UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

RUSSELL D. LUKAS, )
)
Plaintiff, )
)
Vv. ) Case No. 1:19-cv-465-RCL
)
FEDERAL COMMUNICATIONS )
COMMISSION, )
)
Defendant. )
)
MEMORANDUM OPINION

 

In February of 2019, plaintiff Russell D. Lukas filed suit against the Federal
Communications Commission (“FCC”). ECF No. 1. In June of 2019, he filed an Amended
Complaint alleging three counts against the defendant. ECF No. 12. Count I of the Amended
Complaint alleges that the FCC failed to act on his appeal under the Freedom of Information Act
(“FOIA”) (5 U.S.C. § 552). Count II seeks declaratory judgment under the Declaratory Judgment
Act (28 U.S.C. § 2201) that the Universal Service Administrative Company (“USAC”) is not a
government agency subject to FOIA. Count III alleges that the FCC improperly redacted a
document that he is entitled to under FOIA. The FCC filed a motion to dismiss Counts I and IT of
the Amended Complaint and for summary judgment on Count III of the Amended Complaint.
ECF Nos. 5 & 13. Mr. Lukas also filed a cross-motion for partial summary judgment on Counts |
and II. ECF No. 19. Upon consideration of all motions, oppositions, and replies, the Court will
GRANT Defendant’s Motion to Dismiss and for Summary Judgment (ECF Nos. 5 & 13),

meaning that Counts I and II will be dismissed with prejudice and that summary judgment will
be entered in favor of defendant on Count Il.! The Court will DENY Plaintiff's Cross-Motion

for Partial Summary Judgment (ECF No. 19).

BACKGROUND

In May of 2017, Mr. Lukas sent the FCC a FOIA request for a document that had been
filed with USAC by Windstream Communications, LLC (“Windstream”). USAC had denied
universal service funding to three healthcare providers in rural Texas that had selected
Windstream as their telecommunications service provider, and Mr. Lukas sought Windstream’s
written appeal of that denial. In September of 2017, the FCC’s Wireline Competition Bureau
(“the Bureau”) issued a letter responding to’the request, which stated that the Bureau had located
a 52-page responsive document, of which it produced 45 pages. The Bureau withheld some
pages after concluding that they fell within FOIA Exemption 7(E), and additional material was
redacted under Exemptions 6 and 7(E). On October 31, 2017, plaintiff filed an application for
review of the Bureau’s decision, but while that application was pending, the FCC’s Office of
General Counsel provided plaintiff with most of the materials that the Bureau had withheld. Mr.
Lukas amended his application for review in May of 2018 to clarify that only Exhibit E of
Windstream’s appeal was still being withheld from him. He amended his application for review
again several months later, explaining that Windstream had given him a redacted copy of Exhibit
E.

Upon learning that Mr. Lukas had been given all of the documents that he sought except

for the redactions in Exhibit E, the Bureau informed Mr. Lukas in November of 2018 that his

 

1 Defendant originally filed its motion to dismiss Counts I and If and for summary judgment on Count III on May 6,
2019 (ECF No. 5). Once plaintiff filed his Amended Complaint (ECF No. 12), defendant submitted an updated
version of its motion on June 19, 2019 (ECF No. 13). Therefore, the Court will grant both ECF No. 5 and ECF No.
13 so that the Complaint (ECF No. 1) and the Amended Complaint (ECF No. 12) are disposed of.

2
challenge regarding the unredacted pages was moot. The Bureau also explained that it would not
disclose the redacted information due to FOIA Exemption 4, as the redacted information
contained confidential commercial or financial information that would harm Windstream’s
competitive position. The Bureau further instructed him that if he wished to appeal the agency’s
determination regarding Exemption 4, he needed to file an application for review within 90
calendar days. Mr. Lukas never filed such an application.

On February 25, 2019, Mr. Lukas filed his Complaint, which alleged the three counts
explained above. On March 29, 2019, the FCC’s General Counsel dismissed plaintiff s
application for review of the Bureau’s September of 2017 decision as moot and further explained
that even if plaintiff had sought review of the November of 2018 decision, he would not have
received any information not already in his possession. On April 8, 2019, the FCC received a
letter from Windstream’s counsel requesting that the agency continue to withhold the material
that Windstream had redacted from Exhibit E due to the highly sensitive nature of the
information (such as Windstream’s pricing strategy, negotiating positions, and sales history).
Plaintiff shortly thereafter sent the FCC a letter stating that Windstream had failed to justify its
request for confidential treatment.

