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Cause of Action Institute v. White House Office of Management & Budget

United States District Court, District of Columbia

November 15, 2019

CAUSE OF ACTION INSTITUTE, Plaintiff,
v.
WHITE HOUSE OFFICE OF MANAGEMENT & BUDGET, et al., Defendants.

          MEMORANDUM OPINION

          REGGIE B. WALTON, UNITED STATES DISTRICT JUDGE

         The 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, [1] 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).

         I. BACKGROUND

         According to the plaintiff, on July 7, 2017, the plaintiff submitted a FOIA request to the OMB, “seeking access to the Internet browsing[2] 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).

         As to 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).

         As to 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).

         On June 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 Memorandum Opinion.

         II. STANDARDS OF REVIEW

         A. Rule 12(b)(1) Motion to Dismiss

         “Federal [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).

         In 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).

         B. Rule 12(b)(6) Motion to Dismiss

         A 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).

         C. Rule 56 Motion for Summary Judgment

         The 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).

         “FOIA 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. 1978)).

         D. Motion for Discovery

         In FOIA 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.

         III. ...


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