BERYL A. HOWELL, District Judge.
The plaintiffs — a group consisting of journalists, academics, and government watchdog groups — bring this action against the defendants Central Intelligence Agency ("CIA") and Office of the Director of National Intelligence ("ODNI") pursuant to, inter alia, the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. The plaintiffs each submitted at least one FOIA request or Mandatory Declassification Review ("MDR") request to the CIA between July 2011 and January 2012, and they challenge the CIA's responses to those requests in a number of ways. In addition to issues related to specific FOIA requests, the plaintiffs claim that the CIA is engaging in a variety of policies or practices that constitute ongoing and systematic violations of the FOIA. Furthermore, the plaintiffs challenge the CIA's promulgation of a final rule regarding how fees are assessed for MDR requests, without first subjecting the rule to notice-and-comment procedures. The CIA has now moved to dismiss nine of the twenty-six causes of action pleaded in the plaintiff's First Amended Complaint, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). This partial motion to dismiss will be granted in part and denied in part.
This case, in its entirety, ultimately implicates over thirty separate FOIA and MDR requests submitted by the plaintiffs, along with four alleged policies or practices of the CIA and one final rule promulgated by the CIA. See First Am. Compl. ("FAC") ¶¶ 19-233, ECF No. 9. The CIA's pending partial motion to dismiss, however, only touches upon fourteen of these specific requests,
On October 20, 2010, plaintiff National Security Counselors ("NSC") submitted to ODNI a FOIA request "for all FOIA Referral Memos sent to other government agencies in Fiscal Year 2010 and any subsequent correspondence with the agencies regarding these memos or the records to which they refer." Id. ¶ 221. In response to this request, on July 20, 2011 ("Request #1") and November 4, 2011 ("Request #2"), the ODNI "referred an unknown amount of CIA material to CIA for review and direct response to NSC."
On September 6, 2011, plaintiff Kathryn Sack submitted a FOIA request ("Request #3") that sought "thirty-two specified documents currently published in the CIA Records Search Tool (`CREST')." Id. ¶ 177. This request specified that "`[r]ecords which are currently published in CREST in redacted form should be reviewed for full release under FOIA,'" and requested a public-interest fee waiver and production of any responsive records in an electronic format. See id. On September 13, 2011, the CIA "released paper copies of the redacted versions of the thirty-two documents which were published in CREST" and also "denied Sack's request for a public interest fee waiver and assessed a duplication fee of $13, stating that there could be no public interest in releasing records which were already published in CREST." Id. ¶ 178. On September 26, 2011, Sack "[administratively] appealed all redactions in the thirty-two documents" and the fee-waiver denial. Id. ¶ 179. On October 18, 2011, the CIA responded to Sack's administrative appeal, stating that "[i]t was not clear that you were requesting a re-review of these documents," though "we can open a new request to address this re-review if you wish." Id. ¶ 180. The CIA's response also stated that "you were not given appeal rights in the earlier response, and, as such, we cannot accept your appeal." Id. The plaintiffs
Also on September 6, 2011, NSC submitted a FOIA request to the CIA ("Request #4") that was related to one of its previous requests. See id. ¶ 161. In particular, the CIA's response to a prior FOIA request had stated that review of certain documents "would impose an excessive and unreasonable burden on the [CIA], and pursuant to relevant precedent, we must decline to process such requests.'" See id. ¶ 160. Hence, Request #4 requested "records pertaining to the `relevant precedent' to which this letter referred." Id. ¶ 161. On October 21, 2011, the CIA "released one document comprised solely of the paragraph which had been used in the response letter to" the previous request and "did not list the records withheld in their entirety." See id. ¶ 163. On December 29, 2011, NSC sent a letter to the CIA, requesting a list that "identifies the records being withheld and describes the reasons for their withholding in general terms." Id. ¶ 164. NSC's letter further stated that "[u]ntil we obtain such a list, we do not consider your response to constitute a proper final determination response and reject your appeal deadline." Id. Similar to its challenge to Request #1 and Request #2, discussed above, NSC contends that it constructively exhausted its administrative remedies regarding Request #4 because "twenty working days have elapsed without a substantive determination by CIA which meets the volume estimate requirement of FOIA." See id. ¶ 167.
On May 4, 2010, NSC submitted a FOIA request to the CIA for, inter alia, "the 15 FOIA requests received by the [CIA] during Fiscal Year 2008 that were classified as full denials because the Records were not Reasonably Described in" the CIA's 2008 Annual Report. See id. ¶ 184 (internal quotation marks omitted); see also Defs.' Ex. C at 1, ECF No. 14-3. That same day, NSC also submitted a similar FOIA request to the CIA that sought, inter alia, "[t]he 290 FOIA requests received by the CIA during Fiscal Year 2008 that were classified as full denials because they were considered Improper FOIA Requests for Other Reasons" in the CIA's 2008 Annual Report. See Defs.' Ex. D at 1 (internal quotation marks omitted), ECF No. 14-4; FAC ¶ 187; see also Decl. of Martha Lutz ¶ 65, Nat'l Sec. Counselors v. CIA, No. 11-444 (D.D.C. Dec. 20, 2011). NSC agreed to combine these two requests into one, and the CIA provided NSC with records responsive to the merged request on August 31, 2011. See FAC ¶¶ 186, 188. NSC alleges that "it is not possible to discern from the records themselves which records are responsive to which request," and so NSC "asked CIA several times to identify the fifteen records which were responsive to" the first request, but "CIA refused to provide any clarification." See id. ¶ 189. NSC therefore submitted a new FOIA request on October 12, 2011 ("Request #5"), which sought "the first page of the initial response letter for each of the fifteen
The plaintiffs also challenge what they allege are four separate policies or practices of the CIA that constitute ongoing violations of the FOIA. The Court will summarize below the plaintiffs' allegations regarding each claimed policy or practice.
Between September 6, 2011 and September 14, 2011, NSC submitted five FOIA requests to the CIA. See FAC ¶ 69. In response to each of these requests, the CIA notified NSC that "[w]e determined that your request falls into the `all other' fee category, which may require you to pay charges to cover the cost of searching for and reproducing responsive records (if any) beyond the first 100 pages of reproduction and the first two hours of search time, which are free." Id. ¶ 70. The CIA's letters also stated that "we will need your commitment to pay all applicable fees before we can proceed with our searches." Id. NSC sought clarification of these letters, asking the CIA, via letter on October 4, 2011, to "[p]lease confirm that you mean that you will conduct the first two hours of search regardless of our promise to pay, since we are entitled to that by law, and that you will not conduct any further searches absent a promise to pay." Id. ¶ 71 (emphasis omitted). The CIA responded to NSC's request on October 7, 2011, stating that "it is not possible to limit our searches for records on a particular topic to precisely two hours" since "some of the searches are automated, whereas others are not," and therefore "the total search effort cannot be limited in an arbitrary way, such as the maximum amount that can be performed as you requested." Id. ¶ 72. In light of this correspondence, the plaintiffs allege that "CIA's refusal to provide two free hours of search time to `all other' requesters who refuse to pay any fees represents an ongoing policy, practice, or Standard Operating Procedure (`SOP')," which "is in violation of FOIA." See id. ¶¶ 74-75.
