MEMORANDUM OPINION AND ORDER
Amit
P. Mehta, United States District Judge.
In this
“reverse-FOIA” action, Andritz, Inc., seeks to
intervene to protect its asserted interest in the release of
records concerning a federally funded project awarded to
Plaintiff POET Design & Construction, Inc., by Defendant
Department of Energy (“DOE”). See
Andritz’s Mot. to Intervene, ECF No. 11, Mem. of Points
& Authorities in Supp. of Mot. to Intervene, ECF No. 11-1
[hereinafter Andritz’s Mot.]. Plaintiff opposes the
motion, asserting that Andritz lacks standing to intervene.
See Pl.’s Opp’n to Mot. to Intervene by
Intervenor-Def. Andritz, ECF No. 19 [hereinafter Pl.’s
Opp’n]. DOE takes no position.
The
material facts here are not in dispute. Plaintiff brought
this action to prevent DOE from releasing records under the
Freedom of Information Act (“FOIA”) that, it
contends, contain “confidential commercial and/or trade
secret information that is exempt from disclosure under
FOIA’s Exemption 4 (5 U.S.C. § 552(b)(4)) and is
also prohibited from disclosure under the Trade Secrets
Act.” Compl., ECF No. 1, ¶¶ 1–2.
Andritz concedes that it did not directly make the FOIA
request in question;[1] rather, Andritz’s counsel, Gautam
Reddy of the law firm Kilpatrick Townsend & Stockton,
LLP, submitted the request in his and the firm’s name.
See Pl.’s Opp’n at 2–4; see,
e.g., Pl.’s Opp’n, Ex. E, ECF No. 19-5
(Initial Letter to Submitter from DOE regarding FOIA Request
19).[2]
Moreover, counsel did not identify Andritz as his client to
DOE. See id.; see also Pl.’s
Opp’n, Ex. A, ECF No. 19-1, at 4–5 (copy of an
initial FOIA request, stating only that Reddy, the requester,
was “[a]ffiliated with a private corporation and
seeking information for . . . use in the company’s
business”).
There
likewise is no genuine disagreement about the applicable law.
Plaintiff and Andritz agree that intervenors in this Circuit
must have Article III standing to enter and participate in a
pending action. Pl.’s Opp’n at 5–6;
see Andritz’s Mot. at 6. Additionally, Andritz
does not seriously contest two key legal principles that form
the basis for Plaintiff’s opposition: (1) only a
requester or submitter of information possesses Article III
standing in a FOIA action, and (2) a lawyer who submits a
FOIA request has Article III standing to challenge an
agency’s FOIA decision, but the lawyer’s client
lacks standing to do the same, unless the client is clearly
identified in the FOIA request. Pl.’s Opp’n at
6–9; see, e.g., Smallwood v. U.S.
Dep’t of Justice, 266 F. Supp. 3d 217');">266 F. Supp. 3d 217 (D.D.C.
2017); Three Forks Ranch Corp. v. Bureau of Land
Mgmt., 358 F. Supp. 2d 1 (D.D.C. 2005); cf.
Andritz’s Reply Brief in Supp. of Its Mot. to
Intervene, ECF No. 20 [hereinafter Andritz’s Reply].
Applying these undisputed legal principles, Plaintiff asserts
that Andritz lacks standing to intervene because its counsel,
not Andritz, submitted the FOIA request at issue and did not
identify Andritz as his client. Pl.’s Opp’n at
9–10.
Andritz
responds that Plaintiff cannot be heard to question
Andritz’s standing because Plaintiff’s legal
filings in this case repeatedly identify Andritz as the FOIA
requester. Andritz’s Reply at 2–5. As Andritz
puts it: “[Plaintiff] ignores express language in its
own Verified Complaint and Motion for Temporary Restraining
Order recognizing Andritz as the FOIA requester in this
matter.” Id. at 1; see also Id. at 2
(“[Plaintiff] cannot now simply ignore its own
assertions because they have become inconvenient for
[Plaintiff].”). Settled law, however, quickly dispenses
with that argument.
Standing is a “threshold jurisdictional
question,” Steel Co. [v. Citizens for a
Better Env’t], 523 U.S. [83, 102 (1998)], and
“no action of the parties can confer subject-matter
jurisdiction.” Insurance Corp. of Ireland v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 . .
. (1982). “Thus, the consent of the parties is
irrelevant, . . . principles of estoppel do not apply, . . .
and a party does not waive the requirement by failing to
challenge jurisdiction early in the proceedings.”
