UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) BARBARA FEINMAN and ) GARRETT M. GRAFF, ) ) Plaintiffs, ) ) v. ) Civil Action No. 09-2047 (ESH) ) FEDERAL BUREAU OF ) INVESTIGATION, et al., ) ) Defendants. ) __________________________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff Garrett M. Graff has filed a class action complaint against the Federal Bureau of
Investigation (“FBI”), the Executive Office for United States Attorneys (“EOUSA”), and the
U.S. Department of Justice (“DOJ”), alleging that defendants have violated the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552. This matter is before the Court on plaintiff’s motion
to certify the class, as well as his motion for leave to amend the complaint. For the reasons
discussed herein, the Court will deny the class certification motion but will grant the motion for
leave to amend.
BACKGROUND
Since this is the third motion that has been before the Court, it is not necessary to repeat
the facts and procedural history which are set forth in Feinman v. F.B.I., 680 F. Supp. 2d 169
(D.D.C. 2010) (dismissing plaintiff Barbara Feinman and Count One for lack of standing), mot.
to certify for interlocutory appeal denied, No. 09-CV-2047, 2010 WL 962188 (D.D.C. Mar 15,
2010), and Feinman v. F.B.I. (“Feinman II”), No. 09-CV-2047, 2010 WL 2102326 (D.D.C. May
26, 2010) (dismissing Count Six for lack of subject matter jurisdiction). Instead, the Court will
1 limit its discussion to those facts that relate to the two pending motions.
I. THE FOIA REQUESTS
Plaintiff Graff currently serves as the editor for The Washingtonian Magazine and is a
“representative of the news media,” as that term is defined by 5 U.S.C. § 552(a)(4)(A)(ii), for
purposes of determining administrative fees. (Compl. ¶ 4.) In January 2009, he submitted a
FOIA request to the EOUSA for information regarding “the investigation, capture, and
prosecution” of former Panamanian general Manual Noriega. (Id. ¶ 22; see also Pl.’s Mot. for
Partial Summ. J. (“Pl.’s SJ Mot.”), Ex. 1 at 1.) The request stated that disclosure of this
information would be in the public interest “because it is likely to contribute significantly to
public understanding of the operations or activities of the government . . . .” (Pl.’s SJ Mot., Ex. 1
at 1.) The EOUSA denied Graff’s request on the grounds that he had provided neither (1)
“express authorization and consent of the third party,” i.e., Noriega, (2) “proof that the subject of
[the] request is deceased,” nor (3) “a clear demonstration that the public interest in disclosure
outweighs the personal privacy interest and that significant public benefit would result from the
disclosure of the requested records.” (Id., Ex. 2 at 1.) The denial letter stated that release under
those circumstances “would result in an unwarranted invasion of personal privacy,” and that the
records were “generally exempt from disclosure” pursuant to FOIA Exemptions 6 and 7(C).
(Id.)
In April 2009, Graff submitted a separate FOIA request to the FBI for information
regarding “the FBI’s investigation into and role in the 1987 rendition of Royal Jordanian Flight
402 hijacker and Amal Organization militiaman” Fawaz Younis. (Compl. ¶ 36; see also Pl.’s SJ
Mot., Ex. 6 at 1.) This request also stated that disclosure of this information would be in the
public interest “because it is likely to contribute significantly to public understanding of the
2 operations or activities of the government . . . .” (Pl.’s SJ Mot., Ex. 6 at 1.) The FBI denied
Graff’s request solely on the grounds that he had not provided either proof of Younis’s death or a
privacy waiver, without addressing the question of public interest justification. (See Pl.’s SJ
Mot., Ex. 7 at 1.) The FBI’s denial stated that it could not process his request until he provided
either proof of death or of consent, and that release without such proof would be considered an
unwarranted invasion of privacy under Exemptions 6 and 7(C). (Id.)
