All Party Parliamentary Grp. on Extraordinary Rendition v. U.S. Dep't of Def.

• Decision Date: 02 April 2012
• Docket Number: Civil Action No. 09–2375 (RMU).
• Parties: ALL PARTY PARLIAMENTARY GROUP ON EXTRAORDINARY RENDITION et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF DEFENSE et al., Defendants.
• Court: U.S. District Court — District of Columbia

851 F.Supp.2d 169

ALL PARTY PARLIAMENTARY GROUP ON EXTRAORDINARY RENDITION et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF DEFENSE et al., Defendants.

Civil Action No. 09–2375 (RMU).

United States District Court,

District of Columbia.

April 2, 2012.

Audrey Elaine Moog, Hogan Lovells U.S. LLP, Washington, DC, Carolyn E. Kruk, Derek J. Craig, Joe Cyr, Michael P. Roffe, Hogan Lovells U.S. LLP, New York, NY, for Plaintiffs.

W. Scott Simpson, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

Granting the Defendants' Partial Motion to Dismiss; Denying the Plaintiffs' Motion for Partial Summary Judgment

RICARDO M. URBINA, District Judge.

I. INTRODUCTION

This matter comes before the court on the defendants' partial motion to dismiss and the plaintiffs' motion for partial summary judgment. The plaintiffs consist of an elected member of the U.K. Parliament, a parliamentary group and an American attorney. Pursuant to the Freedom of Information Act, (“FOIA”), the plaintiffs requested material from various government agencies regarding the U.S. government's “extraordinary rendition” program. Several agencies refused, citing a provision of FOIA that exempts members of the intelligence community from disclosing matters to foreign government entities. The plaintiffs subsequently filed suit, alleging that this exception does not apply because the plaintiffs are not foreign government entities or representatives thereof. Because the court concludes that the plaintiffs are representatives or subdivisions of a foreign government entity, the court grants the defendants' motion and denies the plaintiffs' motion.

II. FACTUAL AND PROCEDURAL BACKGROUND

Andrew Tyrie is an elected Member of the U.K. Parliament. Defs.' Partial Mot. to Dismiss (“Defs.' Mot.”) at 3. He chairs a group called the All Party Parliamentary Group on Extraordinary Rendition (the “APPG”). Id. The APPG is a group of over 50 Members of Parliament that was established for the purpose of examining and obtaining the disclosure of information about the United States' “extraordinary rendition” program and the U.K. government's participation therein. Pls.' Mot. at 23. The plaintiffs allege that the “extraordinary rendition” program allowed the CIA to extrajudicially apprehend foreign nationals suspected of involvement in terrorist activities and transfer them to foreign countries for detention and coercive interrogation. See Pls.' Mot. at 3–4; see also Vance v. Rumsfeld, 653 F.3d 591, 592 (2011) (describing “extraordinary rendition” policy); Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1073 (9th Cir.2010) (same); Arar v. Ashcroft, 585 F.3d 559, 564 n. 1 (2d Cir.2009) (same).

Both Andrew Tyrie and the APPG are represented on a pro bono basis by Joe Cyr, a United States citizen and an attorney who practices with a law firm in the United States. Pls.' Mot. at 3–4. In November 2008, the plaintiffs, through their counsel, submitted FOIA requests for government documents with a number of agencies of the U.S. government, including the Central Intelligence Agency (“CIA”), the Department of Homeland Security (“DHS”), the Department of Justice (“DOJ”), the Department of State, the Department of Defense (“DOD”), the Federal Bureau of Investigation (“FBI”), and the National Security Agency (“NSA”) (collectively, “the defendants”). Pls.' Mot. at 6. The plaintiffs' FOIA requests sought information on 43 separate topics, all of which focused on various aspects of the United States' and the United Kingdom's involvement in extraordinary rendition, secret detention, coercive interrogation of suspected terrorists and the sources of information about alleged terrorist plots. Defs.' Mot. at 2. Joe Cyr, along with other attorneys at his law firm, assisted the APPG in drafting these FOIA requests and communicating with the various agencies to obtain the requested documents. Pls.' Mot. at 6.

