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Greg Muttitt v. United States Central Command

September 28, 2011


The opinion of the court was delivered by: Beryl A. Howell United States District Judge


During 2009, plaintiff Greg Muttitt requested documents pursuant to the Freedom of Information Act ("FOIA") from four government agencies for a book he was writing about Iraqi oil policy. The plaintiff brought this lawsuit in February 2010 alleging that the agencies -- the Department of Defense, U.S. Central Command, the Department of State, and the Department of the Treasury -- had failed to comply with his FOIA requests.

While the Department of Defense and U.S. Central Command have been dismissed from this case, the two remaining defendants -- the Department of State and the Department of the Treasury -- have moved to dismiss Counts 25 and 26 of the plaintiff's Amended Complaint. These counts allege that the Department of State and the Department of the Treasury violated FOIA by failing to provide the plaintiff with time estimates of how long it would to take for them to complete processing his FOIA requests. The agencies have moved to dismiss Counts 25 and 26 on the grounds that the plaintiff improperly asserted them under the Administrative Procedure Act and that the plaintiff has, in any event, failed to state a claim for relief for these particular claims. For the reasons explained below, the agencies' motion to dismiss is granted in part and denied in part.


Plaintiff Greg Muttitt is an author who wrote a book on the development of Iraqi oil policy entitled Fuel on Fire: Oil and Politics in Occupied Iraq, which was published in April 2011. Am. Compl. ¶ 3; Mem. in Supp. of Defs.' Mot. for Summ. J. at 2. While conducting research for this book, the plaintiff submitted FOIA requests to the Department of Defense, U.S. Central Command, the Department of State, and the Department of the Treasury seeking information about Iraq's oil industry.*fn1 As relevant here, between April and November 2009, the plaintiff submitted five FOIA requests to the Department of State ("State") related to the development of the oil and gas industry in Iraq. Am. Compl. ¶¶ 48, 56, 65, 73, 84. The plaintiff also submitted one FOIA request on the same topic to the Department of the Treasury ("Treasury") on August 15, 2009, seeking documents regarding oil and gas, as well as documents related to the Preparatory Meeting of the International Compact for Iraq, which took place in Abu Dhabi on September 10, 2006. Id. ¶ 89. In connection with his requests, the plaintiff also sought a public interest fee waiver, news media status, and-for the State requests-expedited processing. Id.

State formally acknowledged each of the plaintiff's requests for documents, assigned each request a processing number, and granted plaintiff news media status, but the agency denied plaintiff's requests for expedited processing and a public interest fee waiver. Id. ¶¶ 49, 57, 66, 74, 85. Similarly, Treasury acknowledged receipt of plaintiff's FOIA request, as well as assigned the request a processing number.*fn2 Id. ¶ 90. Treasury did not respond to Muttitt's requests for news media status or a public interest fee waiver. Id.

Despite acknowledging his requests, neither agency released any documents to the plaintiff. Id. ¶¶ 100, 106.

In early November 2009, shortly after the filing of his last FOIA request to State, the plaintiff submitted inquiries to both Treasury and State seeking the tentative release dates for his requested documents. Id. State informed the plaintiff that it could not "give a definitive timeframe for the processing of a request." Id. ¶ 101. Treasury failed to respond altogether to plaintiff's request for the release dates of his FOIA requests. Id. ¶ 107. As a result of the failure of the two agencies to respond with firm timeframes to the plaintiff's inquiry, the plaintiff submitted appeals for his pending FOIA requests to State and Treasury on the basis of constructive denial. Id. ¶¶ 53, 62, 70, 81, 86, 97. In response to two of plaintiff's requests, State informed the plaintiff that it would not accept the appeal because it had not yet denied plaintiff's requests. Id. ¶¶ 62, 86. State failed to respond to the other three appeals. Id. ¶¶ 53, 70, 82. Likewise, Treasury refused to accept plaintiff's appeal because "no determination had been rendered by the Department." Id. ¶ 97.

