Ams. for Fair Treatment v. U.S. Postal Serv.

663 F.Supp.3d 39

AMERICANS FOR FAIR TREATMENT, Plaintiff, v. UNITED STATES POSTAL SERVICE, et al., Defendants.

Case No. 1:22-cv-1183-RCL

United States District Court, District of Columbia

Signed March 23, 2023

David Richard Dorey, Washington, DC, Tessa Elizabeth Shurr, Pro Hac Vice, The Fairness Center, Harrisburg, PA, for Plaintiff.

Dhruman Y. Sampat, Patricia K. McBride, Michael Yohannan, U.S. Attorney's Office for the District of Columbia, Washington, DC, Paul Cirino, DOJ-ENRD, Civil Division, Washington, DC, for Defendants.

MEMORANDUM OPINION

Royce C. Lamberth, United States District Judge

This case concerns a Freedom of Information Act ("FOIA") request by plaintiff Americans for Fair Treatment ("AFFT"), a nonprofit organization focused on public-sector employees and their rights surrounding union membership, for information from the defendant United States Postal Service ("USPS" or "the agency") related to the website USPS created for the distribution of free COVID-19 test kits. Before the Court are USPS's partial motion to dismiss, ECF No. 24, USPS's motion for summary judgment and for judgment on the pleading, ECF No. 14, and AFFT's cross-motion for summary judgment, ECF No. 18. For the reasons that follow, the Court will GRANT USPS's partial motion to dismiss, GRANT in part and DENY in part USPS's motion for summary judgment, and GRANT in part and DENY WITH PREJUDICE in part and WITHOUT PREJUDICE in part AFFT's cross-motion for summary judgment.

I. BACKGROUND

A. AFFT's FOIA Request

On February 7, 2022, AFFT submitted a FOIA request to USPS for the following:

1. All records concerning the "Privacy Act Statement" contained on USPS's webform through which members of the public may order rapid antigen COVID-19 tests (https://special.usps.com/testkits). The records requested include, but are not limited to, those that reflect USPS's decision to depart from using its default "Privacy Act notice' that is "for personal information collected online" (which is published at https://about.usps.com/who/legal/privacy-policy/full-privacypolicy.htm) and instead to use a "Privacy Act Statement" that says USPS may, without consent, disclose information it obtains about the public through the COVID-19 test webform to "labor organizations as required by applicable law."

2. All records concerning USPS's disclosure to any labor organization of information it obtained through the COVID-19 test webform.

FOIA Request at 1, Ex. A to Compl., ECF No. 1-1. USPS refers to the two paragraphs of AFFT's request as "Item #1" and "Item #2," respectively, and the Court will do the same.

USPS originally replied to AFFT's request with a letter calling that request "very broad in scope" and informing AFFT that USPS would "take no further action and incur no chargeable costs to you unless we hear back from you" with a reformulated request, such as one limited "to a specific department or geographic area of interest or to a particular timeframe." Initial FOIA Decision Letter at PDF p. 17, Ex. 4 to First Decl. of Elisabeth Kines Messenger, ECF No. 18-2. AFFT apparently corresponded with a FOIA officer at USPS to narrow the scope of the request in some way, though the record does not indicate how. Decl. of Janine Castorina ("Castorina Decl.") ¶ 6, ECF No. 14-2. USPS then sent a further letter informing AFFT that there were "no responsive records" to either part of the FOIA request. Second FOIA Decision Letter at 1, Ex. D to Compl., ECF No. 1-4. Specifically, the letter stated that Item #1 "appears to compare the Privacy Act Statement, contained on the" test kit website, "with the Postal Service's general Privacy Policy contained on its website," and explained that "Privacy Act Statements and Privacy Policies are separate and distinct with different purposes," and thus "[t]here was no decision to substitute one for the other." Id. Furthermore, the letter stated with respect to Item #2 that "Labor Relations was contacted to locate [responsive] records" and that "[a]fter the search was completed it was determined no records have been released to any labor organizations," and thus "there are no records responsive to your request." Id.

AFFT administratively appealed that decision to USPS's General Counsel, who affirmed in part and reversed in part. Gen. Counsel Op., Ex. H to Compl., ECF No. 1-8. The General Counsel held that USPS did not initially conduct an adequate search with respect to Item #1 of AFFT's request, because the "request was not only limited to a purported decision to depart from the Privacy Act Notice language," but that USPS did conduct an adequate search with respect to Item #2. Id. at 2-4.

