Lawyers' Comm. for 9/11 Inquiry, Inc. v. Wray

424 F.Supp.3d 26

The LAWYERS' COMMITTEE FOR 9/11 INQUIRY, INC., et al., Plaintiffs,

v.Christopher A. WRAY, et al., Defendants.

Case No. 1:19-cv-00824 (TNM)

United States District Court, District of Columbia.

Signed January 3, 2020

Mick G. Harrison, Bloomington, IN, John M. Clifford, Clifford & Garde LLP, Washington, DC, for Plaintiffs.

Johnny Hillary Walker, III, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

Two organizations and one individual seek an order requiring the FBI to evaluate and report on certain evidence related to the terrorist attacks of September 11, 2001. In their view, Congress directed the FBI to report on evidence that the 9/11 Commission did not consider. They believe the FBI violated this mandate. The Government moves to dismiss for lack of standing and on other grounds. The Court agrees that Plaintiffs lack standing, so the Court will grant the Government's motion and dismiss the case.

I.

In 2002, Congress established the National Commission on Terrorist Attacks Upon the United States ("National 9/11 Commission"). First Am. Compl. ¶ 3, ECF No. 11. That Commission concluded that Osama bin Laden and other Islamic extremists were responsible for the attacks.¹ Plaintiffs find this conclusion wanting. They believe, for example, that "pre-placed" explosives caused the World Trade Center buildings to collapse. Id. ¶¶ 11, 33. They also suspect "malfeasance" on the part of the United States government. Id. ¶ 15.

One plaintiff is the Lawyers' Committee for 9/11 Inquiry ("Lawyers' Committee"). Id. ¶ 10. Its mission is "to promote transparency and accountability" about the events of September 11. Id. It believes that family members of the victims have a right to know the "full truth" of what happened that day. Id. Another plaintiff is the Architects & Engineers for 9/11 Truth ("Architects"). Id. ¶ 13. It seeks to educate the public about the "true reasons" for the collapse of the World Trade Center buildings. Id. The final plaintiff is Robert McIlvaine. Id. ¶ 15. He is the father of Bobby McIlvaine, a victim of the attack on the World Trade Center. Id.

The relevant legal background starts with the National 9/11 Commission's 2004 report. Besides assigning responsibility for the attacks, it made recommendations to the FBI and other agencies on how to prevent future attacks.² Nine years later, Congress allotted $500,000 "for a comprehensive review of the implementation of the recommendations related to the [FBI] that were proposed in the report issued by the [National 9/11 Commission]." Consolidated and Further Continuing Appropriations Act, 2013, Pub. L. No. 113-6, 127 Stat. 198, 247 (2013). Plaintiffs believe that this provision "imposed a mandatory duty" on the FBI to assess and report on evidence that the National 9/11 Commission did not consider. First Am. Compl. ¶ 7.

In response to this legislation, the FBI Director formed a body called the 9/11 Review Commission. See Mot. to Dismiss Ex. 1 at 5 & n.1,³ ECF No. 12-2. It released its own report in 2015. Id. at 2. One chapter of that report discussed some evidence that the National 9/11 Commission did not consider. Id. at 102. But it ultimately concluded that "no new information obtained since the ... 2004 report would change the [National 9/11 Commission's] findings regarding responsibilities for the 9/11 attacks." Id. at 109.

Plaintiffs allege that the Review Commission failed to "fully comply" with the 2013 appropriations act. First Am. Compl. ¶ 7. They acknowledge that the Review Commission investigated some new evidence. Id. ¶ 28. But they complain it "failed to assess and report to Congress, as mandated, several other categories of significant 9/11 related evidence known to the FBI." Id. ¶ 29. For Plaintiffs, full compliance means that the FBI must report on the seven categories of evidence that they list in their causes of action. Id. ¶ 127. These categories include evidence "related to use of pre-placed explosives" (Count I) and "evidence regarding the arrest and investigation of the ‘high-fivers’ observed and self-photographed celebrating the attacks" (Count II). Id. at 11, 24. Plaintiffs bring their claims under the Administrative Procedure Act and the mandamus statute, 28 U.S.C. § 1361. Id. ¶ 1.

II.

Article III of the Constitution limits the jurisdiction of federal courts to "actual cases or controversies." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). One component of the case-or-controversy requirement is standing to sue. Id. A plaintiff bears the burden of showing that he has "(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." Id. At the pleading stage, the plaintiff "must clearly allege facts demonstrating each element." Id. (cleaned up). Courts grant plaintiffs the benefit of all reasonable inferences from the allegations, but they will not accept inferences that the facts do not support. Arpaio v. Obama , 797 F.3d 11, 19 (D.C. Cir. 2015).

