Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice

• Decision Date: 31 January 2020
• Docket Number: Civil Action No. 19-1552 (ABJ)
• Citation: 436 F.Supp.3d 354
• Parties: CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — District of Columbia

436 F.Supp.3d 354

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff,

v.U.S. DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 19-1552 (ABJ)

United States District Court, District of Columbia.

Signed January 31, 2020

Anne L. Weismann, Citizens for Responsibility and Ethics in Washington, Washington, DC, for Plaintiff.

Julie Straus Harris, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiff Citizens for Responsibility and Ethics in Washington ("CREW") has brought this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against the United States Department of Justice ("DOJ"), seeking the production of documents that Attorney General William Barr may have reviewed in advance of his public announcement concerning the report transmitted to him by Special Counsel Robert Mueller. Compl. [Dkt. # 1] ¶¶ 1–2. The complaint contains two counts: the first alleges wrongful withholding of non-exempt records, and the second requests a declaration from the Court, pursuant to 28 U.S.C. §§ 2201 and 2202, that DOJ violated FOIA by refusing to grant expedited processing of its request. Id. at ¶¶ 23, 20.

Pending before the Court is defendant's partial motion to dismiss. Def.'s Partial Mot. to Dismiss [Dkt. # 5] ("Def.'s Mot."); Mem. in Supp. of Def.'s Partial Mot. to Dismiss [Dkt. # 5-1] ("Def.'s Mem."). DOJ argues that Count II should be dismissed because CREW failed to exhaust administrative remedies before filing the claim concerning expedition, and because the claim fails on the merits. Def.'s Mem. at 1–2. Plaintiff filed an opposition, Pl.'s Mem. in Opp. to Def.'s Partial Mot. to Dismiss [Dkt. # 6] ("Pl.'s Opp."), and defendant replied. Def.'s Reply Mem. in Support of Def.'s Partial Mot. to Dismiss [Dkt. # 8] ("Def.'s Reply"). The Court finds that administrative exhaustion was not required, so the claim should not be dismissed. And based on a review of the pleadings, the expedited processing request, and DOJ's denial,¹ it finds that DOJ's denial was not the product of reasoned decision making. Therefore, defendant's partial motion to dismiss will be denied.

BACKGROUND

CREW is a "non-profit, non-partisan organization ... committed to protecting the rights of citizens to be informed about the activities of government officials and agencies." Compl. ¶ 4. It alleges that on April 18, 2019, Attorney General Barr held a press conference in advance of the public release of the Report (the "Report") prepared by Special Counsel Mueller on the investigation into Russian interference in the 2016 election. Id. ¶ 13. During that conference, Attorney General Barr "stated ‘that the evidence developed by the Special Counsel is not sufficient to establish that the President committed an obstruction-of-justice offense.’ " Id. at 4, quoting Attorney General Barr's remarks.

Later that day, CREW submitted a FOIA request to DOJ's Office of Legal Counsel ("OLC") seeking "all documents pertaining to the views OLC provided Attorney General Barr on whether the evidence developed by Special Counsel Mueller is sufficient to establish that the President committed an obstruction-of-justice offense." Compl. ¶ 14. CREW also sent a request for expedited processing to DOJ's Office of Public Affairs ("OPA"). Id. ¶ 17. On April 26, 2019, DOJ informed CREW that OPA had denied the request for expedited processing by stating that "CREW's FOIA request is not a matter in which there exist possible questions about the government's integrity that affect public confidence." Id. DOJ also notified CREW that it would be unable to comply with the 20-day deadline to respond to the FOIA request and would respond "as soon as practicable." Id. ¶ 18.

CREW filed the instant complaint on May 28, 2019.

LEGAL STANDARD

"To survive a [Rule 12(b)(6) ] 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In Iqbal , the Supreme Court reiterated the two principles underlying its decision in Twombly : "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. And "[s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679, 129 S.Ct. 1937, citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955.