The original complaint, which was filed on October 30, 2009, alleges that defendants
denied his requests pursuant to unlawful EOUSA and FBI policies that “requir[e] the submission
of privacy waivers or proof of death before agreeing to process requests seeking records
pertaining to foreign nationals.” (Compl. ¶¶ 6-7; see id. ¶¶ 26, 37.)1 He also alleges that these
claims are representative of a class of similarly situated FOIA requesters (see id. ¶ 10), and that
common questions of law and fact relating to each class member include “whether the
defendants’ policy to refuse to process FOIA requests for records without submission of proof of
death or a privacy waiver is unlawful . . . .” (Id. ¶ 12.) He seeks equitable relief, including a
declaration that the EOUSA and FBI policies are unlawful, an order enjoining defendants from
1 Based on the previously filed cross-motions for partial summary judgment, it is undisputed that from the time of Graff’s Noriega request through the present, it has been the EOUSA’s practice, upon receiving a request for information about a third party, not to search for responsive records unless the requester provides proof of death, a privacy waiver, or sufficient public interest justification. (See Defs.’ Cross-Mot. for Partial Summ. J. (“Defs.’ SJ Mot.”), Statement of Material Facts as to Which There Is No Genuine Issue (“SMF”) ¶ 1.) It is also undisputed that at the time of Graff’s Younis request, it was the FBI’s practice to require a requester seeking information about a third party “to provide either a privacy waiver or proof of death in order for the FBI to process the request.” (Id. ¶ 2.) Despite a policy modification after this lawsuit was filed, it remains the FBI’s general policy not to search for records responsive to a request regarding a third party unless the requester provides a privacy waiver, proof of death, or sufficient public interest justification. (Id. ¶ 3.) If the requester demonstrates that the third party “is a public figure . . . who has attained current notoriety,” the FBI will search for responsive records but will withhold all non-public source information under Exemptions 6 and 7(C). (Id.)
3 giving effect to such a policy, and an order requiring defendants “to contact every FOIA
requestor who is part of the class and offer the opportunity to reinstate their respective requests
and then process [those requests] accordingly[.]” (Id. at 13 ¶¶ (3)-(4) & (6).)
II. THE CLASS CERTIFICATION MOTION
On January 28, 2010, Graff moved for certification pursuant to Federal Rule of Civil
Procedure 23(b)(2), in order to secure injunctive and declaratory relief for a class defined as
follows:
All persons who submitted at any time, from October 30, 2003 through the date of certification, a Freedom of Information Act (“FOIA”) request to the Federal Bureau of Investigation (“FBI”) and/or Executive Office for United States Attorneys (“EOUSA”) for records pertaining to third party foreign nationals and subsequently: (1) were informed that processing of their respective requests could not begin until they had provided a signed privacy waiver or proof of death; and/or (2) were not provided with notice of their right to administratively appeal the response.
(Pl.’s Mem. in Supp. of Mot. for Class Cert. (“Pl.’s Cert. Mot.”) at 5; see also Compl. ¶ 10
(alleging class definition).)
After the certification motion was filed, defendants moved to dismiss Count Six of the
original complaint, which had alleged that defendants’ policies of categorically refusing to
search for documents violated the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706.
(See Compl. ¶¶ 41-50.) The Court concluded that the equitable relief sought under the APA was
“of the ‘same genre’” as the relief available under Graff’s FOIA claims. Feinman II, 2010 WL
2102326, at *7 (quoting Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009)). Accordingly,
the Court held that APA review was precluded because there was another “adequate remedy in
court,” 5 U.S.C. § 704, and so it dismissed Count Six for lack of subject matter jurisdiction.
2010 WL 2102326, at *7.
Subsequently, on July 1, 2010, defendants opposed class certification on the grounds that
4 the Court’s dismissal of Count Six leaves only Graff’s FOIA claims “challenging the non-
disclosure of specific records requested pursuant to [his] specific FOIA requests,” and that
“[t]here is simply no justification for certifying a class to resolve whether Defendants unlawfully
withheld records requested by Graff pursuant to the FOIA.” (Defs.’ Opp’n to Pl.’s Cert. Mot.
