UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MISSOURI COALITION FOR THE ENVIRONMENT,
Plaintiff, v. Civil Action No. 18-663 (TJK) UNITED STATES ARMY CORPS OF ENGINEERS,
Defendant.
MEMORANDUM OPINION
Missouri Coalition for the Environment routinely submits requests under the Freedom of
Information Act for records relating to a Clean Water Act permit program run by the Army
Corps of Engineers. It uses those records to comment on permit applications and keep track of
permits issued in Missouri. This case is about how the Corps has responded to Missouri
Coalition’s FOIA requests for records relating to pending permit applications. Under those
circumstances, the Corps has withheld all otherwise responsive records, claiming that they were
exempt from disclosure because they were “pre-decisional” and part of the agency’s
“deliberative process.”
Missouri Coalition challenged those responses, arguing that the Corps was withholding
non-agency records—such as those submitted by the permit applicant—to which the claimed
exemption did not apply. And in two instances, Missouri Coalition brought a FOIA case seeking
the withheld records, and the Corps eventually released them. But the Corps continued to
withhold non-agency records in response to Missouri Coalition’s requests, and so it brought this
action. Missouri Coalition alleges that the Corps employs a “policy or practice” that violates
FOIA, and it seeks both declaratory judgment and an injunction to prevent the Corps from relying on that purported policy or practice in response to future requests. The Corps, for its
part, does not dispute that the prior withholdings identified by Missouri Coalition were unlawful,
but it denies that it ever employed a policy or practice as alleged. Rather, it insists that its
withholdings were caused by the isolated mistakes of individual employees that it has since
rectified. For that reason, it maintains that Missouri Coalition is not entitled to the equitable
relief sought.
The parties have cross-moved for summary judgment. For the reasons explained below,
Missouri Coalition’s motion will be granted, and the Corps’ motion will be denied. 1
Factual Background
Missouri Coalition for the Environment (MCE) is an environmental organization based in
St. Louis, Missouri.2 Navarro Decl. ¶ 2. The group advocates for the preservation of Missouri’s
wetlands and waterbodies, among other environmental causes. Id. ¶ 3. That effort often
involves commenting on pending applications under the Section 404 Clean Water Act permit
program run by the United States Army Corps of Engineers (“the Corps”). Id. ¶ 4; Levins Decl.
¶ 3 n.1. Under the Section 404 program, the Corps “issue[s] permits, after notice and
opportunity for public hearings[,] for the discharge of dredged or fill material into the navigable
waters at specified disposal sites.” 33 U.S.C. § 1344(a). Within each state, the Corps is divided
into districts, and each district handles the permitting program for sites within its jurisdiction.
1 In ruling on these motions, the Court considered all relevant filings, including but not limited to the following: ECF No. 1 (“Compl.”); ECF No. 6 (“Ans.”); ECF No. 16 (“Def.’s MSJ”); ECF No. 16-1 (“Def.’s Facts Stmt.”); ECF No. 16-2 (“Bouchard Decl.”); ECF No. 16-3 (“Levins Decl.”); ECF No. 17 at 2–15 (“Pl.’s Facts Stmt.”); ECF No. 17 at 16–35 (“Pl.’s MSJ”); ECF No. 17-1 (“Pl.’s Ex. A”); ECF No. 17-2 (“Pl.’s Ex. B”); ECF No. 17-3 (“Pl.’s Ex. C”); ECF No. 17-4 (“Pl.’s Ex. D”); ECF No. 17-5 (“Pl.’s Ex. E”); ECF No. 17-6 (“Pl.’s Ex. F”); ECF No. 17-7 (“Navarro Decl.”); ECF No. 19 (“Def.’s Opp’n”); ECF No. 19-1 (“2d Levins Decl.”); ECF No. 19-2 (“2d Bouchard Decl.”); and ECF No. 21 (“Pl.’s Reply”). 2 The facts recounted are not in dispute unless otherwise noted.
2 See Levins Decl. ¶ 3 n.1. Missouri is comprised of five Corps districts, two of which, the Little
Rock District and the St. Louis District, are relevant here. See Def.’s MSJ at 9.