Pursuant to the General Counsel's decision, USPS conducted a search with respect to Item #1 of AFFT's FOIA request. After that search, USPS produced nine pages of responsive records, comprising five email chains with extensive redactions pursuant to FOIA Exemptions 3, 5, and 6. See FOIA Response at PDF pp. 17-25, Ex. 1 to Decl. of Janine Castorina, ECF No. 14-2. Specifically, with respect to Exemption 5, which incorporates various privileges, USPS invoked the deliberative process and attorney-client privileges but did not delineate which of the two applied to which Exemption 5 withholdings. Id. USPS still did not produce any records in response to Item #2, claiming again that its search turned up no responsive records. Castorina Decl. ¶ 26.

B. Proceedings in this Court

AFFT filed suit in this Court on April 28, 2022 against USPS, as well as the Postmaster General and USPS General Counsel in their official capacities (together, "USPS"). See Compl., ECF No. 1. The complaint asserted four counts: (1) violation of FOIA by withholding responsive, non-exempt records, id. ¶¶ 54-60; (2) violation of FOIA by failing to conduct an adequate search, id. ¶¶ 61-68; (3) arbitrary and capricious or contrary-to-law action in violation of the APA by failing to allow an appeal to the head of the agency himself, id. ¶¶ 69-75; and (4) ultra vires action by failing to allow an appeal to the head of the agency himself, id. ¶¶ 76-80.

USPS filed its motion for summary judgment and for judgment on the pleadings on July 29, 2022. ECF No. 14. AFFT filed its combined opposition and cross-motion for summary judgment on September 2, 2022. ECF No. 18. USPS filed its combined reply in support of its own motion and reply to AFFT's motion on October 26, 2022. ECF No. 22. AFFT filed its combined reply in support of its own motion and opposition to USPS's motion on November 18, 2022. ECF No. 26. The motions for summary judgment and for judgment on the pleadings are now ripe for review.

While the summary judgment briefing was still underway, USPS additionally filed a motion to dismiss Counts III and IV of the complaint for lack of subject-matter jurisdiction. ECF No. 24. AFFT filed its opposition to that motion on December 2, 2022, ECF No. 27, and USPS filed its reply on December 22, 2022, ECF No. 29. The partial motion to dismiss is also ripe for review.

II. LEGAL STANDARDS

A. FOIA and its Exemptions

FOIA provides a mechanism for members of the public to obtain government records. The statute "mandates a strong presumption in favor of disclosure," ACLU v. Dep't of Just., 655 F.3d 1, 5 (D.C. Cir. 2011) (internal quotation marks and citation omitted), and "agencies may withhold only those documents or portions thereof that fall under one of nine delineated statutory exemptions," Elliott v. U.S. Dep't of Agric., 596 F.3d 842, 845 (D.C. Cir. 2010) (citing 5 U.S. C. § 552(b)). Furthermore, under the FOIA Improvement Act, Pub. L. No. 114-185, 130 Stat. 538 (2016), an amendment to the statute that Congress enacted in 2016, the requested agency may only withhold information if it "reasonably foresees that disclosure would harm an interest protected by" the relevant exemption, 5 U.S.C. § 552(a)(8)(A)(i)(I).

In this case, USPS invoked FOIA Exemptions 3, 5, and 6.

Exemption 3 applies to information "specifically exempted from disclosure by statute (other than [5 U.S.C. § 552b]) if that statute (A)(i) requires that matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (B) if enacted after the enactment of the OPEN FOIA Act of 2009, specifically cites to" the statutory subsection containing Exemption 3. Id. § 552(b)(3).

Exemption 5 covers "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested." Id. § 552(b)(5).

Exemption 6 extends to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Id. § 552(b)(6).

B. Motions to Dismiss for Lack of Subject-Matter Jurisdiction and Article III Standing

Under Federal Rule of Civil Procedure 12(h)(3), "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." A motion styled as one under Rule 12(h)(3) is treated in the same way as a motion to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Murray v. Amalgamated Transit Union, 206 F. Supp. 3d 202, 207 (D.D.C. 2016). A court considering such a motion must take all the well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Doe v. Wash. Metro. Area Transit Auth., 453 F. Supp. 3d 354, 361 (D.D.C. 2020). "However, those factual allegations receive closer scrutiny than they do in the Rule 12(b)(6) context," and the court "may look to documents outside of the complaint in order to evaluate whether or not it has jurisdiction to entertain a claim." Id. (internal quotation marks...