UNITED STATES DISTRICT COURT
FOR THE DISTR_ICT OF COLUl\/[BIA

 

JEFFREY S.CUDDER et al.,'
Plaintiffs,

Case No. 1:16-'cV-019l7 (TNM)
v.

CENTRAL lNTELLIGENCE AGENCY,

Defendanti

 

 

MEMORANDUM OPINION

Plaintiffs leffrey Scudder, Ken Osgood, Hugh Wilford, and Mark Stout (collectively,

_“_Plaintiffs”) filed-na two-count complaint against defendant Central Intelligence Agency (the
“Defendant” or “ClA”), seeking a court order for the production of 386 documents electronically
and a declaration that the Defendant’s alleged policy or practice in determining Whether

_ documents are “readily reproducible” in electronic format is unla\ivful under the Freedom of
lnformation Act (“FOLA”)._ Am. Compl. 7-8; see also 5 U.S.C. § 552(a)(3)(B) (requiring an
agency to “provide the record in any form or format requested by the person if the record is
readily producible by the agency in that form or format”); Payne Enter., Inc. v. United States,
837 F.Zd 486, 491 (D.C. Cir. 1988) (holding that the disclosure of documents pursuant to a

' specific FOIA request does “not moot a claim that an agency policy or practice Will impair the
party’s lawful access to information in the future.”). Pending before the Court is the Defendant’s
motion to dismiss Count Il, Plaintiffs’ policy or practice claim, pursuant to Federal Rule of Civil
Procedure 12@)(6). Partial Mot.\to Dismiss lS. Having confirmed that jurisdiction and venue is

proper in this Court,l and upon consideration of the pleadings, relevant law, and related legal

 

l see 5 U.s.C. § 552(3)(4)_(3); 23 U.s.c. §§ 1331, 1391.

 

 

 

memoranda in opposition and in support, l find that Count II should be dismissed for failure to
state a claim upon which relief can be granted. Accordingly, the Defendant’s motion is

GRANTED, and Count II of the Amended Complaint is DISMIS SED WITHOUT PREJUDICE.

I. Background

Plaintiffs are four American citizens, including Mr. Scudder, a former employee of the-
Defendant; and Messrs. Osgood, Wilford, and Stout, professors at various universities in the
United States. Am. Compl. 1111 3-6. Mr. Scudder is well-versed in FOIA'litigation against the'
Defendant, having previously litigated against the CIA in this district which resulted in the
electronic production of certain articles. See Am. Compl. ll l(). Plaintiffs aver that this is among
“the few” instances where FOIA requestors have received electronic productions from the
Defendant, and believe that the Defendant has produced electronic copies of responsive records
on fewer than five occasions total, making it the “Worst offender of the statutory requirement to
produce electronic copies of responsive records when readily reproducible,” Am. Compl.

{[11 9~ l 0. '

Plaintiffs, through a FOIA request to the Defendant dated July 27, 2016, now seek the

production of 386 documents by'electronic means only. Am.- Compl. 1[ 18. After the Defendant
did not respond within the statutorily required ZO-day time period,2 Plaintiffs brought this action
to: (l) compel electronic production of the requested documents and (2) “resolve once and for
all” Whether the Defendant improperly maintains a categorical policy or practice of not
producing documents electronically as requested Am. Compl. W 16, 20. Subsequent to the start

of this litigation, Plaintiffs submitted two new FOIA requests for electronic copies of particular

 

2 See 5 U.S.C. § 552(a)(6)(A)(i). Plaintiffs have therefore constructively exhausted all required administrative
remedies See 5 U.S.C. § 552(a)(6)(C)(i).

 

CIA records, and argue that a declaratory order is necessary to protect against the “likely refusal”
by the Defendant to produce the requested documents electronically. Am. Compl. 1]1[ 17, 25.

