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Worthington v. Panetta

United States District Court, W.D. Washington, Tacoma

June 12, 2014

LEON E. PANETTA, et al., Defendants.


BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on the Court's order requesting briefing re: standing (Dkt. 54) and the parties' supplemental briefs (Dkts. 55, 57, & 59). The Court has considered the parties' pleadings and the remainder of the record and hereby dismisses the action for lack of jurisdiction.


On November 8, 2011, Plaintiff John Worthington ("Worthington") filed a complaint against Defendants Jerry Kosierowski, Timothy J. Lowenberg, and Leon E. Panetta ("Federal Defendants"), Christine Gregoire, and Robert M. McKenna. Dkt. 1 ("Complaint"). Worthington asserts three causes of action, two of which request judicial review of agency actions and the other being a declaratory judgment and injunction. Id. In his first cause of action, Worthington alleges that Secretary Panetta, through the National Guard Board ("NGB"), has unlawfully asserted control over the Government flight records of flying over Worthington's property. Complaint ¶¶ 4.1-4.8.

On March 22, 2012, Federal Defendants moved to dismiss Worthington's first cause of action for lack of subject matter jurisdiction. Dkt. 19. On July 19, 2012, the Court denied the motion concluding that there was a final agency action to review and that Worthington was not asserting a programmatic challenge. Dkt. 24.

On October 3, 2013, Worthington filed a motion for summary judgment. Dkt. 38. On November 12, 2013, Defendants replied and filed a cross-motion for summary judgment. Dkt. 47. On November 15, 2013, Worthington replied. Dkt. 52. On December 6, 2013, Defendants replied. Dkt. 53.

On January 23, 2014, the Court requested additional briefing on the issue of standing because the parties disputed whether Worthington had received all of the records that he has requested from the Defendants. Dkt. 54. On January 31, 2014, Worthington submitted a supplemental brief. Dkt. 55. On February 7, 2014, Defendants submitted a supplemental response. Dkt. 57. On February 12, 2014, Worthington submitted a supplemental reply. Dkt. 59.


The Washington National Guard ("WNG") is the federally recognized militia of the state of Washington, and a part of the Washington Military Department ("WAMIL"), which is an agency of the state of Washington. The WNG engages in counter-drug activities pursuant to 32 U.S.C. § 112. These counter-drug activities are conducted in service of the state of Washington under Title 32 U.S.C. and occur while WNG units and personnel have not been activated into federal service under Title 10 U.S.C. Complaint, ¶¶ 3.1-3.4; Dkt. 8, ¶¶ 3.1-3.4. Defendants Lowenberg and Kosierowski are the WNG Adjutant General and the WNG counter-drug coordinator, respectively. Complaint, ¶¶ 2.5-2.6; Dkt. 10, ¶¶ 2.5-2.6.

From December 14, 2007, to May 31, 2008, Worthington requested various records relating to WNG counter-drug activities pursuant to the Washington Public Records Act, Chap. 42.56 RCW ("PRA"). In response to Worthington's requests for records under the PRA, Defendants asserted that records relating to WNG counter-drug activities were "federal records" and that such records could only be obtained pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). Complaint, ¶¶ 3.5-3.6; Answer (Federal) (Dkt. 10), ¶¶ 3.5-3.6.1


As a threshold matter, the Court must address two procedural arguments made by Worthington. First, Worthington argues that there "is no court rule that allows the defendants to make new factual allegations without allowing the plaintiff to respond...." Dkt. 59 at 2. The Court agrees and will consider (1) the supplemental declaration of Todd Millard (Dkt. 58 ("Millard Dec.")) and (2) Worthington's response (Dkt. 59).

Second, Worthington argues that the Federal Defendants "never alleged standing in their Answer, and they never challenged Worthington's standing in a proper motion." Dkt. 59 at 2. This is irrelevant because standing confers jurisdiction and the Court may sua sponte address its jurisdiction at any time. Fed.R.Civ.P. 12(h)(3). Once the Court was aware that the remaining issue was how Worthington received requested documents and not whether Worthington received requested documents, the Court requested additional briefing on the issue of jurisdiction. The Court now turns to Worthington's standing.

To satisfy Article III standing requirements, a plaintiff must show that: (1) plaintiff has suffered "injury in fact" that is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-181(2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. ...

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