(“Defs.’ Cert. Opp’n”) at 1-2.) In the alternative, defendants argue that even if the Court
construed the remaining claims as alleging “a so-called pattern and practice claim . . . to
challenge [defendants’] policies,” class certification would remain inappropriate because Graff
has not satisfied the requirements of Rule 23(a). (Id. at 2.) Certification would also be
“unnecessary,” they contend, because “[a]ny ruling with respect to the agencies’ policies and
regulations would inure to the benefit [of] all FOIA request[or]s, regardless of whether they were
part of the alleged class.” (Id.)
III. THE MOTION FOR LEAVE TO AMEND THE COMPLAINT
On July 16, 2010, following the Court’s dismissal of Count Six’s APA claim, plaintiff
moved for leave to file an amended complaint. The proposed amendment would add a new
Count Six that expressly alleges that defendants have violated FOIA through their policies of
“permitting FOIA personnel to categorically refuse to process searches for responsive records
pertaining to third party foreign nationals absent proof of death, a signed privacy waiver or a
demonstration that the public interest in disclosure outweighs the privacy interests of the
particular foreign national.” (Pl.’s Mem. of P. & A. in Supp. of Mot. for Leave to File First Am.
Compl. (“Pl.’s Amend Mot.”) at 5; see id., Ex. A (“Proposed Am. Compl.”) ¶ 44.)2 Plaintiff
seeks to amend “out of an extreme abundance of caution,” given defendants’ argument in
2 The previously dismissed Counts One and Six would be retained (with Count Six renumbered as Count Seven) to preserve the right to appeal their dismissal. (Pl.’s Mot. to Amend at 4 n.4; see Proposed Am. Compl. ¶¶ 17-21, 49-58.)
5 opposing class certification that Counts Two and Five challenge only the denials of the Noriega
and Younis requests and do not challenge defendants’ policies as a whole. (Pl.’s Amend Mot. at
2-3; see Defs.’ Cert. Opp’n at 7 (characterizing Feinman II as dismissing “the sole count in the
complaint challenging these policies”).) Defendants have opposed the motion to amend, arguing
that the amendment would be futile because the facts of this case do not satisfy the standard for
granting equitable relief under FOIA. (See Defs.’ Opp’n to Pl.’s Amend Mot. (“Defs.’ Amend
Opp’n”) at 4.)
ANALYSIS
I. LEGAL STANDARDS
A. Class Certification
Federal Rule of Civil Procedure 23 “states that ‘[a] class action may be maintained’ if
two conditions are met: The suit must satisfy the criteria set forth in subdivision (a) (i.e.,
numerosity, commonality, typicality, and adequacy of representation), and it also must fit into
one of the three categories described in subdivision (b).” Shady Grove Orthopedic Assocs., P.A.
v. Allstate Ins. Co., 130 S. Ct. 1431, 1437 (2010).3 “[A] class plaintiff has the burden of showing
that the requirements of Rule 23(a) are met and that the class is maintainable pursuant to one of
Rule 23(b)’s subdivisions.” Richards v. Delta Air Lines, Inc., 453 F.3d 525, 530 (D.C. Cir.
2006).
Rule 23(b)(2), which is the only ground for certification that plaintiff has invoked,
permits certification where “the party opposing the class has acted or refused to act on grounds
3 In its entirety, Rule 23(a) provides that “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a).
6 that apply generally to the class, so that final injunctive relief or corresponding declaratory relief
is appropriate respecting the class as a whole . . . .” Fed. R. Civ. P. 23(b)(2). This provision
“permits class actions seeking final injunctions or corresponding declaratory relief for the entire
class,” and “[u]nlike class actions for monetary relief under Rule 23(b)(3), there are no additional
requirements of notice and opt-out rights, and the plaintiff need not establish that a class action
would be superior to individual actions or that common legal and factual questions
predominate.” Richards, 453 F.3d at 530 (citation omitted).
