Am. Ctr. for Law & Justice v. Fed. Bureau of Investigation

470 F.Supp.3d 1

AMERICAN CENTER FOR LAW AND JUSTICE, Plaintiff,

v.FEDERAL BUREAU OF INVESTIGATION, Defendant.

Civil Action No. 19-2643 (RC)

United States District Court, District of Columbia.

Signed July 2, 2020

Abigail A. Southerland, American Center for Law & Justice, Franklin, TN, Benjamin Paul Sisney, American Center for Law & Justice, Washington, DC, for Plaintiff.

Michael Hendry Baer, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

GRANTING DEFENDANT'S PARTIAL MOTION TO DISMISS

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

In this Freedom of Information Act ("FOIA") case, the American Center for Law and Justice ("ACLJ") has sued the Federal Bureau of Investigation ("FBI"). ACLJ makes two claims: first, that the FBI violated FOIA by not responding to a particular request for records within the statutory timeframe; and second, that this particular violation suggests a wider policy, pattern, or practice of noncompliance by the agency. The FBI has now moved to dismiss the latter "policy-or-practice" claim. For the reasons explained below, the Court agrees that the policy-or-practice claim is deficient and will therefore grant the partial motion to dismiss.

II. BACKGROUND

According to the complaint, ACLJ is a not-for-profit organization that "seeks to promote integrity, transparency, and accountability in government and fidelity to the rule of law." Compl. ¶ 5, ECF No. 1. On July 25, 2019, it submitted FOIA requests to the FBI and the Department of Justice ("DOJ") seeking records from certain FBI officials, including former Director James Comey,¹ concerning three individuals that worked at the White House: Anthony Ferrante, Jordan Rae Kelly, and Tashina Gauhar. Compl. Ex. 1 at 1–4, ECF No. 1-1. The request also sought "[a]ll of James Comey's emails from April 1, 2016, to May 31, 2017." Id. at 4 (emphasis removed). By a letter dated August 2, 2019, the FBI acknowledged receipt of the request and assigned it a tracking number. Compl. ¶ 18. Then, in a letter dated August 9, 2019, the FBI denied expedited processing, which ACLJ had sought along with its request. Id. ¶ 19. ACLJ did not receive any further response from the FBI before it filed this suit on September 4, 2019. Id. ¶ 20.

The complaint itself advances two claims. The first (Count I) alleges that the FBI violated FOIA by not issuing a determination about whether it would comply with ACLJ's request within twenty days, as the statute generally requires. Id. ¶¶ 49–50 (citing 5 U.S.C. § 552(a)(6)(A) ). The second (Count II) alleges more broadly that "[t]he FBI has adopted and is engaged in a policy and practice of violating FOIA's procedural requirements when processing FOIA requests by intentionally refusing to produce all non-exempt documents in the manner required under 5 U.S.C.§ 552(a)(6) and unless and until Plaintiff files suit." Id. ¶ 63. As support for the policy-or-practice claim, the complaint cited the violation alleged in Count I, plus two other FOIA cases in which the FBI had allegedly acted similarly. Id. ¶ 67 ("In this case, just as in the two other FOIA cases Plaintiff has filed against the FBI, Plaintiff's FOIA request went unanswered and the FBI refused to respond in the manner required by FOIA and within the deadline(s) mandated by FOIA until Plaintiff sought legal action."). Because the specifics of these two earlier requests undergird the policy-or-practice claim, they are worth discussing in some detail. For present purposes, the Court credits ACLJ's account of both requests.

On or about July 15, 2016, ACLJ "issued a FOIA request to the FBI seeking information relating to then-Attorney General Lynch's June 27, 2016, meeting with former President Bill Clinton at Sky Harbor International Airport." Id. ¶ 25. Approximately four months after the request issued, the FBI informed ACLJ that no responsive records had been located. Id. ¶ 26. After another eight months, ACLJ became aware—through a separate lawsuit filed against DOJ—that the FBI did in fact possess responsive documents. Id. ¶ 27. After ACLJ contacted the Office of Government Information Services, the FBI reopened the request and admitted it might have potentially responsive records. Id. ¶ 28. The FBI did not actually produce any documents, however, and ACLJ filed a lawsuit compelling disclosure on September 12, 2017. Id. ¶¶ 30–31 (citing Compl., Am. Ctr. for Law & Justice v. Dep't of Justice , No. 17-cv-1866 (D.D.C. Sept. 12, 2017), ECF No. 1).² After the suit was filed, the FBI produced 29 pages of documents with redactions, id. ¶ 31, but ACLJ continued to challenge the adequacy of the agency's search and at least some of its withholdings, id. ¶ 32. In the midst of summary judgment briefing, the FBI agreed to conduct another search for responsive records and eventually produced additional documents. Id. ¶¶ 33–34. "The FBI continued, however, to withhold non-exempt information contained within talking points," which forced ACLJ "again to challenge the FBI's unlawful withholding and delay in producing the information in the United States District Court of Appeals of the District of Columbia [sic]." Id. ¶ 35.³ However, "on the eve of the FBI's deadline to submit its brief," the FBI finally produced the talking points "in an effort to moot Plaintiff's case." Id. ¶ 36.

