La Union del Pueblo Entero v. Fed. Emergency Mgmt. Agency

• Docket Number: Civil Action 5:21-CV-71
• Decision Date: 01 August 2023
• Parties: LA UNION DEL PUEBLO ENTERO, Plaintiff, v. FEDERAL EMERGENCY MANAGEMENT AGENCY, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

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LA UNION DEL PUEBLO ENTERO, Plaintiff, v. FEDERAL EMERGENCY MANAGEMENT AGENCY, et al., Defendants.

Civil Action No. 5:21-CV-71

United States District Court, S.D. Texas, Laredo Division

August 1, 2023

REPORT AND RECOMMENDATION

John A. Kazen United States Magistrate Judge

Before the Court are two motions. The first pending motion is Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment, (Dkt. No. 40). The second pending motion is Plaintiff's Motion for Discovery, (Dkt. No. 42).

This lawsuit involves Plaintiff La Union Del Pueblo Entero's (“LUPE”) Freedom of Information Act (“FOIA”) request to the Federal Emergency Management Agency (“FEMA”). LUPE seeks to compel FEMA to post additional information in its online electronic reading room pursuant to 5 U.S.C. § 552(a)(2) and also seeks a prospective injunction ordering FEMA to post information to its website in the future.

Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment asserts various grounds for dismissing Plaintiff's claims and moves for summary judgment. For the reasons discussed below, this Court recommends that Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment, (Dkt. No. 40), be granted in part and denied in part. This Court finds that there is a genuine issue of material fact as to whether FEMA's FOIA search was adequate. This Court will therefore recommend to the District Judge that Defendants' Motion be denied at this time as to LUPE's claim under 5 U.S.C. § 552(a)(2) and that Defendants be given an opportunity to supplement the record regarding the adequacy of FEMA's search. This Court will further recommend that the District Judge deny Defendants' arguments that LUPE is not entitled to relief under 5 U.S.C. § 552(a)(4)(B) to compel posting to the online electronic reading room or for a prospective injunction. Finally, this Court will recommend that Defendants' motion for dismissal of LUPE's claims under the Administrative Procedures Act, 5 U.S.C. § 701 et seq. be granted.

Plaintiff's Motion for Discovery, (Dkt. No. 42), seeks an order setting forth the terms of discovery in this case. For the reasons discussed below, this Court will recommend that the District Judge deny without prejudice Plaintiff's Motion for Discovery, (Dkt. No. 42).

I. BACKGROUND

On May 14, 2021, LUPE submitted a FOIA request to FEMA under 5 U.S.C. § 552(a)(2). (Dkt. No. 1-1). LUPE requested that FEMA “make publicly available in its online electronic reading room” the following:

a. all records that communicate to any FEMA employee or to any FEMA contractor (including subcontractors) any substantive or procedural standard that is or will be used by FEMA, FEMA employees, FEMA contractors, or FEMA subcontractors to help decide any application for assistance under the Individuals and Households Program (“IHP”) established in 42 U.S.C. § 5174^[1]following a disaster declared after January 1, 2019; and

b. all records that state any future change to any existing substantive or procedural IHP standard described above regardless of whether the change is disaster-specific or applies to all future disasters.

(Dkt. No. 1-1). LUPE and FEMA corresponded via mail from May to July of 2021, but FEMA did not issue a determination regarding LUPE's request within the period allowed by 5 U.S.C. § 552(a)(6). (Dkt. Nos. 1 and 1-2 through 1-4; see Dkt. Nos. 40 and 40-1 at 2).

On July 14, 2021, LUPE filed a Complaint for Injunctive and Declaratory Relief (“Complaint”) against Defendants FEMA and the United States Department of Homeland Security (“DHS”), (collectively, “Defendants”). (Dkt No. 1). Specifically, LUPE alleged that “FEMA's refusal to publish its rules diminishes recovery efficiency and effectiveness, and violates the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Administrative Procedure Act (APA), 5 U.S.C. § 701, et seq.” (Id. at 1).^[2]LUPE sought “an order directing FEMA to publish on its website all substantive and procedural rules that it uses, as required by 5 U.S.C. § 552(a)(2).” (Id.). Defendants filed their answer on November 19, 2021. (Dkt. No. 2).