On February 4, 2010, the plaintiff filed this lawsuit to compel the release of the requested documents and to challenge the agencies' procedures in processing his requests. See Compl. On May 3, 2010, after seeking leave from the Court, the plaintiff filed an Amended Complaint. ECF No. 10. In addition to seeking disclosure of the requested documents, the Amended Complaint seeks declaratory relief from the Court in response to the agencies' failure to provide the plaintiff with a timeframe for the production of the responsive records after the plaintiff requested an anticipated disclosure date. Am. Compl. at 15-16. The plaintiff contends that this failure violated a provision of FOIA, which provides, in pertinent part, that: "Each agency shall . . . establish a telephone line or Internet service that provides information about the status of a request to the person making the request using the assigned tracking number, including . . . an estimated date on which the agency will complete action on the request." 5 U.S.C. § 552(a)(7)(B)(ii); see also Am. Compl. ¶¶ 102, 108. The plaintiff argues that if the agencies' regulations, guidelines, or policy statements authorized a practice of not responding to requests for an estimated completion date, then such regulations, guidelines, or policy statements constitute an unreasonable interpretation of the statutory obligations imposed by FOIA. Id. ¶¶ 104, 110. The plaintiff seeks judicial review of these allegations under both FOIA and the Administrative Procedure Act ("APA"). Id. at 16.

On June 1, 2010, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, defendants State and Treasury filed a partial motion to dismiss plaintiff's APA claims, as well as any claims regarding the agencies' "unspecified 'regulations, guidelines, or policy statements.'"*fn3

Defs.' Partial Mot. to Dismiss Pl.'s First Am. Compl. at 1. The defendants argue that the plaintiff fails to state a claim for which relief may be granted under the APA because FOIA provides an adequate alternative remedy for the plaintiff's claims and the existence of an adequate alternative remedy precludes APA relief. Mem. in Supp. of Defs.' Partial Mot. to Dismiss ("Defs.' Mem.")at 2. Additionally, the defendants argue that the Court should dismiss any claims regarding unspecified "regulations, guidelines, or policy" statements because the plaintiff fails specifically to identify any "regulation, guidance, or policy statement causing him harm," and thus fails to state a viable cause of action pursuant to Rule 12(b)(6) and this Court's pleading standards. Id. The defendants' partial motion to dismiss is now before the Court.


Congress enacted FOIA to promote transparency across the government. See 5 U.S.C. § 552; Quick v. U.S. Dep't of Commerce, Nat'l Inst. of Standards & Tech., No. 09--02064, 2011 WL 1326928, at *3 (D.D.C. April 7, 2011) (citing Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984). The Supreme Court has explained that FOIA is "a means for citizens to know 'what their Government is up to.' This phrase should not be dismissed as a convenient formalism. It defines a structural necessity in a real democracy." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-72 (2004) (internal citations omitted). "The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). The strong interest in transparency must be tempered, however, by the "legitimate governmental and private interests [that] could be harmed by release of certain types of information." United Techs. Corp. v. U.S. Dep't of Defense, 601 F.3d 557, 559 (D.C.Cir. 2010); see also Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992). Accordingly, Congress included nine exemptions permitting agencies to withhold information from FOIA disclosure. 5 U.S.C. § 552(b). "These exemptions are explicitly made exclusive, and must be narrowly construed." Milner v. Dep't of the Navy, 131 S.Ct. 1259, 1262 (2011) (internal quotations and citations omitted) (citing FBI v. Abramson, 456 U.S. 615, 630 (1982)); see also Pub. Citizen, Inc. v. Office of Management and Budget, 598 F.3d 865, 869 (D.C. Cir. 2010).

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge[ ] [his or her] claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Fed. R. Civ. P. 12(b)(6). "[A] complaint [does not] suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted) (citing Twombly, 550 U.S. at 557). Instead, the complaint must plead facts that are more than "merely consistent with" a defendant's liability; ...

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