United States District Court, District of Columbia
BERMAN JACKSON, United States District Judge
Edwin Lopez brought this action under three statutes: the
Freedom of Information Act ("FOIA"), 5 U.S.C.
§ 552, the Privacy Act, 5 U.S.C. § 552a, and the
President John F. Kennedy Assassination Records Collection
Act of 1992 ("JFK Records Act"), 44 U.S.C. §
2107. He seeks to compel the National Archives and Records
Administration ("NARA"); David S. Ferriero, sued in
his official capacity as the Archivist of the United States;
and the Central Intelligence Agency ("CIA"), to
produce various documents that relate to him. Am. Compl.
[Dkt. # 18].
before the Court is defendants' renewed motion for
judgment on the pleadings and plaintiffs cross-motion for
summary judgment. For the reasons that follow, the Court will
grant defendants' motion for judgment on the pleadings
and deny plaintiffs motion.
Court accepts as true the following facts set out in
plaintiffs amended complaint for the purposes of resolving
the pending motion for judgment on the
pleadings. On December 19, 2014, plaintiff submitted
a request for records pursuant to FOIA, the Privacy Act, and
the JFK Records Act with NARA. Am. Compl. ¶ 8; Ex. 1 to
Am. Compl. [Dkt. # 25-1] ("Request").
sought production of the following four items:
1. The 40-page document which is described by RIF
#104-10175-10085 (hereafter referred to as "the Ed Lopez
2. Any record reflecting a vote by the Assassination Records
Review Board (ARRB) to designating [sic] the Lopez
file as "NBR" ("Not Believed Relevant")
or similar status or determining that its disclosure should
be withheld for a particular period of time, including until
3. Any record of the CIA or any other agency reflecting the
belief that the Lopez file should or might be given
"NBR" status or that its disclosure should be
postponed for any period of time, including until the year
2017; and 4. Any record reflecting that the disclosure of the
Lopez file should be postponed in whole or in part for any
period of time, including until 2017, was transmitted to, and
published in, the Federal Register in accordance with the
procedures of the JFK Act.
Request; see also Am. Compl. ¶ 8.
January 7, 2015, NARA sent plaintiff a letter acknowledging
that it had received the request on December 23, 2014, and
assigned it the request reference number N.W. 44935. Am.
Compl. ¶ 9; Ex. 2 to Am. Compl. [Dkt. # 25-1]. On
January 26, 2015, Martha Wagner Murphy, Chief of the Special
Access and FOIA staff to NARA, informed Joseph W. Lambert,
Director of the Information Management Services at CIA, of
the request and forwarded a copy. Am. Compl. ¶ 10; Ex. 3
to Am. Compl. [Dkt. # 25-1] ("Ex. 3"). She asked
that he inform NARA of the CIA's determination and any
"sanitizing instructions" since "a full-text
copy of the requested document is in [CIA's] files."
Am. Compl. ¶ 10; Ex. 3.
27, 2015, Michael Lavergne of the CIA responded to Murphy,
and he advised her that CIA had located and reviewed the
Lopez File and had determined that "it is currently and
properly classified and must be denied in its entirety on the
basis of FOIA exemptions (b)(1) [classified records] and
(b)(3) [records exempted by other statutes]." Am. Compl.
¶ 11; Ex. 4 to Am. Compl. [Dkt. #25-1] ("Ex.
4"). The CIA cited to section 6 of the Central
Intelligence Agency Act of 1949, and section 102A(i)(1) of
the National Security Act of 1947 to support the use of the
exemptions. Am. Compl.¶ 11; Ex. 4.
letter dated June 9, 2015, NARA informed plaintiff of the CIA
determination to withhold the Lopez File in full pursuant to
the two FOIA exemptions. Am. Compl. ¶ 12; Ex. 5 to Am.
Compl. [Dkt. # 25-1] ("Ex. 5"). NARA also advised
plaintiff that a search of the closed records of the
Assassination Records Review Board had been made "and no
information was found" responsive to the remainder of
his request. Am. Compl. ¶¶ 12-13; Ex. 5. Finally,
NARA advised plaintiff that he had the right to
administratively appeal the decision within sixty days of the
date of the letter. SeeEx.
Plaintiff alleges that after he received NARA's letter,
there were no further communications with NARA or CIA. Am.
Compl. ¶ 14.
1, 2017, plaintiff filed an amended complaint asserting
claims under FOIA (Count I), the Privacy Act (Count II), and
the JFK Records Act (Count III). Am. Compl. On June 12, 2017,
defendants renewed their motion for judgment on the pleadings
under Federal Rule of Civil Procedure 12(c). Renewed Mot. for
J. on the Pleadings [Dkt. # 19] ("Defs.'
Mot."); Mem. of P. & A. in Supp. of Defs.' Mot.