By September 2022, FEMA produced 4,372 pages of responsive documents to LUPE and made them publicly available online. (Dkt. Nos. 40-1 at 3 and 45 at 13). FEMA withheld approximately 2,400 pages under certain FOIA exemptions. (Id. at 4). FEMA filed a Vaughn index, which identifies the withheld documents and relevant FOIA exemptions. (Dkt. No. 40-2). Additionally, FEMA did not “mak[e] a determination on the release of documents that will be created in the future” but stated that it will evaluate those materials when they are created. (Dkt. No. 40-1 at 3).

On October 21, 2022, Defendants filed a Motion to Dismiss, or in the Alternative, for Summary Judgment, (Dkt. No. 40), which has been fully briefed, (Dkt. Nos. 45 & 50). On November 21, 2022, Plaintiff filed its Motion for Discovery, (Dkt. No. 42), which is also fully briefed, (Dkt. Nos. 47 & 48).

II. DEFENDANTS' MOTION TO DISMISS, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

A. Legal Standards and Applicable Law

(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction

Federal Rule of Civil Procedure 12(h)(3) preserves a party's ability to move to dismiss for lack of subject matter jurisdiction even after Defendants have filed their answer, (Dkt. No. 5). See FED. R. CIV. P. 12(h)(3) (“If the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action.”). The party asserting federal jurisdiction bears the burden of establishing its existence. Alabama-Coushatta Tribe of Texas v. United States, 757 F.3d 484, 487 (5th Cir. 2014). In deciding a motion to dismiss for lack of subject-matter jurisdiction, courts may consider: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Tsolmon v. United States, 841 F.3d 378, 382 (5th Cir. 2016) (citation omitted). A court should only grant a motion to dismiss for lack of subject-matter jurisdiction “if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.1998)).

(2) Motion to Dismiss for Mootness

Under FOIA, a plaintiff can obtain relief “upon a showing that an agency has (1) ‘improperly'; (2) ‘withheld'; (3) ‘agency records.'” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980) (quoting 5 U.S.C. § 552(a)(4)(B)). A federal court can provide relief under FOIA only “if the agency has contravened all three components of this obligation.” Id. A claim is rendered moot when an agency properly responds to a FOIA request. See Calhoun v. FBI, 546 Fed.Appx. 487, 490 (5th Cir. 2013) (citing Voinche v. FBI, 999 F.2d 962, 963 (5th Cir. 1993)). However, “[a] FOIA claim is not moot . . . if the agency produces what it maintains [are] all the responsive documents, but the plaintiff challenges whether the agency's search for records was adequate.” Id. (citing Nw. Univ. v. Dept of Agric., 403 F.Supp.2d 83, 85-86 (D.D.C. 2005)); 5 U.S.C. § 552(a)(3)(C)-(D) (requiring agencies to conduct a search reasonably calculated to uncover all records responsive to the request). “The heavy burden of establishing mootness lies with the party asserting a case is moot.” Brustein & Manasevit, 30 F.Supp.3d at 5 (citation and quotation omitted).

(3) Motion for Summary Judgment

Summary judgment is appropriate where “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). In determining whether a genuine dispute exists, the court must consider all the evidence and view all facts in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007) (citation omitted). A fact is material if a factual issue's resolution could affect the claim's outcome. Weeks Marine, Inc. v. Fireman's Fund Ins. Co., 340 F.3d 233, 235 (5th Cir. 2003) (citation omitted). A genuine dispute exists if a reasonable trier of fact could possibly find in favor of the non-moving party. Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (citation omitted).

Most FOIA cases are resolved on summary judgment. Cooper Cameron Corp. v. U.S. Dep't of Labor, 280 F.3d 539 543 (5th Cir. 2002). In the FOIA context, however, the traditional summary judgment standard is modified because “the threshold question in any FOIA suit is whether the requester can even see the documents the character of which determines whether they can be released.” Batton v. Evers, 598 F.3d 169, 175 (5th Cir. 2010) (quoting Cooper Cameron Corp., 280 F.3d at 543). For summary judgment to be granted in favor of a defendant agency in a FOIA case, the agency must prove that it has “fully discharged its obligations under FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.” Miller v. U.S. Dep't of State, 779 F.2d 1378, 1382 (8th Cir. 1985) (citing Weisberg v. U.S. Dep't of Just., 705 F.2d 1344, 1350 (D.C. Cir. 1983); see also Scott v. Harris, 550 U.S. 372, 378 (2007). An agency must show that the documents within the class requested have either been produced, are identified, or are exempt from disclosure. Miller, 779 F.2d at 1383 (citing Nat'l Cable Television Ass'n, Inc. v. FCC., 479 F.2d 183, 186 (D.C. Cir. 1973). An agency's search for requested records is adequate if it shows “beyond a...