United States District Court, District of Columbia
B. WALTON, UNITED STATES DISTRICT JUDGE
plaintiff, Cause of Action Institute, brings this civil
action against the defendants, the White House Office of
Management and Budget (“OMB”) and the United
States Department of Agriculture (“USDA”)
(collectively, the “defendants”), alleging
violations of the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552 (2018).
See Complaint (“Compl.”) ¶ 1.
Currently pending before the Court are the (1)
Defendants' Motion to Dismiss (“Defs.' Mot. to
Dismiss”), which seeks dismissal of the plaintiff's
claims pursuant to Federal Rule of Civil Procedure 12(b)(1)
and (6) or, in the alternative, summary judgment pursuant to
Federal Rule of Civil Procedure 56; and (2) Plaintiff Cause
of Action Institute's Motion, in the Alternative, for
Rule 56(d) Discovery (“Pl.'s Discovery Mot.”
or the “motion for discovery”), which seeks
limited discovery pursuant to Federal Rule of Civil Procedure
56(d) in order to acquire facts to oppose the defendants'
request for summary judgment. Upon careful consideration of
the parties' submissions,  the Court concludes for the
following reasons that it must deny the defendants'
motion to dismiss pursuant to Rule 12(b)(1) and the
plaintiff's motion for discovery pursuant to Rule 56(d)
and grant the defendants' alternative request for summary
judgment pursuant to Rule 56 raised in the defendants'
motion to dismiss pursuant to Rule 12(b)(6).
to the plaintiff, on July 7, 2017, the plaintiff submitted a
FOIA request to the OMB, “seeking access to the
Internet browsing histories of (1) the [OMB] Director John
Michael Mulvaney and (2) the OMB Associate Director of
Strategic Communications[, ]” Compl. ¶ 24 (second
alteration in original) (internal quotation marks omitted),
as well as a FOIA request to the USDA, “seeking access
to copies of Internet browsing histories of (1) the [USDA]
Secretary Sonny Perdue and (2) the USDA Director of
Communications[, ]” id. ¶ 30 (first
alteration in original) (internal quotation marks omitted).
the plaintiff's FOIA request to the OMB, on July 13,
2017, the “OMB acknowledged that it had received [the
plaintiff's] [FOIA] request . . . and assigned it [a]
tracking number, ” id. ¶ 27, but
“[d]espite repeated attempts by [the plaintiff] to
inquire as to the processing status of the . . . FOIA
request, [ ] [the] OMB has failed to provide any additional
updates, ” id. ¶ 28, and “[t]o
date, . . . has neither invoked the automatic statutory
extension of its response deadline, nor . . . provided an
estimated date of completion for its determination, ”
id. ¶ 29 (citation omitted).
the plaintiff's FOIA request to the USDA, on July 17,
2017, the “USDA acknowledged that it had received the
[plaintiff's] [FOIA] request . . . and assigned it [a]
tracking number[.]” Id. ¶ 33. On August
30, 2017, the USDA “issued its final determination, . .
. decid[ing] that, because browsing histories are not
integrated into the agency's record system or files,
[they] do not meet the requirements of being under agency
control[, ] . . . [and] determin[ing] that [t]he FOIA . . .
does not require agencies to create records for the purposes
of satisfying records requests.” Id. ¶ 34
(third, fourth, and tenth alterations in original) (citations
and internal quotation marks omitted). On September 7, 2017,
the plaintiff “timely appealed [ ] [the] USDA's
adverse determination, ” id. ¶ 35, and on
May 18, 2018, the “USDA denied [the plaintiff's]
administrative appeal and summarily upheld the [Departmental
FOIA Office's] initial determination[, ]”
id. ¶ 36 (second alteration in original)
(internal quotation marks omitted).
26, 2018, the plaintiff filed its Complaint in this Court,
see id. at 1, alleging violations of the FOIA by
both defendants, see id. ¶¶ 37-55. The
defendants thereafter filed their motion to dismiss pursuant
to Rule 12(b)(1) and (6), or alternatively, for summary
judgment pursuant to Rule 56, see Defs.' Mot. to
Dismiss at 1, and the plaintiff filed its motion for
discovery pursuant to Rule 56(d), see Pl.'s
Discovery Mot. at 1, which are the subjects of this
STANDARDS OF REVIEW
Rule 12(b)(1) Motion to Dismiss
[district] courts are courts of limited jurisdiction, ”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994), and “[a] motion for dismissal under
[Federal Rule of Civil Procedure] 12(b)(1) ‘presents a
threshold challenge to the [C]ourt's jurisdiction,
'” Morrow v. United States, 723 F.Supp.2d
71, 75 (D.D.C. 2010) (Walton, J.) (quoting Haase v.
Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)). Thus, the
Court is obligated to dismiss a claim if it “lack[s] .
. . subject-matter jurisdiction.” Fed.R.Civ.P.
12(b)(1). Because “[i]t is to be presumed that a cause
lies outside [the Court's] limited jurisdiction, ”
Kokkonen, 511 U.S. at 377, the plaintiff bears the
burden of establishing by a preponderance of the evidence
that the Court has subject-matter jurisdiction, see Lujan
v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
deciding a motion to dismiss for lack of subject-matter
jurisdiction, the Court “need not limit itself to the
allegations of the complaint.” Grand Lodge of the
Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9,
14 (D.D.C. 2001). Rather, the “[C]ourt may consider
such materials outside the pleadings as it deems appropriate
to resolve the question [of] whether it has jurisdiction
[over] the case.” Scolaro v. D.C. Bd. of Elections
& Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000);
see Jerome Stevens Pharms., Inc. v. Food & Drug
Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005).