[Dkt. # 19] ("Defs.' Mem."). Plaintiff opposed
the motion and also filed a cross-motion for summary judgment
on July 3, 2017. Pl.'s Resp. to Defs.' Mot. &
Pl.'s Renewed Cross-Mot. for Summ. J. [Dkt. ##
20-21] ("Pl.'s Opp. & Cross-Mot."); Mem. of
Opposing P. & A. in Resp. to Defs.' Mot. & in
Supp. of Pl.'s Opp. & Cross-Mot.) [Dkt. ##
20-21] ("Pl.'s Opp. & Cross-Mem.). The motions have
been fully briefed.
Rule of Civil Procedure 12(c) authorizes a party to move for
judgment on the pleadings at any time "after the
pleadings are closed." Fed.R.Civ.P. 12(c). Parties are
entitled to pretrial judgment on the pleadings "if the
moving party demonstrates that no material fact is in dispute
and that it is entitled to judgment as a matter of law."
Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d
1365, 1370 (D.C. Cir. 2008), quoting Peters, 966
F.2d at 1485. When analyzing a motion for judgment on the
pleadings, the Court must "view the facts presented in
the pleadings and the inferences to be drawn therefrom in the
light most favorable to the nonmoving party."
Peters, 966 F.2d at 1485, quoting
Jablonski, 863 F.2d at 290-91; see also Thompson
v. Dist. of Columbia, 428 F.3d 283, 284 (D.C.
Cir. 2005) ("As we must in reviewing a judgment on the
pleadings, we view the complaint's allegations in the
light most favorable to the plaintiff.").
there are opinions in this district that state that the
standards of review between a Rule 12(b)(6) motion and a Rule
12(c) motion are "essentially the same" or
"virtually identical, " see, e.g., Nat'l
Shopmen Pension Fund v. Disa, 583 F.Supp.2d 95, 99
(D.D.C. 2008), citing Plain v. AT & T Corp., 424
F.Supp.2d 11, 20 n. 11 (D.D.C. 2006); Maniaci v.
Georgetown Univ., 510 F.Supp.2d 50, 58 (D.D.C. 2007);
Jung v. Ass'n of Am. Med. Colleges, 339
F.Supp.2d 26, 35-36 (D.D.C. 2004), the standard set out in
the Schuler case by the D.C. Circuit comes closer to
a summary judgment type of determination.
Federal Practice and Procedure makes the same observation,
noting that a 12(c) motion asks the Court to address the
merits of the parties' claims and defenses and not
procedural barriers or pleading deficiencies. 5C Charles Alan
Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ.
§ 1369 (3d ed. 2017) (commenting that the appropriate
standard of review for a Rule 12(c) motion is more similar to
a Rule 56 motion for summary judgment, except that the Court
may only consider the contents of the pleadings); see
also Jones v. Dufek, 830 F.3d 523, 528 (D.C. Cir. 2016)
("The district court properly resolved these questions
as a matter of law on a motion under Rule 12(c)."),
dting Alexander v. City of Chi., 994 F.2d 333, 336
(7th Cir. 1993) ("[T]he standard courts apply for
summary judgment and for judgment on the pleadings
'appears to be identical.'").
If on a
Rule 12(b)(6) or 12(c) motion, "matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56." Fed.R.Civ.P. 12(d); see Marshall Cnty. Health
Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir.
1993) (applying the same test when converting a Rule 12(b)(6)
motion to one for summary judgment). But the "parties
must be given a reasonable opportunity to present all the
material that is pertinent to the motion." Fed.R.Civ.P.
12(d). The Court has the discretion to decide if it will
convert a motion for judgment on the pleadings to one for
summary judgment. See Holy Land Found. for Relief &
Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003)
(noting that the failure to comply with the procedures to
convert a motion to dismiss to one for summary judgment is
evaluated under an "abuse of discretion" standard);
Flynn v. Tiede-Zoeller, Inc., 412 F.Supp.2d 46, 50
(D.D.C. 2006) ("The decision to convert a motion to
dismiss into a motion for summary judgement, however, is
committed to the sound discretion of the trial
case, the parties have submitted declarations and other
exhibits in support of, and in opposition to, the pending
motions. The Court may consider certain exhibits, such as the
Request itself, without converting the motion for judgment on
the pleadings to one for summary judgment since those records
either attached to, or incorporated by reference in, the
complaint itself. See St. Francis Xavier Parochial
Sch., 117 F.3d at 624. However, since the Court
will consider the declarations attached to defendants'
motion for judgment on the pleadings, the Court is required
to treat the motion as if it were a motion for summary
judgment. See Fed. R. Civ. P. 12(d). And because
plaintiff had a full opportunity to oppose the motion, and
treated it as a Rule 56 motion himself by submitting a
cross-motion supported by a statement of facts and a
declaration, as well as an opposition, the Court concludes
that the parties have had an opportunity to present all the
material pertinent to the motion, and that it is fair to both
parties to convert defendants' motion to one for summary
judgment. See Hollis v. U.S. Dep't of the Army,856 F.2d 1541, 1544 (D.C. ...