 56. USCIS informed plaintiff that it conducted a search and found
no responsive records regarding Stanley Dunham, and that it was commencing a
search for records regarding Lolo Soetoro. SER 57. Both Dunham and Soetoro were
widely known to be deceased.
B. Department of State FOIA Requests.
On February 4, 2009, plaintiff submitted a FOIA request to the Department of
State through the agency’s website. He sought “information that would pertain to aka
Barry Soetoro or Barack H Obama,” in addition to “a copy of Barack Obamas legal
name” and “Barack h. Obama’s Birth certificate from Hawii.” SER 59. The
5
Department of State acknowledged plaintiff’s request in an email on February 17,
2009, and informed plaintiff that requests for third-party information “cannot be
processed without the required original [privacy-waiver] documentation required in
our FOIA regulations . . . at 22 CFR 171.12(a) for ‘Third Party Requests.’” SER 61.
The Department of State instructed plaintiff to resubmit his request by mail with the
necessary documentation. Ibid.
Plaintiff responded by submitting a second FOIA request dated February 20,
2009, SER 63-64, and received by the Department of State on March 5, 2009, SER 66.
In this request, he sought a broader range of records concerning President Obama,
including “immigration records,” educational records from Indonesia, “[r]ecords
showing if Barry Seotoro is Barack H. Obamas legal name,” and passports. SER 64.
He also requested Stanley Ann Dunham’s passports. Ibid. The Department of State
responded on June 1, 2009, again informing plaintiff that, among other things,
requests for third-party records must be accompanied by valid third-party privacy
authorizations. SER 66, 69-70. The Department of State informed plaintiff that his
request “has been closed in our system” and instructed plaintiff that “[i]f, after noting
the information cited above, you wish to pursue this request, please send us a new
request, which would include the additional information noted above.” SER 73.
Plaintiff failed to submit any additional information to the Department of State.
6
C. Prior Proceedings.
Plaintiff commenced this action in the United States District Court for the
District of Arizona on July 6, 2009. SER 86-87. On February 2, 2010, the district
court dismissed plaintiff’s claims related to his request for information regarding
President Obama and “Barry Soetoro.” SER 2, 4-5.
Plaintiff appealed this non-final order on February 4, 2010, SER 11, and this
Court dismissed the appeal for lack of jurisdiction on May 10, 2010, SER 85. On July
29, 2010, USCIS released documents responsive to plaintiff’s request for records
concerning Stanley Dunham and Lolo Soetoro.3 The parties stipulated to dismiss the
remaining claims on December 29, 2010. SER 8. The district court dismissed
plaintiff’s remaining claims with prejudice on January 4, 2011. SER 1. Plaintiff filed a
new notice of appeal on January 12, 2011, challenging the February 2, 2010 dismissal
of his claims for records regarding President Obama and “Barry Soetoro.” SER 6.
SUMMARY OF THE ARGUMENT
Plaintiff seeks personal records regarding President Obama and “Barry
Soetoro” from the Department of State and USCIS. The FOIA requires that requests
be “made in accordance with published rules stating the time, place, fees (if any), and
procedures to be followed.” 5 U.S.C. § 552(a)(3)(A). Both the Department of State
3
The Department of State also released one document to plaintiff in response
to his USCIS request, as this document originated with the Department of State.
7
and DHS have regulations requiring that FOIA requests for information regarding
living third parties must include authorization from those individuals allowing the
release of their records. See 22 C.F.R. § 171.12(a); 6 C.F.R. § 5.3(a).
Plaintiff does not contest that he failed to obtain and submit the requisite third-
party authorization. As this Court has stated, “[w]here no attempt to comply fully
with agency procedures has been made, the courts will assert their lack of jurisdiction
under the exhaustion doctrine.” In re Steele, 799 F.2d 461, 465-66 (9th Cir. 1986). The
district court properly dismissed plaintiff’s claims related to his request for
information regarding President Obama and “Barry Soetoro.”
STANDARD OF REVIEW
This Court reviews de novo a district court’s decision on a motion to dismiss.
Cal. State Foster Parent Ass’n v. Wagner, 624 F.3d 974, 978 (9th Cir. 2010).
ARGUMENT
The District Court Correctly Dismissed Plaintiff’s Suit For Failure To Comply
With Agency Regulations Requiring Authorization To Release Documents
Regarding A Third Party.
The FOIA requires that requests be “made in accordance with published rules
