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Lopez v. National Archives and Records Administration

United States District Court, District of Columbia

March 15, 2018

EDWIN LOPEZ, Plaintiff,
v.
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, Defendant, DAVID S. FERRIERO, and his Successors, in their official Capacity as the Archivist Of the United States Defendant, CENTRAL INTELLIGENCE AGENCY, Defendant.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON, United States District Judge

         Plaintiff Edwin Lopez brought this action under three statutes: the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, the Privacy Act, 5 U.S.C. § 552a, and the President John F. Kennedy Assassination Records Collection Act of 1992 ("JFK Records Act"), 44 U.S.C. § 2107. He seeks to compel the National Archives and Records Administration ("NARA"); David S. Ferriero, sued in his official capacity as the Archivist of the United States; and the Central Intelligence Agency ("CIA"), to produce various documents that relate to him. Am. Compl. [Dkt. # 18].[1]

         Pending before the Court is defendants' renewed motion for judgment on the pleadings and plaintiffs cross-motion for summary judgment. For the reasons that follow, the Court will grant defendants' motion for judgment on the pleadings and deny plaintiffs motion.

         BACKGROUND

         The Court accepts as true the following facts set out in plaintiffs amended complaint for the purposes of resolving the pending motion for judgment on the pleadings.[2] On December 19, 2014, plaintiff submitted a request for records pursuant to FOIA, the Privacy Act, and the JFK Records Act with NARA. Am. Compl. ¶ 8; Ex. 1 to Am. Compl. [Dkt. # 25-1] ("Request").

         Plaintiff sought production of the following four items:

1. The 40-page document which is described by RIF #104-10175-10085 (hereafter referred to as "the Ed Lopez file." [sic];
2. Any record reflecting a vote by the Assassination Records Review Board (ARRB) to designating [sic] the Lopez file as "NBR" ("Not Believed Relevant") or similar status or determining that its disclosure should be withheld for a particular period of time, including until 2017;
3. Any record of the CIA or any other agency reflecting the belief that the Lopez file should or might be given "NBR" status or that its disclosure should be postponed for any period of time, including until the year 2017; and 4. Any record reflecting that the disclosure of the Lopez file should be postponed in whole or in part for any period of time, including until 2017, was transmitted to, and published in, the Federal Register in accordance with the procedures of the JFK Act.

Request; see also Am. Compl. ¶ 8.

         On January 7, 2015, NARA sent plaintiff a letter acknowledging that it had received the request on December 23, 2014, and assigned it the request reference number N.W. 44935. Am. Compl. ¶ 9; Ex. 2 to Am. Compl. [Dkt. # 25-1]. On January 26, 2015, Martha Wagner Murphy, Chief of the Special Access and FOIA staff to NARA, informed Joseph W. Lambert, Director of the Information Management Services at CIA, of the request and forwarded a copy. Am. Compl. ¶ 10; Ex. 3 to Am. Compl. [Dkt. # 25-1] ("Ex. 3"). She asked that he inform NARA of the CIA's determination and any "sanitizing instructions" since "a full-text copy of the requested document is in [CIA's] files." Am. Compl. ¶ 10; Ex. 3.

         On May 27, 2015, Michael Lavergne of the CIA responded to Murphy, and he advised her that CIA had located and reviewed the Lopez File and had determined that "it is currently and properly classified and must be denied in its entirety on the basis of FOIA exemptions (b)(1) [classified records] and (b)(3) [records exempted by other statutes]." Am. Compl. ¶ 11; Ex. 4 to Am. Compl. [Dkt. #25-1] ("Ex. 4"). The CIA cited to section 6 of the Central Intelligence Agency Act of 1949, and section 102A(i)(1) of the National Security Act of 1947 to support the use of the exemptions. Am. Compl.¶ 11; Ex. 4.

         By letter dated June 9, 2015, NARA informed plaintiff of the CIA determination to withhold the Lopez File in full pursuant to the two FOIA exemptions. Am. Compl. ¶ 12; Ex. 5 to Am. Compl. [Dkt. # 25-1] ("Ex. 5"). NARA also advised plaintiff that a search of the closed records of the Assassination Records Review Board had been made "and no information was found" responsive to the remainder of his request. Am. Compl. ¶¶ 12-13; Ex. 5. Finally, NARA advised plaintiff that he had the right to administratively appeal the decision within sixty days of the date of the letter. SeeEx. 5.[3] Plaintiff alleges that after he received NARA's letter, there were no further communications with NARA or CIA. Am. Compl. ¶ 14.