When a district receives a permit application, it issues a “public notice,” which includes a
general description of the proposed activity, a site plan and elevation map, and other details
about the project. See 33 C.F.R. § 325.3(a). To better prepare its comments on those pending
applications, however, MCE often submits requests to the Corps under the Freedom of
Information Act (FOIA), 5 U.S.C. § 552, seeking documents in the application files not released
with the public notices. See Navarro Decl. ¶ 4. The Corps’ responses to several of those
requests, described below, are the basis for this action.
A. MCE’s FOIA Requests
1. FOIA Request 1
In March 2013, MCE submitted a request to the St. Louis District seeking records
relating to sixteen permit applications filed in that district, three of which were still pending. See
Pl.’s Ex. A at 1–4; Def.’s Facts Stmt. ¶ 10; Pl.’s Facts Stmt. ¶ 41. The Corps withheld the
application files for those three permits, citing FOIA Exemption 5, see Pl.’s Facts Stmt. ¶ 41,
which exempts from disclosure “inter-agency [and] intra-agency memorandums or letters” that
fall within the scope of the deliberative-process privilege, 5 U.S.C. § 552(b)(5); see also Dep’t of
the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). MCE filed an
administrative appeal of that decision with the Corps in November 2013, arguing that the Corps
improperly applied Exemption 5. Pl.’s Facts Stmt. ¶ 42. Over a year later, and after hearing no
response from the Corps, MCE sued for the responsive records in December 2014. Def.’s Facts
Stmt. ¶ 12; Pl.’s Ex. A at 5–11. The case was dismissed in March 2015 after the Corps allowed
MCE to review the three application files. Def.’s Facts Stmt. ¶ 13; Pl.’s Ex. A at 12–14.
3 2. FOIA Request 2
In August 2014, MCE submitted a request to the Little Rock District seeking documents
relating to a pending permit application. Pl.’s Facts Stmt. ¶ 45; Pl.’s Ex. B at 1–3. Less than two
weeks later, MCE received an email from a paralegal with the Little Rock District, stating that
the requested information could not be released because it was “pre-decisional and a work
product.” Pl.’s Ex. B at 8. MCE sent a letter to the Little Rock District disputing that decision,
arguing that at least some of the documents must have been generated by entities other than the
agency, including those submitted by the permit applicant itself, and that those documents could
not be withheld under Exemption 5. See id. at 11–14. In October 2014, MCE received a
response from a Corps supervisor informing it that the documents that the Little Rock District
would not release were being withheld under Exemption 5 because they were “intra- and inter-
agency documents” and “contain[ed] information that [was] part of the internal process” of the
Corps. Id. at 15–17. MCE administratively appealed that decision in November of that year.
See id. at 18–19. About five months later, after receiving no response from the Corps, MCE
sued. See id. at 20–25. The parties again reached a settlement in which the Corps agreed to
release the requested documents, and the case was dismissed in July 2015. Def.’s Facts Stmt.
¶ 17; Pl.’s Ex. B at 26–28.
3. FOIA Request 3
In December 2015, MCE submitted another request to the Little Rock District seeking
records related to a pending permit application. See Pl.’s Ex. C at 1–3. About three months
later, MCE received an email from a second paralegal with the Little Rock District, providing
some records but withholding several others under Exemption 5. See id. at 5. MCE replied to
the email and asked whether the withheld documents were created by the applicant rather than
the Corps, in which case, MCE argued, they would not be subject to Exemption 5. See id. at 4.
4 Although she acknowledged receiving the email, the paralegal never followed up to clarify. See
id. In April 2016, MCE filed an administrative appeal disputing the withholding of those
documents under Exemption 5. See id. at 6–8. Two years later, and after MCE brought this
case, the Corps released the withheld documents to MCE. See id. at 10–11.
4. FOIA Request 4
In March 2017, MCE sent a request to the St. Louis District seeking documents relating
to a pending permit application. See Pl.’s Ex. E at 1–3. Less than two weeks later, MCE
received a response from William Levins, District Counsel for the St. Louis District, releasing a
“cover letter from the Corps to the applicant, attaching the public notice, a list of parties to whom
the notice was being sent, and the public notice itself.” Pl.’s Facts Stmt. ¶ 63; see Pl.’s Ex. E at
4–5. Levins stated that the Corps was withholding the rest of the documents in the application
file “pursuant to Exemption 5 . . . , [d]eliberative process, [p]re-decisional.” Pl.’s Ex. E at 4.