B. Amending the Complaint
After a defendant has filed a responsive pleading, “a plaintiff [must] first seek leave of
court or obtain the opposing party’s written consent before filing [an] amended complaint.”
Banks v. York, 448 F. Supp. 2d 213, 215 (D.D.C. 2006); Fed. R. Civ. P. 15(a). “The decision to
grant leave to amend a complaint is left to the court’s discretion,” Banks, 448 F. Supp. 2d at 215,
but the court must “heed Rule 15’s mandate that leave is to be ‘freely given when justice so
requires.’” Amore v. Accor N. Am., Inc., 529 F. Supp. 2d 85, 92 (D.D.C. 2008) (quoting
Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). “[I]t is an abuse of discretion to
deny leave to amend unless there is sufficient reason, such as ‘undue delay, bad faith or dilatory
motive . . . [or] futility of amendment.’” Firestone, 76 F.3d at 1208 (quoting Foman v. Davis,
371 U.S. 178, 182 (1962)). In this case, the only issue presented is futility, and defendants may
prevail on this ground “if the proposed claim would not survive a motion to dismiss.” James
Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996).
III. PLAINTIFF’S MOTION FOR CLASS CERTIFICATION
A. Availability of Class Relief under FOIA
Although courts have granted class certification in “reverse-FOIA” cases where plaintiffs
7 seek judicial review to prevent an agency’s disclosure of information, see, e.g., Doe v. Veneman,
380 F.3d 807, 812 (5th Cir. 2004) (noting district court’s certification of class); Fla. Med. Ass’n,
Inc. v. Dep’t of Health, Educ. & Welfare, 479 F. Supp. 1291, 1295-96 (M.D. Fla. 1979) (noting
court’s prior certification of class), Graff has not cited – nor has the Court found – any decision
granting certification of a class of FOIA plaintiffs who alleged the improper withholding of
information. However, the Court has not located any authority suggesting that such certification
is categorically impermissible, nor do defendants raise such an argument. Indeed, the Supreme
Court has explained that Rule 23 “creates a categorical rule entitling a plaintiff whose suit meets
the specified criteria to pursue his claim as a class action,” Shady Grove, 130 S. Ct. at 1437, and
there is some authority suggesting that FOIA claims are amenable to class prosecution. See
Davis v. Astrue, 250 F.R.D. 476, 483 (N.D. Cal. 2008) (rejecting argument that “FOIA claims
are not amenable to class prosecution”); cf. Andrew v. Bowen, 837 F.2d 875, 876 (9th Cir. 1988)
(discussing successful APA and FOIA suit that was filed as class action, without commenting on
propriety of certification or whether certification had even been granted). Thus, the Court will
assume arguendo that plaintiff’s FOIA claims are amenable to class action prosecution, and it
will consider his certification motion on the merits. Cf. Davis, 250 F.R.D. at 483-92 (granting
leave to amend complaint to add FOIA claims and concluding that class certification would not
moot request to amend, but denying motion to certify without prejudice to introducing additional
evidence of numerosity, typicality, and adequacy of representation).
B. Plaintiff Has Failed to Show Numerosity
Under Rule 23(a), plaintiff must first show that “the class is so numerous that joinder of
all members is impracticable . . . .” Fed. R. Civ. P. 23(a). Plaintiff has failed to meet his burden.
A class action “may only be certified if the trial court is satisfied, after a rigorous
8 analysis, that the prerequisites of Rule 23(a) have been satisfied.” Gen. Tel. Co. of the Southwest
v. Falcon, 457 U.S. 147, 161 (1982). “The numerosity requirement requires examination of the
specific facts of each case and imposes no absolute limitations.” Gen. Tel. Co. of Northwest, Inc.
v. EEOC, 446 U.S. 318, 330 (1980). “Generally speaking, courts have found that a proposed
class consisting of at least forty members will satisfy the impracticability requirement. The
general rule is that a plaintiff need not provide the exact number of potential class members in
order to satisfy this requirement.” Bynum v. District of Columbia, 214 F.R.D. 27, 32-33 (D.D.C.