The second alleged policy or practice of the CIA challenged by the plaintiffs is based on the same facts just discussed. Specifically, the plaintiffs point to the language in the CIA's October 7, 2011 response letter, which stated that "it is not possible to limit our searches for records on a particular topic to precisely two hours" since "some of the searches are automated, whereas others are not." Id. ¶ 72. From this language the plaintiffs claim that "[t]he fact that some of the
The third alleged CIA policy or practice challenged by the plaintiffs relates to the format in which records are produced to FOIA requesters. The plaintiffs allege that they "have never received electronic records from CIA in response to FOIA requests." Id. ¶ 134. In this regard, the plaintiffs also allege that "CIA admits that it has a blanket policy of considering every record `not readily reproducible in electronic format' with the exception of a select few categories of frequently requested records." Id. ¶ 135. According to the plaintiffs, "CIA defends this policy with the argument that its FOIA processing software is only located on its classified computer system, and that after processing records for release using that software it is unduly burdensome to then remove the records from the classified system and burn them to digital media." Id.
The final alleged CIA policy or practice challenged by the plaintiffs has to do with the CIA's authority to invoke the National Security Act, 50 U.S.C. §§ 401 et seq., as a withholding statute under FOIA Exemption 3, 5 U.S.C. § 552(b)(3). "Prior to 2004, the National Security Act vested the Director of Central Intelligence (`DCI') with the authority to protect intelligence sources and methods." FAC ¶ 208. According to the plaintiffs, "[i]n 2004, the Intelligence Reform and Terrorism Prevention Act (`IRTPA') transferred this authority to make such a decision from the DCI to the newly-created [Director of National Intelligence, or `DNI']." Id. ¶ 209. Thus, the plaintiffs allege that, after 2004, the CIA would only have the authority to invoke the "protect intelligence sources and methods" clause of the National Security Act as an Exemption (b)(3) withholding statute in one of two instances: "(1) it consulted with ODNI in each instance and ODNI authorized each invocation; or (2) ODNI authorized CIA to independently make such invocations." See id. ¶ 210. The plaintiffs claim that, although "[s]ince 2004, CIA has repeatedly invoked the `protect intelligence sources and methods' clause of the National Security Act" pursuant to Exemption 3, "CIA possesses no independent authority to withhold records from FOIA requests under Exemption (b)(3) to protect intelligence sources and methods." See id. ¶¶ 211, 214. This is so because, according to the plaintiffs, "the DNI has not authorized CIA to independently invoke the National Security Act as an Exemption (b)(3) withholding statute," and therefore "every time CIA invokes the
With respect to each of these four alleged policies or practices, the plaintiffs allege that they "stand to continue to be harmed by this ongoing policy in the future, as they regularly file FOIA requests with CIA and will continue to do so in the future." See id. ¶¶ 137, 218; see also id. ¶¶ 76, 83 (making same allegations with respect to NSC only). The plaintiffs also allege in each of these policy-or-practice claims that they are "entitled to relief in the form of a declaratory order that CIA is in violation of its statutory responsibilities under FOIA and an injunction compelling CIA" to cease each unlawful policy or practice. See id. ¶¶ 77, 84, 138, 219.
The final claim that the CIA has moved to dismiss is the plaintiffs' challenge, under the APA, to the CIA's decision to promulgate a final rule without notice-and-comment procedures. On June 16, 1997 the CIA promulgated an "interim rule" to "implement its obligations under the [FOIA], the Privacy Act, and Executive Order 12958 (or successor Orders) provisions relating to classification challenges by authorized holders, requests for mandatory declassification review, and access by historical researchers." See Freedom of Information Act; Privacy Act; and Executive Order 12958; Implementation ("Interim Rule"), 62 Fed.Reg. 32,479 (June 16, 1997) (codified as amended at 32 C.F.R. pts. 1900-01, 1907-09); see also FAC ¶ 20.
Two sections of this 1997 Interim Rule described the CIA's fee structure for FOIA and MDR requests. The section regarding fees for FOIA requests stated, in pertinent part, that "[r]ecords will be furnished without charge or at a reduced rate whenever the Agency determines," inter alia, that "it is in the public interest because it is likely to contribute significantly to the public understanding of the operations or activities of the United States Government and is not primarily in the commercial interest of the requester." See Interim Rule, 62 Fed.Reg. at 32,483. In this same vein, the Interim Rule delineated three categories of FOIA requesters: (1) "[c]ommercial use" requesters, who were to be charged for "the full direct costs of searching for, reviewing, and duplicating responsive records (if any)," (2) "[e]ducational and non-commercial scientific institution" and "representatives of the news media" requesters who were to be charged only for "reproduction beyond the first 100 pages," and (3) "[a]ll other" requesters, who were to be charged "the full direct cost of searching for and reproducing responsive records (if any) beyond the first 100 pages of reproduction and the first two hours of search time which will be
The plaintiffs allege that "prior to 23 September 2011, CIA rarely if ever charged fees to process MDR requests" and "[o]f the multiple frequent MDR requesters surveyed by Plaintiffs, none recalled ever being charged by CIA for MDR requests." See FAC ¶ 23. On September 23, 2011, however, the CIA published in the Federal Register a final rule that amended the CIA's regulations regarding fees for MDR requests. See Mandatory Declassification Review ("Final Rule"), 76 Fed.Reg. 59,032 (Sept. 23, 2011) (codified at 32 C.F.R. pt. 1908). The Final Rule added 32 C.F.R. § 1908.14, which sets forth several provisions governing whether and how fees are assessed for MDR requests. In relevant part, the new provisions (1) assess reproduction fees for all MDR requests, including a fee of fifty cents per page, $10 per CD, and a minimum fee of $15 per request for reproductions; and (2) assess search and review fees of between $20 and $72 per hour for all MDR requests, which are due "even if our search locates no responsive information or some or all of the responsive information must be withheld under applicable authority." See 32 C.F.R. § 1908.14; see also FAC ¶ 25.
Since the passage of this rule, the plaintiffs allege that "CIA began responding to MDR requests with demands that requesters commit to pay all search, review, and duplication fees at the new fee schedule described in 32 C.F.R. § 1908.14." FAC ¶ 26. Specifically, three of the plaintiffs (NSC, Stein, and Mark Zaid) each submitted one or more MDR requests to the CIA following promulgation of the Final Rule, and the CIA responded to each request by asking the requester to commit to pay the fees outlined in 32 C.F.R. § 1908.14 and holding the request in abeyance until such a commitment was given. See id. ¶¶ 27-35. Based on these allegations, the plaintiffs claim that "CIA violated the APA by publishing a Final Rule substantially altering [the former 32 C.F.R. § 1908.13] without first using a Proposed Rule subject to notice and comment." Id. ¶ 38. The plaintiffs further allege that the CIA's Final Rule "does not meet the narrow requirements for an interpretive rule that is exempt from the notice and comment requirement." Id. To remedy this alleged violation, the plaintiffs seek, inter alia, vacatur of the Final Rule. See id. ¶ 39.