MCE did not file an administrative appeal. See Pl.’s Facts Stmt. ¶ 23.
5. FOIA Request 5
In October 2017, MCE sent a request to the St. Louis District seeking documents relating
to a different pending permit application. See Pl.’s Ex. F at 1–3. Less than a month later, MCE
received a “no records response” letter from Levins. See id. at 4–5. MCE emailed a third
paralegal with the St. Louis District, who had forwarded the letter from Levins, asking her to
clarify whether Levins’s letter meant that the Corps found no responsive documents or that it
was withholding responsive documents under one of FOIA’s exemptions. See id. at 6. In
December of that year, MCE received another letter from Levins clarifying that the Corps was
withholding records under Exemption 5. See id. at 10–11. He explained that the Corps “cannot
release records within an active file because those records are still deliberative in nature.” Id. at
10. MCE did not appeal. See Pl.’s Facts Stmt. ¶ 26.
5 6. FOIA Request 6
On March 10, 2018, MCE submitted a request to the Little Rock District seeking records
pertaining to an approved permit. See Pl.’s Ex. D at 1–3. On March 26, 2018, days after MCE
filed its complaint in this action, MCE amended that request to also seek records pertaining to a
pending permit application recently presented for public comment. See id. at 4–6. On April 23,
2018, the Corps released responsive documents, withholding some records under FOIA
Exemptions 3 and 6. See Pl.’s Ex. D at 7 (citing 5 U.S.C. § 552(b)(3), (6)). The Corps did not
claim to withhold any materials under Exemption 5. See id.
B. Changes to the Little Rock and St. Louis Districts’ FOIA Procedures
According to the Corps, the St. Louis District was engaged in a “re-evaluati[on] [of] its
FOIA processes and procedures” over the course of 2016 and 2017. Levins Decl. ¶¶ 1–2. In
fact, Levins asserts that the St. Louis District was contacted by other FOIA requesters, in
addition to MCE, disputing the district’s withholdings under Exemption 5 of application files for
pending permit applications. Id. ¶ 3. After conducting an “informal review,” Levins states, the
St. Louis District determined that “during the transition of paralegals” after the district’s
longtime paralegal left in the fall of 2016, the district “had not been applying the Exemption 5
Deliberative Process Privilege as uniformly or in the same manner as it had before the departure
of the primary FOIA paralegal.” Id. ¶ 4. Levins therefore issued the following “clarification” to
the district’s staff on March 22, 2018:
Exemption 5 primarily extends to intra- or interagency documents- and the permit application itself is not intra/inter-agency. However, the following exemptions should be considered when reviewing the application for full release: 1) closely looking at Exemption 3, which requires redaction of cultural resources locations, etc.; 2) looking at Exemption 4 for a commercial interest held by the person/entity submitting the application; and 4) looking at Exemption 7 (if with respect to enforcement of regulatory actions).
Id. ¶ 5.
6 In a separate declaration, Jacqueline Bouchard, District Counsel for the Little Rock
District, acknowledges that “[i]n some initial denial determinations, the Little Rock District
withheld records relating to a pending permit application under Exemption 5.” Bouchard Decl.
¶ 11. And she states that upon “[f]urther research,” the district determined “that some records
withheld were not covered by th[at] exemption because they were not properly characterized as
intra- or inter-agency documents.” Id. She states that she thus “reiterated to [her] FOIA staff
and the relevant regulatory personnel who assist with FOIA requests the proper scope of
Exemption 5,” and she declares that “[t]he Little Rock District will not withhold under
Exemption 5 records which are not intra- or inter-agency communications.” Id. ¶ 12.
C. This Action
MCE commenced this action on March 23, 2018, filing a complaint alleging, in a single
count, that the Corps “has engaged in a policy or practice of wrongfully denying document
production requests for documents connected to pending original Section 404 permit
applications” on the ground that they are “exempt from disclosure under FOIA Exemption 5
because they are ‘predecisional’ and [denying] access to those documents even though [they] are
neither ‘inter-agency or intra-agency memoranda or letters,’ nor privileged.” Compl. ¶¶ 40–41;
see also id. ¶¶ 49–62. MCE seeks a declaratory judgment that the Corps’ alleged practice is
unlawful under FOIA and an injunction ordering the Corps to refrain from any future activity
inconsistent with that judgment. See id. ¶¶ 63–64. Both parties moved for summary judgment.