On May 2, 2019, the FCC’s Office of General Counsel provided Mr. Lukas with a
partially redacted copy of Exhibit E. The document that the FCC disclosed included one
additional piece of information that had been redacted in the copy Windstream previously
provided to him in 2018, but other than that, the redactions were identical. On May 6, 2019, the
FCC moved for dismissal of Counts IJ and II and for summary judgment on Count III. The Court
granted leave for plaintiff to amend his Complaint, though the Amended Complaint asserts the

same three claims that Mr. Lukas made in his original Complaint.
LEGAL STANDARD

I. Motion to Dismiss |

In order for a plaintiff to have Article III standing to survive a motion to dismiss, three
elements must be met: (1) the plaintiff must have suffered a concrete injury, (2) the defendant
must have caused the injury, and (3) a favorable ruling must be likely to redress the injury. Lujan
v, Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Even if the defendant was the but-for
cause of a concrete injury to the plaintiff, the Court must dismiss the claim if a favorable ruling
would not redress that injury. Because federal courts are courts of limited jurisdiction, a court
must dismiss any case over which it lacks subject-matter jurisdiction. See Arbaugh v. Y&H
Corp., 546 U.S. 500, 506 (2006); Fed. R. Civ. P. 12(6)(1). In the administrative law context, an
administrative appeal is often a prerequisite to judicial review. When that is the case, a plaintiff
who does not file such an application for review has failed to exhaust his or her administrative
remedies, and the Court must dismiss for lack of subject-matter jurisdiction. Similarly, the Court
must dismiss any claim that is moot, as a favorable ruling would not redress the alleged injury. _
The Court has no discretion over dismissing claims that lack subject-matter jurisdiction, as

failure to dismiss such claims would violate Article III of the Constitution.

II. Summary Judgment

Summary judgment is appropriate under Rule 56(a) when there is no genuine dispute of
material fact and the movant is entitled to judgment as a matter of law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986) (quoting Fed. R. Civ. P. 56(a)). The burden is on the party
moving for summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In the FOIA
context, most cases are resolved at the summary judgment stage. Brayton v. Office of U.S. Trade

Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Typically, agencies submit sworn declarations
explaining the basis for withholding or redacting documents. See McGehee v. CIA, 697 F.2d
1095, 1102 (D.C. Cir. 1983). Agency declarations are entitled to “a presumption of good faith,
which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of
other documents.’” SafeCard Servs., Inc. v. SEC, 692 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting
Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). Once the Court
determines that an agency has released all non-exempt material, it has no. further judicial

function to perform under FOIA, so any claims based on that non-exempt material must be

dismissed. See Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982).

ANALYSIS
As explained below, the Court finds that Counts I and II are moot and will therefore grant
the agency’s motion to dismiss those counts. The Court also finds that the agency is entitled to
judgment as a matter of law on Count III and will therefore grant the agency’s motion for

summary judgment on that count.

I. Count I Will Be Dismissed as Moot.

In Count I, Mr. Lukas claims that the FCC violated his rights under FOIA by failing to
act on his administrative appeal. The FCC argues that Count I is moot because he obtained the
pages that he sought under FOIA, with the exception of the redactions in Exhibit E. Looking first
at pages other than Exhibit E, that aspect of Mr. Lukas’s claim is moot, as he has received all of
those documents. All the Court can do in the FOIA context is order improperly withheld
documents to be disclosed, but seeing as the FCC has already turned over those documents, such
an order would be redundant and would not redress any injury. This means that the third element

of the standing doctrine is not satisfied, and the Court has no jurisdiction over the pages that
were already disclosed. As for the redactions in Exhibit E, Mr. Lukas failed to properly file an
administrative appeal regarding that specific decision. Although he filed an appeal regarding the
agency’s September of 2017 decision, he never filed an appeal of the November of 2018
decision, which is when the agency specifically made its findings regarding Exemption 4 and the
redactions in Exhibit E. Therefore, the allegation that the FCC failed to act on his administrative
appeal is untenable, as his appeal regarding documents other than Exhibit E became moot when
the FCC turned them over, and Mr. Lukas failed to properly appeal the redactions in Exhibit E.

