UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC., )
)
Plaintiff, )
)
v. ) Civil Case No. 15-1983 (RJL)
)
UNITED STATES DEPARTMENT )
OF HOMELAND SECURITY, ) F I L E D
) SF.P 29 2016
Defendant. )

C|erk, U.S. Dlstr|ct & Bankmptcy
MEMoRAND?i\?IT)i>INIoN C°“"s'°'"`e D's"'°'°'c°'""'b'a
(September;i, 2016) [Dkt. # ll]
Plaintiff Judicial Watch lnc. filed a two-count FOIA complaint against the United
States Departmcnt of Homeland Security (“DHS”) on November lO, 2015. See generally
Compl. [Dkt. # l]. Count One is a “traditional” FOIA claim, in Which Judicial Watch
alleges DHS is violating its FOIA obligations by unlawfully withholding records
responsive to plaintiff’ s 19 FOIA requests. Compl. W 8, 18~2(). ln Count Two, Judicial
Watch alleges that DHS has a “policy and practice of violating FOIA’s procedural
requirements in connection with the processing of Plaintiff’ s requests and, in particular, of
regularly failing or refusing to produce requested records or otherwise demonstrate that
requested records are exempt from production within the time period required by FOIA or
at least within a reasonable period of time.” Compl. 1l 22. On February 12, 2016, DHS
moved for judgment on the pleadings with regard to plaintiff’ s “policy and practice” claim.
Def.’s Mot. for J. on the Pleadings on Pl.’s “Policy and Practice” Claim [Dkt. # ll]. Upon

consideration of the pleadings, record, and relevant law, I find that plaintiffs policy and

practice claim should be dismissed for failure to state a claim. Therefore, DHS’s motion
is GRANTED, and Count II of the Complaint is DISMISSED. In addition, because DHS
has produced all of the responsive, non-exempt requested documents, Count I of the
Complaint no longer presents a live case or controversy and must also be DISMISSED.
BACKGROUND

At issue in this case are 19 travel-related FOIA requests sent by Judicial Watch to
the Secret Service since July 2014. Compl. W 8-9 & Ex. A. Judicial Watch asserts two
counts in its Complaint. First, it alleges that DHS is violating FOIA by unlawfully
withholding records responsive to Judicial Watch’s 19 FOIA requests. Id. ‘\N 18-20.
Second, Judicial Watch claims that DHS has a “policy and practice of violating FOIA’s
procedural requirements in connection with the processing of Judicial Watch’s FOIA
requests and, in particular, of regularly failing or refusing to produce requested records or
otherwise demonstrate that requested records are exempt from production within the time
period required by FOIA or at least within a reasonable period of time.” Id. jj 22. Judicial
Watch seeks the normal relief sought in a FOIA request-that the Court enjoin DHS from
continuing to withhold any non-exempt records responsive to each of Judicial Watch’s
FOIA requests, and other associated relief. Id. jj 23. Judicial Watch further asks the Court
to enjoin DHS from “failing or refusing to produce all non-exempt records responsive to
J udicial Watch’s FOIA requests or otherwise demonstrate that requested records are
exempt from production within the time period required by FOIA or at least within a

reasonable period of time.” la’.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 12(0), judgment on the pleadings is
warranted where “the moving party demonstrates that no material fact is in dispute and that
it is entitled to judgment as a matter of law”. Fed. R. Civ. P. 12(c); Peters v. Nat’l R.R.
Passenger Corp., 966 F.Zd 1483, 1485 (D.C. Cir. 1992.) A Rule 12(c) motion is
“functionally equivalent” to a Rule 12(b)(6) motion to dismiss for failure to state a claims,
and is governed by the same standard.1 Rollins v. Wackenhut Servs., Inc., 703 F.3d 122,
130 (D.C. Cir. 2012); Silver v, Am. Safely Indem. CO., 31 F. Supp. 3d 140, 145 (D.D.C.
2014). When deciding a motion to dismiss under Rule 12(b)(6), the Court must ascertain
whether the complaint contains “sufficient factual matter, accepted as true, to state a claim
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks and citations omitted.) A complaint that alleges facts that are “merely consistent”
with liability fails to meet the plausibility standard. Id. Although the Court must read the
complaint’s factual allegations in the light most favorable to the plaintiff, Bell Atlantl`c Co.
v. Twombly, 550 U.S. 544, 555 (2007), the Court is not required to “accept legal
conclusions cast in the form of factual allegations,” or to rely on inferences “unsupported

by the facts set out in the complaint.” Kowal v. MCI Commc ’ns Corp., 16 F.3d 1271, 1276

 

1 Judicial Watch suggests that DHS converted its Rule 12(c) motion for judgment on the pleadings
into a Rule 56 motion for summary judgment when it filed a witness declaration in response to
Judicial Watch’s Motion for Leave to Take Discovery [Dkt # 13]. Pl.’s Reply in Supp. of Mot.
for Leave to Take Disc., at 2 n. 2 [Dkt # 19]. This is incorrect, as l did not consider the filed
declaration in deciding this motion. See Herron v. Veneman, 305 F. Supp. 2d 64, 70 (D.D.C. 2004)
(“A motion to dismiss is not automatically transformed into a motion for summary judgment
simply because matters outside the pleadings are filed. The issue is, rather, whether the Court took
cognizance of them.” (internal quotation marks and citations omitted)).