See Pl.’s MSJ; Def.’s MSJ.
Legal Standard
Under Federal Rule of Civil Procedure 56(a), the Court must grant a motion for 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.” In ruling on such a motion, the Court “must
7 draw all justifiable inferences in favor of the nonmoving party and . . . accept the nonmoving
party’s evidence as true.” Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 133 (D.D.C. 2013)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). A factual dispute is
“material” if it “might affect the outcome of the suit under the governing law.” Anderson, 477
U.S. at 248. And a “dispute about a material fact is ‘genuine’ . . . if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. To demonstrate that “a fact
cannot be or is genuinely disputed,” a party must cite to “particular parts of materials in the
record . . . or show[] that the materials cited do not establish the absence or presence of a genuine
dispute.” Fed. R. Civ. P. 56(c)(1).
The burden is on the moving party to show the absence of a genuine dispute of material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). But in opposing a motion for
summary judgment, the nonmoving party “may not rest upon mere allegation or denials,” and
must instead “set forth specific facts showing that there is a genuine issue for trial.” Anderson,
477 U.S. at 256.
“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.
Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Congress enacted FOIA in
1966 to “pierce the veil of administrative secrecy and to open agency action to the light of public
scrutiny.” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Dep’t of the Air Force
v. Rose, 425 U.S. 352, 361 (1976)). “FOIA ‘mandates that an agency disclose records on
request, unless they fall within one of nine exemptions.’” Elec. Privacy Info. Ctr. v. U.S. Dep’t
of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015) (quoting Milner v. Dep’t of the Navy, 562
U.S. 562, 565 (2011)). As applicable here, one of those exemptions—Exemption 5—provides
that “inter-agency or intra-agency memorandums or letters that would not be available by law to
8 a party other than an agency in litigation with the agency” are exempt from disclosure. 5 U.S.C.
§ 552(b)(5).
Analysis
For each FOIA request identified in the complaint, MCE has either received the
documents that the Corps withheld or the Corps has offered to produce them upon request. See
Def.’s Facts Stmt. ¶¶ 13, 17; Pl.’s Facts Stmt. ¶¶ 57–61; Def.’s MSJ at 11–12 & n.8. But MCE
contends that the Corps’ initial denials of those requests were products of a broader policy or
practice to improperly withhold application files for pending Section 404 permit applications
under Exemption 5. Compl. ¶¶ 40–41. And this policy or practice, MCE alleges, will continue
to harm them as they request access to those files in the future. Id. ¶¶ 42–48. The D.C. Circuit
has recognized that plaintiffs who make such a claim—often termed a “policy-or-practice”
claim—may still be entitled to equitable relief even though they have received all the requested
records improperly withheld. See Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C.
Cir. 1988); see also Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 895 F.3d 770, 777–78
(D.C. Cir. 2018); Newport Aeronautical Sales v. Dep’t of the Air Force, 684 F.3d 160, 163–64
(D.C. Cir. 2012).
In response, the Corps does not dispute that it misapplied Exemption 5 to non-agency
documents when responding to the five FOIA requests identified in the complaint. 3 See Def.’s
MSJ at 1, 6; see also Bouchard Decl. ¶ 11; Levins Decl. ¶¶ 3–6. Nor could it, as the Supreme
Court has made clear that for an agency to withhold a document under Exemption 5, “its source
must be a Government agency.” Klamath Water Users, 532 U.S. at 8. And it is also undisputed
3 As noted above, the Corps did not withhold any records under Exemption 5 when it responded to MCE’s FOIA Request 6, which MCE had amended after the start of this lawsuit to seek the application file for a pending permit application. See Pl.’s Ex. D at 7–13.
9 that MCE will continue to file FOIA requests with the Corps seeking documents related to
pending Section 404 permit applications. See Navarro Decl. ¶ 6; see also Def.’s MSJ at 10–11.
Therefore, the key question here is whether the Corps’ prior unlawful withholdings under FOIA
reflect a policy or practice or were merely isolated mistakes. In other words, because the parties
do not dispute the unlawfulness of the Corps’ conduct under FOIA, this case turns on whether
that conduct was the result of a policy or practice, and whether granting MCE equitable relief to
prevent further injury from that policy or practice is warranted. See Payne, 837 F.2d at 491, 494.
