Phillips v. Dist. of Columbia

AMY PHILLIPS, Plaintiff, v. DISTRICT OF COLUMBIA, Defendant.

Civil Action No. 22-277 (JEB)

United States District Court, District of Columbia

May 2, 2022

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge.

This suit alleges that the District of Columbia's Metropolitan Police Department plays favorites in how it responds to requests for information under the local Freedom of Information Act. Plaintiff Amy Phillips, a public defender contends that the District unlawfully flags FOIA requests from people critical of MPD, which leads to response delays and denials and constitutes a violation of her First Amendment rights. In moving to dismiss, the Government maintains that Phillips's allegations should instead have been labeled as a claim of selective enforcement under the Fifth Amendment. It further argues that, even if she has brought her suit under the correct constitutional provision Plaintiff has not asserted a constitutional injury established the existence of a policy that violates the First Amendment's restriction on content- and viewpointbased regulation, or alleged a municipal policy for which the District can be held liable. Disagreeing on all fronts, the Court will deny Defendant's Motion.

I. Background

Taking the facts as laid out by Plaintiff to be true, which the Court must do at this stage, the genesis of the controversy lies in an Adverse Action Hearing held by MPD's Disciplinary Review Division in March 2019 to adjudicate alleged misconduct by a former officer. See ECF No. 1 (Complaint), ¶¶ 11-20. Phillips, who is a criminal-defense attorney in the District and an “outspoken critic of MPD, ” attended the March 2019 hearings and soon after submitted a FOIA request to MPD for tapes and transcripts of the proceedings. Id., ¶¶ 2, 11, 21. This was not the first time - nor would it be the last - that Plaintiff used FOIA to request information from MPD. Beginning in 2018, Phillips has such sought information on at least eight occasions, subsequently using the information to “evaluate and, if necessary, criticize MPD, ” which she has done, on a handful of occasions, using a personal Twitter account. Id., ¶¶ 6-10.

The response Plaintiff received from MPD concerning her March 2019 FOIA request, however, was “strange.” Id., ¶ 24. The request was denied in full less than ninety minutes after it was submitted. Id., ¶ 23. The Department's justification was “wrong” in Phillips's view, and the timeline was significantly faster than the weeks or months it normally took MPD to respond to FOIA requests. Id., ¶ 24. That was not the end of it, however. After an appeal to the Mayor's Office of Legal Counsel and a suit in D.C. Superior Court that was covered in the local news, MPD began producing documents responsive to Phillips's requests in September 2019, albeit with redactions Plaintiff believes are unwarranted. Id., ¶¶ 25-32.

In early 2020, Plaintiff began communicating with Vendette Parker, a recently retired MPD FOIA officer, who had worked on Phillips's request when she was still employed by the District. Id., ¶¶ 34, 87-88. Parker alerted Plaintiff to the Department's unofficial “watchlist policy, ” which singled out for special treatment FOIA requests that “may lead to criticism” of MPD, in particular those “originating from news reporters or people known to be critical of the department” or for information that could “embarrass the department.” Id., ¶¶ 36, 39, 42-43. Requests within these parameters were flagged for higher-up officials and were often “delayed, denied, or improperly altered.” Id., ¶¶ 43-45, 53, 81. This included Phillips's March 2019 FOIA request, which was flagged both because the records themselves might embarrass MPD and because Phillips had been placed on the Department's “watchlist” based on the content of previous record requests. Id., ¶ 83. As a result of this special screening, Phillips's request was denied at the behest of MPD's then-Chief Operating Officer and, even after Plaintiff's successful appeal, was subject to additional delays. Id., ¶¶ 84-88.

In January 2022, Phillips brought this lawsuit against the District, alleging that its policy of “delaying, burdening, or denying” a subset of D.C. FOIA requests constitutes a content- and viewpoint-based restriction of speech in violation of the First Amendment. Id., ¶¶ 91-97. She seeks injunctive and declaratory relief, as well as an award of nominal damages. Id. at 19. The District now moves to dismiss the suit, asserting a number of deficiencies, including a lack of subject-matter jurisdiction and failure to state a claim for relief. See ECF No. 9-1 (Def. MTD) at 1-2. Although the former issue appears to no longer be contested, see ECF No. 13 (Def. Reply) at 1-2, the Court begins by addressing it, before turning to the District's merits arguments.

II. Legal Standard

Because Defendant seeks dismissal based on both lack of standing and failure to state a claim, the Court will apply the standards for Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

When a defendant seeks dismissal under Rule 12(b)(1), the plaintiff must show that the court has subject-matter jurisdiction to hear his claim. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); US Ecology, Inc. v. U.S. Department of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). “Absent subject matter jurisdiction over a case, the court must dismiss [the claim].” Bell v. U.S. Department of Health & Human Services, 67 F.Supp.3d 320, 322 (D.D.C. 2014). “Because subject-matter jurisdiction focuses on the court's power to hear the plaintiffs claim, a Rule 12(b)(1) motion [also] imposes on the court an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001).

In policing its jurisdictional borders, a court must scrutinize the complaint, granting the plaintiff the benefit of all reasonable inferences that can be derived from the alleged facts. See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). A court need not rely “on the complaint standing alone, ” however, but may also look to undisputed facts in the record or resolve disputed ones. See Herbert v. National Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).

Rule 12(b)(6), conversely, permits dismissal of a complaint for failure to state a claim upon which relief may be granted. In evaluating such a motion to dismiss, courts 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)). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), “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 (2009) (quoting Twombly, 550 U.S. at 570) - that is, the facts alleged in the complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The court need not accept as true, then, “a legal conclusion couched as a factual allegation, ” Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)), nor “inferences . . . unsupported by the facts set out in the complaint.” Id. (quoting Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). And it may consider not only “the facts alleged in the complaint, ” but also “any documents either attached to or incorporated in the complaint[, ] and matters of which [courts] may take judicial notice.” Equal Employment Opportunity Commission v. St. Francis Xavier Parochial School, 117 F.3d 621, 624 (D.C. Cir. 1997).

III. Analysis

The Court first considers the jurisdictional issue, as it must, see Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998), before turning to the merits of Defendant's Motion.

A. Jurisdiction

Article III of the United States Constitution limits the jurisdiction of federal courts to resolving “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. A party's standing “is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan, 504 U.S. at 560. Standing therefore represents a “predicate to any exercise of [the court's] jurisdiction.” Florida Audubon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996).

To maintain standing, a plaintiff must meet three criteria. First, she “must have suffered an injury in fact - an invasion of a legally-protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (citations and internal quotation marks omitted). Second, “there must be a causal connection between the injury and the conduct complained of - the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Id. (alterations in original) (citation and internal quotation marks omitted). Third, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 561 (citation and internal quotation marks omitted). A “deficiency on any one of the three prongs suffices to defeat standing.” US Ecology, Inc., 231 F.3d at 24.

Because Phillips seeks equitable relief as well as money damages, her claims raise two issues related to...