When faced with a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), a court has "an affirmative obligation to consider whether the constitutional and statutory authority exist" for it to hear the case. James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1092 (D.C.Cir.1996) (internal quotation marks omitted). For this reason, "the [p]laintiff's factual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13-14 (D.D.C.2001) (internal quotation marks omitted). When the purported lack of jurisdiction stems from a lack of standing, however, the court "must assume that [the plaintiff] states a
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge[] [his or her] claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also FED.R.CIV.P. 12(b)(6). "[A] complaint [does not] suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Instead, the complaint must plead facts that are more than "`merely consistent with' a defendant's liability." Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Rather, "the plaintiff [must] plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.; accord Rudder v. Williams, 666 F.3d 790, 794 (D.C.Cir. 2012). The Court "must assume all the allegations in the complaint are true (even if doubtful in fact) ... [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged." Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C.Cir. 2008) (citations and internal quotation marks omitted).
Congress enacted the FOIA to promote transparency across the government. See 5 U.S.C. § 552; Quick v. U.S. Dep't of Commerce, Nat'l Inst. of Standards & Tech., 775 F.Supp.2d 174, 179 (D.D.C. 2011). The Supreme Court has explained that the FOIA is "a means for citizens to know `what their Government is up to.' This phrase should not be dismissed as a convenient formalism. It defines a structural necessity in a real democracy." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-172, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) (citation and internal quotation marks omitted). "The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). As a result, the FOIA requires federal agencies to release all records responsive to a request for production. See 5 U.S.C. § 552(a)(3)(A). Federal courts are authorized under the FOIA "to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." Id. § 552(a)(4)(B).
This strong interest in transparency must be tempered, however, by the "legitimate governmental and private interests [that] could be harmed by release of certain types of information." United Techs. Corp. v. U.S. Dep't of Def., 601 F.3d 557, 559 (D.C.Cir.2010) (internal quotation marks omitted); see also Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C.Cir.1992)
The D.C. Circuit has also recognized that, separate from claims seeking relief for specific requests made under the FOIA, requesting parties may also assert a "claim that an agency policy or practice will impair the party's lawful access to information in the future." Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C.Cir.1988) (emphasis in original); accord Newport Aeronautical Sales v. Dep't of the Air Force, 684 F.3d 160, 164 (D.C.Cir.2012). The Court in Payne held that a policy-or-practice claim is viable "[s]o long as an agency's refusal to supply information evidences a policy or practice of delayed disclosure or some other failure to abide by the terms of the FOIA, and not merely isolated mistakes by agency officials." Payne, 837 F.2d at 491. To state a claim for relief under the doctrine articulated in Payne, a plaintiff must plausibly demonstrate that the agency in question has adopted, endorsed, or implemented a policy or practice that constitutes an ongoing "failure to abide by the terms of the FOIA." See id.
The defendants raise two grounds in support of their partial motion to dismiss.
Article III of the United States Constitution limits the federal judicial power to the resolution of "Cases" and "Controversies." U.S. CONST. art. III, § 2. "In limiting the judicial power to `Cases' and `Controversies,' Article III of the Constitution restricts it to the traditional role of Anglo-American courts, which is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law." Summers v. Earth Island Inst., 555 U.S. 488, 492, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). In other words, "[t]he case-or controversy doctrines state fundamental limits on federal judicial power in our system of government." Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). "The Art[icle] III doctrine that requires a litigant to have `standing' to invoke the power of a federal court is perhaps the most important of these doctrines." Id.
As the Supreme Court has explained, "the irreducible constitutional minimum of standing contains three elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). First, the plaintiff must have suffered an "injury in fact," i.e., "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Id. (citations and internal quotation marks omitted). Second, there must be "a causal connection between the injury and the conduct complained of," i.e., the injury alleged must be fairly traceable to the challenged action of the defendant. Id. Finally, it must be likely that the injury will be redressed by a favorable decision. Id. at 561, 112 S.Ct. 2130.
Moreover, when a plaintiff seeks prospective declaratory or injunctive relief, allegations of past harms are insufficient. See, e.g., Dearth v. Holder, 641 F.3d 499, 501 (D.C.Cir.2011). Rather, when declaratory or injunctive relief is sought, a plaintiff "must show he is suffering an ongoing injury or faces an immediate threat of [future] injury." Id. (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). When a plaintiff seeks injunctive or declaratory relief specifically for the purpose of challenging an alleged policy or practice of a government agency, it must also demonstrate that it is "`realistically threatened by a repetition of [its] experience.'" Haase v. Sessions, 835 F.2d 902, 910-11 (D.C.Cir. 1987) (quoting Lyons, 461 U.S. at 109, 103 S.Ct. 1660). To plead a "threat of repetition," a plaintiff must make "more than a nebulous assertion of the existence of a `policy,'" and that it is "likely to be subjected to the policy again." Id. at 911. This threat must be "real and immediate," or, alternatively, "realistic[]" in nature. See Lyons, 461 U.S. at 102, 103 S.Ct. 1660; Golden v. Zwickler, 394 U.S. 103, 109, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969); see also Fair Emp't Council of Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1274 (D.C.Cir.1994) (collecting cases and observing that the standard for judging likelihood
In the instant action, the CIA argues that the plaintiffs lack standing to pursue their Payne policy-or-practice claims because "[n]one of the plaintiffs allege any specific plans to file FOIA requests in the future that would implicate the alleged policies and practices they seek to challenge." Mem. in Supp. of Defs.' Partial Mot. to Dismiss ("Defs.' Mem.") at 7-8 (emphasis omitted), ECF No. 14. Instead, the CIA contends, the plaintiffs' "claims of future injury rest entirely on the bare allegation that they are frequent FOIA requesters." Id. at 8. According to the CIA, "[p]laintiffs' status as frequent FOIA requesters cannot transform speculation and conjecture into cases or controversies," and thus this Court lacks jurisdiction to entertain the plaintiffs' policy-or-practice claims. See id. at 10. The plaintiffs' response to these arguments is quite cursory. In addition to spending several pages attempting to distinguish various precedents from this Circuit cited by the CIA, which the Court discusses further below, the plaintiffs simply state, without further elaboration or support, that they "have made the same assertions that Judge Kennedy found sufficient in" Citizens for Responsibility & Ethics in Washington v. Executive Office of the President ("CREW/EOP"), 587 F.Supp.2d 48 (D.D.C.2008) (Kennedy, J.). See Pls.' Opp'n to Defs.' Partial Mot. to Dismiss ("Pls.' Opp'n") at 19, ECF No. 18.
To put the parties' arguments in context, the Court will briefly discuss the handful of cases from this Circuit that the parties discuss in their briefing, both for and against standing. In addition to CREW/EOP, the parties focus their attention on three cases: Quick v. U.S. Department of Commerce, National Institute of Standards & Technology, 775 F.Supp.2d 174 (D.D.C.2011); Citizens for Responsibility & Ethics in Washington v. U.S. Department of Homeland Security ("CREW/DHS"), 527 F.Supp.2d 101 (D.D.C.2007); and American Historical Association v. National Archives & Records Administration, 310 F.Supp.2d 216 (D.D.C.2004). See Defs.' Mem. at 8-10; Pls.' Opp'n at 16-19. Although none of these cases is on all fours with the instant action, the cases are helpful in elucidating certain principles that govern standing in the context of FOIA policy-or-practice claims.