Accordingly, the Court first considers whether MCE has shown that it is entitled to
summary judgment on its claim that the Corps maintains an unlawful policy or practice under
FOIA. Finding that it does, the Court then addresses the appropriate form of equitable relief,
concluding that a declaratory judgment, and not an injunction, is warranted.
A. Whether the Corps Maintains an Unlawful Policy or Practice
MCE asserts that the Corps has followed a policy or practice of unlawfully withholding
non-agency documents in the pending permit application files under Exemption 5. In response,
the Corps disclaims that it ever maintained such a policy or practice and asserts that it “has a
record of releasing in full compliance with FOIA.” Def.’s MSJ at 8. The instances identified by
MCE, it insists, were isolated to only two districts and resulted from inadvertent mistakes by
individual employees rather than any district-wide or Corps-wide policy. Id. at 9–10. MCE
disputes that characterization, arguing that the evidence shows that the Corps followed an
informal policy of denying access to application files for pending permit applications under
Exemption 5. See Pl.’s MSJ at 7–10. And the Corps’ explanation that the unlawful withholdings
were isolated mistakes, MCE asserts, is belied by the record, including the consistency with
which the Corps made those withholdings over time, even when MCE’s requests were handled
10 by different Corps employees. See id. at 9–10. The Court, upon careful review of the record,
agrees with MCE, and finds that it is entitled to judgment as a matter of law on its claim.
A party that has been unlawfully denied access to records under FOIA may, even after
those records are disclosed, continue to seek equitable relief from the agency by alleging that the
unlawful denial stemmed from a “policy or practice [that] will impair the party’s lawful access
to information in the future.” Payne, 837 F.2d at 491. The policy or practice may be “informal,
rather than articulated in regulations or an official statement of policy,” but the plaintiff must
show that the refusals were the product of “a policy or practice of . . . fail[ing] to abide by the
terms of the FOIA, and not merely isolated mistakes by agency officials.” Id.
MCE has provided undisputed evidence of five instances, across two Corps districts, over
four years, in which the Corps improperly withheld the same types of documents under
Exemption 5. Each denial was based on the same improper application of Exemption 5 to
documents in an application file for a pending Section 404 permit. See Pl.’s Facts Stmt. ¶¶ 41–
42; Pl.’s Ex. B at 8; Pl.’s Ex. C at 4–5; Pl.’s Ex. E at 4; Pl.’s Ex. F at 10. And the conduct
continued, in both districts, even after MCE filed two lawsuits over the Corps’ use of Exemption
5. See Pl.’s Ex. A at 5–11; Pl.’s Ex. B at 20–25.
Moreover, these decisions often involved multiple employees. Indeed, in one instance, a
superior reaffirmed an initial determination made by a paralegal. See Pl.’s Ex. B at 8 (email
from Little Rock District paralegal denying access because documents were “pre-decisional and
a work product”); id. at 11–13 (letter from MCE disputing any withholding based on Exemption
5); id. at 15–17 (letter from a different Corps employee confirming that the documents were
being withheld under Exemption 5 because they were “part of the deliberative process”). And in
another, after MCE disputed the Corps’ erroneous statement that there were “no records”
11 responsive to MCE’s request to view a pending permit application, see Pl.’s Ex. F at 8–9, MCE
received a letter signed by Levins acknowledging that mistake, but again specifically (and
erroneously) invoking Exemption 5, see id. at 10.
The Corps’ record of repeated and almost identical FOIA violations leads to the
unavoidable conclusion that its decisions resulted from a policy or practice to withhold materials
in the application files of pending Section 404 permit applications, even if those materials were
not inter- or intra-agency records. See Muckrock, LLC. v. CIA, 300 F. Supp. 3d 108, 135–36
(D.D.C. 2018) (finding that the CIA had employed an unlawful FOIA policy based on its
identical response to four similar requests for email records). The Court cannot reasonably
conclude that those decisions were isolated mistakes. And because, as the parties agree,
withholding materials on that basis violates FOIA, the policy or practice is unlawful.
