United States District Court, District of Columbia
MEMORANDUM OPINION [DKT. #11]
RICHARD J. LEON, United States District Judge
Judicial Watch Inc. filed a two-count FOIA complaint against
the United States Department of Homeland Security
("DHS") on November 10, 2015. See
generally Compl. [Dkt. # 1]. Count One is a
"traditional" FOIA claim, in which Judicial Watch
alleges DHS is violating its FOIA obligations by unlawfully
withholding records responsive to plaintiffs 19 FOIA
requests. Compl. ¶¶ 8, 18-20. In Count Two,
Judicial Watch alleges that DHS has a "policy and
practice of violating FOIA's procedural requirements in
connection with the processing of Plaintiff s requests and,
in particular, of regularly failing or refusing to produce
requested records or otherwise demonstrate that requested
records are exempt from production within the time period
required by FOIA or at least within a reasonable period of
time." Compl. ¶ 22. On February 12, 2016, DHS moved
for judgment on the pleadings with regard to plaintiffs
"policy and practice" claim. Def.'s Mot. for J.
on the Pleadings on PL's "Policy and Practice"
Claim [Dkt. #11]. Upon consideration of the pleadings,
record, and relevant law, I find that plaintiffs policy and
practice claim should be dismissed for failure to state a
claim. Therefore, DHS's motion is GRANTED, and Count II
of the Complaint is DISMISSED. In addition, because DHS has
produced all of the responsive, non-exempt requested
documents, Count I of the Complaint no longer presents a live
case or controversy and must also be DISMISSED.
issue in this case are 19 travel-related FOIA requests sent
by Judicial Watch to the Secret Service since July 2014.
Compl. ¶¶ 8-9 & Ex. A. Judicial Watch asserts
two counts in its Complaint. First, it alleges that DHS is
violating FOIA by unlawfully withholding records responsive
to Judicial Watch's 19 FOIA requests. Id.
¶¶ 18-20. Second, Judicial Watch claims that DHS
has a "policy and practice of violating FOIA's
procedural requirements in connection with the processing of
Judicial Watch's FOIA requests and, in particular, of
regularly failing or refusing to produce requested records or
otherwise demonstrate that requested records are exempt from
production within the time period required by FOIA or at
least within a reasonable period of time." Id.
¶ 22. Judicial Watch seeks the normal relief sought in a
FOIA request-that the Court enjoin DHS from continuing to
withhold any non-exempt records responsive to each of
Judicial Watch's FOIA requests, and other associated
relief. Id. ¶ 23. Judicial Watch further asks
the Court to enjoin DHS from "failing or refusing to
produce all non-exempt records responsive to Judicial
Watch's FOIA requests or otherwise demonstrate that
requested records are exempt from production within the time
period required by FOIA or at least within a reasonable
period of time." Id.
Federal Rule of Civil Procedure 12(c), judgment on the
pleadings is warranted where "the moving party
demonstrates that no material fact is in dispute and that it
is entitled to judgment as a matter of law".
Fed.R.Civ.P. 12(c); Peters v. Nat'l R.R. Passenger
Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992.) A Rule
12(c) motion is "functionally equivalent" to a Rule
12(b)(6) motion to dismiss for failure to state a claims, and
is governed by the same standard. Rollins v. Wackenhut
Servs., Inc., 703 F.3d 122, 130 (D.C. Cir. 2012);
Silver v. Am. Safety Indem. Co., 31 F.Supp.3d 140,
145 (D.D.C. 2014). When deciding a motion to dismiss under
Rule 12(b)(6), the Court must ascertain whether the complaint
contains "sufficient factual matter, accepted as true,
to state a claim that is plausible on its face."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks and citations omitted.) A complaint
that alleges facts that are "merely consistent"
with liability fails to meet the plausibility standard.
Id. Although the Court must read the complaint's
factual allegations in the light most favorable to the
plaintiff, Bell Atlantic Co. v. Twombly, 550 U.S.
544, 555 (2007), the Court is not required to "accept
legal conclusions cast in the form of factual allegations,
" or to rely on inferences "unsupported by the
facts set out in the complaint." Kowal v. MCI Commc
'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
Thus, to withstand dismissal, the allegations, when read in a
light most favorable to the plaintiff, must "raise a
right to relief above the speculative level."