First, the Quick case stands for the uncontroversial proposition that, even assuming that an alleged policy or practice exists and some FOIA requesters may have been subject to that policy, FOIA plaintiffs must establish that they have personally been subject to the alleged policy to have standing to challenge it. See Quick, 775 F.Supp.2d at 187 (observing that the record was "clear" that "even assuming that individuals other than [the plaintiff] may have been subject to the alleged `pattern or practice,'" the plaintiff had not been subject to it and thereby lacked standing). Additionally, Quick, CREW/DHS, and American Historical Association establish that plaintiffs do not have standing to pursue policy-or-practice claims if they cannot demonstrate that they have any outstanding FOIA requests (other than the requests challenged in the litigation) that are likely to implicate the alleged policies and lead to future injury. See id. at 187 (finding no standing where plaintiff stated that he "plan[ned] to file additional FOIA requests to the [defendant] in the future," though none had actually been filed); CREW/DHS, 527 F.Supp.2d at 106 (finding no standing where plaintiff "[did] not allege anywhere in its complaint or opposition brief that it
The plaintiffs' contention that they "have made the same assertions that Judge Kennedy found sufficient in CREW v. EOP," see Pls.' Opp'n at 19, however, is unsupported by the allegations in the First Amended Complaint or any other materials submitted by the plaintiffs. Unlike the plaintiff in CREW/EOP, the plaintiffs in the instant action have not alleged or demonstrated that "they have FOIA requests for [records likely to implicate the challenged policies] currently pending with the [allegedly offending agency]." See CREW/EOP, 587 F.Supp.2d at 60-61. Indeed, the instant action is also readily distinguishable from the related cases analyzed by this Court in National Security Counselors v. CIA, 898 F.Supp.2d 233. In those related actions, NSC similarly challenged a number of allegedly unlawful policies or practices of the CIA pursuant to the FOIA. See 898 F.Supp.2d at 243-52 (summarizing twelve policies or practices alleged). NSC stated, in contrast with the instant action, that "it had already submitted fifteen FOIA requests to the CIA since filing the Complaints in these actions," which this Court found were "likely to implicate the claimed policies and practices at issue because the pending and future requests appear to be of the same character as the specific requests that form the basis of the plaintiff's current claims." See id. at 262. In NSC v. CIA, this Court also observed that NSC had "displayed a clear intent to continue filing FOIA requests with the CIA, supported by its consistent habit of filing such requests both before and after the commencement of this litigation and its stated mission `to obtain records about national security issues.'" Id. (emphasis added). Although in NSC v. CIA this Court cited NSC's "clear intent to continue filing FOIA requests with the CIA" as a basis to conclude that NSC had standing to pursue its policy-or-practice claims, that "clear intent" was only concretely apparent because of the outstanding FOIA requests that NSC was still pursuing with the CIA, which were themselves likely to implicate the challenged policies in the future. See id.
By contrast, in this case, the plaintiffs have merely alleged that they
"`Exhaustion of administrative remedies is generally required before filing in federal court so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision.'" Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C.Cir.2003) (quoting Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 61 (D.C.Cir. 1990)). Although the exhaustion requirement under the FOIA is not jurisdictional, "as a jurisprudential doctrine, failure to exhaust precludes judicial review if `the purposes of exhaustion' and the `particular administrative scheme' support such a bar." Id. at 1258-59 (quoting Oglesby, 920 F.2d at 61); see also Wilbur, 355 F.3d at 677 (holding that "[e]xhaustion of administrative remedies is generally required before seeking judicial review"); Sinito v. U.S. Dep't of Justice, 176 F.3d 512, 516 (D.C.Cir.1999) (recognizing that "FOIA requires each requestor to exhaust administrative remedies" (citing Oglesby, 920 F.2d at 61)); Dettmann v. U.S. Dep't of Justice, 802 F.2d 1472, 1476 (D.C.Cir.1986) ("It goes without saying that exhaustion of remedies is required in FOIA cases.").
Under the FOIA, there are two ways for a requester to exhaust administrative remedies: actual exhaustion and constructive exhaustion. Actual exhaustion is required when an agency responds to a request and determines, within twenty working days, whether and how to comply with that request, and in that situation a requester dissatisfied with the agency's determination must administratively appeal it to the head of the agency before filing suit. See 5 U.S.C. § 552(a)(6)(A); see also Oglesby, 920 F.2d at 65 ("[F]oregoing an administrative appeal will preclude the [FOIA] requester from ever bringing suit on that request because the individual will not have exhausted his administrative remedies...."); Weisberg v. U.S. Dep't of Justice ("Weisberg I"), 745 F.2d 1476, 1497 (D.C.Cir. 1984) (holding that appellant "did not exhaust his administrative remedies" where he "pretermitted the administrative stage of the processing of FOIA requests"). For purposes of actual exhaustion, the D.C. Circuit has held that "[a] response is sufficient for purposes of requiring an administrative appeal" if it includes "the agency's determination of whether or not to comply with the request; the reasons for its decision; and notice of the right of the requester to appeal to the head of the agency if the initial agency decision is adverse." Oglesby, 920 F.2d at 65. When an agency fails to respond to a request within twenty working days, however, a requester "shall be deemed to have exhausted his administrative remedies with respect to such request," 5 U.S.C. § 552(a)(6)(C), and may therefore immediately seek judicial review in federal district court. See, e.g., Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C.Cir.2003) ("A requester is considered to have constructively exhausted administrative remedies and may seek judicial review immediately if ... the agency fails to answer the request within twenty days."). This kind of "constructive exhaustion" is "a special provision virtually unique to FOIA." Spannaus v. U.S Dep't of Justice, 824 F.2d 52, 58 (D.C.Cir.1987).
In the instant case, the CIA argues that NSC failed to exhaust its administrative remedies in connection with the FOIA request at issue in Count Nineteen and two of the three FOIA requests at issue in Count Twenty-Six of the First Amended Complaint.
5 U.S.C. § 552(a)(6)(F). Since the CIA's denial letters did not contain the volume estimate set forth in this provision, the plaintiffs allege that those denial letters were "legally insufficient" and did not trigger the requirement to file an administrative appeal. See FAC ¶¶ 166, 231; Pls.' Opp'n at 38-40. Thus, the plaintiffs' contention that NSC constructively exhausted its administrative remedies is premised on the allegation that "twenty working days [had] elapsed without a substantive determination by CIA which [met] the volume estimate requirement of FOIA." See FAC ¶¶ 167, 232.
At first blush, the D.C. Circuit's holding in Oglesby appears to foreclose the plaintiff's argument out of hand. As discussed above, Oglesby held that:
Oglesby, 920 F.2d at 65. Oglesby, however, was decided in 1990 — six years prior to the 1996 Electronic FOIA Amendments, which added the volume-estimate provision contained in 5 U.S.C. § 552(a)(6)(F). See Electronic FOIA Amendments, Pub.L. No. 104-231, § 8(c), 110 Stat. 3048, 3052 (1996). Thus, the Court must decide whether the holding in Oglesby continues to comport with the FOIA and whether 5 U.S.C. § 552(a)(6)(F) must be satisfied before an agency's response is sufficient for purposes of requiring an administrative appeal.