Id. (internal citations omitted).
Nat. Res. Def. Council v. Pena, 147 F.3d 1012, 1021
n.3 (D.C. Cir. 1998) (third and fourth alterations in
original). What that law means in this case is that
Plaintiff’s statements in its court papers are
irrelevant to the question of Andritz’s standing.
Plaintiff cannot confer standing upon Andritz when it
otherwise does not exist. So, the fact that Plaintiff
repeatedly states that Andritz is the true FOIA requester
does not open the door to Andritz entering this litigation.
Andritz did not submit the FOIA request, and its counsel did
not identify Andritz as his client. Therefore, Andritz lacks
standing to intervene.[3]
Andritz
seeks to avoid this fate by attempting to distinguish the
cases relied upon by Plaintiff. Andritz’s Reply at 5;
see Pl.’s Opp’n at 7-9 (citing cases).
These cases, Andritz contends, “all involved situations
where the defendant agency moved to dismiss a
complaint seeking the release of documents under FOIA on the
premise that the entity bringing the suit was not the same as
the entity making the FOIA request.” Andritz’s
Reply at 5 (emphasis added). And, unlike in those cases, the
agency here “has not disputed that Andritz is the FOIA
requester.” See Id. But this is a distinction
without a difference. As discussed, “[s]tanding is a
threshold jurisdictional question, and no action of the
parties can confer subject-matter jurisdiction.”
Pena, 147 F.3d at 1021 n.3 (internal citations and
quotation marks omitted). Like Plaintiff, DOE is a party to
this action. Thus, DOE’s silence in this litigation
cannot create standing where none exists. Once more, the
question is whether Andritz’s counsel identified
Andritz as his client when making the FOIA request. See
Smallwood, 266 F. Supp. 3d at 219-21. The undisputed
fact is that he did not. Therefore, Andritz has no standing
to intervene in this matter.
For the
foregoing reasons, Andritz’s Motion to Intervene, ECF
No. 11, is denied. The parties-Plaintiff POET Design &
Construction, Inc., and Defendant DOE-shall meet and confer
and notify the court no later than June 11, 2018, how they
wish to proceed in this matter. The court notes that the
Temporary Restraining Order entered on April 13, 2018, ECF
No. 7, is set to expire on June 12, 2018. See Order,
ECF No. 17, ¶ 1.
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Notes:
[1] While multiple FOIA requests were
submitted to DOE regarding Plaintiff’s project,
see Compl. ¶¶ 26–28, Plaintiff only
initially sought to challenge FOIA Request GO-18-017
(“Request 17”) and FOIA Request GO-18-019
(“Request 19”) in its Complaint, see Id.
¶ 34. Plaintiff later informally added FOIA Request
GO-18-022 (“Request 22”) to its list of
challenged FOIA requests. See Joint Status Report,
ECF No. 14; see also Compl. at 8 n.1 (noting that
Plaintiff may seek to amend its lawsuit “if and when
the DOE issues Final Notices to Submitter in connection with
[other] remaining requests,” including Request 22).
Since Andritz filed its intervention motion, and pursuant to
this court’s orders, Plaintiff and Andritz have settled
their disputes with respect to Requests 17 and 22 and Andritz
has formally withdrawn those requests. See Joint
Status Report, ECF No. 24; id., Ex. A, May 30th
Email to DOE Counsel, ECF No. 24-1. Accordin gly, on ly
Andritz’s intervention as to Request 19 remains at
issue here. See generally Joint Status Report, ECF
No. 18, at 2; Joint Status Report, ECF No. 22, at 2; Joint
Status Report, ECF No. 23, at 2.
[2] Cf. Andritz’s Mot. at 4
(“Andritz’s counsel submitted a FOIA request to
DOE . . . .”); Andritz’s Reply Brief in Supp. of
Its Mot. to Intervene, ECF No. 20, at 2–5 (failing to
dispute that the requests were submitted by Andritz’s
counsel, as stated by Plaintiff in its opposition, and
instead arguing that Plaintiff’s opposition belies the
characterization of Andritz as the FOIA requester in the
Complaint and TRO).
[3] The sole case Andritz cites in its
favor, Deininger & Wingfield, P.A. v. IRS, No.
4:08-cv-00500-JLH, 2009 WL 2241569 (E.D. Ark. July 24, 2009),
is inapposite. There, the court appears to have concluded
that there was no dispute that the lawyer had identified the
plaintiff as his client in the FOIA request, therefore
conferring standing on the plaintiff. See Id. at
*2–3. To ...