Plaintiff argues that Count I is not moot because the Court can still “provide an equitable
remedy for the FCC’s continuing FOIA violation.” ECF No. 17 at 9. He contends that the FCC’s
General Counsel does not have the authority to dismiss an appeal, and the Court should issue an
order enjoining this supposedly unlawful practice from being repeated. Courts have the authority
to stop an unlawful agency practice from being repeated if a plaintiff brings a successful pattern-
or-practice claim; however, Mr. Lukas did not explicitly do so, nor did he allege sufficient facts
in his Amended Complaint to survive a motion to dismiss on a pattern-or-practice claim. Outside
of the pattern-or-practice context, the Court may do “nothing more” than “order the production
of agency records.” Sanders v. Obama, 729 F. Supp. 2d 148, 154 (D.D.C. 2010). Once an agency
produces the requested records, “the substance of the controversy disappears and becomes moot
since [the] disclosure which the suit seeks has already been made.” Crooker v. United States
Dep't of State, 628 F.2d 9, 10 (D.C. Cir. 1980). Under FOIA, it does not matter how “fitful or
delayed the release of information” was. Perry, 684 F.2d at 125. Once the agency turns over “all
requested records . . . federal courts have no further statutory function to perform.” Jd. Although
the Court has reason to believe that the FCC could have been more efficient throughout this

process, that does not give the Court the authority to issue an injunction against the FCC. Absent
a proper pattern-or-practice claim, the Court only has jurisdiction to review the case that is
actually before it.

Even if the allegations in Count I were not moot, Mr. Lukas would still fail on the merits.
It is true that the statute gives a FOIA requester the right to appeal an adverse decision “to the
head of the agency.” 5 U.S.C. § 552(a)(6)(A)(III)(aa). It would, however, defy logic to say that
the head of an agency may not delegate the authority to handle appeals. The FCC is led by a
multi-member commission, and these commissioners cannot be expected to review every FOIA
appeal individually. No reasonable person would ever expect the Secretary of State to spend his
or her time pouring over FOIA appeals—it is expected that he or she will delegate that authority
to another person or group within the State Department. The same principle applies to the FCC.
Delegation is inherently reasonable, and Mr. Lukas can cite no case law that holds otherwise.
Plaintiff also relies on the Communications Act of 1934, which requires the FCC to decide
applications for review filed “within such time and in such manner as the Commission shall
prescribe” and states that “every such application shall be passed upon by the Commission.” 47
U.S.C. § 155(c)(4). This provision, however, does not require the FCC to pass upon applications
for review that are procedurally defective—such procedurally defective applications are (as
previously explained) moot. Therefore, the FCC’s decision to delegate authority to the General
Counsel ensures (at least in theory) that all appeals are decided efficiently after being afforded

full and fair consideration.

II. Count II Will Be Dismissed for Lack of Article III Standing.
In Count II, Mr. Lukas seeks declaratory judgment under the Declaratory Judgment Act
(28 U.S.C. § 2201) that USAC is not a government agency subject to FOIA and that documents

in its possession are therefore not agency records under FOIA. Plaintiff lacks standing to bring
this claim. Specifically, he fails the third standing requirement, as declaratory judgment would
not redress his supposed injury. Even if he had standing, however, Count II would still fail as a
matter of law.

In his Opposition to Defendant’s Motion to Dismiss and for Summary Judgment, he
asserts that his alleged injury is not any failure on the agency’s part to disclose the information
that he seeks, but rather the FCC’s practice of requiring “FOIA requests with the Bureau to
inspect materials in the possession of USAC.” ECF No. 17 at 31. He argues that such requests
are “extremely burdensome, time-consuming, and costly” and would be unnecessary if the Court
enjoined the FCC’s practice. /d. at 31-32. As the government aptly points out, however, this is
not the type of harm that FOIA seeks to prevent. FOIA’s “mandate” is “to ‘provide for open
disclosure of public information’ and to ‘allow citizens to be informed about what their
government is up to.” Elec. Privacy Info. Ctr. v. United States Dep’t of Commerce, 928 F.3d 95,
103 (D.C. Cir. 2019) (quoting Baldrige v. Shapiro, 455 U.S. 345, 352 (1982)). To demonstrate
the type of injury required for standing under FOIA, Mr. Lukas must show (1) that he has been
deprived of information that FOIA requires the government or a third party to disclose; and (2)
that by being denied that information, he suffers the type of harm Congress sought to prevent by
requiring disclosure. /d. (quoting Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir,
2016)). Mr. Lukas admits that the harm alleged in Count II is not about being denied access to
information that he believes he is entitled to under FOIA. Rather, the harm that he alleges in
Count II is being forced to submit FOIA requests to obtain documents. Because FOIA is
specifically intended to prevent injuries caused by the government's refusal to turn over

