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21-2064

Platsky v. FBI

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed 

on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this Court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 19th day of December, two thousand twenty-two.

PRESENT: JOSÉ A. CABRANES,

ROSEMARY S. POOLER,

RAYMOND J. LOHIER, JR.,

Circuit Judges.

HENRY PLATSKY,

Plaintiff-Appellant, 21-2064

v.

FEDERAL BUREAU OF INVESTIGATION,

Defendant-Appellee.

FOR PLAINTIFF-APPELLANT: Henry Platsky, pro se, New York, NY.

FOR DEFENDANTS-APPELLEES: Ilan Stein, Christopher Connolly, 

Assistant United States Attorneys, for 

Damian Williams, United States Attorney 

for the Southern District of New York, 

New York, NY.

Appeal from a judgment of the United States District Court for the Southern District of New 

York (John P. Cronan, Judge).
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UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the order of the District Court be and hereby is

AFFIRMED.

Appellant Henry Platsky, proceeding pro se, brought an action under the Freedom of 

Information Act (“FOIA”) alleging that the Federal Bureau of Investigation (“FBI”) improperly 

refused to disclose whether his name appeared on a watch list.1

 He also alleged that the watch list 

was unconstitutional because he was not afforded adequate due process before being placed on it. 

The District Court sua sponte dismissed Platsky’s due process claim for lack of standing. It later 

granted summary judgment to the FBI on the remaining FOIA claim, concluding that the FBI had 

properly employed the Glomar doctrine2 by “tethering” its refusal to disclose to FOIA Exemption 

7(E). See Wilner, 592 F.3d at 68. We assume the parties’ familiarity with the underlying facts, the 

procedural history of the case, and the issues on appeal.

I.

We review de novo a district court’s determination that a plaintiff lacks standing to sue. 

Rajamin v. Deutsche Bank Nat’l Tr. Co., 757 F.3d 79, 84–85 (2d Cir. 2014). To have standing, a 

“plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct 

of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. 

Robins, 578 U.S. 330, 338 (2016). “To establish injury in fact, a plaintiff must show that he or she 

suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or 

imminent, not conjectural or hypothetical.’” Id. at 339 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 

555, 560 (1992)).

The District Court properly concluded that Platsky does not have standing to challenge the 

constitutionality of the alleged watch list. Platsky has not plausibly alleged that he was listed on any 

watch list. He argues that various traffic encounters with police in the early nineties are enough to 

infer that he was on an FBI watch list. But as the District Court explained, “allegations of routine 

traffic encounters do not plausibly suggest that authorities placed [Platsky] on a watch list.” Platsky 

v. Fed. Bureau of Investigation, No. 20-CV-0573 (LLS), 2020 WL 1644015, at *3 (S.D.N.Y. Mar. 31, 

2020); see also Platsky I, 547 F. App’x at 82–83 (concluding that Platsky lacked standing to bring a 

similar due process claim because he failed to allege facts that could “raise a plausible inference” that 

1 This is Platsky’s third attempt to use FOIA to discover whether his name was on a government

watch list. We have twice affirmed district courts’ rejections of Platsky’s efforts. See Platsky v. Nat’l 

Sec. Agency, No. 16-2505, 2017 WL 4052235 (2d Cir. July 17, 2017) (summary order); Platsky v. Nat’l 

Sec. Agency (Platsky I), 547 F. App’x 81 (2d Cir. 2013) (summary order).

2 The Glomar doctrine provides that “an agency may refuse to confirm or deny the existence of 

records where to answer the FOIA inquiry would cause harm cognizable under a[] FOIA 

exception.” Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 68 (2d Cir. 2009) (alteration in original) (quoting 

Gardels v. Cent. Intel. Agency, 689 F.2d 1100, 1103 (D.C. Cir. 1982)).
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he had been placed on watch list). Because Platsky fails to allege a cognizable injury in fact, we 

AFFIRM the District Court’s dismissal of Platsky’s due process claim.3

II.

We also review de novo a district court order granting summary judgment in a FOIA action. 

Wilner, 592 F.3d at 69. “To properly employ the Glomar response to a FOIA request, an agency 

must ‘tether’ its refusal to respond to one of the nine FOIA exemptions.” Id. at 68 (citation 

omitted). The agency bears the burden of proving the applicability of a FOIA exemption and

satisfies that burden by “submitting a detailed affidavit showing that the information logically falls 

within the claimed exemptions.” Id. (quoting Minier v. Cent. Intel. Agency, 88 F.3d 796, 800 (9th Cir. 

1996)). 

The FBI tethered its Glomar response to FOIA Exemption 7(E), which permits government 

agencies to withhold records that “would disclose techniques and procedures for law enforcement 

investigations or prosecutions, or would disclose guidelines for law enforcement investigations or 

prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 

U.S.C. § 552(b)(7)(E). The FBI satisfied its burden through an affidavit from Michael Seidel, the 

Section Chief of the FBI’s Records/Information Dissemination Section. Seidel’s affidavit explained 

that watch lists are used for “law enforcement purposes” and that the FBI “must use a Glomar 

response in all similar cases, regardless of whether responsive records actually exist” in order to 

prevent individuals from guessing their status and thereby altering their behavior. Seidel Decl. 

¶¶ 31–42; see also Platsky I, 547 F. App’x at 82 (concluding that “the FBI properly tethered its 

Glomar response to Exemption 7(E)”). Because the FBI submitted an affidavit adequately 

demonstrating that the information Platsky seeks falls within FOIA Exemption 7(E), we AFFIRM

the District Court’s grant of summary judgment in favor of the FBI.

CONCLUSION

Having considered all of Platsky’s remaining arguments and found them meritless, we 

AFFIRM the judgment of the District Court. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

3 Moreover, as we explained in one of Platsky’s previous appeals, “[e]ven if Platsky had an 

articulable injury, a FOIA request would not be the proper means to bring a due process challenge.” 

See Platsky I, 547 App’x at 83 n.1 (explaining that the Redress Program is the proper vehicle for 

challenging inclusion on the FBI’s terrorist watch list).