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American Center for Law and Justice v. United States Department of State

United States District Court, District of Columbia

June 8, 2017



          JAMES E. BOASBERG United States District Judge

         Not all authors are Jack Kerouac, penning the bulk of his novel On the Road in (self-reportedly) three weeks, or Franz Kafka, completing his short story The Judgment in a single midnight session. For most, including Plaintiff American Center for Law and Justice, successful writing takes time and at least a redraft or two. In its first go-round, ACLJ alleged as a second count that Defendant Department of State subscribes to a policy or practice of delay in responding to Freedom of Information Act requests. Because this narrative lacked specificity, the Court dismissed that claim without prejudice. Plaintiff now seeks to file a much revised Amended Complaint that refines its theory, while State retorts that the organization should not be permitted another chance to tell a policy-or-practice tale. The Court finds, this time, that ACLJ has raised more than vague assertions about how Defendant has been slow with its FOIA processing and thus will permit the Amended Complaint to go forward.

         I. Background

         The Court assumes the reader's familiarity with its prior Opinion, which sets forth the lay of the land. See Am. Ctr. for Law & Justice v. Dep't of State, No. 16-2516, 2017 WL 1377909 (D.D.C. Apr. 17, 2017). In brief, ACLJ, a non-profit organization focused on governmental accountability, requested certain documents relating to State's funding of a political organization that opposed Israeli Prime Minister Benjamin Netanyahu. Id. at *1. After not hearing for five months whether the Department would hand over any material, Plaintiff filed the present lawsuit. Id. ACLJ alleged both that it was entitled to these specific documents and that State subscribed to a policy or practice of flouting FOIA's usual twenty-day disclosure deadline. Id. at *1-2.

         Following a motion by Defendant, the Court dismissed without prejudice the latter claim targeting the Department's FOIA-processing timelines. The Opinion explained that, to make out such a cause of action, “a plaintiff must plead (1) some policy or practice that (2) results in a repeated violation of FOIA.” Id. at *4. While the original Complaint identified the recurring FOIA violation primarily as undue delay, it failed to specify “what policy or practice ACLJ believes gives rise to this tardiness.” Id. The Court was able to pencil in three makeshift recipes for ACLJ. The Opinion rejected the first two - involving delay itself and State's request-receipt acknowledgment letters - after reasoning that plaintiff “‘cannot rest on the mere fact of delay alone'” and that these letters in fact “comply with FOIA.” Id. at *5-7 (quoting Judicial Watch, Inc. v. DHS, 211 F.Supp.3d 143, 147 (D.D.C. 2016)). The third path involved the agency's requiring requestors to sue, but that theory was also a few ingredients short of a well-pled dish, as Plaintiff had not even “express[ed] in its Complaint that State's policy or practice is to force lawsuits.” Id. at *7. ACLJ's policy-or-practice count was thus wanting, and the Court dismissed it without prejudice in the event the organization chose to try again.

         ACLJ presently does so, and its Motion to file an Amended Complaint is now ripe.

         II. Legal Standard

         A plaintiff may amend its complaint once as a matter of course within 21 days of serving it or within 21 days of the filing of a responsive pleading. See Fed.R.Civ.P. 15(a)(1). Otherwise, it must seek consent from the defendant or leave from the Court. The latter permission “should [be] freely give[n] . . . when justice so requires.” Fed.R.Civ.P. 15(a)(2). In deciding whether to grant leave to file an amended complaint, courts may consider “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). In this Circuit, “it is an abuse of discretion to deny leave to amend unless there is sufficient reason.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). “The defendant bears the burden of demonstrating that a plaintiff's motion to file an amended complaint should be denied.” Clayton v. District of Columbia, 999 F.Supp.2d 178, 183 (D.D.C. 2013).

         It is clear, however, that amendment should not be permitted if it would be futile. Foman, 371 U.S. at 182 (noting “futility of amendment” is permissible reason to deny Rule 15(a) motion). In other words, if the new causes of action would still be deficient notwithstanding the proposed amendment, courts need not grant leave. In re Interbank Funding Corp. Securities Litigation, 629 F.3d 213, 218 (D.C. Cir. 2010) (“[A] district court may properly deny a motion to amend if the amended pleading would not survive a motion to dismiss.”); James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996) (“Courts may deny a motion to amend a complaint as futile . . . if the proposed claim would not survive a motion to dismiss.”).

         III. Analysis

         Despite Plaintiff's efforts to shore up its pleadings via allegations in the Amended Complaint, Defendant contends that these patchwork barricades are not enough to survive another motion-to-dismiss volley. The Court focuses on the content of ACLJ's renewed policy-or-practice count before discussing the Government's objections to it.

         A. ACLJ's Allegations

         As this Court stated previously, to make out a claim, ACLJ must plead “(1) some policy or practice that (2) results in a repeated violation of FOIA.” ACLJ, 2017 WL 1377909, at *4. Put another way, Plaintiff needs to plausibly allege “that the agency has adopted, endorsed, or implemented some policy or practice that constitutes an ongoing ‘failure to abide by the terms of the FOIA.'” Muttitt v. Dep't of State, 926 F.Supp.2d 284, 293 (D.D.C. 2013) (quoting Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988)). That FOIA policy or practice may be “informal, rather than articulated in regulations or an official statement of policy.” Payne, 837 F.2d at 491. The Court also instructed last time, in analyzing three possible interpretations of the original Complaint, that a policy-or-practice claim premised on the fact of “delay alone” would be “fatally flawed.” ACLJ, 2017 WL 1377909, at *6; see Cause of Action Inst. v. Eggleston, No. 16-871, 2016 WL 7243518, at *5 (D.D.C. Dec. 15, 2016) (“[D]elay alone, even repeated delay, is not the type of illegal policy or practice that is actionable . . . .”).

         Wisely, then, ACLJ does not hang its hat on delayed disclosure to satisfy both pleading prongs. It instead specifically targets the third possible theory that the Court previously identified - viz., that the policy or practice is State's forcing requestors to sue to obtain a FOIA response. The prior Opinion observed that, if true, “such a course of action would violate not only [the Act's] time limits, but also the more basic requirement that agencies turn over documents in the first place.” ACLJ, 2017 WL 1377909, at *7 (citing 5 U.S.C. § 552(a)(3)(A)'s disclosure requirement that an agency “shall make the records promptly available to any person”); see Cause of Action Inst., 2016 WL 7243518, at *5 (comparing allegations of mere delay with theory that ...

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