Citizens for Responsib. v. U.S. Dept. of Homeland, Civil Action No. 06-0883 (RCL).

• Decision Date: 17 December 2007
• Docket Number: Civil Action No. 06-0883 (RCL).
• Citation: 527 F.Supp.2d 101
• Parties: CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant.
• Court: U.S. District Court — District of Columbia

Page 101

527 F.Supp.2d 101

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant.

Civil Action No. 06-0883 (RCL).

United States District Court, District of Columbia.

December 17, 2007.

Anne L. Weismann, Sharon Yvette Eubanks, Citizens for Responsibility and Ethnics in Government, Washington, DC, for Plaintiff.

Justin M. Sandberg, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, District Judge.

INTRODUCTION

Plaintiff Citizens for Responsibility and Ethics in Washington (CREW), a nonprofit organization and self-described government watchdog, filed a Freedom of Information Act request with the United States Secret Service, a component of the United States Department of Homeland Security (DHS), for records relating to former-lobbyist Jack Abramoff. CREW sought all records showing that Mr. Abramoff, and seven other individuals thought to be associated with Mr. Abramoff, had recently visited the White House or the Vice President's Residence. When the Secret Service failed to fully respond to this request in a timely fashion, CREW filed the present action under the Freedom of Information Act (FOIA), the Federal Records Act (FRA), and the Administrative Procedure Act (APA), challenging not only the Secret Service's failure to respond to its request, but the legality of the DHS's recordkeeping guidelines with respect to the White House visitor records.

There are two issues presented by the DHS's motion to dismiss claim four [34]. First, the Court must determine whether CREW has standing to seek prospective injunctive and declaratory relief. Second, and alternatively, the Court must determine whether—and to what extent—a private litigant may use the APA as a vehicle to challenge an agency's recordkeeping policies under the FRA. For the following reasons, the DHS's motion is granted. CREW has not demonstrated that it has constitutional standing to seek prospective relief.

BACKGROUND¹

By letter dated February 2, 2006, CREW filed a FOIA request with the Secret Service seeking "all records" concerning "any visit" that Jack Abramoff and seven other named individuals had made "to the White House or the residence of the Vice President [since] January 1, 2001." See Second Amended Complaint For Declaratory Judgment And Injunctive Relief (2d Am.Compl.), ¶ 24.² In its letter to the Secret Service, CREW asked the agency to expedite its handling of the FOIA request. Id. at ¶ 25. CREW wrote that there was "a particular urgency in informing the public about whether the President, the Vice President, and/or their staff met with Jack Abramoff," explaining that the public is entitled "to know" whether Mr. Abramoff "may have influenced the President and his staff." Id., Ex. A. The Secret Service acknowledged receiving the request roughly a month later and explained that a "search for files" was "being conducted." Id. at ¶ 27, Ex. B. CREW was informed that it would be "notified" of "the results of the search" once they were "known." Id, Ex. B.

Failing to receive a response to its request that it perceived to be adequate or timely, see id. at ¶¶ 27-28, 33-40, CREW filed the present action on May 10, 2006. See Complaint for Declaratory Judgment and Injunctive Relief.³ Claim four of the complaint, which is the sole focus of the present motion to dismiss, challenges whether the DHS's recordkeeping policy with respect to White House visitor records is in conformity with the FRA. Specifically, CREW claims that "[t]he policy of the Secret Service and the DHS to erase from its computer system all WAVES records ... is arbitrary, capricious, and contrary to law, because it permits the disposal of records that have not been subject to a disposition schedule that has been subject to public comment and approved by the [National] Archivist." 2d Am. Compl. at ¶ 46. CREW reasons that due to this "unlawful policy" it has been denied "a right of access to information in the public interest" and "its right to notice and the opportunity to comment on the proposed destruction of agency records." Id. at ¶¶ 47, 48.

CREW seeks both "declaratory relief that [the DHS's] policy of destroying WAVES records without complying with the requirements of the FRA is arbitrary, capricious, and contrary to law, and injunctive relief that [the DHS] immediately take all necessary steps to cease destruction of WAVES records and to secure the return of the WAVES records [previously transferred] to the White, House." Id. at ¶ 2.

The DHS's motion to dismiss claim four was filed on August 30, 2006. This case was reassigned to the undersigned judge on October 25, 2007.

