United States District Court, District of Columbia
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
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).
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?
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.
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.
2015, Thompson submitted five FOIA requests to the Department
of Justice, including two requests to ENRD and three requests
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).
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).
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).
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. ¶ 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 ...