A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action," id. , quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

In evaluating a motion to dismiss under Rule 12(b)(6), a court must "treat the complaint's factual allegations as true and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’ " Sparrow v. United Air Lines, Inc. , 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal citation omitted), quoting Schuler v. United States , 617 F.2d 605, 608 (D.C. Cir. 1979) ; see also Am. Nat'l Ins. Co. v. FDIC , 642 F.3d 1137, 1139 (D.C. Cir. 2011), quoting Thomas v. Principi , 394 F.3d 970, 972 (D.C. Cir. 2005). Therefore, when considering a motion to dismiss, a court must construe a complaint liberally in the plaintiff's favor. Kowal v. MCI Commc'ns Corp. , 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the court accept plaintiff's legal conclusions. Id. ; see also Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao , 226 F. Supp. 2d 191, 196 (D.D.C. 2002), citing EEOC v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624–25 (D.C. Cir. 1997).

ANALYSIS

I. Expedited Processing

The Freedom of Information Act, 5 U.S.C. § 552, requires agencies to make requested records available to the public unless one or more specific statutory exemptions applies, and charges agencies to "determine within 20 days ... whether to comply with such request." Id. § 552(a)(6)(A)(i). The statute also requires that "each agency shall promulgate regulations ... providing for expedited processing of requests for records – (I) in cases in which the person requesting the records demonstrates a compelling need; and (II) in other cases determined by the agency." Id. § 552(a)(6)(E)(i). The statute specifies that "compelling need" means, "with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity." Id. § 552(a)(6)(E)(v)(II). Agencies must respond to expedited requests within 10 days. Id. § 552(a)(6)(E)(ii)(I).

In accordance with this provision, DOJ promulgated rules setting forth the circumstances that would warrant the expedited processing of FOIA requests, including "whenever it is determined that they involve ... (iv) [a] matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity that affect public confidence." 28 C.F.R. § 16.5(e)(1).

II. Administrative exhaustion was not required to bring Count II.

FOIA establishes a procedure through which a requestor may appeal an adverse decision made by an agency regarding a FOIA request, and a plaintiff must exhaust those administrative remedies before it can bring an action to enforce its rights under FOIA in federal court. See 5 U.S.C. § 552(a)(6)(C)(i) ; Citizens for Responsibility & Ethics in Wash. v. FEC , 711 F.3d 180, 182 (D.C. Cir. 2013) ("[A] FOIA requestor must exhaust administrative appeal remedies before seeking judicial redress."); Hidalgo v. FBI , 344 F.3d 1256, 1258–59 (D.C. Cir. 2003) (holding that each FOIA requestor must exhaust administrative remedies before filing suit); Oglesby v. United States Dept. of the Army , 920 F.2d 57, 65 (D.C. Cir. 1990) ("[F]oregoing an administrative appeal will preclude the requester from ever bringing suit on that request because the individual will not have exhausted his administrative remedies[.]").

However, FOIA uses different language in the provision relating to denials of requests for expedited processing: "[a]gency action to deny or affirm denial of a request for expedited processing ... shall be subject to judicial review." 5 U.S.C. § 552(a)(6)(E)(iii) (emphasis added). While the D.C. Circuit has not spoken on the matter, courts in this district have interpreted that language to relieve plaintiffs of the exhaustion requirement when appealing a denial of expedited processing. See, e.g. , ACLU v. U.S. Dep't of Justice , 321 F. Supp. 2d 24, 28 (D.D.C. 2004) ("FOIA ... specifically authorizes judicial review for challenges to ‘[a]gency action to deny or affirm denial of a request for expedited processing’ "), quoting 5 U.S.C. § 552(a)(6)(E)(iii) ; Elec. Privacy Info. Ctr. v. Dep't of Defense , 355 F. Supp. 2d 98, 100 n.1 (D.D.C. 2004) ("Plaintiff is not required to pursue an administrative...