United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE
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.
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
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.
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
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
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).
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).
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).
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).