                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
PRISOLOGY,                          )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                Civil Action No. 14-0969 (ABJ)
                                    )
FEDERAL BUREAU OF PRISIONS,         )
                                    )
                  Defendant.        )
____________________________________)


                                 MEMORANDUM OPINION

       Plaintiff Prisology, Inc. has brought this action against the Federal Bureau of Prisons

(“BOP”), alleging that defendant has failed to make certain records publicly available as it is

required to do under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq. (2012).

Plaintiff seeks declaratory and injunctive relief pursuant to FOIA and the Administrative

Procedure Act (APA), 5 U.S.C. §§ 701–706 (2012). Compl. [Dkt. # 1]. Defendant has moved to

dismiss under Federal Rule of Civil Procedure 12(b)(1) on the grounds that plaintiff lacks

standing to bring the case. Def.’s Mot. to Dismiss (“Def.’s Mot.”) [Dkt. # 8]; Def.’s Mem. in

Supp. of Mot. to Dismiss (“Def.’s Mem.”) [Dkt. # 8-1]. Because the Court finds that plaintiff

has not sufficiently alleged an injury in fact as required for Article III standing, the Court will

grant defendant’s motion to dismiss.

                                        BACKGROUND

       Plaintiff is a Texas non-profit organization that advocates for criminal justice reform.

Compl. ¶ 2. Plaintiff alleges that defendant has failed to comply with the statutory requirement
that federal agencies make available via “computer telecommunications” the following types of

agency records created on or after November 1, 1996:

       (A) final opinions, including concurring and dissenting opinions, as well as
           orders, made in the adjudication of cases;

       (B) those statements of policy and interpretations which have been adopted by
           the agency and are not published in the Federal Register; [and]

       (C) administrative staff manuals and instructions to staff that affect a member of
           the public . . . .”

Id. ¶¶ 5–6, quoting 5 U.S.C. § 552(a)(2). Specifically, plaintiff alleges that defendant “refuses to

make available numerous qualifying records via computer telecommunications means,” id. ¶ 6,

including, but not limited to:

       (1) responses to administrative remedy requests and appeals from each BOP
       institution, Regional Office, and the BOP’s Central Office; (2) private settlements
       outside of litigation between the BOP and its employees, inmates, and other
       persons; (3) grants and denials of requests for compassionate release; (4) all
       settlements, compromises, and rejections of claims made pursuant to the Federal
       Tort Claims Act and Inmate Accident Compensation Program; and (5)
       Disciplinary Hearing Officer reports reflecting agency adjudication of serious
       prison disciplinary charges.

Id. ¶ 7. Plaintiff seeks a declaration that these categories of records are subject to FOIA’s

electronic disclosure requirements, and it asks the Court to issue an injunction under the APA

requiring defendant to make those records electronically available. Id. ¶ 8.

       Defendant moved to dismiss this action for lack of standing because plaintiff “has not

alleged that it suffered any injury as a result of BOP’s alleged non-compliance with the E-FOIA




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requirements.” 1 Def.’s Mem. at 3. Plaintiff opposed the motion. Pl.’s Mem. of P. & A. in Opp.

to Def.’s Mot. (“Pl.’s Opp.”) [Dkt. # 9]. In its reply, defendant also advanced other grounds for

the dismissal of plaintiff’s claims: that plaintiff lacks standing because it failed to identify with

specificity the information that defendant allegedly failed to make available, and that plaintiff

failed to state a claim upon which relief can be granted, requiring dismissal pursuant to Rule

12(b)(6). Def.’s Reply in Supp. of Mot. to Dismiss (“Def.’s Reply”) [Dkt. # 11]. Defendant’s

“arguments as to failure to state a claim . . . raised for the first time in [its] reply briefing, are

waived.” King v. District of Columbia, No. 11-CV-1124, 2012 WL 1077683, at *2 n.1 (D.D.C.

