Legal Eagle, LLC v. Nat'l Sec. Council Records Access

• Decision Date: 18 March 2021
• Docket Number: Civil Action No.: 20-1732 (RC)
• Parties: LEGAL EAGLE, LLC, Plaintiff, v. NATIONAL SECURITY COUNCIL RECORDS ACCESS AND INFORMATION SECURITY MANAGEMENT DIRECTORATE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

LEGAL EAGLE, LLC, Plaintiff, v. NATIONAL SECURITY COUNCIL RECORDS ACCESSAND INFORMATION SECURITY MANAGEMENT DIRECTORATE, et al., Defendants.

Civil Action No.: 20-1732 (RC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 18, 2021

Re Document Nos.: 7, 13, 21, 27

MEMORANDUM OPINION

GRANTING DEFENDANTS' PARTIAL MOTION TO DISMISS; DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT; GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT; DENYING PLAINTIFF'S MOTION TO STRIKE

I. INTRODUCTION

In this case brought pursuant to the Freedom of Information Act ("FOIA"), Plaintiff Legal Eagle, LLC ("Legal Eagle"), a business that runs a YouTube channel focused on legal issues, seeks records related to the prepublication review of Former National Security Adviser John Bolton's book The Room Where It Happened. Legal Eagle has filed an Amended Complaint with twenty-one causes of action, all brought under FOIA, related to its various requests for records and requests for expedited processing. Legal Eagle named as Defendants the National Security Council Records Access and Information Security Management Directorate ("RAISMD"), the Central Intelligence Agency, the Department of Defense, the Department of Justice ("DOJ"), the Department of State, the National Archives and Records Administration, and the Office of the Director of National Intelligence (together "Defendants"). RAISMD has moved to dismiss the counts against it, arguing that under binding D.C. Circuit precedent, the National Security Council ("NSC"), and any of its subcomponents, are not subject to FOIA. Also before the Court are Legal Eagle's and Defendants' cross motions for partial summary judgment on the counts related to the requests for expedited processing. Additionally, Legal Eagle filed a motion to strike Defendants' cross motion for partial summary judgment, arguing that Defendants failed to adhere to proper motions practice procedure.

For the reasons discussed below, the Court will grant RAISMD's motion to dismiss pursuant to Armstrong v. Exec. Office of the President, 90 F.3d 553 (D.C. Cir. 1996). As a subcomponent of the NSC, which is not subject to FOIA, the Court finds that RAISMD is not subject to FOIA. With respect to the motions for partial summary judgment, the Court agrees with Defendants that based on the records before the agencies, the requests for expedited processing were properly denied. Finally, the Court finds nothing procedurally improper with Defendants' cross motion for partial summary judgment, and therefore will deny Legal Eagle's motion to strike.

II. BACKGROUND

As alleged in the Amended Complaint, Legal Eagle runs a "YouTube channel focused on legal issues . . . with more than one million subscribers, ten million monthly views, and 100 million total video views." Am. Compl. ¶ 3, ECF No. 5. The channel "features a recurring segment entitled 'Real Law Review,' in which the host explains the legal issues behind major stories in the news . . . for a general audience." Id. ¶ 37. The company seeks records related to the prepublication review of a manuscript written by Former National Security Advisor John Bolton. Id. ¶ 38.

Any person who possesses a security clearance must sign a Non-Disclosure Agreement that includes an agreement to submit any manuscript related to his or her national securityemployment for prepublication review prior to disclosing it to any third party. Id. ¶ 15. The review process, generally handled by the agency that sponsored the security clearance, allows the government to deny an author permission to publish both classified and unclassified information depending on the circumstances. See id. ¶ 21. In late 2019, RAISMD conducted a prepublication review of Mr. Bolton's book, The Room Where It Happened, and determined that it contained classified information. See id. ¶¶ 24-36. In June 2020, despite the ongoing prepublication review and determination that the manuscript contained classified information, Mr. Bolton had printed and shipped the book to distributors across the country. Id. ¶ 33. This led to the government seeking a temporary restraining order to prevent the book's distribution. Id. ¶ 35. Although Judge Lamberth denied the government's motion, he stated that "the Court is persuaded that Defendant Bolton likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations." Id. ¶ 36 (quoting United States v. Bolton, 468 F. Supp. 3d 1, 5 (D.D.C. 2020)).