The majority of the plaintiffs' FOIA requests were denied. Id. The FBI initially responded to the request, but later informed the plaintiffs that it would no longer comply on account of 5 U.S.C. § 552(a)(3)(E), an exception to FOIA that prohibits intelligence agencies from granting requests to all non-domestic government entities, their subdivisions and their representatives. Defs.' Mot. at 3. The CIA and the DHS's Office of Intelligence and Analysis similarly denied the FOIA requests based on this statutory provision. Id. The DOD, NSA and Department of State did not respond to the plaintiffs' request for over a year, after which point they too invoked 5 U.S.C. § 552(a)(3)(E). Id. The plaintiffs administratively appealed the CIA's and the DOD's denials of the requests. Id. at 7–8. In April 2009, the CIA rejected the plaintiffs' appeal. Id. at 8. The DOD never acted on the plaintiffs' appeal. Id. at 7.

In December 2009, the plaintiffs filed a complaint in this court seeking injunctive, declaratory and other relief under FOIA. See generally Compl. The defendants subsequently filed a motion to dismiss, alleging that the plaintiffs are representatives or subdivisions of a foreign government entity and are thus prohibited from requesting records under 5 U.S.C. § 552(a)(3)(E). See generally Defs.' Mot. The plaintiffs then filed a motion for partial summary judgment on the same issue, alleging that 5 U.S.C. § 552(a)(3)(E) does not to apply to them because they are neither foreign government entities nor representatives thereof. See generally Pls.' Mot. With these motions now ripe for adjudication, the court turns to the relevant legal standards and the parties' arguments.

III. ANALYSIS

A. Legal Standard for Rule 12(b)(6) Motion to Dismiss

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C.Cir.2003) (citing Fed.R.Civ.P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). “Such simplified notice pleading is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense to define more narrowly the disputed facts and issues.” Conley, 355 U.S. at 47–48, 78 S.Ct. 99 (internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), or “plead law or match facts to every element of a legal theory,” Krieger v. Fadely, 211 F.3d 134, 136 (D.C.Cir.2000) (internal quotation marks and citation omitted).

Yet, “[t]o 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating the oft-quoted language from Conley, 355 U.S. at 45–46, 78 S.Ct. 99, instructing courts not to dismiss for failure to state a claim unless it appears beyond doubt that “no set of facts in support of his claim [ ] would entitle him to relief”). 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, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “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. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

In resolving a Rule 12(b)(6) motion, the court must treat the complaint's factual allegations—including mixed questions of law and fact—as true and draw all reasonable inferences therefrom in the plaintiff's favor. Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 39 (D.C.Cir.2004); Browning, 292 F.3d at 242. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955).

B. The Court Grants the Defendants' Partial Motion to Dismiss and Denies the Plaintiffs' Motion for Partial Summary Judgment

1. FOIA's Statutory Framework and the Foreign Government Entity Exemption

Enacted “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny,” the Freedom of Information Act reflects “a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” Dep't of Air Force v. Rose, 425 U.S. 352, 360–61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). Prior to 2002, these exemptions to disclosure turned on the nature of the material, not the identity of the individual or organization making the request. Swan v. Sec. Exch. Comm'n, 96 F.3d 498, 499 (D.C.Cir.1996) (“FOIA does not make distinctions based on who is requesting the information.”). This was in part because “[o]nce records are released, nothing in FOIA prevents the requester from disclosing the information to anyone else.” Id. at 500.

In 2002, Congress amended FOIA to include 5 U.S.C. § 552(a)(3)(E), which the court will refer to as the “foreign government entity exemption.” This provision states that no agency that is a member of the “intelligence community” ¹ shall...