At the outset, the Court observes that the narrow question presented is whether an agency's response to a FOIA request which lacks a volume estimate requires actual exhaustion or instead permits constructive exhaustion. With that in mind, the Court need only look to the plain language of the FOIA, and in particular the FOIA's requirements for resorting to constructive exhaustion, to resolve the issue. The FOIA's constructive exhaustion provision states that "[a]ny person making a request to any agency for records under [5 U.S.C. §§ 552(a)(1)-(3)] shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph." 5 U.S.C. § 552(a)(6)(C)(i). This provision's reference to "the applicable time limit provisions of this paragraph" is clearly a reference to the time limits contained in 5 U.S.C. § 552(a)(6)(A). Indeed, 5 U.S.C. § 552(a)(6) — the "paragraph" referred to in 5 U.S.C. § 552(a)(6)(C)(i) — only contains
The plaintiffs resist this conclusion by contending that "Oglesby is itself contradicted by binding Supreme Court precedent." Pls.' Opp'n at 39. In support of this argument, the plaintiffs cite the Supreme Court's recent decision in Schindler Elevator Corp. v. United States ex rel. Kirk, ___ U.S. ___, 131 S.Ct. 1885, 179 L.Ed.2d 825 (2011). See Pls.' Opp'n at 39. That case dealt with the question of "whether a federal agency's written response to a request for records under the [FOIA] constitutes a `report' within the meaning of the public disclosure bar" in the False Claims Act ("FCA"), 31 U.S.C. §§ 3729 et seq. Schindler Elevator, 131 S.Ct. at 1889. The Supreme Court held that such a written response did qualify as a "report" under the FCA because it "plainly is `something that gives information,' a `notification,' and an `official or formal statement of facts.'" See id. at 1893. In arriving at that holding, the majority observed that "[w]hen an agency denies a [FOIA] request in whole or in part, it must additionally ... `make a reasonable effort to estimate the volume of any denied matter,' and `provide any such estimate to the person making the request.'" Id. (quoting 5 U.S.C. § 552(a)(6)(F)).
The Court does not read this statement from Schindler Elevator as a holding that a volume estimate of withheld material is required before a FOIA requester's obligation to file an administrative appeal is triggered. It cannot be disputed, and the CIA does not dispute, that an agency is required to provide an estimate of the volume of any withheld material "[i]n denying any request for records, in whole or in part," see 5 U.S.C. § 552(a)(6)(F); see also, e.g., Mobley v. Dep't of Justice, 845 F.Supp.2d 120, 124 (D.D.C.2012), but, importantly, the FOIA does not tie that obligation to the statute's separate provision dealing with constructive exhaustion. Constructive exhaustion in the FOIA is a privilege granted only to individuals whose requests for records have essentially been ignored by the agency, and it is a privilege reserved for a situation in which agency neglect has resulted in a "fail[ure] to comply with the applicable time limit provisions of" 5 U.S.C. § 552(a)(6).
Having concluded that NSC failed to exhaust its administrative remedies, the Court must consider whether permitting NSC now to challenge the CIA's responses to these three FOIA requests would undermine either the "particular administrative scheme" or the "purposes of exhaustion." See Hidalgo, 344 F.3d at 1258-59. The Court concludes that permitting NSC's challenge to these responses to the three FOIA requests would, at the very least, frustrate the purposes of administrative exhaustion, and therefore, the Court will dismiss NSC's challenges to these responses on that basis.
The D.C. Circuit has stated that non jurisdictional exhaustion serves three primary purposes: "giving agencies the opportunity to correct their own errors, affording parties and courts the benefits of agencies' expertise, [and] compiling a record adequate for judicial review." Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C.Cir.2004) (internal quotation marks omitted); accord Wilbur, 355 F.3d at 677 (holding that the "purposes and policies underlying the exhaustion requirement" are "to prevent premature interference with agency processes, to give the parties and the courts [the] benefit of the agency's experience and expertise and to compile an adequate record for review"). "Exhaustion concerns apply with particular force when the action under review involves exercise of the agency's discretionary power or when the agency proceedings in question allow the agency to apply its special expertise." McCarthy v. Madigan, 503 U.S. 140, 145, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992), superseded
Two cases from this Circuit — Hidalgo v. FBI and Wilbur v. CIA — elucidate the concerns at play in the doctrine of FOIA administrative exhaustion. In Hidalgo, a prisoner filed a FOIA request seeking records related to an FBI informant who had helped the government prosecute him. Hidalgo, 344 F.3d at 1257. While the plaintiff's request was still pending within the twenty-day statutory response period, he filed an "appeal," erroneously asserting that the FBI had failed to respond to his request within the statutory time limit. Id. Less than two weeks later, the FBI sent the plaintiff a response denying his FOIA request. Id. at 1258. The plaintiff then filed a civil action challenging the FBI's denial of his request, and the district court granted summary judgment to the government on the ground that FOIA Exemption 6 precluded disclosure of the information sought. Id. The D.C. Circuit vacated and remanded, however, holding that the plaintiff's complaint should have been dismissed for failure to exhaust his administrative remedies. Id. The Circuit held that although "Hidalgo's appeal may have been timely, in a literal sense, it did not promote the purposes of the exhaustion doctrine" because the administrative appeal was filed "before the FBI acted on his request" and thus "the appeal could not and did not place the substance of the FBI's response before the [FBI's Office of Information and Privacy, or `OIP']." Id. at 1259. The OIP, in response to his untimely administrative appeal, had specifically advised Hidalgo that he could administratively appeal any final action, and because Hidalgo "did not heed the OIP's directive," to "permit him to ignore the OIP's directive `would cut off the agency's power to correct or rethink initial misjudgments or errors,' and frustrate the policies underlying the exhaustion requirement." Id. at 1259-60 (quoting Oglesby, 920 F.2d at 64).
By contrast, Wilbur involved a scenario where, although the plaintiff's filing of his FOIA request and the CIA's denial of that request both occurred in 1994, the plaintiff did not file an administrative appeal of the denial until January 1999. See Wilbur, 355 F.3d at 676. Nevertheless, the Court held that the appeal to federal district court was appropriate because the CIA "received and accepted for consideration" the plaintiff's administrative appeal, even though it was several years tardy, and thus the plaintiff had ultimately exhausted his administrative remedies. Id. at 676-77. The Circuit distinguished the scenario presented in Wilbur from that presented in Hidalgo because "Wilbur did not bypass the administrative review process but pursued it to its end; he was simply late (albeit four years late)." Id. at 677. In other words, because the CIA had accepted and processed Wilbur's administrative appeal and was able to review its initial determination, "the policies underlying the exhaustion requirement [were] served." Id.
From Wilbur and Hidalgo, a clear principle emerges: Failure to exhaust administrative remedies is not a mere technicality, and a court must decline to decide the merits of an unexhausted FOIA claim when the plaintiff fails to comply with procedures for administrative review, denying
Finally, the Court will address the CIA's arguments for dismissing Counts One, Twenty-One, and Twenty-Two of the First Amended Complaint for failure to state a claim upon which relief may be granted. The Court will begin by addressing Counts Twenty-One and Twenty-Two before moving to the plaintiffs' APA challenge contained in Count One.
