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Feinman v. Federal Bureau of Investigation

January 26, 2010


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiffs Barbara Feinman and Garrett M. Graff have filed a class action against the Federal Bureau of Investigation ("FBI"), the Executive Office for United States Attorneys ("EOUSA"), and the U.S. Department of Justice ("DOJ"), alleging that defendants have violated the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. This matter is before the Court on defendants' partial motion to dismiss plaintiff Feinman for lack of standing and Count I in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(1). For the reasons discussed herein, the Court will grant defendants' motion.


The sole question before the Court is whether Feinman has standing to sue under FOIA and the APA for claims arising from a FOIA request made by a non-party, Catherine Beirne, who allegedly assigned all rights and interest in that request to Feinman. Accordingly, the Court's discussion of the factual background will be limited to the allegations relating to Feinman's claims.

As alleged in the complaint, Feinman is "a representative of the news media as that term is defined by the FOIA statute." (See Compl. ¶ 3.) The complaint does not explain Beirne's relationship to Feinman, but on April 13, 2009, Beirne faxed a FOIA request to the FBI, seeking records regarding a suspected terrorist, Qari Ismail. (Id. ¶ 17.) On April 17, the FBI wrote to Beirne and returned her request "on the basis that the FBI required the submission of proof of death or a signed privacy waiver from Qari Ismail before it would begin processing the request for records." (Id. ¶ 18.) The FBI's letter explained that absent proof of Ismail's death or a signed privacy waiver, any responsive records about him would be categorically exempt from disclosure "as unwarranted invasions of privacy" under FOIA Exemption 6 and 7(C). (Id.) The letter was accompanied by a Privacy Waiver and Certification of Identity form, but the letter "failed to accord Beirne any rights to an administrative appeal of the FBI's refusal to process the FOIA request." (Id.)

Several months later on August 27, 2009, Feinman submitted two letters to the FBI. (Compl. ¶ 19.) One was signed by Beirne and stated that she had assigned "her rights and interests in the FOIA request to Feinman." (Id.) The second letter was signed by Feinman and stated that Feinman had accepted the assignment. (Id.)

Plaintiffs' complaint was filed on October 30, 2009. Count I asserts that Feinman has a legal right under FOIA "to obtain the information she seeks," that the FBI has unlawfully denied that right, and that Feinman has "constructively exhausted any or all necessary administrative remedies." (Compl. ¶¶ 20-21.) Count VI, as it relates to Feinman, asserts that the FBI violated the APA through policies that allow FOIA personnel (1) to categorically "refuse to process searches for records pertaining to foreign nationals absent proof of death or a signed privacy waiver" and (2) to refuse to process any such request without informing the requesters that they have the right to administratively appeal the denial. (See id. ¶¶ 45-46.)*fn1 Feinman seeks, inter alia,an order requiring defendants to disclose the requested records, a declaration that defendants' alleged policies violate their statutory and regulatory obligations, and an order requiring the FBI to discontinue the alleged policies.

Defendants moved to dismiss on December 16, 2009, arguing that the Court lacks subject matter jurisdiction over Feinman's claims. Specifically, defendants contend that Feinman lacks standing to seek disclosure of documents under FOIA because her name "did not appear on the original request that is the subject of Count I," and because she "cannot assert standing based on someone else's FOIA request." (Mot. to Dismiss at 2.) Similarly, defendants argue that Feinman lacks standing to raise Count VI's claim under the APA because she has not suffered an injury-in-fact as a result of the alleged policies. (Id. at 2-3.)



A. Motion to Dismiss for Lack of Jurisdiction

On a motion to dismiss pursuant to Rule 12(b)(1), plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject matter jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The Court must accept all factual allegations in the complaint as true and give plaintiff the benefit of all reasonable inferences from the facts alleged. See Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005). A court may dismiss for lack of subject matter jurisdiction only if "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Richardson v. United States, 193 F.3d 545, 549 (D.C. Cir. 1999) (quoting Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1086 (D.C. Cir. 1998)). Moreover, where a court's subject matter jurisdiction is called into question, the court may consider matters outside the pleadings to ensure it has power over the case. Teva Pharm., USA, Inc. v. U.S. Food & Drug Admin., 182 F.3d 1003, 1008 (D.C. Cir. 1999).

B. Standing

"Article III of the United States Constitution limits the judicial power to deciding 'Cases and Controversies.'" In re Navy Chaplaincy, 534 F.3d 756, 759 (D.C. Cir. 2008) (quoting U.S. Const. art. III, ยง 2). "[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan, 504 U.S. at 560. Standing requires, inter alia, that a plaintiff demonstrate that she has suffered an "injury in fact," i.e., the invasion of a legally protected interest that ...

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