The Corps provides no evidence that raises a genuine dispute to the contrary. To support
its claim that these denials were merely one-off mistakes, the Corps relies mainly on Levins’s
declaration. See Def.’s MSJ at 9. In that declaration, he asserts that an informal review of the St.
Louis District’s FOIA procedures “indicated that, during the transition of paralegals [in 2016 and
2017], the District had not been applying the Exemption 5 Deliberative Process Privilege as
uniformly or in the same manner as it had before the departure of the primary FOIA paralegal in
the Fall of 2016.” Levins Decl. ¶ 4. The Court has no reason to doubt that conclusion. But the
St. Louis District applied Exemption 5 to non-agency documents related to a pending Section
404 permit as early as 2013, three years before the paralegal turnover purportedly began. See
Pl.’s Ex. A at 5–11; Pl.’s Facts Stmt. ¶ 41. Indeed, that denial prompted MCE’s first lawsuit
against the Corps on this issue. See Pl.’s Ex. A at 5–11. And for the two St. Louis District
requests made in 2017, when the “transition of paralegals” was occurring, the letters explaining
12 why the Corps was withholding records under Exemption 5 were signed by Levins, and in one
instance after MCE brought the request to Levins’s attention and sought clarification about his
response. See Pl.’s Ex. E at 4–5; Pl.’s Ex. F at 4–11. Moreover, neither Levins’s declaration nor
Bouchard’s offers any similar explanation for the identical responses to requests made to the
Little Rock District, where at least four different employees were involved in two separate
decisions to improperly withhold application files under Exemption 5. See Pl.’s Ex. B at 4, 8,
15–17; Pl.’s Ex. C at 4–5.
In fact, it is remarkable what Levins’s and Bouchard’s declarations do not say. Upon
close reading, they never dispute MCE’s claim that the Corps followed a policy or practice of
applying Exemption 5 to non-agency documents in application files for pending permits. They
both merely state that, upon review, they determined that they had improperly applied
Exemption 5 to prior requests and were taking corrective action as a result. See Levins Decl.
¶¶ 4–5; Bouchard Decl. ¶¶ 10–11. Indeed, even in the Levins declaration on which the Corps so
heavily relies, he states only that the Corps determined that it had not been applying Exemption 5
“as uniformly or in the same manner as it had” before the personnel transition; he does not deny
that the Corps has a policy or practice of applying Exemption 5 to non-agency records. Levins
Decl. ¶ 4. Beyond those declarations, it is also telling that the Corps has provided no examples
of times when it did release non-agency records in application files for pending Section 404
permits. If, as the Corps now claims, the improper withholdings under Exemption 5 were merely
isolated mistakes, examples of times when it released the application files for pending permits
should abound. But the Corps offers none. 4
4 MCE forthrightly admits in its motion for summary judgment that in response to a request submitted in December 2013, the St. Louis District did release documents from the file of a
13 To discount the weight of MCE’s evidence, the Corps contends that the St. Louis and
Little Rock Districts must be treated separately, and that MCE must show that each district
independently had a policy or practice that violated FOIA. See Def.’s Opp’n at 2–5. Applying
that framework, the Corps argues, MCE has only provided two instances of this alleged practice
in Little Rock and three in St. Louis, hardly sufficient to demonstrate a pattern. Id. But the
Court fails to see why MCE’s allegations must be partitioned as the Corps insists. MCE does not
limit its claim for relief to just those two districts in its complaint, and instead specifically alleges
that the Corps as a whole has employed the unlawful policy or practice at issue in this suit. See
Compl. ¶¶ 54, 61, 63. And surely, a plaintiff need not proffer instances of an alleged policy or
practice in every single Corps district to show that a policy or practice exists. As it happens,
MCE submitted its requests to the St. Louis and Little Rock Districts, and it is those districts that
applied this alleged policy or practice to its requests. If anything, the fact that MCE received
unlawful responses from two different Corps districts only further evidences that the Corps
maintained a policy or practice and that the decisions to withhold the records at issue were not
isolated mistakes.