The Defendant’s motion to dismiss Count ll is now ripe for adjudication

II. Legal Standard

A party may move to dismiss a complaint, or la specific count therein, on the ground that
it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. lZ(b)(6). Federal '
Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and plain statement of
the.claim showing that the pleader is entitled to relief.” This requires the complaint to contain
sufficient factual allegations that,`if true, “state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint is insufficient if it merely
offers “‘labels and conclusions”’ or"“n_al<red assertion[s]’ devoid of ‘further factual
enhancement.”’ Ashcrofr v. Iql)al, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555,
' 54_6). Rather,.' “[a] claim has facial plausibility When the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”- Iqbal, 556 U.S. at 678. Plausibility “asks for more than a sheer possibility that a
defendant has acted unlawfully,” id. , and pleading facts that are “mei_'ely consistent With” a-

. defendant’_s liability “stops short of the line between possibility and plausibility.” Twombly, 550
U.S. at 545-46.

in evaluating a motion to dismiss pursuant to Rule 12(b)(6), the Court must construe the
complaint in the light most favorable to the plaintiff and accept as_ true all reasonable factual
inferences drawn-from Well~pled factual allegations See Ii/i re Uni'ted Mi‘ne Workers of Am.
Emp. Benefit Plans Lz'ri'g., 854 F. Supp. 914, 915 (D.D.C. l994). The Court does not accept as

true legal conclusions or “[t]hreadbare recitals of the elements of a cause of action, supported by

 

mere conclusory statements.” Iqbal, 556 U.S. at 678. Last, “[i]n determining whether a
complaint fails to state a claim, [the court] may consider only the facts alleged in the complaint,
any documents either attached to or incorporated in the complaint and matters of which [the
court] may take judicial notice.” Hurd v. Disti'i'ct ofColumbia Gov ’t, 864 F.3d 67l, 678 (D.C. '_

Cir. 2017) (quoting EEOC v. Sr. Franci`s Xavi'er _Parochial Sch., ll7 F.3d 621, 624 (D.C. Cir.

1997)).

l III. Analysis
A. The Complaint Fails to Meet Fed. R. Civ. P’s lZ(b)(G) Pleading Standard

Even accepting as true all reasonable factual inferences from Well~pled factual l
allegations, the-complaint fails to adequately plead that the CIA has a policy or practice of ‘ l l
categorically refusing to release records responsive to FOIA requests in electronic format
Although it asserts, in conclusory fashion, that the CIA has a policy of refusing to release
responsive records in electronic format, Am. Compl. 1[ 23-24, the complaint is devoid of facts
- sufficient to advance this allegation from being possible to plausible See Iqbal, 556 U.S. at 678.
To the contrary, the facts pled in the complaint undercut this claim. l’laintiffs plead that the CIA
produced requested records in electronic fomiat in at least two instances in recent years, Am.
Compl. ll 15, and concede that the ClA has produced'requested records in electronic format in
other instances as well. See Am. Compl. 1[ 9. The reasonable factual inference to be drawn from
these allegations is that the CIA has produced documents electronically on several occasions, and
not, as Plaintiffs have asserted, that the CIA has categorically refused electronic production of
responsive documents

lhe complaint is further devoid of facts to“ support Plaintiffs’r claim that the CIA has a

policy or practice of not producing requested records in electronic format where readily

 

reproducible For example, Plaintiffs do not allege any instance where a requestor did not
receive the documents requested in electronic format; or, more significantly, any instance where
a requestor'improperly did not receive the documents in electronic format as requested. By
alleging that there have only been a few instances where the CIA has produced responsive
records electronically, Plaintiffs, at best, plead facts “merely consistent wit ” liability, which is
Well-settled.as insufficient See Iqbal, 556 U.S. at 678. - l

To factually support their claim, Plaintiffs offer a declaration submitted during
Mr. Scudder’s prior FOIA litigation against the CIA and quote extensively from a decision by
now-Chief Judge Howell in this district denying summary judgment during that litigation See
Am. Compl. ll‘|l ll-lS, Mem. in Opp’n to Def.’s Partial Mot. to Dismiss 4-5. The document and
passages upon Which Plaintiffs rely, however, do not provide the factual bases needed for the
claim to survive a motion to dismiss for failure to state a claim.