2003) (citations omitted). The numerosity requirement can be satisfied “[s]o long as there is a
reasonable basis for the estimate provided,” Kifafi v. Hilton Hotels Retirement Plan, 189 F.R.D.
174, 176 (D.D.C. 1999) (emphasis added), but “[m]ere conjecture, without more, is insufficient
to establish numerosity . . . .” Pigford v. Glickman, 182 F.R.D. 341, 347 (D.D.C. 1998); see also
Bynum, 214 F.R.D. at 31 (“[T]he legal standard is whether the evidence presented by plaintiffs
establishes a ‘reasonable basis for crediting [plaintiffs’] assertion[s].’” (quoting Wagner v.
Taylor, 836 F.2d 578, 587 n.57 (D.C. Cir. 1987)).
Plaintiff concedes that he is neither aware nor capable of determining “the exact number
of individuals who would fall within the scope of [the] proposed class” (Pl.’s Cert. Mot. at 5),
and he contends that “[t]he Defendants alone retain the records which would easily identify
exactly how many individuals fall within the proposed class.” (Id. at 8.) However, “based on
the experience of counsel,” he estimates that there are at least “200 potential members” (id. at 5),
given that the FBI alone receives over 10,000 FOIA requests annually and that it recently
invoked Exemption 6 over 2,000 times in a single year. (Id. at 8-9 (citing agency-generated
FOIA statistics).) Thus, he concludes, it is reasonable to assume that over the last six years,
defendants improperly denied at least 200 individuals’ requests for information about third-party
9 foreign nationals. (See id. at 9.)
Plaintiff’s class size estimate of 200 lacks a reasonable basis. Although he cites to
agency data regarding the total number of FOIA requests made and the total number of requests
that were denied under Exemption 6, it does not follow from these numbers that there are at least
200 potential class members. See generally Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th
Cir. 1989) (concluding that district court did not abuse discretion in finding that plaintiffs failed
to prove numerosity, because there was inadequate support for their numerical assumptions). As
defendants correctly observe, the total number of Exemption 6 denials says nothing about the
number of Exemption 6 denials of requests for records pertaining to third-party foreign
nationals. (Defs.’ Cert. Opp’n at 10.)
Plaintiff responds that the data upon which he bases his estimate need not be “specific to
requests pertaining to third party foreign nationals,” and that it is enough for him to cite the
“large number” of FOIA requests received and occasions on which Exemption 6 was invoked.
(Reply to Pl.’s Cert. Mot. (“Pl.’s Cert. Reply”) at 7.) To the contrary, the numbers of FOIA
requests and Exemption 6 denials “offer no basis whatsoever” for plaintiff’s estimate of 200
potential class members.4 Rodriguez v. U.S. Dep’t of Treasury, 131 F.R.D. 1, 6 (D.D.C. 1990).
“For all the Court knows, [that number] is absolutely random, as it would have to be given the
4 Plaintiff’s argument also assumes incorrectly that the total number of FOIA requests (or Exemption 6 denials) necessarily represents an equivalent number of FOIA requesters. One person can make multiple requests, just as plaintiff himself has done (albeit to two different agencies). Plaintiff’s cited cases do not support his argument that the FOIA request statistics are “sufficient to establish numerosity” (Pl.’s Cert. Reply at 7-8), because each of those cases featured person-based statistics. See Bynum v. District of Columbia, 217 F.R.D. 43, 46 (D.D.C. 2003) (finding numerosity where putative class and available data pertained to individuals who were strip-searched); Davis, 250 F.R.D. at 486 (declining to find numerosity, where putative class and available data pertained to number of Social Security beneficiaries); Taylor v. Dist. of Columbia Water & Sewer Auth., 241 F.R.D. 33, 37 & n.4 (D.D.C. 2007) (finding numerosity where defendant did not challenge existence of class and did not directly challenge plaintiff’s assertion that 800 employees had been discriminated against).
