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Citizens for Responsibility and Ethics in Washington v. United States Dep't of Homeland Security

December 17, 2007

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth United States District Judge,

MEMORANDUM OPINION

INTRODUCTION

Plaintiff Citizens for Responsibility and Ethics in Washington (CREW), a non-profit organization and self-described government watchdog, filed a Freedom of Information Act request with the United States Secret Service, a component of the United States Department of Homeland Security (DHS), for records relating to former-lobbyist Jack Abramoff. CREW sought all records showing that Mr. Abramoff, and seven other individuals thought to be associated with Mr. Abramoff, had recently visited the White House or the Vice President's Residence. When the Secret Service failed to fully respond to this request in a timely fashion, CREW filed the present action under the Freedom of Information Act (FOIA), the Federal Records Act (FRA), and the Administrative Procedure Act (APA), challenging not only the Secret Service's failure to respond to its request, but the legality of the DHS's recordkeeping guidelines with respect to the White House visitor records.

There are two issues presented by the DHS's motion to dismiss claim four [34]. First, the Court must determine whether CREW has standing to seek prospective injunctive and declaratory relief. Second, and alternatively, the Court must determine whether -- and to what extent -- a private litigant may use the APA as a vehicle to challenge an agency's recordkeeping policies under the FRA. For the following reasons, the DHS's motion is granted. CREW has not demonstrated that it has constitutional standing to seek prospective relief.

BACKGROUND*fn1

By letter dated February 2, 2006, CREW filed a FOIA request with the Secret Service seeking "all records" concerning "any visit" that Jack Abramoff and seven other named individuals had made "to the White House or the residence of the Vice President [since] January 1, 2001." See Second Amended Complaint For Declaratory Judgment And Injunctive Relief (2d Am. Compl.), ¶ 24.*fn2 In its letter to the Secret Service, CREW asked the agency to expedite its handling of the FOIA request. Id. at ¶ 25. CREW wrote that there was "a particular urgency in informing the public about whether the President, the Vice President, and/or their staff met with Jack Abramoff," explaining that the public is entitled "to know" whether Mr. Abramoff "may have influenced the President and his staff." Id., Ex. A. The Secret Service acknowledged receiving the request roughly a month later and explained that a "search for files" was "being conducted." Id. at ¶ 27, Ex. B. CREW was informed that it would be "notified" of "the results of the search" once they were "known." Id, Ex. B.

Failing to receive a response to its request that it perceived to be adequate or timely, see id. at ¶¶ 27-28, 33-40, CREW filed the present action on May 10, 2006. See Complaint for Declaratory Judgment and Injunctive Relief.*fn3 Claim four of the complaint, which is the sole focus of the present motion to dismiss, challenges whether the DHS's recordkeeping policy with respect to White House visitor records is in conformity with the FRA. Specifically, CREW claims that "[t]he policy of the Secret Service and the DHS to erase from its computer system all WAVES records . . . is arbitrary, capricious, and contrary to law, because it permits the disposal of records that have not been subject to a disposition schedule that has been subject to public comment and approved by the [National] Archivist." 2d Am. Compl. at ¶ 46. CREW reasons that due to this "unlawful policy" it has been denied "a right of access to information in the public interest" and "its right to notice and the opportunity to comment on the proposed destruction of agency records." Id. at ¶¶ 47, 48.

CREW seeks both "declaratory relief that [the DHS's] policy of destroying WAVES records without complying with the requirements of the FRA is arbitrary, capricious, and contrary to law, and injunctive relief that [the DHS] immediately take all necessary steps to cease destruction of WAVES records and to secure the return of the WAVES records [previously transferred] to the White House." Id. at ¶ 2.

The DHS's motion to dismiss claim four was filed on August 30, 2006. This case was reassigned to the undersigned judge on October 25, 2007.

DISCUSSION

The DHS moves to dismiss claim four on the ground that the Court lacks subject matter jurisdiction over this claim. This argument rests on two assertions. First, the DHS asserts that CREW does not have standing to seek prospective declaratory and injunctive relief. Second, the DHS asserts that the FRA, as interpreted by the D.C. Circuit in Armstrong v. Bush,*fn4 precludes APA suits for injunctive relief regarding the retention of agency records. The Court will examine each assertion in turn, after summarizing the relevant legal standard.

I. Legal Standard

The DHS moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). When confronted with a motion to dismiss for lack of subject matter jurisdiction, the Court must "'accept all of the factual allegations in [the] complaint as true.'" Jerome Stevens Pharms., Inc. v. FDA, 365 U.S. App. D.C. 270, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005) (quoting United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 1276 (U.S. 1991) (other citation omitted)). "[A] plaintiff bears the burden of establishing by a preponderance of the evidence that the Court possesses jurisdiction." Hallinan v. United States, 498 F. Supp. 2d 315, 316 (D.D.C. 2007) (citing Shekoyan v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002); Pitney Bowes, Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998)). "[I]n deciding a Rule 12(b)(1) motion, it is well established in this Circuit that a court is not limited to the allegations in the complaint, but may also consider material outside of the pleadings in its effort to determine ...


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