Plaintiffs present a declaration executed in July 2013 by Martha M. Lutz, Chief of the
litigation Support Unit of the CIA,3 to assert that the CIA`has already admitted that it maintain-s
a policy of categorically denying the electronic production of responsive documents Mem. in
Opp"n to Def.’s Partial Mot. to Dismiss 5; id. Ex_. l (“Lutz Declaration-”). Despite Plaintiffs" l
emphatic contention, the Lutz Declaration does\'not admit, as a matter of fact, that the CIA has a
categorical policy or practice of denying FOIA requests for electronic production. Instead, the
Lutz Declaration explains how the CIA’s information systems worked at the time the declaration
was executed and the technological difficulties of electronically producing the documents then
being requested by`Mr. Scudder. The declaration concludes, “Accordingly, the CIA has

determined that records are not readily reproducible in an electronic format and, as such, cannot _

 

5 Ms. Lutz’s current employment status in this position and/' or with the Defendant is unknown

 

comply with plaintiffs stated preference of receiving documents on DVD instead of paper.”
Lutz Declaration ll l6. Thus, the Lutz Declaration does not provide factual support for the
assertion that the Defendant admitted to maintaining a policy in violation of `FOlA, either at the
time of the declaration, and much less so that it"continues to do so today, nearly five years later.
Plaintiffs also emphasize a March 12, 20l4 memorandum opinion written by Chief Judge
Howell in Mr. Scudder’s prior litigation against the CIA denying cross-motions for summary
judgment and granting Mr. Scudder’s motion for discovery lri particular, Plaintiffs rely on
Chief Judge Howell’s summary of the ClA’s apparent position_that, “[i]n essence, the defendant
argues that it is defacto exempt from the requirements of 5 U.S.C. § 552(a)(3)(B).” Scudder v. _
Cenrral Intelligence Agency, 25 F. Supp. 3d l9, 22 (D.D.C. 2014) (“Scudder l”). Plaintiff quotes
' this passage as positive proof that the Defendant “maintains a practice of always refusing to .
produce records in electronic format.” Mem. in Op'p’n to Def.’s Partial Mot. to Dismiss 4.
However, nowhere in Chief Judge Howell’s opinion is there a finding of fact on this issue and
the opinion is not a judgment on the merits. Rather, the opinion denied the parties’ cross-
motions for summary judgment, finding that there were issues of material fact to be resolved
Scudder I, at 52. Plaintiff provides no other support to plausibly indicate that the CIA at the time
categorically rejected all requests for electronic production as a matter of policy or practice; and,
in any event, the Defendant ultimately electronically produced the non-exempt documents
requested by Mr. Scudder. See id.; Am. Compl. ll 10. l cannot reasonably_impute ChiefJudge
Howell’s summary of the Defendant’s apparent litigating position ina case from several years

ago as fact of the Defendant’s current policy or practice, Which is the focus of this lawsuit.

 

B. The Complaint Fails to Plead Facts Sufficient to Establish a Plausible “Policy or

Practice” Claim

In this Circuit, a plaintiff can challenge an agency policy or practice that results in
repeated FOIA violations. This cause of action was first recognized in Payne Em‘erpri'ses, Inc. v.
'Um'ted States, 837 F.2d 486, 491 (D.C. Cir. 1988), and it requires that a plaintiff plausibly allege
“that the agency has adopted, endorsed, or implemented some policy or practice that constitutes
an ongoing ‘failure to abide by the terms of the FOIA.”’ Muttitt v. Dep ’t ofState, 926 F. Supp.
2d 284, 293 (D.D.C. 20-13) (quoting Payne Erzterpri'ses, 837 F.2d-at 491). Further, other judges
in this district have found the allegation of a single FOIA violation insufficient as a matter of law
to state a policy or practice claim. See, e.g., Criuse ofAcri'on Inst. v. Eggleston, 224 F. Supp. 3d
63, 72 (D.D.C. 2016-); Muftz`tt v. United States Cenf. Command, 813 F. Supp. 2d 221, 231
(D.D.C. 2011).

