Thompson v. U.S. Justice Dep't

1

DAVID M. THOMPSON, pro se, Plaintiff, v. U.S. JUSTICE DEPARTMENT, Defendant.

No. 1:23-cv-69-MOC-WCM

United States District Court, W.D. North Carolina, Asheville Division

August 24, 2023

ORDER

MAX O COGBURN UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on Defendant's Partial Motion to Dismiss. (Doc. No. 10). Pursuant to Federal Rules of Civil Procedure 12(b)(1) and/or 12(b)(6), Defendant moves to dismiss Count II of Plaintiff's Complaint, which alleges Defendant has adopted a pattern or practice in violation of FOIA. Plaintiff has responded in opposition to Defendant's motion, and Defendant has replied. (Doc. Nos 13, 17). For the following reasons, Defendant's motion will be DENIED.

I. BACKGROUND

This case is Plaintiff's fourth time suing Defendant, the U.S. Department of Justice, alleging failure to provide documents in connection with a series of requests under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. (Doc. No. 1 at ¶¶ 1, 3, 7). Plaintiff is a former employee of Defendant. That employment ended acrimoniously, precipitating Plaintiff's numerous FOIA suits.

Plaintiff filed his first FOIA suit in 2009. In May 2009, Plaintiff began requesting documents from the Environment & Natural Resources Division (“ENRD”), a component of Defendant. (Id. at ¶ 7). The FOIA request sought information covering a broad range of subject matter, including a 2008 investigation of Plaintiff's workplace conduct by ENRD. In November of 2009, Plaintiff brought a FOIA suit. (Id.). The first FOIA suit was dismissed after resolution by settlement. (Id.).

Plaintiff's second FOIA suit was part of litigation relating to the end of Plaintiff's employment with Defendant. Plaintiff sued Defendant, alleging violation of the Age Discrimination in Employment Act (“ADEA”), due process, Title VII of the Civil Rights Act of 1964 (“Title VII”), and a FOIA statute claim, alleging “procedures [that] were recalcitrant and in bad faith.”

The federal district court for the District of D.C. ruled on summary judgment in favor of Defendant as to Plaintiff's claims alleging violation of the ADEA, due process, and Title VII. Thompson v. Sessions, 278 F.Supp.3d 227, 252 (D.D.C. 2017). The Court later ruled in Defendant's favor with respect to Plaintiff's FOIA claim alleging “procedures [that] were recalcitrant and in bad faith.” Thompson v. Sessions, No. CV 16-3 (RDM), 2018 WL 4680201, at **1-2 (D.D.C. Sept. 27, 2018) (dismissing Plaintiff's “policy or practice claim for lack of Article III jurisdiction”), affd sub nom. Thompson v. Barr, No. 18-5332, 2019 WL 3949741 (D.C. Cir. July 29, 2019).

Plaintiff's third FOIA suit was brought in the Eastern District of Virginia and was dismissed after summary judgment in favor of Defendant. David M. Thompson v. U.S. Justice Dep't, Docket No. 4:19-cv-00033-AWA-LRL (E.D. Va. Mar. 29, 2021) (Dismissal Order). The Fourth Circuit Court of Appeals affirmed the district court's dismissal in an unpublished, per curiam opinion. David M. Thompson v. U.S. Justice Dep't, Docket No. 21-1625 (4th Cir. Jun 2, 2022).

Plaintiff recently submitted a new FOIA request and has now filed a fourth FOIA suit. Count I of Plaintiff's complaint alleges improper redactions and withholdings in Defendant's response to Plaintiff's most recent FOIA request. (Doc. No. 1 at ¶ 18). Count II of Plaintiff's complaint alleges that Defendant's “recalcitrance” in responding to Plaintiff's FOIA request constituted a “‘pattern' and/or ‘practice' in violation of FOIA.” (Doc. No. 1 at ¶ 20). In response, Defendant has moved to dismiss Count II of Plaintiff's complaint, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 10). Since this litigation has begun, Plaintiff has made additional FOIA requests.

II. STANDARD OF REVIEW

Defendants move to dismiss under Rules 12(b)(1) and 12(b)(6). A Rule 12(b)(1) motion addresses whether the plaintiff “has a right to be in the district at all and whether the court has the power to hear and dispose of [plaintiff's] claim,” and a Rule 12(b)(6) motion addresses whether the plaintiff “has stated a cognizable claim” and challenges the “sufficiency of the complaint.” Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012).