Additionally, the Court must “assume the truth of all
material factual allegations in the complaint and
‘construe the complaint liberally, granting [the]
plaintiff the benefit of all inferences that can be derived
from the facts alleged.'” Am. Nat'l Ins.
Co. v. Fed. Deposit Ins. Corp., 642 F.3d 1137, 1139
(D.C. Cir. 2011) (quoting Thomas v. Principi, 394
F.3d 970, 972 (D.C. Cir. 2005)). However, “the
[p]laintiff's factual allegations in the complaint . . .
will bear closer scrutiny in resolving a 12(b)(1) motion than
in resolving a 12(b)(6) motion for failure to state a
claim.” Grand Lodge, 185 F.Supp.2d at 13-14
(alterations in original) (internal quotation marks omitted).
Rule 12(b)(6) Motion to Dismiss
complaint must provide “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Thus, to survive a
motion to dismiss under Rule 12(b)(6) for “failure to
state a claim upon which relief may be granted, ”
Fed.R.Civ.P. 12(b)(6), the “complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face[,
]'” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the [C]ourt
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556); see Kowal v. MCI
Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)
(noting that the plaintiff is entitled to “the benefit
of all inferences that can be derived from the facts
alleged”). Although the Court must accept the facts
pleaded as true, legal allegations devoid of factual support
are not entitled to this presumption. See, e.g.,
Kowal, 16 F.3d at 1276. Along with the allegations
made within the four corners of the complaint, the Court may
also consider “any documents either attached to or
incorporated in the complaint and matters of which [it] may
take judicial notice.” Equal Emp't Opportunity
Comm'n v. St. Francis Xavier Parochial Sch., 117
F.3d 621, 624 (D.C. Cir. 1997).
Rule 56 Motion for Summary Judgment
Court must “grant summary judgment 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). When ruling on a Rule 56 motion for
summary judgment, the Court must view the evidence in the
light most favorable to the non-moving party. See Holcomb
v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000)). The Court must therefore draw “all
justifiable inferences” in the non-moving party's
favor and accept the non-moving party's evidence as true.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). The non-moving party, however, cannot rely on
“mere allegations or denials.” Burke v.
Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting
Anderson, 477 U.S. at 248). Thus,
“[c]onclusory allegations unsupported by factual data
will not create a triable issue of fact.” Pub.
Citizen Health Research Grp. v. Food & Drug Admin.,
185 F.3d 898, 908 (D.C Cir. 1999) (Garland, J., concurring)
(alteration in original) (quoting Exxon Corp. v. Fed.
Trade Comm'n, 663 F.2d 120, 126-27 (D.C. Cir.
1980)). If the Court concludes that “the non[-]moving
party has failed to make a sufficient showing on an essential
element of [its] case with respect to which [it] has the
burden of proof, ” then the moving party is entitled to
summary judgment. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986).
cases typically are resolved on a motion for summary
judgment.” Ortiz v. U.S. Dep't of Justice,
67 F.Supp.3d 109, 116 (D.D.C. 2014); see also Defs. of
Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87
(D.D.C. 2009). “[The] FOIA requires federal agencies to
disclose, upon request, broad classes of agency records
unless the records are covered by the statute's
exemptions.” Students Against Genocide v. U.S.
Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001).
In a FOIA action, the defendant agency has “[the]
burden of demonstrating that the withheld documents are
exempt from disclosure.” Boyd v. Crim. Div. of U.S.
Dep't of Justice, 475 F.3d 381, 385 (D.C. Cir.
2007). Therefore, the Court will grant summary judgment to
the government in a FOIA case only if the agency can prove
“that it has fully discharged its obligations under the
FOIA, after the underlying facts and the inferences to be
drawn from them are construed in the light most favorable to
the FOIA requester.” Friends of Blackwater v. U.S.
Dep't of Interior, 391 F.Supp.2d 115, 119 (D.D.C.
2005) (quoting Greenberg v. U.S. Dep't of
Treasury, 10 F.Supp.2d 3, 11 (D.D.C. 1998)). Thus, in a
lawsuit brought to compel the production of documents under
the FOIA, “an agency is entitled to summary judgment if
no material facts are in dispute and if it demonstrates
‘that each document that falls within the class
requested either has been produced . . . or is wholly[, or
partially, ] exempt from [disclosure].'”
Students Against Genocide, 257 F.3d at 833 (first
alteration in original) (quoting Goland v. Cent.
Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir.
Motion for Discovery
cases, “[d]iscovery is only appropriate when an agency
has not taken adequate steps to uncover responsive
documents.” Schrecker v. U.S. Dep't of
Justice, 217 F.Supp.2d 29, 35 (D.D.C. 2002) (citing
SafeCard Servs., Inc. v. Securities & Exchange
Comm'n, 926 F.2d 1197, 1202 (D.C. Cir. 1992)).
“Discovery in FOIA [cases] is rare and should be denied
where an agency's declarations are reasonably detailed,
submitted in good faith[, ] and the [C]ourt is satisfied that
no factual dispute remains.” Id. “When
allowed, the scope of discovery is usually limited to the
adequacy of the agency's search and similar
matters.” Voinche v. Fed. Bureau of
Investigation, 412 F.Supp.2d 60, 71 (D.D.C. 2006).
“An exception to limiting the scope of discovery is
made if the plaintiff has made a sufficient showing that the
agency acted in bad faith.” Id. at 72.