Legal Eagle submitted a series of FOIA requests to Defendants seeking records and information regarding Mr. Bolton's book, the prepublication review process, and the information the government prohibited, or attempted to prohibit, Mr. Bolton from publishing. See generally Pl.'s Mot. Partial Summ. J. Ex. A, ECF No. 13-1. Alongside the requests for records, Legal Eagle submitted requests for expedited processing. See generally id. The requests for expedited processing explained that Legal Eagle runs a YouTube channel focused on informing the public about legal issues and that the requested information concerned operations or activity of the government. See id. In addition, the requests for expedited processing included the following statement:

[B]ecuase of the issues surrounding [Mr. Bolton's] manuscript and the Government's efforts to prohibit [Mr.] Bolton from providing the requestedinformation—either in his book or in Congressional testimony—this request satisfies the compelling need standard for expedited processing, since it is made by a person primarily engaged in disseminating information to inform the public about Government activity involving topics of breaking news.

Id.¹ Two offices—the DOJ National Security Division and the Office of Legal Counsel ("OLC")—agreed to expedite Legal Eagle's FOIA requests. Pl.'s Mem. of P. & A. Supp. Cross Mot. Partial Summ. J. ("Pl.'s Mem.") at 1-2, ECF No. 13. Five offices denied Legal Eagle's requests to expedite and RAISMD did not decide the matter with respect to three requests. Id. at 2. Counts 2, 4, 6, 8, 12, 14, 16, and 18 of the Amended Complaint charge Defendants with improperly denying, or constructively denying in RAISMD's case, Legal Eagle's requests to expedite processing of its FOIA requests. See Am. Compl. ¶¶ 50-53, 60-63, 73-76, 87-90, 120-23, 131-34, 141-44, 152-57.

Pending before the Court are several motions. Defendants filed a partial motion to dismiss arguing that RAISMD is not subject to FOIA because the NSC, of which it is a part, is not subject to FOIA under D.C. Circuit precedent. See Defs.' Partial Mot. Dismiss, ECF No. 7. Legal Eagle filed a motion for partial summary judgment on the counts related to its requests to expedite processing. See Pl.'s Mem. In response, Defendants filed a cross motion for partial summary judgment of their own on the requests to expedite counts. See Defs.' Cross Mot. Partial Summ. J. ("Defs.' Partial MSJ"), ECF No. 21. Finally, because Legal Eagle argues that Defendants' cross motion for summary judgment was improperly filed, it filed a motion to strike Defendants' cross motion and the reply in support of that motion. See Pl.'s Mot. Strike, ECF No. 27. The pending motions have all been fully briefed and are ripe for decision.

III. LEGAL STANDARD

The Federal Rules of Civil Procedure require that a complaint contain "a short and plain statement of the claim" in order to give the defendant fair notice of the claim and the grounds upon which it rests. Fed. R. Civ. P. 8(a)(2); see also Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The complaint's factual allegations are to be taken as true, and the court is to construe them liberally in the plaintiff's favor. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). Notwithstanding this liberal construal, the court deciding a Rule 12 motion must parse the complaint for "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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This plausibility requirement means that a plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555-56 (citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff's legal conclusions as true, see id., nor must a court presume the veracity of legal conclusions that are couched as factual allegations, see Twombly, 550 U.S. at 555.

Summary judgment is proper when "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." Fed. R. Civ. P. 56(a). A "material" fact is one capable of affecting the substantive outcome of the litigation.See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is "genuine" if there is enough evidence for a reasonable jury to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380 (2007). The principal purpose of summary judgment is to streamline litigation by disposing of factually unsupported claims or defenses and determining whether there is a genuine need for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The movant bears the initial burden of identifying portions of the record that demonstrate the absence of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In...