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Cause of Action Institute v. Eggleston

United States District Court, District of Columbia

December 15, 2016

W. NEIL EGGLESTON, et al., Defendants


          COLLEEN KOLLAR-KOTELLY United States District Judge.

         This case arises from several Freedom of Information Act (“FOIA”) requests Plaintiff has made to various executive agencies that, Plaintiff alleges, have been delayed as a result of agency consultation with the Office of White House Counsel (“OWHC”). Plaintiff alleges that this delay is caused by agencies complying with a memorandum issued by the OWHC in 2009 that calls for consultation with the OWHC on FOIA requests that implicate “White House equities.” Plaintiff claims that such consultation is unnecessary and engaged in to delay politically sensitive or embarrassing FOIA requests.

         Presently before the Court is Defendants' [16] Partial Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Upon consideration of the pleadings, [1]the relevant legal authorities, and the record for purposes of this motion, the Court GRANTS Defendants' motion. The Court dismisses, without prejudice, Plaintiff's FOIA claim to the extent that it includes a “policy or practice” claim under Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988). Plaintiff has not pled sufficient facts that establish that the agencies at issue have pursued a policy of violating FOIA that would be actionable under Payne Enterprises. Plaintiff's FOIA claim is not dismissed to the extent that it seeks the documents requested in the FOIA requests at issue. The Court also dismisses Plaintiff's Administrative Procedure Act (“APA”) claim for lack of subject matter jurisdiction. The APA does not provide a waiver of sovereign immunity in this case because an adequate remedy for the conduct about which Plaintiff complains is available under FOIA. Finally, the Court also dismisses Plaintiff's claim for non-statutory review of ultra vires action for lack of subject matter jurisdiction. The Court does not have jurisdiction under this narrow doctrine because FOIA provides an adequate alternative remedy and because Plaintiff has not pled the type of unlawful conduct that warrants non-statutory review.

         I. BACKGROUND

         For the purposes of this motion, the Court accepts as true the allegations in the Complaint. The Court does “not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014).

         A. The Parties

         Plaintiff Cause of Action Institute is a nonprofit organization that files dozens of FOIA requests each year seeking access to various government records. Compl. ¶ 1. Defendants in this case include various executive agencies to whom Plaintiff has submitted FOIA requests, including: the Department of Health and Human Services (“HHS”), the Internal Revenue Service (“IRS”), the United States Department of Homeland Security (“DHS”), the United States Department of Defense (“DOD”), the United States Department of Energy (“DOE”), the United States Department of Justice (“DOJ”), the United States Department of State (“DOS”), the Environmental Protection Agency (“EPA”), the United States Department of the Interior (“DOI”), the United States Department of the Treasury (“Treasury”), and the United States Department of Transportation (“DOT”) (collectively, “Agency Defendants”). Id. ¶ 14. Defendants also include the OWHC and White House Counsel W. Neil Eggleston (collectively, “OWHC Defendants”). Id. ¶¶ 12-13.

         B. Plaintiff's FOIA Requests

         At issue in this case are several FOIA requests made by Plaintiff to the Agency Defendants since August 2013. First, on August 6, 2013, Plaintiff submitted a FOIA request to HHS requesting the “work calendars of the Secretary, Deputy Secretary, and Chief of Staff.” Id. ¶ 61. Shortly thereafter, Plaintiff made two additional FOIA requests to HHS seeking records related to “Early Innovator Grants” awarded by HHS, and records related to incidents of unauthorized disclosure of “Personally Identifiable Information” by health insurance exchanges. Id. ¶ 62.

         Next, on June 29, 2015, Plaintiff simultaneously sent similar FOIA requests to ten of the Agency Defendants. Id. ¶ 66. Each of the requests sought:

a) “All travel records of [the agency head or heads] related to travel (1) on Air Force One, (2) with the President or Vice President, or (3) to or from meetings with the President or Vice President outside of Washington, D.C., from January 1, 2014 to the present”;
b) “All work calendars of [the agency head or heads] related to meetings that (1) occurred at the White House or (2) included representatives of the Executive Office of the President, from January 1, 2014 to the present”;
c) “All records of correspondence received by the Office of the Secretary or the Office of Congressional Relations from (1) Senator Barack Obama, or any member of Senator Obama's congressional staff, or (2) Senator Joseph Biden, or any member of Senator Biden's congressional staff, from January 3, 2005 to November 3, 2008.”

