United States District Court, District of Columbia
WILLIAM H. SMALLWOOD, Plaintiff,
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
OPINION AND ORDER
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE
attorney makes a Freedom of Information Act request for
documents that are of interest to her client, but does not
indicate that the request is being made on the client's
behalf. Does the client have standing to file suit
challenging the agency's response to the request? The
Court joins numerous of its colleagues in answering no. It
will therefore grant the Government's motion for judgment
on the pleadings and dismiss the suit.
Smallwood's attorney filed a FOIA request seeking
documents related to a class action settlement in which Mr.
Smallwood was a party. Def s Mot. Summ. J. ("MSJ"),
Decl. of DOJ Office of Information Policy Attorney Vanessa
Brinkmann at ¶ 3 ("Brinkmann Decl."); Compl.
¶ 2. The request identified the attorney as the
"Requester." See MSJ, Ex. A. It did not include any
reference to a client generally, or to Mr. Smallwood
letter dated May 5, 2016, DOJ informed Smallwood's
attorney that it had received the request and determined that
the request fell within FOIA's "unusual
circumstances" exception. See MSJ, Ex. B. Under FOIA,
the deadline for an agency to respond to a request is
extended where the request concerns "unusual
circumstances, " such as "the need to search for
and collect the requested records from field facilities or
other establishments that are separate from the office
processing the request." 5 U.S.C. § 552
(a)(6)(B)(iii). Smallwood's attorney filed an
administrative appeal of this determination. In the appeal,
the attorney noted that the request was "[c]reated on
behalf of: William H. Smallwood." See MSJ, Ex. C. The
agency affirmed the determination on July 21, 2016. See MSJ,
Ex. E. In doing so, it noted that such a determination is not
an "adverse determination" that is subject to
administrative appeal. Id. The agency did not make
any reference to Smallwood in its decision or in any of its
correspondence with his attorney concerning the request. See
MSJ, Exs. B, C, E.
filed suit in this Court on August 16, 2016. He alleges that
DOJ's determination of "unusual circumstances"
violated FOIA and the associated regulations. See Compl.
¶ 13. He seeks an order from the Court directing the
agency to produce all responsive records and demonstrate that
it has conducted an adequate search. Id. at
¶¶ 15-19. DO J has moved for judgment on the
pleadings, asserting that the attorney's failure to
indicate that the initial request was made on Smallwood's
behalf deprives him of standing to sue, II. Legal
Rule of Civil Procedure 12(c) provides that "[a]fter the
pleadings are closed-but early enough not to delay trial-a
party may move for judgment on the pleadings."
Fed.R.Civ.P. 12(c). The appropriate standard for reviewing a
motion for judgment on the pleadings is that of a motion to
dismiss under Rule 12(b). See Robinson-Reeder v. Am.
Council on Educ, 532 F.Supp.2d 6, 12 (D.D.C. 2008).
Because standing is jurisdictional see Grocery Mfrs.
Ass'n v. EPA. 693 F.3d 169, 174 (D.C. Cir. 2012),
the Court will apply the standard of a motion to dismiss for
lack of subject-matterjurisdiction under Rule 12(b)(1). While
the Court must accept the factual allegations in the
complaint as true, "[t]he plaintiffs factual allegations
in the complaint will bear closer scrutiny in resolving a
12(b)(1) motion than in resolving a 12(b)(6) motion for
failure to state a claim, " Common Purpose USA,
Inc. y. Obama, 227 F.Supp.3d 21, 21 (D.D.C. 2016) (internal
citation omitted). After all, the Court has an
"affirmative obligation to ensure that it is acting
within the scope of its jurisdictional authority."
Grand Lodge of Fraternal Order of Pol icy v.
Ashcroft. 185 F.Supp.2d 9, 13 (D.D.C. 2001) (internal
III of the Constitution limits the jurisdiction of federal
courts to actual "cases" and
"controversies." U.S. Const, art.
Ill, § 2. This limitation requires a
party to establish standing. Wetzel v. U.S. Dep't of
Veterans Affairs. 949 F.Supp.2d 198, 201-02 (D.D.C.
2013) (citing Lujan v. Defs. of Wildlife. 504 U.S.
555, 560 (1992)). A party establishes standing by showing (1)
that it has sustained an injury-in-fact; (2) a causal
connection between the injury and the conduct of the
defendant; and (3) a likelihood that the court can redress
the injury with a favorable decision. Nat'l Sec.
Counselors v. CIA. 898 F.Supp.2d 233, 253 (D.D.C. 2012)
(citing Lujan. 504 U.S. at 560-61) (internal
quotation marks omitted).
contends that Small wood has not sustained an injury because
he did not make the initial FOIA request. "Although the
identity of the requester is generally immaterial to the
exercise of the rights provided by [FOIA], the nature of an
entity suing under the FOIA is not without
relevance." Feinman v. FBI. 680 F.Supp.2d 169,
173 (D.D.C. 2010) (citing Military Audit Project v.
