Am. Ctr. for Law & Justice v. U.S. Dep't of State

249 F.Supp.3d 275

AMERICAN CENTER FOR LAW AND JUSTICE, Plaintiff,

v.UNITED STATES DEPARTMENT OF STATE, Defendant.

Civil Action No. 16-2516 (JEB).

United States District Court, District of Columbia.

Signed April 17, 2017

Abigail A. Southerland, Franklin, TN, Benjamin Paul Sisney, Craig Littleton Parshall, Matthew R. Clark, Benjamin P. Sisney, Colby Mims May, Stuart J. Roth, Jay Alan Sekulow, Washington, DC, for Plaintiff.

James R. Powers, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

Even if Rome could not be built in a day, Plaintiff American Center for Law and Justice believes that the government should be able to assess Freedom of Information Act requests in twenty. In the lead-up to this case, ACLJ asked Defendant Department of State for records pertaining to its funding of an organization that opposed Israeli Prime Minister Benjamin Netanyahu during that country's 2015 elections. FOIA allows federal agencies twenty days to decide whether to release information in response to such requests. That time passed, and State did not signal whether it would do so or not. Citing this infraction and other instances of delay, Plaintiff brought this action to challenge both the withholding of documents related to its specific request and Defendant's broader policy or practice of FOIA procrastination.

The Department now moves to dismiss that latter claim. While ACLJ has shown that State is indeed slow, Plaintiff has not plausibly alleged that the government subscribes to some policy or practice of slow-walking its requests for information. For this reason, the Court will grant Defendant's partial Motion to Dismiss, narrowing this case into a basic FOIA challenge related to one particular request.

I. Background

ACLJ is a non-profit organization "dedicated to the defense of constitutional liberties secured by law." ECF No. 1 (Complaint), ¶ 5. Its activities involve "monitor[ing] government activity with respect to governmental accountability" and "promot[ing] integrity, transparency, and accountability in government and fidelity to the rule of law." Id. In line with its organizational mission, Plaintiff regularly makes records requests to federal, state, and local governments and then publishes its findings. Id.

This case stems from one such request. In recounting the procedural history, the Court, for the purposes of this Motion, accepts as true ALCJ's factual retelling of all that has transpired so far.

Plaintiff sent State the instant request on July 25, 2016. See Compl., Exh. A (Request). In its fifteen-page letter, ACLJ sought "any and all records pertaining in any way to the grant funds awarded by the U.S. Department of State (DOS) to OneVoice Israel and OneVoice Palestine, where said organizations campaigned to ‘take [Netanyahu] down.’ " Id. at 1 (quoting Staff of S. Subcomm. on Investigations, 114th Cong., Review of U.S. State Department Grants to OneVoice 19 (2016)). Following a treatment of State's dealings with OneVoice, id. at 1–7, Plaintiff set forth twelve categories of records aimed at unearthing this connection. Id. at 7–13.

After the letter arrived on July 26, the Department wrote back in two days' time, acknowledging receipt of ACLJ's FOIA request, assigning a case number, and advising that the agency would begin processing. See Compl., Exh. B (July 28, 2017, Acknowledgment Letter from State Department to ACLJ) at 1. Defendant qualified that "[u]nusual circumstances (including the number and location of Department components involved in responding to your request, the volume of requested records, etc.) may arise that would require additional time to process your request." Id. The letter ended by stating that the agency intended to "notify [ACLJ] as soon as responsive material has been retrieved and reviewed" and by providing the agency's contact information. Id.

FOIA sets the relevant time limits for such processing. It requires as a baseline that federal agencies "determine within 20 days ... after the receipt of any ... request whether to comply" and "immediately notify the person making such request of ... such determination and the reasons thereof." 5 U.S.C. § 552(a)(6)(A)(i). Although in "unusual circumstances" the government may write to let the requesting party know that it needs ten extra working days, id.§ 552(a)(6)(B), whenever an agency does not abide by whichever applicable deadline, the records-seeker can sue in federal court without waiting for an answer. Id.§ 552(a)(4)(B), (a)(6)(C)(i).

On December 26, 2016, ALCJ filed this suit after having not received a response to its FOIA request since the end of July. See Compl., ¶ 28. Its Complaint alleged a pair of counts, the first challenging State's "improper withholding of [the] requested records" and the second attacking its "impermissible practice, policy, and pattern of untimely and noncompliant FOIA responses." Id., ¶¶ 36, 49.

This Motion to Dismiss concerns only that second claim. Plaintiff pleads that the State Department "has a reputation for flaunting [sic ] and disregarding its public accountability and FOIA obligations." Id., ¶ 40. As support, ACLJ cites how State has been similarly dilatory in producing records and is being non-responsive with its acknowledgment letters for three others of its FOIA requests—including one in which the Department granted expedited processing. Id., ¶¶ 40, 43, 46 (citing ACLJ v. Dep't of State, No. 16–1355 (D.D.C.); ACLJ v. Dep't of State, No. 16–1751 (D.D.C.); ACLJ v. Dep't of State, No. 16–1975 (D.D.C.)). According to a recent Department of Justice report, it took Defendant 111 days to respond on average in 2014, and only 10 percent of its FOIA officers have gone through requisite training, both marks being the worst of any major federal agency. Id., ¶ 41 (referencing Dep't of Justice, 2016 Chief FOIA Officer Reports—Assessment of Federal Departments and Agencies 73, 109 (2016)). This reputation for delinquency is apparently well known. Id., ¶ 42 (citing news stories).

As ACLJ sums it up, "This is the fourth FOIA lawsuit against this Defendant in the past approximately six months, and the fourth case where Defendant failed to comply with the threshold requirement of the FOIA in its ‘response’ to Plaintiff's FOIA requests." Id., ¶ 47. The organization thus complains that, as in a past case, "Defendant did not take Plaintiff's FOIA request seriously until Plaintiff filed its lawsuit." Id., ¶ 46. These facts together purportedly show that State "is engaging in an established impermissible practice, policy, and pattern of not responding as required by the clear requirements of 5 U.S.C. § 552(a)(6)(A)." Id., ¶ 48. To put a stop to the agency's repeated tardiness, ACLJ asks for broad declaratory and injunctive relief to "force Defendant to cease" its delay. Id., ¶¶ 49, 52(e), 52(f).

Defendant's Motion to Dismiss this policy-or-practice count is now ripe.

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) permits a Court to dismiss any count of a complaint that fails "to state a claim upon which relief can be granted." 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 an inference unsupported by the facts set forth in the Complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ).

Rule 12(b)(6)'s pleading standard is "not meant to impose a great burden upon a plaintiff," Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005), as 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., 544 U.S. at 347, 125 S.Ct. 1627 ). While "detailed factual allegations" are not necessary to withstand a dismissal motion, id. at 555, 127 S.Ct. 1955, a complaint still "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 ). In other words, 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. A complaint may survive even if " ‘recovery is very remote and unlikely’ " or the veracity of the claims are "doubtful in fact" if the factual matter alleged in the complaint is "enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555–56, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ).

III. Analysis

Congress enacted FOIA "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (citation omitted). By the terms of the Act, if a person makes an information request that "reasonably describes [the] records" she seeks and follows "published rules," the agency "shall make the records promptly available." 5 U.S.C. § 552(a)(3)(A) ; see DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 754–55, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). If the government instead improperly withholds records, federal courts may compel their production. See 5 U.S.C. § 552(a)(4)(B).

Yet ACLJ wants more than documents. It also contends...