United States District Court, District of Columbia
N. MCFADDEN, UNITED STATES DISTRICT JUDGE
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,  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.
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.
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,
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.
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.
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.
The Complaint Fails to Meet Fed. R. Civ. P's
12(b)(6) Pleading Standard
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
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.
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.
present a declaration executed in July 2013 by Martha M.
Lutz, Chief of the Litigation Support Unit of the CIA,
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 ¶ 16. Thus, ...