Casey. 656 F.2d 724, 730 n. 11 (D.C. Cir. 1981))
(internal quotation marks omitted) (emphasis in original). In
the context of standing under FOIA, '"[t]he filing
of a request, and its denial, ' constitutes an
injury." Wetzel v. U.S. Dept. of Veterans
Affairs, 949 F.Supp.2d 198, 202 (D.D.C. 2013) (quoting
McDonnell v. United States. 4 F.3d 1227, 1238 (3d Cir. 1993).
"The requester is injured-in-fact for standing purposes
because he did not get what the statute entitled him to
receive." Zivotovsky ex rel. Ari. Z. v.
Sec'y of State, 444 F.3d 614, 617 (D.C. Cir. 2006)
(quoting Linda R.S. v. Richard P.. 410 U.S. 614, 617
n.3 (1973)). Accordingly, "if a party has not made a
request within the meaning of FOIA, then he does not have
standing to bring a lawsuit." Wetzel, 949
F.Supp.2d at 202.
sure, an attorney may make a FOIA request on behalf of a
client. But the attorney "must clearly indicate that it
is being made on behalf of the [client] to give that [client]
standing to bring a FOIA challenge." Three Forks
Ranch Corp. v. Bureau of Land Memt., 358 F.Supp.2d 1, 2
(D.D.C. 2005). For example, in Brown v. EPA, 384
F.Supp.2d 271 (D.D.C. 2005), the defendant agency sought to
dismiss a FOIA suit on standing grounds because the
plaintiffs attorney, rather than the plaintiff herself, made
the initial request. The Court disagreed, noting that the
attorney indicated in the first line of the request that it
was being made on behalf of a client. Id., at 276-77
("Plaintiffs counsel stated in the first line of his
request to the EPA requesting the documents that 'I
represent Paula D. Brown, ' and that 'Ms. Brown has
hired me to obtain certain documentation pursuant to
FOIA.'"). The Court also noted that the
correspondence from the agency to the attorney in response to
the request "confirms that it was the understanding of
all of the parties that [the attorney] was making a request
for his client rather than on his own behalf." Id., at
contrast, courts routinely dismiss FOIA suits where an
attorney filed the initial request without indicating that
the request was made on behalf of the plaintiff. See,
e.g., McDonnell v. United States. 4 F.3d 1227,
1237-38 (3d Cir. 1993); Osterman v. U.S. Army Corps of
Eng'rs. 13-cv-1787, 2014 WL 5500396 (W.D. Wash.
2014); Wetzel. 949 F.Supp.2d at 202; SAE
Productions. Inc. v. FBI, 589 F.Supp.2d 76, 80 (D.D.C.
2008); Haskell Co. v. Dep't of Justice. No.
05-1110, 2006 WL 627156, at *l-2 (D.D.C. Mar. 13, 2006);
Three Forks Ranch Corp.. 358 F.Supp.2d at 2-3;
MAXXAM. Inc. v. FD1C. No. 98-0989, 1999 WL 33912624,
at *2 (D.D.C. Jan. 29, 1999); Umgardlns. Co. v. Dep't
of the Treasury. 997 F.Supp. 1339, 1342 (S.D. Cal.
1997). Although such a rule might seem somewhat rigid,
"a line must be drawn to assure that the
'request' requirement does not devolve into a general
interest inquiry, " Wetzel. 949 F.Supp.2d at
204, that would be at odds with both the Constitution's
standing requirement and the intent of Congress in enacting
FOIA. McDonnell, 4 F.3d at 1237 (noting that
FOIA's legislative history reflects Congress's intent
that only an individual who submitted a formal request under
FOIA may challenge an agency's decision not to release
the requested documents).
FOIA request at issue in this case clearly indicates that
Smallwood's attorney is the requester. See MS J, Ex. A
("Requester: Mrs. Sunni R. Harris"). The
"Request Description" portion of the request,
moreover, does not indicate that the request was made on
behalf of any client, let alone Smallwood. Id. In
fact, his name does not appear anywhere in the request.
Id. And unlike in Brown, the agency's
response to the FOIA request indicates that it was not aware
that the attorney was making a request for a client. See MSJ,
Ex. B (acknowledging Mrs. Harris as the requester without
mentioning Mr. Smallwood); MSJ, Ex. C (acknowledging Mrs.
Harris's administrative appeal without mentioning Mr,
Smallwood). Accordingly, while Smallwood's attorney might
have standing to pursue her FOIA request in federal court,
Smallwood himself "has not made a formal request within
the meaning of the statute, " Feinman, 680
F.Supp.2d at 173, and therefore lacks standing to do so.
seeks to avoid this conclusion by arguing that his attorney
indicated that the request was made on his behalf during the
administrative appeal. Smallwood is, indeed, mentioned in
that appeal. See MSJ, Ex. C ("Requester: Mrs. Sunni R.
Harris ... Created on behalf of: William H.
Smallwood."). But "[t]he elucidation of [an
attorney-client] relationship on appeal does not change the
nature of the request itself." Wetzel. 949
F.Supp. at 204 (rejecting the argument that standing in a
FOIA suit can be conferred on administrative appeal). A
contrary rule "would [do] nothing to prohibit a party
from piggy-backing onto an existing request at any point in
the administrative and/or judicial process. Such was not ...