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

United States District Court, District of Columbia

January 30, 2018

AMERICAN CENTER FOR LAW AND JUSTICE, Plaintiff,
v.
UNITED STATES DEPARTMENT OF STATE, Defendant.

          MEMORANDUM OPINION

          JAMES E. BOASBERG UNITED STATES DISTRICT JUDGE

         Although the Freedom of Information Act requires agencies to issue decisions on requests for documents within twenty working days, few departments consistently meet this deadline. Plaintiff American Center for Law and Justice believes that the State Department, in fact, has an actual policy or practice of not complying until the requester brings suit. In this case, ACLJ both seeks specific documents and asserts such a policy-or-practice claim. This Court initially dismissed the latter count without prejudice, but allowed Plaintiff to file an Amended Complaint. Once ACLJ did so, the Court permitted the claim to proceed, despite a renewed Motion to Dismiss. State now moves for partial summary judgment on this count alone. Concluding that the third time is the charm for Defendant, the Court grants the Motion.

         I. Background

         The Court has already laid out the facts of the case in its prior Opinions, but briefly recounts background relevant to the specific question at issue here. See Am. Ctr. for Law & Justice v. Dep't of State, 249 F.Supp.3d 275 (D.D.C. 2017) (ACLJ I); Am. Ctr. for Law & Justice v. Dep't of State, 254 F.Supp.3d 221 (D.D.C. 2017) (ACLJ II). On July 25, 2016, Plaintiff, a non-profit organization focused on governmental accountability, submitted a FOIA request to State for certain documents relating to its funding of a political organization that opposed Israeli Prime Minister Benjamin Netanyahu. See ECF No. 28 (Amended Complaint), ¶ 7. Three days later, the agency sent ACLJ a letter acknowledging receipt of the request. The letter also provided the Case Control Number, granted ACLJ's request for a fee waiver, and denied its request for expedited processing. Id., Exh. B at 1. It concluded by warning Plaintiff that “[u]nusual circumstances . . . may arise that would require additional time to process [the] request, ” but informing it that State would “notify [it] as soon as responsive material has been retrieved and reviewed.” Id.

         After five months of vainly waiting for such notification, Plaintiff filed this two-count suit, alleging that the Department (1) violated FOIA by not issuing a determination on its request within the statutorily mandated twenty days, and (2) has a policy or practice of flouting its FOIA obligations until requesters initiate litigation. See ECF No. 1 (Complaint), ¶¶ 24, 40. State moved to dismiss this second count, which was premised on at least seven instances where it did not provide requested documents until ACLJ filed a lawsuit. See Opp., Attach. 1 (Plaintiff Statement of Additional Material Facts), ¶ 2. The Court granted the Motion, finding that ACLJ had not pled a specific policy or practice that resulted in repeated violations of FOIA. ACLJ I, 249 F.Supp.3d at 282. Because the Court dismissed without prejudice, ACLJ went back to the drawing board and sought to amend its Complaint.

         According to the revised Complaint, Defendant engages in an “impermissible practice, policy, and pattern of refusing to issue a determination and/or produce responsive documents unless and until Plaintiff files suit.” Am. Compl., ¶ 91. This second pitch, the Court found, had “patch[ed] the[] potholes” in the earlier Complaint. ACLJ II, 254 F.Supp.3d at 226-27. This time around, ACLJ had “explicitly articulate[d] that the policy or practice is State's refusal to respond unless and until suit is brought, ” an allegation that “no longer gesture[d] at some nebulous policy or practice.” Id. at 227. The Court, accordingly, granted Plaintiff's Motion for Leave to File an Amended Complaint.

         State now takes a third swing at ACLJ's policy-or-practice claim, arguing that the policy of which ACLJ complains simply does not exist. The Department does not deny that it has trouble meeting its FOIA deadlines, but asserts that any delay is an unavoidable consequence of increased FOIA obligations and limited resources. Plaintiff opposes the Motion and concomitantly filed its own Motion for Discovery pursuant to Federal Rule of Procedure 56(d). Both Motions are now ripe.

         II. Legal Standard

         Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         When a non-movant believes that summary judgment is premature, she may file a motion for discovery under Rule 56(d). The motion must provide “specific reasons demonstrating the necessity and utility of discovery to enable her to fend off summary judgment.” Strang v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989). Bare allegations are not enough; the non-movant must show “what facts [s]he intend[s] to discover that would create a triable issue” of fact. Byrd v. EPA, 174 F.3d 239, 248 n.8 (D.C. Cir. 1999). The decision whether to grant a 56(d) motion lies within the discretion of the district court. Exxon Corp. v. FTC, 663 F.2d 120, 126 (D.C. Cir. 1980).

         FOIA cases typically are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, the Court may accept an “agency's affidavits, without pre-summary judgment discovery, if the affidavits are made in good faith and provide reasonably specific detail concerning the methods used to produce the information sought.” Broaddrick v. Executive Office of the President, 139 F.Supp.2d 55, 64 (D.D.C. 2001). “Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citation omitted).

         III. Analysis

         In seeking summary judgment, State avers that it does not have a policy or practice of pushing off FOIA requests (from ACLJ or other requesters) until litigation, much less a policy egregious enough to warrant injunctive relief. ACLJ, unsurprisingly, disagrees and argues that it can prove the existence of such a policy or at least raise an issue for trial with the aid of discovery. The Court first addresses the summary-judgment Motion and, finding ACLJ's claim wanting, then concludes that Plaintiff is also not entitled to relief under Rule 56(d).

         A. Policy-or- ...


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