On a Rule 12(b)(1) motion to dismiss for lack of standing, “a court must construe the complaint in the plaintiff's favor, accepting as true the factual allegations in the complaint.” Students for Fair Admissions, Inc. v. U. of N. Carolina, 1:14CV954, 2018 WL 4688388, at *2 (M.D. N.C. Sept. 29, 2018). A district court should only grant a Rule 12(b)(1) motion to dismiss “if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Richmond, Fredericksburg, & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The issue of statutory standing “is a separate inquiry from Article III standing,” and presents a challenge to the sufficiency of the pleadings. U.S. v. Chandler, 118-cr-79, 2019 WL 1427556, at *2 (W.D. N.C. Mar. 29, 2019). In this respect, a motion to dismiss that challenges a party's statutory standing “is ‘effectively the same as a dismissal for failure to state a claim'” under Rule 12(b)(6). U.S. v. Oregon, 671 F.3d 484, 490 n.6 (4th Cir. 2012) (quoting CGM, LLC v. BellSouth Telecomm., Inc., 664 F.3d 46, 52 (4th Cir. 2011)).

In reviewing a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), the Court must accept as true all of the factual allegations in the Complaint and draw all reasonable inferences in the light most favorable to the plaintiff. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). However, to survive a Rule 12(b)(6) motion, “[f]actual allegations must be enough to raise a right to relief above the speculative level,” with the complaint having “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions,” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” are insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). A complaint may survive a motion to dismiss only if it “states a plausible claim for relief” that “permit[s] the court to infer more than the mere possibility of misconduct” based upon “its judicial experience and common sense.” Id. at 679 (citations omitted).

III. DISCUSSION

The FOIA serves the important aim of promoting the timely release of requested government records. Plaintiff alleges that Defendant has repeatedly stymied his ability to receive requested government records in a timely manner, amounting to a persistent failure to adhere to FOIA's requirements. Plaintiff has alleged sufficient facts to plausibly support this contention, and this Court will deny Defendant's motion to partially dismiss Plaintiff's complaint. Specifically, the Court will not dismiss Complaint II to the extent it alleges a policy-or-practice claim, because Plaintiff has plausibly alleged facts showing that Defendants have followed a policy or practice of violating FOIA.

In the motion to partially dismiss, Defendant first argues that Plaintiff's policy-or-practice claim is moot. All of Plaintiff's FOIA requests predating this litigation have received a response of some kind (either a denial, release, withholding, or some combination of the three). FOIA lawsuits generally become moot once an agency has made available the requested nonexempt records, whether voluntarily or after court order. See Ingraham v. U.S. Postal Serv., 816 F.2d 672 (table) (4th Cir. 1987) (holding that plaintiff's FOIA timeliness claim was moot because plaintiff was given access to the documents that Plaintiff had requested); Worsham v. U.S. Dep't of the Treasury, No. CIV.A. ELH-12-2635, 2013 WL 5274358 (D. Md. Sept. 17, 2013) (stating that once an agency has responded, “the timing of the [agency's] response is of no moment”); Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982) (“[O]nce all requested records are surrendered, federal courts have no further statutory function to perform.”).

However, many courts have recognized an exception to mootness where an agency has a policy or practice that “will impair the party's lawful access to information in the future.” See, e.g., Jud. Watch, Inc. v. United States Dep't of Homeland Sec., 895 F.3d 770, 777 (D.C. Cir. 2018); Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988) (citing Better Gov't Ass'n v. Dep't of State, 780 F.2d 86, 90-92 (D.C. Cir. 1986)). In other words, a policy-or-practice claim is not necessarily mooted by an agency's production of documents. Payne, 837 F.2d at 491 (holding that a policy-or-practice claim is viable “[s]o long as an agency's refusal to supply information evidences a policy or practice of delayed disclosure or some other failure to abide by the terms of the FOIA, and not merely isolated mistakes by agency officials”). While the Fourth Circuit has not decided whether an independent policy-or-practice claim exists under FOIA, FOIA authorizes a court not only to “order the production of any agency records improperly withheld,” but also to “enjoin the agency from withholding agency records.” 5 U.S.C. § 552(a)(4)(B). Indeed, “excessive delay by the agency in its response is often tantamount to denial.” Open Am. v. Watergate Special Prosecution Force, 547 F.2d 605, 617 (D.C. Cir. 1976). This has led courts to “recognize[] that there ‘may very well be circumstances in which prolonged delay in making information available or unacceptably onerous opportunities for viewing disclosed information...