10 lack of evidence to support a more concrete number.” Id. (rejecting plaintiff’s assumption that
“some percentage” – and thus, at least one percent – of would-be Secret Service applicants fell
within class definition); see also Davis, 250 F.R.D. at 486 (plaintiff failed to show numerosity of
putative class of mentally disabled Social Security recipients who sought “substantial gainful
work activity,” because – despite evidence of nearly 2 million mentally disabled beneficiaries
under Social Security Disability Insurance program – “the court has no evidence regarding what
percentage of” those 2 million beneficiaries “have attempted or are attempting to work”); Lyon v.
United States, 94 F.R.D. 69, 73-74 (W.D. Okla. 1982) (plaintiff failed to show numerosity of
putative class of claimants for worker’s compensation whose requests under Privacy Act were
not given proper consideration, because evidence regarding number of Privacy Act requesters
did not specify how many requesters were also worker’s compensation claimants); Campbell v.
Minneapolis Pub. Housing Auth., 175 F.R.D. 531, 538 (D. Minn. 1997) (plaintiff failed to show
numerosity of putative class of housing applicants who were disabled due to drug or alcohol
addiction, where he offered statistics showing 141 of 9000 applications were from disabled
individuals but “offered [no] indication” of how many of them “were disabled due to drug or
alcohol addiction”), vac’d on other grounds, 168 F.3d 1069 (8th Cir. 1999); Golden v. City of
Columbus, 404 F.3d 950, 966 (6th Cir. 2005) (affirming denial of certification motion where
plaintiff failed to show numerosity of putative class of city’s tenants “whose water service was or
will be terminated because of the landlord’s or prior tenant’s indebtedness,” because plaintiff
relied only upon “unrefined measure” of city’s “total tenant population”).5
5 Defendants also represent that they cannot readily determine which past requesters sought information pertaining to foreign nationals. (Defs.’ Cert. Opp’n at 10.) Their FOIA records are not categorized by reference to the nationality of the subject of a request, and they observe correctly that it is not possible to determine the citizenship of a FOIA request’s subject solely by his or her name. (See id. at 10-11; id., Suppl. Decl. of Dennis Argall ¶¶ 5-6; id., Decl. of Vinay Jolly ¶ 4.) Plaintiff responds that these limitations on defendants’ search capabilities
11 In sum, plaintiff has failed to show numerosity, and since “[f]ailure to adequately
demonstrate any of the four [prerequisites of Rule 23(a)] is fatal to class certification,” Garcia v.
Johanns, 444 F.3d 625, 631 (D.C. Cir. 2006), plaintiff’s motion will be denied.6
IV. PLAINTIFF’S MOTION FOR LEAVE TO AMEND THE COMPLAINT
Defendants argue that the proposed amendment is futile because it does not state a valid
claim for equitable relief. (See Defs.’ Amend Opp’n at 4.) Specifically, they contend that the
facts of this case do not present the justifications for equitable relief upon which the D.C. Circuit
are not directly relevant to the question of numerosity. (Pl.’s Cert. Reply at 8.) Even if so, and even assuming that plaintiff had satisfied his burden (which he has not), the fact that defendants cannot readily provide discovery on potential class members merely reinforces the Court’s concern that permitting such discovery could amount to little more than a fishing expedition. (Compare id. at 8 n.4 (plaintiff’s suggestion that “minimal discovery would easily” enable him to support his assertions of numerosity).) 