Id. Plaintiff alleges that, at the time its complaint was filed, none of the Agency Defendants had provided Plaintiff with a final determination regarding these requests. Id. ¶ 71. Plaintiff claims that final determinations with respect to its requests have been delayed as a result of consultation between Agency Defendants and the OWHC. Id. ¶ 80.

         C. OWHC Review of FOIA Requests to Executive Agencies

         The OWHC has a long history of consulting with executive agencies regarding FOIA requests.[2] OWHC intermittently issues new memoranda instructing executive agencies on the types of requests and records about which OWHC should be consulted. Beginning in 1988, the OWHC, pursuant to a memorandum issued by then-Assistant Attorney General Stephen J. Markman (“Markman Memorandum”), required agencies responding to FOIA requests to provide for OWHC review “[r]ecords originating with or involving the ‘White House' Office.”[3]The Markman Memorandum defined the term “White House Office” broadly to include “all offices over which the Office of the Chief of Staff directly presides” including, for example, the office of the First Lady. Id. at n.1. In 1992, the Markman Memorandum was superseded by a memorandum written by Steven R. Schlesinger of the DOJ Office of Policy Development (“Schlesinger Memorandum”).[4] The Schlesinger Memorandum, while refining the procedures to be used by agencies in certain situations, by in large retained the Markman Memorandum's structure as well as its broad definition of “White House Office.” Id. In 1993, then-Associate Attorney General Webster L. Hubbell issued a memorandum that superseded the Schlesinger Memorandum (“Hubbell Memorandum”).[5] Under the Hubbell Memorandum, agencies were required to consult with the OWHC when a FOIA request sought “White House-originated records (or records containing White House-originated information).” Id.

         In 2009, White House Counsel Gregory Craig circulated a new memorandum (“Craig Memorandum”) regarding consultation with the OWHC on FOIA requests. Compl., Ex. 1. The Craig Memorandum is quite brief and does not purport to supersede the Hubbell Memorandum. Id. It simply states that it is a “reminder that executive agencies should consult with the White House Counsel's Office on all document requests that may involve documents with White House equities.” Id. The memorandum asks that “such consultation take place well in advance of the deadline for responding.” Id. The term “White House equities” is not defined in the Craig Memorandum, but the memorandum states that it includes, at least, “all documents and records, whether in oral, paper or electronic form, that relate to communications to and from the White House.” Id.

         Plaintiff alleges that “[b]ecause the term ‘White House equities' is vague and undefined, agency FOIA officers interpret it broadly, referring FOIA requests to White House review whenever the subject matter might be of ‘interest' to the White House.” Id. ¶ 39. Plaintiff alleges that, as a result, OWHC reviews requests in cases where such review does “not serve any legitimate FOIA purpose” and that this “review is directed in particular at FOIA requests that the administration finds politically sensitive or embarrassing.” Id. ¶¶ 53, 55. Accordingly, Plaintiff alleges that the Craig Memorandum “inappropriately delays final determinations and production of responsive documents until OWHC grants clearance.” Id. ¶ 53.

         D. Plaintiff's Claims in This Lawsuit

         Plaintiff brought this lawsuit on May 9, 2016. “The gravamen of the Complaint is that the White House cannot cause delay in producing the requested documents that is separate and apart from the delays caused by the normal FOIA process within the agencies.” Pl.'s Opp'n at 15 n.8. Plaintiff asserts causes of action under the FOIA, APA and the Court's “authority to enjoin ultra vires actions by agents and organs of the federal government.” Id. ¶¶ 75-101. As relief, Plaintiff requests that the Court order Agency Defendants to make final determinations regarding Plaintiff's FOIA requests and produce the requested documents. Id. at 32. Plaintiff also requests that the Court enjoin OWHC consultation on FOIA requests under the Craig Memorandum to the extent it causes ...

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