information, Count II does not state a cognizable injury under FOIA.
Additionally, even if Mr. Lukas had Article III standing, Count I] would still fail because
he is not seeking information to which he claims FOIA entitles him. In his Opposition to
Defendant’s Motion to Dismiss and for Summary Judgment, he argues that Count II is not moot
because he is challenging an FCC policy or practice to which he is likely to be subjected in the
future. See ECF No. 17 at 32, 33-35. As previously explained in the analysis of Count I, Mr.
Lukas failed to allege a pattern-or-practice violation of FOIA. Although he explains that this
FOIA suit is part of his broader efforts to prove that the FCC violated the Government
Corporation Control Act (31 U.S.C. § 9201) and the Communications Act of 1934 (47 U.S.C. §
155(c)(1)) when it authorized USAC to act as an agency with respect to the administration of the
Universal Service Fund, the Court can only look at the issue that is actually before it. The Court
cannot do anything about alleged violations of other statutes that are not in question in this
lawsuit, even if this FOIA request is somehow related to proving that the FCC violated statutes
other than FOIA. Furthermore, even if Mr. Lukas were making a pattern-or-practice claim, it
would fail because he has not alleged that he has any outstanding FOIA requests with the FCC.
The mere allegation that he “‘is likely to continue to represent clients before USAC and is likely
to be subjected to the FOIA Policy or Practice again” (Amended Complaint 4 115) is insufficient

to establish the requisite likelihood of future injury.

III. The Agency is Entitled to Summary Judgment on Count III.

In Count ITI, Mr. Lukas alleges that the FCC redacted Exhibit E without justification,
thus violating FOIA. The agency asserts that Exhibit E falls within Exemption 4. To support its
decision to redact the document, the government submitted the declaration of Jeffrey S.
Steinberg (“Steinberg Declaration”) explaining that the FCC’s Office of General Counsel

reasonably determined that the redacted material falls within Exemption 4 because it contains
sensitive material regarding its owner’s pricing strategy, negotiating positions, and sales history.
Steinberg Decl. § 12. The Steinberg Declaration is entitled to the standard presumption of good
faith, which it is Mr. Lukas’s burden to overcome. He has failed to do so. Although there were
certainly delays processing this request, delays in and of themselves are not indications of bad
faith. See, e.g., Chase v. United States Dep't of Justice, F. Supp. 3d 146, 158 (D.D.C. 2018). The
fact that the FCC eventually provided all of the documents that he requested undermines
plaintiff's accusations of bad faith. Additionally, the fact that the FCC disclosed an additional
piece of information in Exhibit E that Windstream wanted to redact also undermines the bad
faith argument, as it shows that the agency did not merely turn over a carbon copy of the
document that Windstream gave him.

Plaintiff also complains that the FCC invoked Exemption 4 before Windstream
specifically asserted its commercial sensitivity. Although Windstream’s assertion of commercial
sensitivity is helpful to the FCC’s decision to redact Exhibit E, it was not necessary in order for
this Court to uphold the redactions, as FOIA allows the agency to make its own determinations
regarding what information should be withheld or redacted under any of FOIA’s nine
exemptions. Furthermore, just because the agency initially based the redactions in Exhibit E on
other exemptions does not make its ultimate decision regarding Exemption 4 improper, nor does
it demonstrate bad faith. Agencies are (and should be) permitted to change their minds as they
process FOIA requests—if the FCC had not been permitted to alter its decisions throughout this
process, Mr. Lukas would not have received the documents that that were initially withheld
pursuant to the agency’s original decision in September of 2017. Therefore, Mr. Lukas has not
proven bad faith, and the Court finds the Steinberg Declaration sufficient to prove that the FCC

is entitled to summary judgment on Count II].

10
CONCLUSION

Based on the foregoing, the Court will GRANT Defendant’s Motion to Dismiss and for
Summary Judgment (ECF Nos. 5 & 13). The Court will DENY Plaintiff's Cross-Motion for
Partial Summary Judgment (ECF No. 19).

It will be ORDERED that Counts I and II of the Amended Complaint are DISMISSED
with prejudice.

It will be further ORDERED that summary judgment is entered in favor of defendant on
Count III, thereby DISMISSING Count III with prejudice.

A separate Order accompanies this Memorandum Opinion.

Date: 3) s lw “Ge, C+ Foner
Royce C. Lamberth
United States District Court Judge

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