Twombly, 550 U.S. at 555.
Judicial Watch Alleges Facts That Are Insufficient to
Establish a FOIA Policy and Practice Claim.
II of Judicial Watch's Complaint alleges that DHS has a
"policy and practice" of violating FOIA by failing
to produce records "within the time period required ...
or at least within a reasonable time." Compl. ¶ 22.
In the FOIA context, claims are normally mooted when the
agency produces all requested documents to the requesting
party. Perry v. Block, 684 F.2d 121, 125 (D.C. Cir.
1982) ("[O]nce all requested documents are surrendered,
federal courts have no further statutory function to
perform."). However, our circuit court recognizes
"policy and practice" claims as an exception to
this general rule, and holds that FOIA claims cannot be
mooted by an agency's release of documents when the
"refusal to supply information evidences a policy or
practice of delayed disclosure or some other failure to abide
by the terms of  FOIA, and not merely isolated mistakes. .
. ." Payne Enters., Inc. v. United States, 837
F.2d 486, 491 (D.C. Cir. 1988).
Watch has failed to allege sufficient facts to state a
"policy and practice claim." As explained by one of
my colleagues on this Court, a plaintiff seeking to state a
"policy and practice" claim "must . . . allege
facts . . . establishing that the agency has adopted,
endorsed, or implemented some policy or practice that
constitutes an ongoing failure to abide by the terms of
FOIA." Muttitt v. U.S. Dep 't of State, 926
F.Supp.2d 284, 293 (D.D.C. 2013) (emphasis added). In support
of its claim, Judicial Watch alleges that, at the time it
filed its Complaint in November 2015, DHS had yet to make a
determination on 19 FOIA requests that were submitted between
July 2014 and August 2015. Taken by itself, this allegation
is insufficient to show that DHS "adopted, endorsed, or
implemented" a policy of violating FOIA's
requirements. Judicial Watch points to no fact or statement
to establish why the requests were delayed or
how the delays were the result of an either formal
or informal DHS policy or practice to violate FOIA's
requirements, rather than an inevitable but unintended delay
attributable to a lack of resources. Rather than allege facts
that, if true, would establish a policy or practice of
violating FOIA, Judicial Watch simply jumps to the ultimate
legal conclusion and asserts that such a policy
exists. However, the Court is not required to
"accept legal conclusions cast in the form of factual
allegations, " and I decline to do so here.
best, Judicial Watch's alleged facts are merely
consistent with a policy or practice claim. Judicial Watch
explicitly conceded this in its Opposition to DHS's
Motion for Judgment when it agreed that the 19 delayed
requests "could be the result of a policy or
practice" or could be attributable to "any of the
hosts of reasons suggested by Defendant." PL's
Opp'n to Mot. for J. on the Pleadings, at 6 [Dkt. # 14]
Allegations that are merely consistent with liability fail to
meet Rule 12(b)(6)'s plausibility standard, and as a
result, Judicial Watch's policy and practice claim must
be dismissed. Iqbal, 556 U.S. at 678.
Plaintiff Does Not Allege the Egregious, Intentional Conduct
Recognized in Payne Enterprises.
policy and practice claim appears to be premised on an
incorrect belief that agency delay by itself serves as
sufficient evidence of an unlawful agency policy or practice
of violating FOIA. However, Payne Enterprises and
subsequent cases recognizing policy and practice claims
involved more egregious, intentional agency conduct than mere
delay. In Payne Enterprises, the Air Force officers
responsible for processing FOIA requests persisted in
withholding documents from requesters well after the
Secretary of the Air Force had determined that the invoked
statutory exemptions did not apply, and the court therefore
permitted a policy and practice claim to go forward so as to
prevent ongoing injury. 837 F.2d at 488-90. See also
Newport Aeronautical Sales v. Dept. of the Air Force,
684 F.3d 160, 164 (D.C. Cir. 2012) (permitting policy and
practice claim when requester alleged that Air Force had
routine policy of unlawfully denying FOIA requests for
certain types of data in order to force requester to obtain
data through a more restrictive DOD process). Judicial Watch
does not allege any agency policy or practice, either formal
or informal, that rises to the level recognized in
Payne or Newport, and cannot rest on the
mere fact of delay alone to establish a claim.
The Remainder of the Complaint Must Be ...