At bottom, MCE has provided considerable evidence of a policy or practice by the Corps
to improperly withhold non-agency documents related to pending Section 404 permits, and the
Corps has offered scant evidence to rebut that showing. The Court can reasonably draw no other
conclusion than that the Corps follows a policy or practice of unlawfully applying Exemption 5.
pending permit application. See Pl.’s MSJ at 9 n.4. For whatever reason, the Corps does not address that request in its briefing. And nothing in the record describes that request, what it specifically sought, what was released, and on what basis. Without more, Plaintiff’s mere mention of that instance in a footnote does not raise a “genuine” dispute of material fact, in light of the considerable evidence provided by MCE that the Corps employed a consistent practice of improperly applying Exemption 5.
14 Accordingly, MCE is entitled to summary judgment on its claim that the Corps maintains a
policy or practice that violates FOIA.
B. Appropriate Remedy
MCE seeks two forms of equitable relief: (1) a declaratory judgment that the Corps
follows a policy or practice of unlawfully withholding non-agency documents in pending Section
404 permit application files under Exemption 5 and (2) an injunction prohibiting the Corps from
employing that policy or practice in the future. See Compl. ¶¶ 63–64.
Given the Court’s conclusion that the Corps has employed the above policy or practice in
violation of FOIA, MCE is, at a minimum, entitled to a declaratory judgment. MCE represents
that it will continue to file FOIA requests seeking those types of documents, see Navarro Decl.
¶ 6, and the Corps’ adherence to the unlawful policy, despite multiple lawsuits and
administrative appeals questioning its validity, at the very least warrants that relief. See Payne,
F.2d 837 at 494 (“The Secretary’s inability to deal with the [agency] officers’ noncompliance
with the FOIA, and the Air Force’s persistent refusal to end a practice for which it offers no
justification, entitle Payne to declaratory relief.”); id. (“Payne has an undeniable right to the
[records at issue,] . . . and it is entitled to a judgment in support of its claim.”); see also President
v. Vance, 627 F.2d 353, 364 n.76 (D.C. Cir. 1980) (noting that a declaratory judgment is
appropriate when it will serve a useful purpose in clarifying the legal relations at issue or afford
relief from the controversy giving rise to the proceeding). Indeed, the Corps does not appear to
contest that a declaratory judgment is unwarranted upon a finding that it maintained an unlawful
policy or practice. See Def.’s Opp’n at 7 (arguing only that “granting MCE prospective
injunctive relief for future FOIA requests is not warranted”).
MCE contends that an injunction is also necessary to ensure that the Corps will not
improperly withhold application files for pending permits when MCE requests them in the
15 future. See Pl.’s MSJ at 19; Pl.’s Reply at 7–8. But the Corps insists that the record here,
particularly Levins’s and Bouchard’s supplementary declarations affirming their positions on the
proper application Exemption 5, shows that an injunction is unnecessary to ensure that it will not
wrongfully deny MCE access to Section 404 permit application files in the future. See Def.’s
MSJ at 12–13; Def.’s Opp’n at 7–12.
The Court agrees with the Corps on the propriety of injunctive relief. Even if an agency
maintains an unlawful policy or practice such that a FOIA plaintiff is entitled to declaratory
relief, the heightened remedy of injunctive relief is not necessarily appropriate. See Muckrock,
300 F. Supp. 3d at 136–37. “When injunctive relief is sought [on a policy-or-practice claim],
‘the necessary determination is that there exists some cognizable danger of recurrent violation,
something more than the mere possibility which serves to keep the case alive.’” Judicial Watch,
895 F.3d at 783 (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)). “Factors
to be ‘considered are the bona fides of the expressed intent to comply, the effectiveness of the
discontinuance [of the violation] and, in some cases, the character of the past violations.’” Id.
(quoting W.T. Grant, 345 U.S. at 633). “In the FOIA context, ‘the court’s prime consideration
should be the effect on the public of disclosure or non-disclosure.’” Id. (quoting Long v. U.S.
Internal Revenue Serv., 693 F.2d 907, 909 (9th Cir. 1982)).