The CIA moves to dismiss County Twenty-One of the First Amended Complaint, which challenges the CIA's response to Request #3 discussed above, which sought "thirty-two specified documents currently published in the CIA Records Search Tool (`CREST')" and asked that "`[r]ecords which are currently published in CREST in redacted form should
The D.C. Circuit has established that an agency "has a duty to construe a FOIA request liberally," Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995), and are "bound to read it as drafted" not as "agency officials ... might wish it was drafted," Miller v. Casey, 730 F.2d 773, 777 (D.C.Cir.1984). In this regard, it is clear that, for example, when a FOIA requester "seek[s] all of a certain set of documents" while also "evincing a heightened interest in a specific subset thereof," such a request "is reasonably susceptible to the broader reading" of seeking the entire set of documents despite the fact that a specific subset of documents is named. See LaCedra v. Exec. Office for U.S. Attorneys, 317 F.3d 345, 348 (D.C.Cir.2003); see also Nation Magazine, 71 F.3d at 890 (holding that FOIA request seeking records "`pertaining to' [Ross] Perot" and specifically "ask[ing] for records indexed under Perot's name" was "sufficient to alert the agency that appellants sought information about Perot, even if it was not indexed under his name"). Even so, "[a]n agency may decide to limit the scope of an ambiguous request as long as the narrowed scope is a reasonable interpretation of what the request seeks." Wilson v. U.S. Dep't of Transp., 730 F.Supp.2d 140, 154 (D.D.C.2010) (citing Larson v. Dep't of State, 565 F.3d 857, 869 (D.C.Cir.2009)), aff'd, No. 10-5295, 2010 WL 5479580 (D.C.Cir. Dec. 30, 2010). The standard, as with many aspects of the FOIA, is reasonableness.
Thus, the CIA's motion to dismiss Count Twenty-One boils down to whether or not the CIA reasonably interpreted the scope of plaintiff Sack's FOIA request. The Court, however, cannot conclude that the CIA's interpretation of Ms. Sack's FOIA request was reasonable as a matter of law. The CIA focuses its reasonableness argument on the first sentence of the FOIA request, which asked for "copies of
The CIA's arguments, however, are unpersuasive. It is true that Ms. Sack's FOIA request was not a model of clarity. If she were seeking a re-review of the CREST documents at issue, she should have ideally stated that she was seeking unredacted copies of those documents, rather than only saying she was seeking "copies." In fact, if all Ms. Sack had said in her FOIA request were that she was seeking "copies" of the specified CREST documents, the CIA's construction of her request as one for redacted, previously released versions of the specified records would have been a reasonable one. Yet, that is not all that Ms. Sack said in her request. Rather, she clarified what she meant by "copies" in the very same paragraph, stating that any redacted versions of the requested records "should be reviewed for full release." Defs.' Ex. A at 1 (emphasis added).
Next, the CIA moves to dismiss Count Twenty-Two of the First Amended Complaint.
The CIA moves for dismissal of County Twenty-Two, contending that "plaintiff filed a deliberately redundant request with the intent of forcing the CIA to answer its question," and "[t]he CIA is not obligated to produce redundant records to the same requester." Defs.' Mem. at 35, 37 (citing Weisberg v. U.S. Dep't of Justice ("Weisberg II"), 848 F.2d 1265, 1271 (D.C.Cir. 1988), overruled on other grounds by King v. Palmer, 950 F.2d 771, 785 (D.C.Cir. 1991) (en banc)). The CIA also cites the principle that "the FOIA does not oblige the CIA to create new records or to answer questions about agency records, so the CIA was not required to explain the produced records to plaintiff." Defs.' Reply at 21. NSC concedes "that it made an error in judgment by initially allowing CIA to combine its initial requests," but it maintains nonetheless that it is not seeking an explanation from the CIA, but rather is seeking "a piece of information which was lacking from the previous requests — which fifteen requests were denied in Fiscal Year 2008 because the information sought was not `reasonably described.'" See Pls.' Opp'n at 44 (emphasis in original). NSC argues that Request #5 was "the least invasive FOIA request it could devise to receive the records that would allow it to divine the information it required," even "offer[ing] to withdraw the request if CIA provided a simple list of the requested documents." Id.
The Court agrees with the plaintiffs on this issue. The CIA is correct that the FOIA does not obligate agencies to create records, see, e.g., ACLU v. U.S. Dep't of Justice, 655 F.3d 1, 4 n. 3 (D.C.Cir.2011), or answer questions, see, e.g., Moore v. FBI, 883 F.Supp.2d 155, 163 (D.D.C.2012) (citing Hudgins v. IRS, 620 F.Supp. 19, 21 (D.D.C.1985)). The CIA extends its argument too far, however, when it contends that it "is not obligated to produce redundant records to the same requester." See Defs.' Mem. at 37. In certain limited factual circumstances, this statement of law by the CIA could be accurate. For example, where a single requester fails to exhaust his administrative remedies with regard to certain withheld records, and then files a duplicative FOIA request for the exact same records in order to revive the unexhausted issues for purposes of litigation, the agency is not required to re-review the same records to indulge the requester. See Toensing, 890
Unlike the situation presented in Toensing, the CIA is not refusing to produce the records sought in Request #5 because it does not want to re-review the records and make new withholding determinations. Indeed, the CIA does not indicate that it would need to withhold any information from the fifteen specific records sought in Request #5, which appear to consist entirely of routine correspondence from the CIA to FOIA requesters. See Defs.' Mem. at 35-36. The FOIA states categorically that, so long as a request for records "reasonably describes such records" and complies with agency rules regarding the submission of FOIA requests, the agency "shall make the [requested] records promptly available to any person," see 5 U.S.C. § 552(a)(3)(A), subject of course to the exemptions contained in 5 U.S.C. § 552(b). Thus, absent some contention that the production of redundant records to the same requester would run afoul of the FOIA by imposing an undue burden upon the CIA or requiring the CIA to create records, the Court concludes that the plaintiffs' claim in County Twenty-Two regarding the CIA's response to Request #5 can go forward. The Court finds nothing in the FOIA that would foreclose an individual from seeking the production of records already disclosed to him, particularly in a situation like the instant case where an individual seeks redundant documents in order to obtain a new piece of information.
The final claim at issue in the defendants' motion to dismiss is Count One, which is brought pursuant to the APA and therefore stands apart from the preceding analysis. In Count One, the plaintiffs allege that the CIA violated the APA by promulgating a final rule, which modified the CIA's structure for charging fees associated with MDR requests, without first making the rule the subject of notice-and comment procedures. See FAC ¶¶ 20-39. The CIA moves to dismiss this claim, contending that "[t]he final rule issued by the CIA does not violate the APA because it is a `rule of agency procedure and interpretation' not subject to the notice and comment requirements." Defs.' Mem. at 1. In particular, the CIA argues that the Final Rule "is not a `legislative rule' subject to notice and comment," but is instead a "rule[] of agency organization, procedure, or practice." See id. at 3; see also 5 U.S.C. § 553(b). The plaintiffs contend, however, that the CIA's Final Rule is a "legislative rule" because it (1) takes away their "right to receive preferential treatment as non-commercial requesters" and their "right to receive public interest fee waivers where appropriate," and (2) "encoded the substantive value judgment that non-commercial requesters were no longer different from commercial requesters, with full knowledge that changing CIA's longstanding practice in this manner would effectively remove non-commercial requesters' ability to file MDR requests." Pls.' Opp'n at 9-10.
The APA generally requires that all "rule makings" be subject to the procedures outlined in 5 U.S.C. § 553, which principally include (1) notice published in the Federal Register; and (2) an opportunity for "interested persons" to "participate in the rule making through submission of written data, views, or arguments." See 5 U.S.C. § 553.
