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Scudder v. Central Intelligence Agency

United States District Court, District of Columbia

December 13, 2017

JEFFREY SCUDDER et al., Plaintiffs,
v.
CENTRAL INTELLIGENCE AGENCY, Defendant.

          MEMORANDUM OPINION

          TREVOR N. MCFADDEN, UNITED STATES DISTRICT JUDGE

         Plaintiffs Jeffrey Scudder, Ken Osgood, Hugh Wilford, and Mark Stout (collectively, "Plaintiffs") filed a two-count complaint against defendant Central Intelligence Agency (the "Defendant" or "CIA"), seeking a court order for the production of 386 documents electronically and a declaration that the Defendant's alleged policy or practice in determining whether documents are "readily reproducible" in electronic format is unlawful under the Freedom of Information Act ("FOIA"). Am. Compl. 7-8; see also 5 U.S.C. § 552(a)(3)(B) (requiring an agency to "provide the record in any form or format requested by the person if the record is readily producible by the agency in that form or format"); Payne Enter., Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988) (holding that the disclosure of documents pursuant to a specific FOIA request does "not moot a claim that an agency policy or practice will impair the party's lawful access to information in the future."). Pending before the Court is the Defendant's motion to dismiss Count II, Plaintiffs' policy or practice claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). Partial Mot. to Dismiss 18. Having confirmed that jurisdiction and venue is proper in this Court, [1] and upon consideration of the pleadings, relevant law, and related legal memoranda in opposition and in support, I find that Count II should be dismissed for failure to state a claim upon which relief can be granted. Accordingly, the Defendant's motion is GRANTED, and Count II of the Amended Complaint is DISMISSED WITHOUT PREJUDICE.

         I. Background

         Plaintiffs are four American citizens, including Mr. Scudder, a former employee of the Defendant; and Messrs. Osgood, Wilford, and Stout, professors at various universities in the United States. Am. Compl. ¶¶ 3-6. Mr. Scudder is well-versed in FOIA litigation against the Defendant, having previously litigated against the CIA in this district which resulted in the electronic production of certain articles. See Am. Compl. ¶ 10. Plaintiffs aver that this is among "the few" instances where FOIA requestors have received electronic productions from the Defendant, and believe that the Defendant has produced electronic copies of responsive records on fewer than five occasions total, making it the "worst offender of the statutory requirement to produce electronic copies of responsive records when readily reproducible." Am. Compl. ¶¶9-10.

         Plaintiffs, through a FOIA request to the Defendant dated July 27, 2016, now seek the production of 386 documents by electronic means only. Am. Compl. ¶ 18. After the Defendant did not respond within the statutorily required 20-day time period, [2] Plaintiffs brought this action to: (1) compel electronic production of the requested documents and (2) "resolve once and for all" whether the Defendant improperly maintains a categorical policy or practice of not producing documents electronically as requested. Am. Compl. ¶¶ 16, 20. Subsequent to the start of this litigation, Plaintiffs submitted two new FOIA requests for electronic copies of particular CIA records, and argue that a declaratory order is necessary to protect against the "likely refusal" by the Defendant to produce the requested documents electronically. Am. Compl. ¶¶ 17, 25. The Defendant's motion to dismiss Count II is now ripe for adjudication.

         II. Legal Standard

         A party may move to dismiss a complaint, or a specific count therein, on the ground that it "fail[s] to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." This requires the complaint to contain sufficient factual allegations that, if true, "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint is insufficient if it merely offers '"labels and conclusions'" or '"naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 546). Rather, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Plausibility "asks for more than a sheer possibility that a defendant has acted unlawfully, " id., and pleading facts that are "merely consistent with" a defendant's liability "stops short of the line between possibility and plausibility." Twombly, 550 U.S. at 545-46.

         In evaluating a motion to dismiss pursuant to Rule 12(b)(6), the Court must construe the complaint in the light most favorable to the plaintiff and accept as true all reasonable factual inferences drawn from well-pled factual allegations. See In re United Mine Workers of Am. Emp. Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C. 1994). The Court does not accept as true legal conclusions or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 678. Last, "[i]n determining whether a complaint fails to state a claim, [the court] may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the court] may take judicial notice." Hurd v. District of Columbia Gov % 864 F.3d 671, 678 (D.C. Cir. 2017) (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)).

         III. Analysis

         A. The Complaint Fails to Meet Fed. R. Civ. P's 12(b)(6) Pleading Standard

         Even accepting as true all reasonable factual inferences from well-pled factual allegations, the complaint fails to adequately plead that the CIA has a policy or practice of categorically refusing to release records responsive to FOIA requests in electronic format. Although it asserts, in conclusory fashion, that the CIA has a policy of refusing to release responsive records in electronic format, Am. Compl. ¶ 23-24, the complaint is devoid of facts sufficient to advance this allegation from being possible to plausible. See Iqbal, 556 U.S. at 678. To the contrary, the facts pled in the complaint undercut this claim. Plaintiffs plead that the CIA produced requested records in electronic format in at least two instances in recent years, Am. Compl. ¶ 15, and concede that the CIA has produced requested records in electronic format in other instances as well. See Am. Compl. ¶ 9. The reasonable factual inference to be drawn from these allegations is that the CIA has produced documents electronically oh several occasions, and not, as Plaintiffs have asserted, that the CIA has categorically refused electronic production of responsive documents.

         The complaint is further devoid of facts to support Plaintiffs' claim that the CIA has a policy or practice of not producing requested records in electronic format where readily reproducible. For example, Plaintiffs do not allege any instance where a requestor did not receive the documents requested in electronic format; or, more significantly, any instance where a requestor improperly did not receive the documents in electronic format as requested. By alleging that there have only been a few instances where the CIA has produced responsive records electronically, Plaintiffs, at best, plead facts "merely consistent with" liability, which is well-settled as insufficient. See Iqbal, 556 U.S. at 678.

         To factually support their claim, Plaintiffs offer a declaration submitted during Mr. Scudder's prior FOIA litigation against the CIA and quote extensively from a decision by now-Chief Judge Howell in this district denying summary judgment during that litigation. See Am. Compl. ¶¶ 11-15, Mem. in Opp'n to Def.'s Partial Mot. to Dismiss 4-5. The document and passages upon which Plaintiffs rely, however, do not provide the factual bases needed for the claim to survive a motion to dismiss for failure to state a claim.

         Plaintiffs present a declaration executed in July 2013 by Martha M. Lutz, Chief of the Litigation Support Unit of the CIA, [3] to assert that the CIA has already admitted that it maintains a policy of categorically denying the electronic production of responsive documents. Mem. in Opp'n to Def.'s Partial Mot. to Dismiss 5; id. Ex. 1 ("Lutz Declaration"). Despite Plaintiffs' emphatic contention, the Lutz Declaration does not admit, as a matter of fact, that the CIA has a categorical policy or practice of denying FOIA requests for electronic production. Instead, the Lutz Declaration explains how the CIA's information systems worked at the time the declaration was executed and the technological difficulties of electronically producing the documents then being requested by Mr. Scudder. The declaration concludes, "Accordingly, the CIA has determined that records are not readily reproducible in an electronic format and, as such, cannot comply with plaintiffs stated preference of receiving documents on DVD instead of paper." Lutz Declaration ΒΆ 16. Thus, ...


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