Plaintiffs’ complaint fails to establish a plausible policy or practice claim for several
reasons. First, the complaint does not plausibly allege that the CIA has an improper categorical
policy or practice of refusing to produce requested documents in electronic format where readily
producible As explained above, Plaintiffs do not provide facts sufficient to support this claim;
to the contrary, the reasonable inference to be drawn from the complaint is that the Defendant
has indeed produced documents in electronic format in recent years Further, the Plaintiffs do
not provide any factual support for the proposition that these instances are the exception in cases
where a requestor seeks documents in electronic formatl Without more, the claim remains
merely possible and not plausible Second, Plaintiffs have not adequately pled that the CIA’s
alleged improper policy or practice is ongoing The only reference Plaintiffs make in their
complaint on this issue-is on the second-to-last- page, where Plaintiffs claim that they will

“continue to be banned by this ongoing policy in the future." Am. Cor_npl. ll 25. However, in

7

 

their opposition brief, Plaintiffs profess that the alleged policy or practice is “presumably”
ongoing while simultaneously acknowledging that Mr. Scudder’ s lawsuit and the Scudderr[
litigation occurred several years ago. Mem. in Opp’n to Def.’s Partial Mot. to Dismiss 5.
iPlaintiffs’ conclusory assertion of an ongoing policy is a “naked assertion devoid of further
factual enhancement,” see Iqbal, 556 U.S. at 678, and is insufficient to withstand a motion to
dismiss under Federal Rule of Civil Procedure l2(b)(6). Third, policy or practice cases in this
district since Payne Enterprises have required plaintiffs to show more than one violation of
FOIA.7 See, e.g,, Egglesron, 224 F. Supp. 3d at 7-2; Mutti'tr v. United States Cent. Command, 813
F. Supp. 2d at 231. 'l'his is based on Payne Em‘erpri'ses’ holding that a pattern or practice claim
is viable “[slo 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.” 837 F.2d at 491. Plaintiffs in this matter have not alleged
any instance where the Defendant was found to have violated FOlA-or even a specific instance l
where the Defendant allegedly violated FOlA_by failing to provide the requested information
electronically where readily producible Indeed, because this lawsuit and the First Amended
Complaint Were filed prior to the Defendant’s response to Plaintiffs’ FOIA claims, it is not even
clear in this case that the Defendant-will respond that the documents sought are not readily
producible in electronic format, or not otherwise produce the non-exempt records requested by
` the Plaintiffs in electronic format.

Last, the type of conduct alleged by Plaintiffs is a far cry from the egregious and
intentional conduct implicated in prior policy or practice claims. In Payne Enrerprises, the
government officers involved repeatedly refused to produce the documents requested, even after

the Secretary of the Air Force concluded that the documents could not be withheld pursuant to `

 

 

 

any statutory exemption Ia'. at 487. ln that case, the requests Were refused for nearly two years,
and remained untillfilled even after the Secretary’s Office admonished the officers for their
refusals to grant the requests. Id. at 494. ln contrast, here, Plaintiffs have not sufficiently alleged
that the Defendant is intentionally engaging in improper conduct, much less the intentional, long-
enduring egregious misconduct involved at issue in Payne Enrerpri'ses. ln Newporr Aeronauri`cal
Sales v. Dep 'r ofthe Air Force, 684 F.3`d 160, 164 (D.C. Cir. 2012), the plaintiffs challenged an

j established Air- Force policy of denying the production of certain data under FOIA, thus
requiring requestors to seek the information through another,- more restrictive, means. ln
Newport, the agency unambiguously implemented and followed a clear policy. See id. at 163. In
contrast, in this case, Plaintiffs have not sufficiently alleged that the\CIA has a current policy or

practice of categorically refusing to produce responsive documents electronically

IV. Conclusion

For the foregoing reasons, it is hereby ORDERED that the Defendant’s Partial Motion to
Dismiss is GRANTED. Count ll of the Complaint is hereby dismissedwithout prejudice A

l separate order will issue

SO ORDERED.

altman '

Dated: December 13', 2017 TREVOR N. MCFADDEN
United States District Judge

