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Feinman v. Federal Bureau of Investigation

August 13, 2010

BARBARA FEINMAN AND GARRETT M. GRAFF, PLAINTIFFS,
v.
FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Plaintiff Garrett M. Graff has filed a class action complaint 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. This matter is before the Court on plaintiff's motion to certify the class, as well as his motion for leave to amend the complaint. For the reasons discussed herein, the Court will deny the class certification motion but will grant the motion for leave to amend.

BACKGROUND

Since this is the third motion that has been before the Court, it is not necessary to repeat the facts and procedural history which are set forth in Feinman v. F.B.I., 680 F. Supp. 2d 169 (D.D.C. 2010) (dismissing plaintiff Barbara Feinman and Count One for lack of standing), mot. to certify for interlocutory appeal denied, No. 09-CV-2047, 2010 WL 962188 (D.D.C. Mar 15, 2010), and Feinman v. F.B.I. ("Feinman II"), No. 09-CV-2047, 2010 WL 2102326 (D.D.C. May 26, 2010) (dismissing Count Six for lack of subject matter jurisdiction). Instead, the Court will limit its discussion to those facts that relate to the two pending motions.

I. THE FOIA REQUESTS

Plaintiff Graff currently serves as the editor for The Washingtonian Magazine and is a "representative of the news media," as that term is defined by 5 U.S.C. § 552(a)(4)(A)(ii), for purposes of determining administrative fees. (Compl. ¶ 4.) In January 2009, he submitted a FOIA request to the EOUSA for information regarding "the investigation, capture, and prosecution" of former Panamanian general Manual Noriega. (Id. ¶ 22; see also Pl.'s Mot. for Partial Summ. J. ("Pl.'s SJ Mot."), Ex. 1 at 1.) The request stated that disclosure of this information would be in the public interest "because it is likely to contribute significantly to public understanding of the operations or activities of the government . . . ." (Pl.'s SJ Mot., Ex. 1 at 1.) The EOUSA denied Graff's request on the grounds that he had provided neither (1) "express authorization and consent of the third party," i.e., Noriega, (2) "proof that the subject of [the] request is deceased," nor (3) "a clear demonstration that the public interest in disclosure outweighs the personal privacy interest and that significant public benefit would result from the disclosure of the requested records." (Id., Ex. 2 at 1.) The denial letter stated that release under those circumstances "would result in an unwarranted invasion of personal privacy," and that the records were "generally exempt from disclosure" pursuant to FOIA Exemptions 6 and 7(C). (Id.)

In April 2009, Graff submitted a separate FOIA request to the FBI for information regarding "the FBI's investigation into and role in the 1987 rendition of Royal Jordanian Flight 402 hijacker and Amal Organization militiaman" Fawaz Younis. (Compl. ¶ 36; see also Pl.'s SJ Mot., Ex. 6 at 1.) This request also stated that disclosure of this information would be in the public interest "because it is likely to contribute significantly to public understanding of the operations or activities of the government . . . ." (Pl.'s SJ Mot., Ex. 6 at 1.) The FBI denied Graff's request solely on the grounds that he had not provided either proof of Younis's death or a privacy waiver, without addressing the question of public interest justification. (See Pl.'s SJ Mot., Ex. 7 at 1.) The FBI's denial stated that it could not process his request until he provided either proof of death or of consent, and that release without such proof would be considered an unwarranted invasion of privacy under Exemptions 6 and 7(C). (Id.)

The original complaint, which was filed on October 30, 2009, alleges that defendants denied his requests pursuant to unlawful EOUSA and FBI policies that "requir[e] the submission of privacy waivers or proof of death before agreeing to process requests seeking records pertaining to foreign nationals." (Compl. ¶¶ 6-7; see id. ¶¶ 26, 37.)*fn1 He also alleges that these claims are representative of a class of similarly situated FOIA requesters (see id. ¶ 10), and that common questions of law and fact relating to each class member include "whether the defendants' policy to refuse to process FOIA requests for records without submission of proof of death or a privacy waiver is unlawful . . . ." (Id. ¶ 12.) He seeks equitable relief, including a declaration that the EOUSA and FBI policies are unlawful, an order enjoining defendants from giving effect to such a policy, and an order requiring defendants "to contact every FOIA requestor who is part of the class and offer the opportunity to reinstate their respective requests and then process [those requests] accordingly[.]" (Id. at 13 ¶¶ (3)-(4) & (6).)

II. THE CLASS CERTIFICATION MOTION

On January 28, 2010, Graff moved for certification pursuant to Federal Rule of Civil Procedure 23(b)(2), in order to secure injunctive and declaratory relief for a class defined as follows:

All persons who submitted at any time, from October 30, 2003 through the date of certification, a Freedom of Information Act ("FOIA") request to the Federal Bureau of Investigation ("FBI") and/or Executive Office for United States Attorneys ("EOUSA") for records pertaining to third party foreign nationals and subsequently: (1) were informed that processing of their respective requests could not begin until they had provided a signed privacy waiver or proof of death; and/or (2) were not provided with notice of their right to administratively appeal the response. (Pl.'s Mem. in Supp. of Mot. for Class Cert. ("Pl.'s Cert. Mot.") at 5; see also Compl. ¶ 10 (alleging class definition).)

After the certification motion was filed, defendants moved to dismiss Count Six of the original complaint, which had alleged that defendants' policies of categorically refusing to search for documents violated the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. (See Compl. ¶¶ 41-50.) The Court concluded that the equitable relief sought under the APA was "of the 'same genre'" as the relief available under Graff's FOIA claims. Feinman II, 2010 WL 2102326, at *7 (quoting Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009)). Accordingly, the Court held that APA review was precluded because there was another "adequate remedy in court," 5 U.S.C. § 704, and so it dismissed Count Six for lack of subject matter jurisdiction. 2010 WL 2102326, at *7.

Subsequently, on July 1, 2010, defendants opposed class certification on the grounds that the Court's dismissal of Count Six leaves only Graff's FOIA claims "challenging the non-disclosure of specific records requested pursuant to [his] specific FOIA requests," and that "[t]here is simply no justification for certifying a class to resolve whether Defendants unlawfully withheld records requested by Graff pursuant to the FOIA." (Defs.' Opp'n to Pl.'s Cert. Mot. ("Defs.' Cert. Opp'n") at 1-2.) In the alternative, defendants argue that even if the Court construed the remaining claims as alleging "a so-called pattern and practice claim . . . to challenge [defendants'] policies," class certification would remain inappropriate because Graff has not satisfied the requirements of Rule 23(a). (Id. at 2.) Certification would also be ...


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