American Center for Law and Justice v. United States Department of State

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN CENTER FOR LAW AND JUSTICE,

Plaintiff,

v. Case No. 1:16-CV-01975-TNM

UNITED STATES DEPARTMENT OF STATE,

Defendants.

ORDER

In Count II of its Amended Complaint, the American Center for Law and Justice alleges

that the Department of State has a pattern or practice of violating the Freedom of Information Act

by “intentionally refusing to issue a determination, produce documents and/or respond in any

manner required by 5 U.S.C. § 552(a)(6) unless and until Plaintiff files suit.” Am. Compl. ¶ 78.

State moves to dismiss this count, contending that ACLJ has failed to plead enough facts to make

its claim plausible, and that even if so, the allegations are not outrageous enough to warrant relief

under Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988). Def.’s Partial

Mot. Dismiss or to Stay Proceedings at 8-15.1 After initially dismissing an inadequately-pleaded

version of this claim, Am. Ctr. for Law & Justice v. United States Dep't of State, 249 F. Supp. 3d

275, 281-82 (D.D.C. 2017) (ACLJ I), another judge in this district has already upheld the

1 Defendant also seeks a stay pending the D.C. Circuit’s decision in Judicial Watch, Inc., v. United States Dep’t of Homeland Security, No. 16-5339. However, the pattern-or-practice claim in that case appears to bear only limited factual similarities to the claims made against State. See Judicial Watch, Inc. v. United States Dep't of Homeland Sec., 211 F. Supp. 3d 143, 146 (D.D.C. 2016) (“[Plaintiff] points to no fact or statement to establish why the requests were delayed or how the delays were the result of an either formal or informal DHS policy”) (emphasis in original). Accordingly, I find that considerations of judicial efficiency weigh against a stay. 1 sufficiency of substantially identical allegations. Am. Ctr. for Law & Justice v. United States

Dep't of State, 254 F. Supp. 3d 221, 223 (D.D.C. 2017) (ACLJ II). Seeing no need to reinvent the

wheel, I deny State’s Partial Motion to Dismiss for the same reasons.

“To survive a motion to dismiss, a 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

crosses from conceivable to plausible when it contains factual allegations that, if proved, would

‘allow the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.’” Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (alteration

omitted) (quoting Iqbal, 556 U.S. at 678). In this inquiry, a court must “draw all reasonable

inferences from those allegations in the plaintiff’s favor.” Id.

To make out a valid pattern or practice claim under FOIA, a plaintiff “must allege, inter

alia, facts establishing that the agency has adopted, endorsed, or implemented some policy or

practice that constitutes an ongoing ‘failure to abide by the terms of the FOIA.’” Muttitt v. Dep't

of State, 926 F. Supp. 2d 284, 293 (D.D.C. 2013) (quoting Payne, 837 F.2d at 491); see also

ACLJ I, 249 F. Supp. 3d at 281-82 (summarizing applicable case law). ACLJ makes such an

allegation, claiming that State has an “impermissible practice, policy, and pattern of refusing to

[comply with FOIA] unless and until Plaintiff files suit.” Am. Compl. ¶ 85. As Judge Boasberg

has already explained, State’s conduct is allegedly more insidious than delay in “isolated

incidents” or the challenge of an “enlarged FOIA docket,” ACLJ II, 254 F. Supp. 3d at 226,

instead resulting from a systemic failure to remedy staffing, training, and management issues

identified by their own Inspector General in 2012 and 2016. Id. at 225; Am. Compl. ¶¶ 46-59.

Despite State’s arguments to the contrary, ACLJ has sufficiently alleged a pattern of violating

2 FOIA akin to the “persistent refusal” to comply with the law that justified equitable intervention

in Payne. 837 F.2d at 494. Accordingly, the Amended Complaint satisfies the pleading

standards of Iqbal and Twombly.2

For these reasons, Defendant’s Partial Motion to Dismiss or to Stay Proceedings is

hereby DENIED.

SO ORDERED. 2018.02.08 09:42:28 -05'00' Dated: February 8, 2018 TREVOR N. MCFADDEN United States District Judge

2 However, this is no guarantee of eventual success. See Am. Ctr. for Law & Justice v. United States Dep't of State, 2018 WL 623827, at *1 (D.D.C. Jan. 30, 2018) (granting State’s subsequent motion for partial summary judgment). 3