Mar. 30, 2012) (internal citations omitted), citing Penn. Elec. Co. v. F.E.R.C., 11 F.3d 207, 209

(D.C. Cir. 1993) (“We have said before, and we say again, that ordinarily we will not consider

arguments raised for the first time in a reply brief.”). But because standing was raised in

defendant’s initial motion, and “Article III standing is a prerequisite to federal court




1        Defendant also moved to dismiss for lack of standing because plaintiff “has not alleged
that [it] submitted a FOIA request to BOP for information which was denied.” Def.’s. Mem. at
3–4. Defendant later withdrew this argument, stating that “[w]hen a plaintiff seeks qualifying
records pursuant to 5 U.S.C. § 552(a)(2), a FOIA request is not necessary and agencies are to
make qualifying records available automatically through their [FOIA] reading room.” Def.’s
Reply in Supp. of Mot. to Dismiss (“Def.’s Reply”) [Dkt # 11] at 1 n.1, citing Jordan v. U.S.
Dep’t of Justice, 591 F.2d 753, 756 (D.C. Cir. 1978); Tereshchuk v. Bureau of Prisons, No. 09-
1911(RCL), 2014 WL 4637028, at *8 (D.D.C. Sept. 16, 2014). The Court agrees that agencies
are required by section 552(a)(2) to make certain documents available without any FOIA request.
See, e.g., Schindler Elevator Corp. v. United States ex rel. Kirk, 131 S. Ct. 1885, 1894 (2011),
citing 5 U.S.C. §§ 552(a)(1)–(2) (“FOIA requires agencies to release some records even absent a
request.”) However, as discussed below, the filing of such a request – and its subsequent denial
by the agency – may provide evidence of the injury suffered by that party relevant to its standing
to bring suit.

                                                  3
jurisdiction,” American Library Ass’n v. FCC, 401 F.3d 489, 492 (D.C. Cir. 2005), the Court will

examine plaintiff’s standing to bring its claims. 2

                                    STANDARD OF REVIEW

I.     Motion to Dismiss for Lack of Subject Matter Jurisdiction

       In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court “must

treat the complaint’s factual allegations as true, and must grant plaintiff ‘the benefit of all

inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216

F.3d 1111, 1113 (D.C. Cir. 2000) (internal citations omitted), quoting Schuler v. United States,

617 F.2d 605, 608 (D.C. Cir. 1979); see also Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139

(D.C. Cir. 2011). Nevertheless, the Court need not accept inferences drawn by the plaintiff if

those inferences are unsupported by facts alleged in the complaint, nor must the Court accept

plaintiff’s legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002); see also

Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006).

       Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies

outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of

limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). “[B]ecause

subject-matter jurisdiction is ‘an Art[icle] III as well as a statutory requirement . . . no action of

the parties can confer subject-matter jurisdiction upon a federal court.’” Akinseye v. District of


2      Because “[t]he party invoking federal jurisdiction bears the burden of establishing the[]
elements” of standing, Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992), and because the
Court looks to the face of the complaint to determine its jurisdiction, see Haase v. Sessions, 835
F.2d 902, 908 (D.C. Cir. 1987), it is irrelevant that defendant raised additional standing
arguments in its reply, without providing plaintiff an opportunity to respond. Plaintiff has the
duty to plead facts sufficient to support standing in its complaint, and was therefore not
prejudiced by defendant’s assertion of a new standing argument in its reply.

                                                  4
Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des

Bauxites de Guinee, 456 U.S. 694, 702 (1982).

       Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a

preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992);

Shekoyan v. Sibley Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). When faced with a Rule

12(b)(1) motion to dismiss for lack of subject-matter jurisdiction, a court has “an affirmative

obligation to consider whether the constitutional and statutory authority exist” permitting 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.’” Nat’l Sec. Counselors v. CIA, 931 F. Supp. 2d 77, 88

(D.D.C. 2013) (alterations in original), quoting 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 considering a motion to dismiss for lack of jurisdiction, unlike when deciding a

motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the

complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other

grounds, 482 U.S. 64 (1987). Rather, “a court may consider such materials outside the pleadings

as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case.”

Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert

v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharms.,

Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).