         On June 1, 2017, plaintiff filed an amended complaint asserting claims under FOIA (Count I), the Privacy Act (Count II), and the JFK Records Act (Count III). Am. Compl. On June 12, 2017, defendants renewed their motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Renewed Mot. for J. on the Pleadings [Dkt. # 19] ("Defs.' Mot."); Mem. of P. & A. in Supp. of Defs.' Mot. [Dkt. # 19] ("Defs.' Mem."). Plaintiff opposed the motion and also filed a cross-motion for summary judgment on July 3, 2017. Pl.'s Resp. to Defs.' Mot. & Pl.'s Renewed Cross-Mot. for Summ. J. [Dkt. ## 20-21] ("Pl.'s Opp. & Cross-Mot."); Mem. of Opposing P. & A. in Resp. to Defs.' Mot. & in Supp. of Pl.'s Opp. & Cross-Mot.) [Dkt. ## 20-21] ("Pl.'s Opp. & Cross-Mem.).[4] The motions have been fully briefed.[5]

         STANDARD OF REVIEW

         Federal Rule of Civil Procedure 12(c) authorizes a party to move for judgment on the pleadings at any time "after the pleadings are closed." Fed.R.Civ.P. 12(c).[6] Parties are entitled to pretrial judgment on the pleadings "if the moving party demonstrates that no material fact is in dispute and that it is entitled to judgment as a matter of law." Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1370 (D.C. Cir. 2008), quoting Peters, 966 F.2d at 1485. When analyzing a motion for judgment on the pleadings, the Court must "view the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." Peters, 966 F.2d at 1485, quoting Jablonski, 863 F.2d at 290-91; see also Thompson v. Dist. of Columbia, 428 F.3d 283, 284 (D.C. Cir. 2005) ("As we must in reviewing a judgment on the pleadings, we view the complaint's allegations in the light most favorable to the plaintiff.").

         While there are opinions in this district that state that the standards of review between a Rule 12(b)(6) motion and a Rule 12(c) motion are "essentially the same" or "virtually identical, " see, e.g., Nat'l Shopmen Pension Fund v. Disa, 583 F.Supp.2d 95, 99 (D.D.C. 2008), citing Plain v. AT & T Corp., 424 F.Supp.2d 11, 20 n. 11 (D.D.C. 2006); Maniaci v. Georgetown Univ., 510 F.Supp.2d 50, 58 (D.D.C. 2007); Jung v. Ass'n of Am. Med. Colleges, 339 F.Supp.2d 26, 35-36 (D.D.C. 2004), the standard set out in the Schuler case by the D.C. Circuit comes closer to a summary judgment type of determination.

         Wright's Federal Practice and Procedure makes the same observation, noting that a 12(c) motion asks the Court to address the merits of the parties' claims and defenses and not procedural barriers or pleading deficiencies. 5C Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1369 (3d ed. 2017) (commenting that the appropriate standard of review for a Rule 12(c) motion is more similar to a Rule 56 motion for summary judgment, except that the Court may only consider the contents of the pleadings); see also Jones v. Dufek, 830 F.3d 523, 528 (D.C. Cir. 2016) ("The district court properly resolved these questions as a matter of law on a motion under Rule 12(c)."), dting Alexander v. City of Chi., 994 F.2d 333, 336 (7th Cir. 1993) ("[T]he standard courts apply for summary judgment and for judgment on the pleadings 'appears to be identical.'").[7]

         If on a Rule 12(b)(6) or 12(c) motion, "matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed.R.Civ.P. 12(d); see Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993) (applying the same test when converting a Rule 12(b)(6) motion to one for summary judgment). But the "parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d). The Court has the discretion to decide if it will convert a motion for judgment on the pleadings to one for summary judgment. See Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003) (noting that the failure to comply with the procedures to convert a motion to dismiss to one for summary judgment is evaluated under an "abuse of discretion" standard); Flynn v. Tiede-Zoeller, Inc., 412 F.Supp.2d 46, 50 (D.D.C. 2006) ("The decision to convert a motion to dismiss into a motion for summary judgement, however, is committed to the sound discretion of the trial court.").

         In this case, the parties have submitted declarations and other exhibits in support of, and in opposition to, the pending motions. The Court may consider certain exhibits, such as the Request itself, without converting the motion for judgment on the pleadings to one for summary judgment since those records either attached to, or incorporated by reference in, the complaint itself. See St. Francis Xavier Parochial Sch., 117 F.3d at 624. However, since the Court will consider the declarations attached to defendants' motion for judgment on the pleadings, the Court is required to treat the motion as if it were a motion for summary judgment. See Fed. R. Civ. P. 12(d). And because plaintiff had a full opportunity to oppose the motion, and treated it as a Rule 56 motion himself by submitting a cross-motion supported by a statement of facts and a declaration, as well as an opposition, the Court concludes that the parties have had an opportunity to present all the material pertinent to the motion, and that it is fair to both parties to convert defendants' motion to one for summary judgment. See Hollis v. U.S. Dep't of the Army,856 F.2d 1541, 1544 (D.C. ...


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