6 Even if plaintiff had met his burden under Rule 23(a), the Court remains concerned about the “necessity” of certifying his proposed class. See Mills v. District of Columbia, 266 F.R.D. 20, 22 (D.D.C. 2010) (“[I]t is not uncommon for courts, in exercising their discretion, to deny class certification on that basis when the particular facts and circumstances of the case warrant doing so.”); but see Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 239 F.R.D. 9, 23-24 (D.D.C. 2006) (rejecting necessity doctrine as unsupported by text of Rule 23); Littlewolf v. Hodel, 681 F. Supp. 929, 937-38 (D.D.C. 1988) (rejecting necessity doctrine and certifying class), judgment aff’d sub nom. Littlewolf v. Lujan, 877 F.2d 1058 (D.C. Cir. 1989). To the extent that the necessity doctrine survives the Supreme Court’s analysis of Rule 23 in Shady Grove, 130 S. Ct. at 1437-38, the circumstances of this case would warrant denying certification as unnecessary. Here, most of the equitable relief sought by plaintiff would, if granted, “benefit all proposed class members” regardless of whether the class were certified. Sargent v. Block, 576 F. Supp. 882, 888 (D.D.C. 1983). (See Compl. at 12-13 ¶¶ (2)-(5).) Certification is only relevant to plaintiff’s request for an order requiring defendants to notify all class members that the policies under which their prior FOIA requests were denied have now been deemed unlawful. (See Compl. at 13 ¶ (6); see also Pl.’s Cert. Reply at 13 & n.8.) However, “it would not be feasible” for defendants to comply with such an injunction, because they do not record the nationality of the subject of a FOIA request, and therefore they cannot readily identify requesters who fall within plaintiff’s class definition. (Defs.’ Cert. Opp’n at 13 n.3.) See supra note 5. Plaintiff also concedes that he is incapable of determining the full extent of the class. (See Pl.’s Cert. Mot. at 5, 8.) It thus appears that “the burdens of maintaining a (b)(2) class action” solely for the purpose of retroactive notification would be “substantial . . . due to the discovery problems that will inevitably arise . . . .” Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144, 164 (D.D.C. 1976).
12 relied in Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988). (See Defs.’
Amend Opp’n at 5-8.) Based on the record before the Court, it cannot conclude that plaintiff’s
proposed amendment would be futile.
“FOIA imposes no limits on courts’ equitable powers in enforcing its terms.” Payne, 837
F.2d at 494; see Renegotiation Bd. v. Bannercraft Clothing Co., Inc., 415 U.S. 1, 19-20 (1974).
The Court is not yet persuaded that the particular facts of Payne define the only possible
circumstances under which equitable relief may be justified in a FOIA case. Nonetheless, the
Court also notes that Payne deemed declaratory relief to be appropriate where, inter alia, the
record demonstrated an agency official’s “inability” to remedy the agency’s persistent
“noncompliance” with FOIA. 837 F.2d at 494. Here, Graff’s proposes to allege that the DOJ
Office of Information Policy (“OIP”) “is responsible for encouraging agency compliance with
FOIA” and “manages DOJ’s responsibilities, which includes the FBI and EOUSA, related to the
FOIA.” (Proposed Am. Compl. ¶ 43.) He also proposes to allege that OIP’s director has
publicly stated “that FOIA does not permit a categorical requirement that privacy waivers be
submitted for foreign nationals in order to process a request for records,” and “that FOIA
personnel should not pursue such a policy.” (Id.) Plaintiff further proposes to allege that despite
this official’s stated position, defendants have continued to contradict her and to violate FOIA by
maintaining the policies at issue in this case. (See id. ¶ 44.)
The Court must accept the truth of such “well-pleaded factual allegations,” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1950 (2009), given that plaintiff’s proposed amendment need only
survive a motion to dismiss. See James Madison, 82 F.3d at 1099. Moreover, the legal
interpretation set forth in the proposed allegations finds support in Nation Magazine, Washington
Bureau v. U.S. Customs Service, 71 F.3d 885 (D.C. Cir. 1995), which explained that “categorical
13 rules” may only be used “when the range of circumstances included in the category
characteristically supports an inference that the statutory requirements for exemption are
satisfied . . . .”7 Id. at 893 (internal quotation marks and edits omitted); cf. United States v.