"Procedure and its opposite, substance," however, "are not talismanic labels or given premises. Rather, they are legal conclusions which depend upon their settings for definition." Neighborhood TV Co. v. FCC, 742 F.2d 629, 637 (D.C.Cir.1984) (internal quotation marks omitted); see also Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 130 S.Ct. 1431, 1450, 176 L.Ed.2d 311 (2010) (Stevens, J., concurring) ("The line between procedural and substantive law is hazy, and matters of procedure and matters of substance are not mutually exclusive categories with easily ascertainable contents." (citations and internal quotation marks omitted)); Nat'l Motor Freight Traffic Ass'n v. United States, 268 F.Supp. 90, 96 (D.D.C.1967) (three judge panel) ("The characterizations `substantive' and `procedural' — no more here than elsewhere in the law — do not guide inexorably to the right result, nor do they really advance the inquiry very far."), aff'd, 393 U.S. 18, 89 S.Ct. 49, 21 L.Ed.2d 19 (1968). Indeed, our Circuit has candidly confessed that it has "struggled with the distinction between `substantive' and `procedural' rules," JEM Broad. Co. v. FCC, 22 F.3d 320, 326 (D.C.Cir.1994),
Cognizant of the statutory purposes underlying notice and comment, the D.C. Circuit has held that the procedural rule exception's "critical feature is that it covers agency actions that do not themselves alter the rights or interests of the parties, although it may alter the manner in which the parties present themselves or their
From these broader themes, certain, more concrete, principles have emerged to guide the application of the APA's exemption for procedural rules. First, "[i]n determining whether a rule is substantive, [a court] must look at [the rule's] effect on those interests ultimately at stake in the agency proceeding." Neighborhood TV, 742 F.2d at 637. Hence, agency rules that impose "derivative," "incidental," or "mechanical" burdens upon regulated individuals are considered procedural, rather than substantive. See Bowen, 834 F.2d at 1051. More broadly, the D.C. Circuit has held that "an otherwise-procedural rule does not become a substantive one, for notice-and-comment purposes, simply because it imposes a burden on regulated parties." James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 281 (D.C.Cir.2000).
Another principle that has emerged in this Circuit to identify procedural rules is that, although a procedural rule generally may not "encode[] a substantive value judgment or put[] a stamp of approval or disapproval on a given type of behavior," see Bowen, 834 F.2d at 1047, "the fact that the agency's decision was based on a value judgment about procedural efficiency does not convert the resulting rule into a substantive one," Glickman, 229 F.3d at 282; see also JEM Broadcasting, 22 F.3d at 328 ("[Appellant's] reasoning threatens to swallow the procedural exception to notice and comment, for agency housekeeping rules often embody a judgment about what mechanics and processes are most efficient."). A corollary to this principle is that rules are generally considered procedural so long as they do not "change the substantive standards by which the [agency] evaluates" applications which seek a benefit that the agency has the power to provide. See JEM Broadcasting, 22 F.3d at 327 (emphasis in original). For example, in the context of the FOIA, the D.C. Circuit has held that an agency's policy imposing a cut-off date for searches was procedural because it "ma[de] no distinctions between requests on the basis of subject matter" and hence "clearly encode[d] no `substantive value judgment.'" See Pub. Citizen v. Dep't of State, 276 F.3d 634, 641 (D.C.Cir. 2002).
With these principles in mind, the Court begins by considering whether the Final Rule adversely affects "those interests ultimately at stake in the agency proceeding." See Neighborhood TV, 742 F.2d at 637. The CIA argues that the Final Rule is procedural because it does not affect any of the rights or interests provided to members of the public through the MDR program, as promulgated in Executive Order 13,526. See Defs.' Mem. at 3-4. In particular, the CIA contends that "[p]laintiffs' ability to request the declassification of
At the outset, the Court is skeptical whether either of the "rights" articulated by the plaintiffs are, in fact, benefits that any individual was entitled to under the previous MDR fee structure. The "preferential fee treatment" accorded to non-commercial requesters under the previous MDR fee structure was dependent upon a requester establishing that, among other things, "the information [sought] will be used in a specific scholarly or analytical work, will contribute to the advancement of public knowledge, and will be disseminated to the general public." See 32 C.F.R. § 1900.02(h)(2). Additionally, the availability of a fee waiver under the previous MDR fee structure was a matter of agency discretion, just as it is in the context of the FOIA. See, e.g., Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 35 (D.C.Cir.1998) (noting an agency's "discretion under [the FOIA's] fee waiver provision"). Even taking the plaintiffs' "rights" argument at face value, the relevant question for purposes of the APA is not whether the Final Rule burdens or even eliminates any rights or interests, but rather whether the Final Rule adversely affects "those interests ultimately at stake in the agency proceeding." See Neighborhood TV, 742 F.2d at 637 (emphasis added). There can be no question that those interests are the ones focused on by the CIA — namely, the public's interest in being able to seek the declassification of "information that no longer meets the standards for classification." See Exec. Order 13,526 § 3.5(c); Defs.' Mem. at 4; Defs.' Reply at 4.
The plaintiffs refer to this interest in their opposition brief, stating that the Final Rule "effectively remove[s] non-commercial requesters' ability to file MDR requests" because "[t]he sheer magnitude of review fees would be enough to effectively prevent non-commercial requesters... from filing any but the simplest MDR requests." Pls.' Opp'n at 10. Executive Order 13,526 provides that, under the MDR program "all information classified under this order or predecessor orders shall be subject to a review for declassification" if a request meets certain conditions, and agencies conducting an MDR "shall declassify information that no longer meets the standards for classification." See Exec. Order. 13,526 § 3.5(a), 3.5(c) (emphasis added). As discussed above, these are substantive interests. See, e.g., Nat'l Ass'n of Waterfront Emp'rs v. Solis, 665 F.Supp.2d 10, 17 (D.D.C.2009) (holding that "informational interests are substantive and are entitled to APA protection" (citing Chrysler Corp. v. Brown, 441 U.S. 281, 302-03, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979))). Thus, although the Final Rule's effective foreclosure of the public's interest in seeking the review of classified material for declassification would raise a serious question about the procedural nature of the Rule, the plaintiffs simply do not allege
The Court must also consider the related question of whether the CIA's elimination of the commercial/non-commercial distinction (for fee purposes) "encodes a substantive value judgment or puts a stamp of approval or disapproval on a given type of behavior." Bowen, 834 F.2d at 1047. On this score, the CIA maintains that "its MDR Program regulation does not make value judgments or distinguish between relevant members of the public," but rather "the fee schedule distinguishes only on the basis of the costs incurred by the agency for reproduction, search, and review to satisfy the request." See Defs.' Mem. at 5-6. It argues that the distinctions between commercial and non-commercial requesters "are simply not distinctions `on the basis of subject matter.'" See Defs.' Reply at 5 (quoting Public Citizen, 276 F.3d at 640). The plaintiffs contend,
It is certainly possible that the Final Rule's intent, at a high enough level of generality, was to "put[] a stamp of ... disapproval" on the mission of non-commercial requesters, see Bowen, 834 F.2d at 1047, since it makes it more costly for non-commercial requesters to secure the declassification of information than it used to be under the old fee structure. Yet, as our Circuit has counseled, "[a]ll decisions, to the extent that they derive from reasons, necessarily are based on the value judgment that the chosen option is better, in some relevant way, than its alternatives." See Glickman, 229 F.3d at 282. The Final Rule in the instant action does not make it any more costly for non-commercial requesters to secure declassification of information than it does for any other members of the public, and requiring all MDR requesters to pay the same fees in order for the CIA to recoup the costs of searching, reviewing, and duplicating requested material can hardly be called a "substantive value judgment" under our Circuit's precedents because the classification of requesters has no connection whatsoever to the substance of a request. A simple example demonstrates why this is so: Professor A seeks the declassification of a piece of information for the purpose of writing a scholarly article that favors a given government policy, while Professor B simultaneously seeks declassification of the same piece of information for the purpose of writing a scholarly article that disfavors the same government policy. Both persons face the exact same costs to pursue their missions, even though their missions are, in substance, diametrically opposed to one another, and that conclusion would be true regardless of whether the professors made their MDR requests before or after the Final Rule went into effect.