Weighing those factors here, the Court finds that injunctive relief is not warranted. Both
Levins and Bouchard have affirmed in multiple declarations that the current position of their
districts is that Exemption 5 does not apply to non-agency records in Section 404 permit
application files. See Levins Decl. ¶¶ 5–6; Bouchard Decl. ¶ 12. Further demonstrating the
Corps’ good-faith efforts to comply with FOIA, when MCE questioned whether Levins’s and
Bouchard’s initial declarations sufficiently addressed MCE’s dispute over how the Corps had
16 been employing Exemption 5, both filed supplemental declarations clarifying their districts’
positions that the specific documents MCE identified in the complaint are not exempt under
Exemption 5. See 2d Levins Decl. ¶¶ 3–5; 2d Bouchard Decl. ¶¶ 3–5. 5 And while they cannot
speak to the other three Corps districts in Missouri, absent any suggestion to the contrary, the
Court assumes that those districts will also comply with the judgment of the Court. See Ctr. for
the Study of Servs. v. U.S. Dep’t of Health & Human Servs., 874 F.3d 287, 293 (D.C. Cir. 2017)
(“A government defendant is presumed to adhere to the law declared by the court.”).
Furthermore, in the most recent instance in which MCE requested records relating to a
pending application—MCE’s FOIA request filed on March 10, 2018, and amended on March
26—the Corps did not apply Exemption 5. See Pl.’s Ex. D at 7–13. To be sure, this response
5 The parties also dispute whether Levins’s and Bouchard’s assurances implicate the Court’s jurisdiction over MCE’s policy-or-practice claim. MCE contends that the Corps’ has made a “de facto” mootness argument, and it counters that the Corps’ corrective actions, under the doctrine of voluntary cessation, cannot render MCE’s claim for equitable relief moot. See Pl.’s MSJ at 11–15; Pl.’s Reply at 4. The Corps, on the other hand, disclaims any attempt to argue mootness, and instead explains that its representations about actions taken by the St. Louis and Little Rock Districts “pertain[] to the merits of MCE’s FOIA policy and practice claim[,] . . . not an Article III mootness argument.” Def.’s Opp’n at 6. The parties, however, are simply disputing two sides of the same coin. As with the existence of a policy or practice, whether an agency has abandoned a policy or practice implicates both the survival of a case or controversy and the appropriateness of equitable relief. See W.T. Grant, 345 U.S. at 633; see also Haase v. Sessions, 835 F.2d 902, 910–11 (D.C. Cir. 1987) (noting that a plaintiff has standing to seek declaratory relief to challenge a policy if he can establish the existence of the policy and a realistic probability that he will be subject to it again). And for the jurisdictional implications of the Corps’ efforts, the Court has no trouble assuring itself, as it must, that it still has jurisdiction over MCE’s claim. Voluntary cessation of a challenged practice will only moot a claim when a defendant shows that “there is no reasonable expectation” that the violation will recur and there are no lingering effects of the alleged violation. Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C. Cir. 2008) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). “The burden is a heavy one,” and the Corps does not even try to argue that it meets that burden here. W.T. Grant, 345 U.S. at 633. Levins’s and Bouchard’s representations, however genuine, merely state positions that can be revisited at any time. While those representations are certainly relevant to the “appropriateness of granting an injunction,” they are “not suffic[ient] to make [the] case moot.” Payne, 837 F.2d at 492 (quoting W.T. Grant, 345 U.S. at 633).
17 occurred after MCE filed the complaint in this action, but it still suggests a willingness to adhere
to the positions expressed by Levins and Bouchard. MCE, for its part, points to the prior
lawsuits it filed in 2013 and 2014, arguing that the Corps’ continued practice of improperly
applying Exemption 5 even after settling those suits reflects a lack of good faith. See Pl.’s Reply
at 7–8. But it does not argue that the Corps tried to skirt its obligations under those settlements.
While those lawsuits help show that the Corps maintains a policy or practice of unlawfully
invoking Exemption 5, and further that declaratory relief is warranted, they do not likewise
suggest that it will continue a practice that the Court declares unlawful.
Ultimately, the Court finds “no record evidence to overcome the presumption of
adherence [to the law declared by the Court] to which the [Corps] is entitled.” Muckrock, 300
F. Supp. 3d at 137. The Court is mindful that its primary concern must be ensuring the proper
release of documents to the public under FOIA. But the Court finds, in its discretion, that a
declaratory judgment is adequate to ensure that the Corps does not continue its unlawful practice.
Conclusion
For all of the above reasons, the Corps’ Motion for Summary Judgment, ECF No. 16,
will be denied and MCE’s Cross-Motion for Summary Judgment, ECF No. 17, will be granted.
The Court will, by separate order, enter a declaratory judgment for MCE.
/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge
Date: March 28, 2019