                                                 5
II.    Article III Standing

       To invoke federal jurisdiction, a party must allege an actual case or controversy to

overcome the threshold requirement imposed by Article III of the Constitution. City of Los

Angeles v. Lyons, 461 U.S. 95, 101 (1983). “To state a case or controversy under Article III, a

plaintiff must establish standing.” Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436,

1442 (2011); see also Lujan, 504 U.S. at 560. Standing is a necessary predicate to any exercise

of federal jurisdiction, and if it is lacking, then the dispute is not a proper case or controversy

under Article III, and federal courts do not have subject matter jurisdiction to decide the case.

Dominguez v. UAL Corp., 666 F.3d 1359, 1361 (D.C. Cir. 2012). “When there is doubt about a

party’s constitutional standing, the court must resolve the doubt, sua sponte if need be.” Lee’s

Summit v. Surface Transp. Bd., 231 F.3d 39, 41 (D.C. Cir. 2000).

       To determine jurisdiction, the Court looks to the face of the complaint.             Haase v.

Sessions, 835 F.2d 902, 908 (D.C. Cir. 1987).           To comply with the Article III standing

requirements, a plaintiff must show that: “(1) it has suffered an ‘injury in fact’ that is (a)

concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the

injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed

to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180–81 (2000).

       “An organization can have standing on its own behalf, or on behalf of its members.”

Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129, 132

(D.C. Cir. 2006) (internal citations omitted).        To assert standing as an organization, an

organizational plaintiff must allege “such a personal stake in the outcome of the controversy as

to warrant the invocation of federal-court jurisdiction,” and must show “concrete and



                                                  6
demonstrable injury to the organization’s activities – with [a] consequent drain on the

organization’s resources – constitut[ing] . . . more than simply a setback to the organization’s

abstract social interests.” Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433

(D.C. Cir. 1995) (alteration in original) (internal quotation marks omitted). To assert standing on

behalf of its members, the plaintiff organization must show that: “(1) at least one of its members

would have standing to sue in his own right, (2) the interests the association seeks to protect are

germane to its purpose, and (3) neither the claim asserted nor the relief requested requires that an

individual member of the association participate in the lawsuit.” Sierra Club v. EPA, 292 F.3d

895, 898 (D.C. Cir. 2002).

       Since the elements of standing are “an indispensable part of the plaintiff’s case, each

element must be supported in the same way as any other matter on which the plaintiff bears the

burden of proof, i.e., with the manner and degree of evidence required at the successive stages of

the litigation.” Lujan, 504 U.S. at 561.

                                           ANALYSIS

       Defendant moved to dismiss this action for lack of standing under Rule 12(b)(1) because

plaintiff “has not alleged that it suffered any injury as a result of BOP’s alleged non-compliance

with the E-FOIA requirements.” Def.’s Mem. at 3. And a review of the complaint confirms that

this case does not turn upon an analysis of the strength of plaintiff’s allegations: the complaint is

devoid of any claims – even conclusory ones – that plaintiff has suffered or will suffer actual

harm as a result of defendant’s conduct.

       Plaintiff alleges only that it is a nonprofit organization that advocates for criminal justice

reform, and that defendant has failed to satisfy its duties under FOIA to make certain records

publicly available. Compl. ¶¶ 2, 6–7. In its opposition to the motion to dismiss, plaintiff



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contends that this is sufficient: it takes the position that since FOIA grants plaintiff a legal right

to access the records in question, defendant’s interference with that right – through its refusal to

publish those records – gives rise to an injury for Article III purposes. Pl.’s Opp. at 2.

       Plaintiff is correct that “[t]he actual or threatened injury required by Art[icle] III may

exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.”

Warth v. Seldin, 422 U.S. 490, 500 (1975) (internal quotation marks omitted). But plaintiff

overlooks the Supreme Court’s admonition that “[Statutory] broadening [of] the categories of

injury that may be alleged in support of standing is a different matter from abandoning the

requirement that the party seeking review must himself have suffered an injury.” Lujan, 504 U.S.

at 578 (alterations in original) (emphasis added) (internal quotation marks omitted). As the

Court put it: “it is clear that in suits against the Government, at least, the concrete injury

requirement must remain.” Id.; see also Lake Mohave Boat Owners Ass’n v. Nat’l Park Serv., 78

F.3d 1360, 1368 (9th Cir. 1995) (“[A]n individual may not raise an FOIA claim based on an

agency’s failure to publish a rule or regulation, unless he makes an initial showing that he was

adversely affected by the lack of publication.”) (internal quotation marks omitted).