Landano, 508 U.S. 165, 176-78 (1993) (rejecting categorical rule for applying Exemption 7(D)).
Thus, there is a serious question whether defendants’ policies can be justified under FOIA and
D.C. Circuit law. See also Nation Magazine v. U.S Customs Serv., 937 F. Supp. 39, 44-45
(D.D.C. 1996) (noting, on remand, that “the privacy concerns that drive Exemption 7(C) may not
be present with respect to every record in [the agency’s] investigatory files regarding” third-party
subject of FOIA request, and approving of narrower categorical rule that was tailored to specific
contents of records).8
7 In Nation Magazine, the FOIA request sought documents regarding 1992 independent presidential candidate H. Ross Perot, particularly records “‘pertain[ing] to offers by Mr. Perot to assist the Customs Service in the interdiction of illegal drugs,’” which Perot had referenced during the presidential campaign. 71 F.3d at 888 & n.1 (quoting request). Unlike the instant agency defendants, the Customs Service did search some of its files, see id. at 891, and thus it “did not simply refuse to take any action on the request.” Id. at 889 n.3. Even so, the agency refused either to confirm or deny whether any responsive investigatory files existed, because “‘disclosure of the mere fact that an individual is mentioned in an agency’s law enforcement files carries a stigmatizing connotation’ . . . .” Id. at 888 (quoting agency response). The D.C. Circuit concluded that the agency’s categorical presumption against disclosure was unsupportable, because “the mere fact that records pertain to an individual’s activities does not necessarily qualify them for exemption [on privacy grounds]. Such records may still be cloaked with the public interest if the information would shed light on agency action,” particularly where a FOIA request makes clear that the “significan[ce]” of a third-party subject “is [his] connection to agency conduct.” 71 F.3d at 894-95. See also id. at 896 (finding that SafeCard Services, Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991), did not support “permitting an agency to exempt from disclosure all of the material in an investigatory record solely on the grounds that the record includes some information which identifies a private citizen or provides that person’s name and address,” and concluding that “such a blanket exemption” “is not a permissible reading of Exemption 7(C)” because it “would reach far more broadly than is necessary to protect the identities of individuals mentioned in law enforcement files” and thus “would be contrary to FOIA’s overall purpose of disclosure”). 8 Defendants also rely upon this Court’s prior decisions in Fischer v. U.S. Department of Justice, 596 F. Supp. 2d 34 (D.D.C. 2009), and Lewis v. U.S. Dep’t of Justice, 609 F. Supp. 2d 80 (D.D.C. 2009), aff’d, No. 09-5225, 2010 WL 1632835 (D.C. Cir. Apr. 7, 2010). (See Defs.’
14 Plaintiff’s proposed allegations “present[] ‘sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face,’” Iqbal, 129 S. Ct. at 1949 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)), including a claim for equitable relief.
Accordingly, the Court will grant plaintiff’s motion for leave to amend.
CONCLUSION
For the foregoing reasons, plaintiff’s class certification motion is DENIED, and his
motion for leave to amend the complaint is GRANTED. The parties shall jointly submit, within
two weeks of the date of this Memorandum Opinion, a briefing schedule that provides for
sequential summary judgment motions on plaintiff’s remaining claims.
SO ORDERED.
/s/ ELLEN SEGAL HUVELLE United States District Judge
DATE: August 13, 2010
Amend Opp’n at 7-8.) However, these decisions do not demonstrate that amendment would be futile. The pro se plaintiffs in Fischer and Lewis did not squarely present the Court with an opportunity to consider the agency’s policy of categorically refusing to search for documents. Moreover, in each case, the proffered public interest justification – that the information would help the plaintiff challenge his conviction – was inadequate as a matter of law, thereby mooting the relevance of the agency’s categorical refusals. See Lewis, 609 F. Supp. 2d at 84-85 (citing cases); see also Fischer, 596 F. Supp. 2d at 47 (same).