DISCUSSION

The DHS moves to dismiss claim four on the ground that the Court lacks subject matter jurisdiction over this claim. This argument rests on two assertions. First, the DHS asserts that CREW does not have standing to seek prospective declaratory and injunctive relief. Second, the DHS asserts that the FRA, as interpreted by the D.C. Circuit in Armstrong v. Bush,⁴ precludes APA suits for injunctive relief regarding the retention of agency records. The Court will examine each assertion in turn, after summarizing the relevant legal standard.

I. Legal Standard

The DHS moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). When confronted with a motion to dismiss for lack of subject matter jurisdiction, the Court must "`accept all of the factual allegations in [the] complaint as true.'" Jerome Stevens Pharms., Inc. v. FDA, 365 U.S.App. D.C. 270, 402 F.3d 1249, 1253-54 (D.C.Cir.2005) (quoting United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 1276, 113 L.Ed.2d 335 (1991) (other citation omitted)). "[A] plaintiff bears the burden of establishing by a preponderance of the evidence that the Court possesses jurisdiction." Hallinan v. United States, 498 F.Supp.2d 315, 316 (D.D.C.2007) (citing Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C.2002); Pitney Bowes, Inc. v. U.S. Postal Serv., 27 F.Supp.2d 15, 19 (D.D.C.1998)). "[I]n deciding a Rule 12(b)(1) motion, it is well established in this Circuit that a court is not limited to the allegations in the complaint, but may also consider material outside of the pleadings in its effort to determine whether the court has jurisdiction in the case." Alliance for Democracy v. FEC, 362 F.Supp.2d 138, 142 (D.D.C.2005) (citing EEOC v. St. Francis Xavier Parochial Sch., 326 U.S.App. D.C. 67, 117 F.3d 621, 624-25 n. 3 (D.C.Cir.1997) (other citations omitted)).

II Constitutional Standing

The DHS asserts that the Court should dismiss claim four, to the extent CREW seeks prospective declaratory or injunctive relief, because CREW lacks Article III standing. See U.S. CONST. art. III, § 2, el. 1. The Court agrees. CREW has not adequately alleged that it will suffer a future injury-in-fact, that is both imminent and concrete, to satisfy the basic requirements of constitutional standing.

"Standing to sue is part of the common understanding of what it takes to make a justiciable case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citing Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)). The "irreducible constitutional minimum of standing" contains three elements, which the "party invoking federal jurisdiction bears the burden of establishing." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). First, "there must be alleged (and ultimately proven) an `injury in fact'-a harm suffered by the plaintiff that is `concrete' and `actual or imminent', not `conjectural' or `hypothetical.'" Steel Co., 523 U.S. at 103, 118 S.Ct. 1003 (citing Whitmore v. Arkansas, supra, 495 U.S. at 155, 110 S.Ct. 1717 (quoting Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983))). Next, "there must be causation-a fairly traceable connection between the plaintiffs injury and the complained-of conduct of the defendant." Id. (citing Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). Lestly, plaintiff must show "redressability-a likelihood that the requested relief will redress the alleged injury." Id. (citing Simon, supra); see also Lujan, 504 U.S. at 555, 112 S.Ct. 2130 ("[I]t must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.") (citation and internal quotation marks omitted).

In this case, CREW lacks standing to seek injunctive or declaratory relief because it has failed to adequately allege the first element of standing—injury-in-fact. In its second amended complaint and opposition brief, CREW contends that it has suffered a number of injuries. These alleged injuries can be divided into two categories: past and future. CREW claims that it has been injured—in the past— because it was denied "access to all of the records" that were responsive to its FOIA request. Plt.'s Opp'n at 10 (emphasis in original). These were records which, according to CREW, it would have used to educate the public on the internal workings of the White House. See 2d Am. Compl. at ¶ 47 ("As a result of [the DHS's] unlawful policy ... [CREW] was denied a right of access to information in the public interest, including an important part of the historical record concerning the relationship between the White House and convicted felon Jack Abramoff."). Indeed, CREW notes that its organizational mission is to "inform[ ] [the public] about the activities of government officials and to ensur[e] the integrity of government officials." See also 2d. Am. Compl. at ¶ 4. The DHS's inability to completely respond to the FOIA request, because it had allegedly...