stating the time, place, fees (if any), and procedures to be followed.” 5 U.S.C.
§ 552(a)(3)(A). Department of State and DHS regulations require that FOIA requests
for records regarding living third party individuals must be accompanied by
authorization from those individuals allowing the release of their records. The
8
Department of State regulation requires that “requests for records pertaining to
another individual shall be processed under the FOIA and must be accompanied by a
written authorization for access by the individual, notarized or made under penalty of
perjury, or by proof that the individual is deceased (e.g., death certificate or obituary).”
22 C.F.R. § 171.12(a); see also id. § 171.32(c)(3) (“When an individual wishes to
authorize another person or persons access to his or her records, the individual shall
submit . . . a signed statement, either notarized or made under penalty of perjury,
authorizing and consenting to access by a designated person or persons. Such
requests shall be processed under the FOIA.”).
DHS’s regulations require that “[i]f you are making a request for records about
another individual, either a written authorization signed by that individual permitting
disclosure of those records to you or proof that that individual is deceased (for
example, a copy of a death certificate or an obituary) must be submitted.” 6 C.F.R.
§ 5.3(a); see also id. § 5.21(f ) (“If you are making a request for records concerning an
individual on behalf of that individual, you must provide a statement from the
individual verifying the identity of the individual as provided in paragraph (d) of this
section. You must also provide a statement from the individual certifying the
individual’s agreement that records concerning the individual may be released to
you.”).
These regulations reflect the FOIA’s balance between the public interest in
9
disclosure and an individual’s right to privacy. The “sole cognizable public interest for
FOIA is the interest ‘to open agency action to the light of public scrutiny,’ to inform
the citizenry ‘about what their government is up to.’” Rosenfeld v. U.S. Dep’t of Justice,
57 F.3d 803, 811 (9th Cir. 1995) (quoting Dep’t of Justice v. Reporters Comm. for Freedom of
the Press, 489 U.S. 749, 773 (1989)). Private information about public figures that does
not reveal the operations or activities of government “falls outside the ambit of the
public interest that the FOIA was enacted to serve.” Reporters Comm., 489 U.S. at 774-
75.
The FOIA requires that a party exhaust his administrative remedies before
seeking judicial review, and “[w]here no attempt to comply fully with agency
procedures has been made, the courts will assert their lack of jurisdiction under the
exhaustion doctrine.” In re Steele, 799 F.2d 461, 465-66 (9th Cir. 1986); Hymen v. Merit
Systems Protection Bd., 799 F.2d 1421, 1422 (9th Cir. 1986) (“The FOIA requires that
administrative appeals be exhausted before suit may be brought in federal court.”); see
also Wilbur v. C.I.A., 355 F.3d 675, 677 (D.C. Cir. 2004) (“Exhaustion of [FOIA]
administrative remedies is generally required before seeking judicial review.”).
Plaintiff does not dispute that he failed to comply with these regulations. None
of his FOIA requests to the Department of State and USCIS included the requisite
third-party authorization. See SER 28, 35, 59, 63. Plaintiff never alleged that he
obtained or submitted appropriate authorizations. See SER 13, 15, 43. The district
10
court properly dismissed plaintiff’s suit for failure to comply with agency regulations.
See also Strunk v. U.S. Dep’t of State, 693 F. Supp. 2d 112, 115 (D.D.C. 2010)
(dismissing FOIA claims filed in 2008 seeking foreign travel records of then-
President-elect Obama for failure to comply with agency regulations requiring
authorization from President Obama).
CONCLUSION
For the foregoing reasons, the district court’s judgment should be affirmed.
Respectfully submitted,
TONY WEST
Assistant Attorney General
DENNIS K. BURKE
United States Attorney
MARK B. STERN
(202) 514-5089
s/ Helen L. Gilbert
HELEN L. GILBERT
(202) 514-4826
Attorneys, Appellate Staff
Civil Division, Room 7261
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530-0001
MAY 2011
11
STATEMENT OF RELATED CASES
This Court dismissed plaintiff’s first notice of appeal in Kenneth L. Allen v. Barry
Soetoro, aka Barack H. Obama, aka Barry Obama, et al., No. 10-15290 (9th Cir.). There
are no other related cases, as defined in Circuit Rule 28-2.6, of which counsel is aware.
s/ Helen L. Gilbert
HELEN L. GILBERT
Counsel for Defendants-Appellees
CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)(7)(B)