Additionally, although the parties do not raise this point, the Court finds instructive a parallel body of authority that addresses whether rules requiring the payment of court filing fees are procedural or substantive. The Supreme Court has characterized uniform court filing fees to initiate legal actions as "reasonable procedural requirements for triggering the right to an adjudication." See Logan v. Zimmerman Brush Co., 455 U.S. 422, 437, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). The D.C. Circuit has made a similar characterization in the context of the Prison Litigation Reform Act's ("PLRA's") "three-strikes provision," which "specifies that, after having three times filed suits or appeals that were dismissed on one of the enumerated grounds, a prisoner must pay" the requisite filing fee. See Ibrahim v. District of Columbia, 208 F.3d 1032, 1036 (D.C.Cir. 2000). In Ibrahim, the Circuit held that the "three strikes" provision was "a procedural rule" because it "neither divests a prisoner of his right to bring a claim nor changes the law in a way that adversely affects his prospects for success on the merits of the claim." See id.; accord Lisenby v. Lear, 674 F.3d 259, 263 (4th Cir. 2012); Funtanilla v. Downs, 131 Fed.
It would make little sense to hold that the PLRA's three-strikes provision is a mere procedural rule but also hold that the Final Rule in the instant case is a substantive one. There is no meaningful practical distinction between an indigent prisoner being required to "pay his own way like any other litigant," see id., and a non-commercial MDR requester being required to pay the same search, review, and duplication fees as every other MDR requester. The contexts of the two rules are certainly distinguishable — for example, the three-strikes provision was passed by Congress, while the Final Rule was promulgated by an unelected agency — but their functional effects are nearly identical. See Chamber of Commerce, 174 F.3d at 212 ("[T]he question whether a rule is substantive or procedural for the purposes of § 553(b) is functional, not formal."). Thus, much like court filing fees addressed in Ibrahim and the cut-off provision in Public Citizen, the CIA's uniform MDR fee structure encodes no substantive value judgments, despite the fact that it eliminates preferences previously granted to certain groups of MDR requesters. See Public Citizen, 276 F.3d at 641 ("Because the [State] Department's cut-off policy applies to all FOIA requests, making no distinction between requests on the basis of subject matter, it clearly encodes no `substantive value judgment.'"); see also Kaspar Wire Works, Inc. v. Sec'y of Labor, 268 F.3d 1123, 1131-32 (D.C.Cir.2001) (holding that OSHA's imposition of penalties on a "per instance" basis was a procedural rule under the APA).
Finally, the Court must assess whether the Final Rule affects potential MDR requesters "to a degree sufficient to implicate the policy interests animating notice-and-comment rulemaking." See Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec. ("EPIC"), 653 F.3d 1, 6 (D.C.Cir. 2011). In EPIC, the D.C. Circuit considered whether the Transportation Security Administration's ("TSA's") decision "to screen airline passengers by using advanced imaging technology [or `AIT'] instead of magnetometers" qualified for the APA's procedural rule exception. See id. at 2-3. It was "clear that by producing an image of the unclothed passenger, an AIT scanner intrudes upon his or her personal privacy in a way a magnetometer does not." Id. at 6. Thus, the Circuit held that "regardless whether this is a `new substantive burden,' the change substantively affects the [privacy interests of the] public to a degree sufficient to implicate the policy interests animating notice-and-comment rulemaking." Id.
In evaluating whether the Final Rule likewise "has the hallmark of a substantive rule," see id., the "critical question is whether the agency action jeopardizes the rights and interests of parties," Batterton, 648 F.2d at 708. Before exempting a rule from notice-and-comment procedures, the Court must assure itself that this is one of the "limited situations where substantive rights are not at stake," otherwise it is imperative that potentially affected parties be given a chance to raise concerns and suggest how the agency should craft its rule to protect the substantive rights implicated. See Bowen, 834 F.2d at 1044-45. In EPIC, the interests implicated by the TSA's rule were the public's "privacy interests." See 653 F.3d at 6. Even though the AIT scanners imposed no "new substantive burden" on members of the public — since they imposed the same "requirement that a passenger
Even so, the Court concludes that, based on the allegations in the First Amended Complaint, the principle articulated in EPIC is not applicable to the instant case. As discussed above, the plaintiffs have not sufficiently alleged that the CIA's Final Rule has any adverse effect on "those interests ultimately at stake in the agency proceeding," see id., and the plaintiffs have likewise failed to allege that the Final Rule infringes upon any other important rights or interests held by MDR requesters, such as personal privacy, freedom of speech, or the equal protection of the law. Therefore, the Court concludes that the situation presented by this case is one "where the policies promoted by public participation in rulemaking are outweighed by the countervailing considerations of effectiveness, efficiency, expedition and reduction in expense." See Guardian Fed. Sav. & Loan Ass'n v. Fed. Sav. & Loan Ins. Corp., 589 F.2d 658, 662 (D.C.Cir. 1978). As such, although this case presents a close question under the D.C. Circuit's limited guidance on this issue, the Court concludes that, based on the allegations in the First Amended Complaint, the plaintiffs have not sufficiently alleged that the Final Rule fails to qualify as a procedural rule that was exempt from the APA's notice-and-comment procedures. For that reason, the plaintiffs' claim in Count One of their First Amended Complaint must be dismissed for failure to state a claim upon which relief may be granted.
As the foregoing discussion establishes, the defendants' partial motion to dismiss will be granted in part and denied in part. The Court will grant the defendants' motion as to the plaintiffs' FOIA policy-or-practice claims in Counts Five, Six, Fifteen, and Twenty-Five because the plaintiffs lack standing to bring those claims, and thus the Court lacks subject-matter jurisdiction to hear them. Further, the Court grants the defendants' motion, pursuant to Rule 12(b)(6), as to the plaintiffs' claim in Counts Nineteen and as to two of the three FOIA requests challenged in Count Twenty-Six because the plaintiffs failed to exhaust their administrative remedies with respect to the three FOIA requests underlying those claims. Finally, the Court grants the defendants' motion as to the plaintiffs' claim in Count One challenging the CIA's promulgation of its Final Rule regarding its MDR fee structure without notice and comment because the plaintiffs have not sufficiently alleged that the Rule fails to qualify as a procedural rule, which is exempt from the notice-and-comment requirement. The Court denies the defendants' motion, however, with respect to the plaintiffs' claims in Counts Twenty-One and Twenty-Two because, in those counts, the plaintiffs have successfully pleaded claims for which relief may be granted.
An appropriate Order accompanies this Memorandum Opinion.