       Here, plaintiff has failed to point to any injuries sustained, by the organization itself or by

its members, as a result of defendant’s conduct. The complaint notes simply that plaintiff is a

“non-profit organization that advocates for criminal justice reform.” Compl. ¶ 2. While plaintiff

explains in its opposition that it “accomplishes its mission through various projects, which

includes information dissemination to the public via social media and other mediums about

criminal justice practices,” Pl.’s Opp. at 1 (footnote omitted), it has alleged no facts that would

enable a court to conclude that plaintiff has been harmed by defendant’s conduct in any concrete

or particularized way.



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       The Third Circuit has addressed a similar issue in the FOIA context, and it upheld a grant

of summary judgment against the plaintiff on standing grounds. Penn., Dep’t of Pub. Welfare v.

Sebelius, 674 F.3d 139 (3d Cir. 2012). The plaintiff had alleged that the agency in question

failed to create an adequate index of agency materials as required by section 552(a)(2) of FOIA,

and that the lack of an adequate index had hampered its counsel’s ability to represent the plaintiff

effectively before the agency. Id. at 156. The Third Circuit determined that the plaintiff’s

“vague and indefinite allegations are inadequate to establish injury-in-fact,” and that the plaintiff

failed to “cure this deficiency by identifying any concrete information or cases that it was unable

to find, or any other description of how this inability actually hampered its representation before

the [agency].” Id. at 156–57.

       While plaintiff’s claim in this case does not center on the FOIA indexing provision, and it

involves the provision requiring federal agencies to make certain information available

electronically instead, the Court finds the Sebelius case to be instructive. And here, the plaintiff

has done even less than the Sebelius plaintiff to articulate precisely the injury it has sustained as

a result of defendant’s alleged withholding. Rather, plaintiff’s injury, if any, appears to be the

type of generalized grievance widely recognized as insufficient to constitute the injury in fact

necessary for standing purposes. See Lujan, 504 U.S. at 573–74 (“[A] plaintiff raising only a

generally available grievance about government – claiming only harm to his and every citizen’s

interest in proper application of the Constitution and laws, and seeking relief that no more

directly and tangibly benefits him than it does the public at large – does not state an Article III

case or controversy.”).




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       It is true that in Zivotofsky ex rel. Ari Z. v. Secretary of State, 444 F.3d 614 (D.C. Cir.

2006), the D.C. Circuit stated:

       The Supreme Court has recognized that “Congress may enact statutes creating
       legal rights, the invasion of which creates standing, even though no injury would
       exist without the statute.” . . .

       A common example of such a statute is the Freedom of Information Act
       (“FOIA”). Anyone whose request for specific information has been denied has
       standing to bring an action; the requester’s circumstances – why he wants the
       information, what he plans to do with it, what harm he suffered from the failure to
       disclose – are irrelevant to his standing. The requester is injured-in-fact for
       standing purposes because he did not get what the statute entitled him to receive.

Id. at 617–18 (internal citations omitted), quoting Linda R.S. v. Richard D., 410 U.S. 614, 617

n.3 (1973). But that commentary does not govern the instant situation. In Zivotofsky, the D.C.

Circuit used the FOIA situation as an analogy when resolving the standing question before it. In

that process, it observed that it is a particular request for particular information that confers

standing upon a FOIA plaintiff, and that there is no need for proof of further injury caused by the

denial of a request. But that language involving the actual denial of a specific request for

particular material is not sufficiently broad to cover plaintiff’s grievance here about how

defendant is complying with the law in general.

       Because plaintiff has failed to assert an actual or imminent particularized injury, it lacks

standing to bring this case, and the Court must dismiss plaintiff’s FOIA claim. And because

plaintiff’s APA claim “presumes that [defendant’s] conduct with respect to its FOIA obligations

and policies has injured [plaintiff] in some way,” plaintiff’s failure to state an injury in fact for

FOIA purposes is similarly fatal to its standing to assert an APA claim. See Feinman v. FBI, 680

F. Supp. 2d 169, 176 (D.D.C. 2010).




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