AND NINTH CIRCUIT RULE 32-1
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) and (C) and Ninth
Circuit Rule 32-1, I certify that the attached brief is proportionally spaced using
Garamond 14-point font, and contains 2,309 words.
s/ Helen L. Gilbert
HELEN L. GILBERT
CERTIFICATE OF SERVICE
I hereby certify that on May 23, 2011, I electronically filed the foregoing brief
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system, and served two copies of the
foregoing brief on the following via Federal Express overnight delivery:
Kenneth Lee Allen

10055 E Gray Hawk Drive
Tucson, AZ 85730
s/ Helen L. Gilbert
HELEN L. GILBERT
ADDENDUM
TABLE OF CONTENTS
Page
5 U.S.C. § 552(a)(3)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
6 C.F.R. § 5.3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
6 C.F.R. § 5.21(f ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
22 C.F.R. § 171.12(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
22 C.F.R. § 171.32(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5 U.S.C. § 552(a)(3)(A)
Except with respect to the records made available under paragraphs (1) and (2)
of this subsection, and except as provided in subparagraph (E), each agency,
upon any request for records which (i) reasonably describes such records and
(ii) is made in accordance with published rules stating the time, place, fees (if
any), and procedures to be followed, shall make the records promptly available
to any person.
1
6 C.F.R. § 5.3(a)
(a) How made and addressed. You may make a request for records of the
Department by writing directly to the Department component that maintains
those records. For additional information about the FOIA, you may refer
directly to the statute. If you are making a request for records about yourself,
see § 5.21(d) for additional requirements. If you are making a request for
records about another individual, either a written authorization signed by that
individual permitting disclosure of those records to you or proof that that
individual is deceased (for example, a copy of a death certificate or an obituary)
must be submitted. Your request should be sent to the component’s FOIA
office at the address listed in appendix A to part 5. In most cases, your FOIA
request should be sent to a component’s central FOIA office. (The functions of
each component are summarized elsewhere in this title and in the description
of the Department and its components in the “United States Government
Manual,” which is issued annually and is available in most libraries, as well as
for sale from the Government Printing Office’s Superintendent of Documents.
This manual also can be accessed electronically at the Government Printing
Office’s World Wide Web site (which can be found at
http://www.access.gpo.gov/su_docs).) If you cannot determine where within
the Department to send your request, you may send it to the Departmental
Disclosure Officer, Department of Homeland Security, Washington, DC
20528. That office will forward your request to the component(s) it believes
most likely to have the records that you want. Your request will be considered
received as of the date it is received by the proper component’s FOIA office.
For the quickest possible handling, you should mark both your request letter
and the envelope “Freedom of Information Act Request.”
6 C.F.R. § 5.21(f )
(f) Verification in the case of third party information requests. If you are
making a request for records concerning an individual on behalf of that
individual, you must provide a statement from the individual verifying the
identity of the individual as provided in paragraph (d) of this section. You must
also provide a statement from the individual certifying the individual’s
agreement that records concerning the individual may be released to you.
2
22 C.F.R. § 171.12(a)
(a) Third party requests. Except for requests under the Privacy Act by a parent
of a minor or by a legal guardian (§ 171.32(c)), requests for records pertaining
to another individual shall be processed under the FOIA and must be
accompanied by a written authorization for access by the individual, notarized
or made under penalty of perjury, or by proof that the individual is deceased
(e.g., death certificate or obituary).
22 C.F.R. § 171.32(c)(3)
(c) Third party access. The Department shall allow third party access to records
under certain conditions:
...
(3) Authorized representatives or designees. When an individual wishes

to authorize another person or persons access to his or her records, the
individual shall submit, in addition to the identifying information
described in paragraph (b) of this section, a signed statement, either
notarized or made under penalty of perjury, authorizing and consenting
to access by a designated person or persons. Such requests shall be
processed under the FOIA (see § 171.12).