This case involves informational standing and organizational standing. The foundational case for informational standing is FEC v. Akins , 524 U.S. 11, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998). The Supreme Court explained that a plaintiff suffers injury in fact when he "fails to obtain information which must be publicly disclosed pursuant to a statute." Id. at 21, 118 S.Ct. 1777. The statute must "seek to protect [plaintiffs] from the kind of harm they say they have suffered." Id. at 22, 118 S.Ct. 1777.

An organization can assert standing on its own behalf or on behalf of its members. EPIC v. U.S. Dep't of Commerce , 928 F.3d 95, 100 (D.C. Cir. 2019). The former is "organizational standing" and the latter is "associational standing." Id. An entity asserting organizational standing, like an individual plaintiff, must show that it has suffered injury traceable to the defendant and redressable by a favorable judicial decision. Equal Rights Ctr. v. Post Props., Inc. , 633 F.3d 1136, 1138 (D.C. Cir. 2011).

The Government moves to dismiss the First Amended Complaint based on lack of standing and failure to state a claim. See Mot. to Dismiss at 1–2, ECF No. 12. This motion is ripe. Lack of standing is a basis for dismissal under Federal Rule of Civil Procedure 12(b)(1).

Commonwealth v. U.S. Dep't of Educ. , 340 F. Supp. 3d 7, 18 (D.D.C. 2018). If dismissal is proper under Rule 12(b)(1), the Court cannot resolve the alternative arguments for dismissal under Rule 12(b)(6). Id. at 18 & n.3.

III.

Plaintiffs contend that they all have informational standing and that the Lawyers' Committee and Architects have organizational standing. Pls.' Opp'n to Mot. to Dismiss ("Opp'n") at 13, ECF No. 13. Neither organization claims associational standing. See id. at 13, 18–25. The Court finds that Plaintiffs have not suffered an informational injury and that their theories of organizational standing also fail. Plaintiffs thus lack standing to bring their claims and the proper disposition is dismissal under Rule 12(b)(1).

A.

Consider first informational standing. Citing Akins , 524 U.S. at 21–22, 118 S.Ct. 1777, the D.C. Circuit has distilled "informational injury" into a two-part test. Friends of Animals v. Jewell , 828 F.3d 989, 992 (D.C. Cir. 2016). A plaintiff must allege that "(1) it has been deprived of information that, on its interpretation, a statute requires the government or a third party to disclose to it, and (2) it suffers, by being denied access to that information, the type of harm Congress sought to prevent by requiring disclosure." Id.

As in Friends of Animals , Plaintiffs' claim of informational injury "fails at the first part of the inquiry." Id. They seek to enforce appropriations legislation that does not require the FBI to disclose information to them or anyone else. Recall the statutory text at issue: "$500,000 shall be for a comprehensive review of the implementation of the recommendations related to the [FBI] that were proposed in the report issued by the [National 9/11 Commission]." Pub. L. No. 113-6, 127 Stat. at 247. This is an appropriations provision, not a disclosure law. And Congress did not allocate funds for a comprehensive report. It allocated funds for a "comprehensive review. " Id. (emphasis added).

Indeed, the parties agree that the text of this provision does not require the disclosure of information. See Opp'n at 9. Plaintiffs instead focus on an "explanatory statement" that a Senator entered into the record two weeks before Congress passed the appropriations act. See id. at 8–11, 15. This statement asserts that the scope of the FBI's review "shall include ... an assessment of any evidence now known to the FBI that was not considered by the [National Commission] related to any factors that contributed in any manner to the terrorist attacks of September 11, 2001." 159 Cong. Rec. S1305 (Mar. 11, 2013). It then says that the FBI "shall submit a report to the Committees ... on the findings and recommendations resulting from this review." Id. A provision in the appropriations law declares that this explanatory statement "shall have the same effect with respect to the allocation of funds and implementation of this Act as if it were a joint explanatory statement of a committee of conference." Pub. L. No. 113-6, 127 Stat. at 199. But Congress does not vote on a joint explanatory statement, so it "has no force of law" and functions as legislative history. See Goldring v. District of Columbia , 416 F.3d 70, 75 & n.3 (D.C. Cir. 2005).

Still, Plaintiffs go all in with the explanatory statement. They point to a line of D.C. Circuit decisions opining that "pertinent legislative history may often shed new light on congressional intent, notwithstanding statutory language that appears superficially clear." NRDC v. Browner , 57 F.3d 1122, 1127 (D.C. Cir. 1995) ...