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Thompson v. Sessions

United States District Court, District of Columbia

September 27, 2018

DAVID THOMPSON, Plaintiff,
v.
JEFFERSON SESSIONS, III, Attorney General of the United States, Defendant.

          MEMORANDUM OPINION

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         Although proceeding pro se, the plaintiff in this case, David Thompson, is an attorney who worked at the Department of Justice (“Department”) for over twenty years. His experience at the Department took a turn for the worse in 2008 when he received a letter of reprimand for “unacceptable and disrespectful” treatment of his colleagues, and he was, among other things, relieved of all trial work. Thompson took a period of sick leave, filed a grievance, and retired in September 2008. Years later, in 2015, Thompson filed a series of Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, requests with two Justice Department components-the Environment and Natural Resources Division (“ENRD”), and the Justice Management Division (“JMD”). He then brought this suit in January 2016, alleging that the Department took adverse employment action against him because of his sex and age, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Age Discrimination and Employment Act (“ADEA”), 29 U.S.C. § 633a et seq.; violated his due process rights in the investigation, reprimand, and grievance process, U.S. Const. amend. V; and violated FOIA by applying “procedures [that] were recalcitrant and in bad faith, ” 5 U.S.C. § 552. Dkt. 7 at 7 (Am. Compl. ¶¶ 15-18).

         In a prior opinion, the Court granted summary judgment in favor of the Department on Thompson's Title VII, ADEA, and due process claims. Thompson v. Sessions, 278 F.Supp.3d 227, 252 (D.D.C. 2017) (“Thompson I”). The Court also held that Thompson's FOIA claim did not challenge the Department's response to any of the specific FOIA requests that he submitted in 2015, but rather sought only “an ‘injunction' that would require the Department to respond to future FOIA requests in a timely manner.” Id. at 251. Because such a “policy or practice” claim “focuses on whether ‘agency policy or practice will impair the party's lawful access to information in the future, '” id. at 252 (emphasis added) (quoting Newport Aeronautical Sales v. Dep't of the Air Force, 684 F.3d 160, 164 (D.C. Cir. 2012)), the Court explained that it could not reach the merits of Thompson's FOIA claim without first deciding whether he faces a “certainly impending” threat of “future injury, ” id. That is, does he have standing to pursue a policy or practice claim?

         The parties have now filed renewed motions for summary judgment with respect to Thompson's sole remaining claim. Dkt. 37; Dkt. 39. In doing so, they address both the merits of that claim and Thompson's standing to seek an injunction compelling the Department to respond to all FOIA requests in a timely manner. As explained below, the Court concludes that Thompson has failed to submit any evidence that he faces an imminent threat of future injury due to the Department's delay in responding to FOIA requests. As a result, the Court will dismiss Thompson's policy or practice claim for lack of Article III jurisdiction.

         I. BACKGROUND

         The Court has previously described the factual background of this case at length, Thompson I, 278 F.Supp.3d at 232-41, and will only briefly highlight the facts relevant to Thompson's policy or practice claim and his standing to pursue that claim.

         A. FOIA Requests

         In 2015, Thompson submitted five FOIA requests to the Department of Justice, including two requests to ENRD and three requests to JMD:[1]

         1. ENRD Requests

         Thompson submitted his first request to ENRD on May 1, 2015, seeking seven categories of records “including Environmental Defense Section rosters, U.S. trial exhibit lists, awards policies, and various documents relating to Mr. Thompson.” Dkt. 37-2 at 3 (Wardzinski Decl. ¶ 5); see also Id. at 5-6 (Wardzinski Decl. Ex. 1). On July 2, ENRD responded to the request, releasing eight documents in full and four documents in part, redacting portions of those documents pursuant to Exemption 5 of FOIA. Id. at 19 (Wardzinski Decl. Ex. 2). The response informed Thompson of his right to appeal to the Department's Office of Information Policy within 60 days. Id. at 20 (Wardzinski Decl. Ex. 2).

         On September 24, 2015, Thompson submitted a second request to ENRD, seeking “attachments to an August 12, 2009 letter from ENRD to an EEO investigator.” Id. at 3 (Wardzinski Decl. ¶ 8); see also Id. at 22-24 (Wardzinski Decl. Ex. 3). On December 18, 2015, ENRD responded, releasing ten responsive documents, “four of which were redacted pursuant to Exemption 6, and one of which was redacted pursuant to Exemption 5, ” and again informing him of his right to appeal within 60 days. Id. at 3 (Wardzinski Decl. ¶ 9); see also Id. at 27 (Wardzinski Decl. Ex. 4). On December 31, 2015, Thompson sent a letter to ENRD in which he argued that the “neither . . . exemption[] applie[d]” and that the attachments “should have been provided to [him] without redactions.” Id. at 30 (Wardzinski Decl. Ex. 5).

         On December 20, 2017, Thompson filed an administrative appeal “partially concerning” the Department's response to his two ENRD requests, in which he “question[ed] the [Department's] adequacy of withholdings and/or redactions.” Dkt. 39-1 at 2 (Pl.'s SUMF ¶¶ 6- 7); see also Dkt. 39-3 at 6-7 (Pl.'s SUMF Ex. D).

         2. JMD Requests

         Thompson submitted three (or four, see n.1) FOIA requests to JMD, dated September 20, 2015, October 25, 2015, and November 5, 2015. Dkt. 37-3 at 2-3 (Sim Decl. ¶ 3); id. at 7 (Sim. Decl. Ex. A). In those requests, he sought (1) “an email from Margaret McCarthy [the ENDR Human Resources Director];” (2) “any and all records or documents received by or generated by Ms. [Annesley] Schmidt [a contract EEO investigator] in her investigation, but not included in her Report;” and (3) “any and all records or documents received by or generated by [EEO Counsel] Ms. Donna Gray-Flowers concerning [Thompson].” Dkt. 37-3 at 2-3 (Sim Decl. ¶ 3); id. at 7 (Sim. Decl. Ex. A). On November 23, 2015, JMD responded by email, acknowledging Thompson's October 25 request, and assigning the request a tracking number. Id. at 11 (Sim Decl. Ex. B). Thompson's September 20 and November 5 requests “were assigned the same consolidated tracking number.” Id. at 3 (Sim Decl. ΒΆ 4). On November 18, 2016, ten months after Thompson initiated this litigation, JMD responded to his FOIA requests, releasing the records with redactions made pursuant to Exemptions ...


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