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Case: 11-15094 05/23/2011 Page: 1 of 23 ID: 7761098 DktEntry: 9

IN THE UNITED STATES COURT OF APPEALS

KENNETH LEE ALLEN,

U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,

On Appeal From The United States District Court for the

BRIEF FOR APPELLEES

STATEMENT OF JURISDICTION ................................................................................. 1

STATEMENT OF THE ISSUE ......................................................................................... 2

APPLICABLE STATUTES AND REGULATIONS ..................................................... 2

STATEMENT OF THE CASE .......................................................................................... 2

STATEMENT OF FACTS .................................................................................................. 3

A. USCIS FOIA Requests ................................................................................... 3

B. Department of State FOIA Requests ........................................................... 5

C. Prior Proceedings ............................................................................................ 7

SUMMARY OF THE ARGUMENT ................................................................................. 7

STANDARD OF REVIEW ................................................................................................. 8

The District Court Correctly Dismissed Plaintiff’s Suit For

STATEMENT OF RELATED CASES

CERTIFICATE OF COMPLIANCE WITH

Cal. State Foster Parent Ass’n v. Wagner,

Dep’t of Justice v. Reporters Comm. for Freedom of the Press,

Hymen v. Merit Systems Protection Bd.,

Rosenfeld v. U.S. Dep’t of Justice,

Strunk v. U.S. Dep’t of State,

6 C.F.R. § 5.3(a) ................................................................................................................... 8, 9

6 C.F.R. § 5.21(f ) ................................................................................................................ 4, 9

22 C.F.R. § 171.12(a) ...................................................................................................... 6, 8, 9

22 C.F.R. § 171.32(c)(3) ......................................................................................................... 9

5 U.S.C. § 552(a)(3)(A) ....................................................................................................... 7, 8

5 U.S.C. § 552(a)(4)(b) ............................................................................................................ 1

28 U.S.C. § 1291 ...................................................................................................................... 2

28 U.S.C. § 1331 ...................................................................................................................... 1

IN THE UNITED STATES COURT OF APPEALS

KENNETH LEE ALLEN,

U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,

BRIEF FOR APPELLEES

Plaintiff invoked the jurisdiction of the district court pursuant to 28 U.S.C.

Soetoro” on February 2, 2010. SER 2. Plaintiff appealed this non-final order on

STATEMENT OF THE ISSUE

Whether the district court properly dismissed plaintiff’s Freedom of

plaintiff to obtain authorization from third parties to release their information.

APPLICABLE STATUTES AND REGULATIONS

with this brief.

STATEMENT OF THE CASE

Plaintiff requested personal information regarding President Obama, “Barry Soetoro,”

President Obama and “Barry Soetoro.”2

to release these records. SER 4.

of his claims related to President Obama and “Barry Soetoro.” SER 6.

Plaintiff Kenneth Allen submitted a total of four Freedom of Information Act

Citizenship and Immigration Service (“USCIS”), which is a component of the U.S.

Department of Homeland Security (“DHS”).

A. USCIS FOIA Requests.

requested a variety of records regarding President Obama, including “an original

copy” of the President’s birth certificate, “immigration records,” naturalization

time. SER 33.

Instead of responding to USCIS’s February 19 letter, plaintiff submitted a new

On March 31, 2009, plaintiff filed an administrative appeal with USCIS

commenced, on July 6, 2009, this appeal remained pending before USCIS.

regulation, a valid consent to disclosure (or “waiver of confidentiality”) is required

no responsive records regarding Stanley Dunham, and that it was commencing a

widely known to be deceased.

B. Department of State FOIA Requests.

On February 4, 2009, plaintiff submitted a FOIA request to the Department of