On or about September 7, 2017, ACLJ "issued another FOIA request seeking records from the FBI regarding its investigation and decision not to pursue criminal charges against Hillary Rodham Clinton." Id. ¶ 37. "Just as in the current lawsuit, the FBI acknowledged receipt of [ACLJ's] FOIA request and assigned case control numbers, but did not produce all documents responsive to Plaintiff's FOIA request in the time period required by FOIA" or "notify Plaintiff of a determination and the reasons therefore." Id. ¶¶ 38–39 (citing Compl., Am. Ctr. for Law & Justice v. Dep't of Justice , No. 18-cv-373 (D.D.C. February 19, 2018), ECF No. 1) (internal alterations omitted). Only after ACLJ filed suit did the agency begin producing documents. Id. ¶ 41.

The FBI has now filed a partial motion to dismiss directed solely at Count II, the policy-or-practice claim. See Def.’s Partial Mot. to Dismiss, ECF No. 11. The motion is fully briefed and ripe for the Court's consideration.

III. LEGAL STANDARD

The Court must dismiss any count of a complaint that fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In evaluating a motion to dismiss, the Court "must treat the complaint's factual allegations as true and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’ " Sparrow v. United Air Lines, Inc. , 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States , 617 F.2d 605, 608 (D.C. Cir. 1979) ) (citation omitted). The Court need not accept as true, however, "a legal conclusion couched as a factual allegation" or "inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint." Trudeau v. FTC , 456 F.3d 178, 193 (D.C. Cir. 2006) (first quoting Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ; then quoting Kowal v. MCI Commc'ns Corp. , 16 F.3d 1271, 1276 (D.C. Cir. 1994) ).

A count will survive so long as there is a " ‘reasonably founded hope that the [discovery] process will reveal relevant evidence’ to support the claim." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 563 n.8, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Dura Pharm., Inc. v. Broudo , 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005) ). Said differently, a complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). This means that a plaintiff must put forth "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

IV. ANALYSIS

A. The Standard for Policy-or-Practice Claims

"FOIA section 552(a)(4)(B) vests courts with broad equitable authority." Citizens for Responsibility & Ethics in Wash. v. Dep't of Justice , 846 F.3d 1235, 1241 (D.C. Cir. 2017). And the Supreme Court has made clear that FOIA does not "limit the inherent powers of an equity court." Renegotiation Bd. v. Bannercraft Clothing Co. , 415 U.S. 1, 20, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974). Accordingly, our Circuit has generally endorsed a district court's "equitable power" to "enforc[e] [FOIA's] terms." Payne Enters., Inc. v. United States , 837 F.2d 486, 494 (D.C. Cir. 1988) (citing Renegotiation Bd. , 415 U.S. at 19–20, 94 S.Ct. 1028 ). In practice, this means a plaintiff can "bring, in conjunction with her specific information request, ‘a claim that an agency policy or practice will impair the party's lawful access to information in the future.’ " Am. Ctr. for Law & Justice v. Dep't of State , 249 F. Supp. 3d 275, 281 (D.D.C. 2017) (quoting Newport Aeronautical Sales v. Dep't of Air Force , 684 F.3d 160, 164 (D.C. Cir. 2012) ). The Circuit has endorsed this kind of "policy-or-practice" claim on three occasions.

The first instance came in Payne . There, the petitioner's FOIA requests for copies of Air Force-related bid abstracts—which had been routinely granted in the past—began to be repeatedly and perfunctorily denied by the relevant base officers. 837 F.2d at 487. When Payne appealed these denials to the Secretary of the Air Force, the officers’ decisions were reversed without exception. Id. The Secretary's Office had even sent letters to relevant base commanders, noting that no FOIA exemption properly applied and admonishing them for their refusal to grant Payne's requests. Id. at 494. Even then, the officers continued to deny Payne's requests, requiring further, "invariably successful" administrative appeals. Id. at 487. The Circuit...