3

(D.C. Cir. 1994). Thus, to withstand dismissal, the allegations, when read in a light most
favorable to the plaintiff, must “raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555.

ANALYSIS

I. Judicial Watch Alleges Facts That Are Insufficient to Establish a FOIA
Policy and Practice Claim.

Count ll of Judicial Watch’s Complaint alleges that DHS has a “policy and practice”
of violating FOIA by failing to produce records “within the time period required . . . or at
least within a reasonable time.” Compl. jj 22. In the FOIA context, claims are normally
mooted when the agency produces all requested documents to the requesting party. Perry
v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982) (“[O]nce all requested documents are
surrendered, federal courts have no further statutory function to perform.”). However, our
circuit court recognizes “policy and practice” claims as an exception to this general rule,
and holds that FOIA claims cannot be mooted by an agency’s release of documents when
the “refusal to supply information evidences a policy or practice of delayed disclosure or
some other failure to abide by the terms of [] FOIA, and not merely isolated mistakes. . . .”
Payne Enters., Inc. v. Unl'ted States, 837 F.2d 486, 491 (D.C. Cir. 1988).

Judicial Watch has failed to allege sufficient facts to state a “policy and practice
claim.” As explained by one of my colleagues on this Court, a plaintiff seeking to state a
“policy and practice” claim “must . . . allege facts . . . establishing that the agency has
adopted, endorsed, or implemented some policy or practice that constitutes an ongoing

failure to abide by the terms of FOIA.” Muttitt v. U.S. Dep ’t of State, 926 F. Supp. 2d 284,

293 (D,D.C. 2013) (emphasis added). In support of its claim, Judicial Watch alleges that,
at the time it filed its Complaint in November 2015, DHS had yet to make a determination
on 19 FOIA requests that were submitted between July 2014 and August 2015. Taken by
itself, this allegation is insufficient to show that DHS “adopted, endorsed, or implemented”
a policy of violating FOIA’s requirements J udicial Watch points to no fact or statement
to establish why the requests were delayed or how the delays were the result of an either
formal or informal DHS policy or practice to violate F()IA’s requirements, rather than an
inevitable but unintended delay attributable to a lack of resources. Rather than allege facts
that, if true, would establish a policy or practice of violating FOIA, J udicial Watch simply
jumps to the ultimate legal conclusion and asserts that such a policy exists.2 However, the
Court is not required to “accept legal conclusions cast in the form of factual allegations,”
and I decline to do so here.

At best, Judicial Watch’s alleged facts are merely consistent with a policy or practice
claim. Judicial Watch explicitly conceded this in its Opposition to DHS’s Motion for
Judgment when it agreed that the 19 delayed requests “could be the result of a policy or
practice” or could be attributable to “any of the hosts of reasons suggested by Defendant.”

Pl.’s Opp’n to Mot. for J. on the Pleadings, at 6 [Dkt. # 14] Allegations that are merely

 

2 Judicial Watch argues that “[w]hether an agency has a policy or practice is not a legal
conclusion . . . that can be judged on the pleadings,” but instead presents a disputed material fact
that requires “evidentiary inquiry.” Pl.’s Opp’n to Mot. for J. on the Pleadings, at 7 [Dkt. #14].
But that argument ignores the fact that Judicial Watch failed to meet the threshold Rule 12(b)(6)
requirement of alleging facts that would support a plausible claim on which relief could be granted.
At this stage in the proceedings, J udicial Watch’s claim that DHS had a “policy and practice” of
violating FOIA, without more in the way of supporting factual allegations, is in fact a conclusory
legal assertion that the Court need not accept.

consistent with liability fail to meet Rule l2(b)(6)’s plausibility standard, and as a result,
Judicial Watch’s policy and practice claim must be dismissed. Iqbal, 556 U.S. at 678.

II. Plaintiff Does Not Allege the Egregious, Intentional Conduct Recognized
in Payne Enterprises.

Plaintiff` s policy and practice claim appears to be premised on an incorrect belief
that agency delay by itself serves as sufficient evidence of an unlawful agency policy or
practice of violating FOIA. However, Payne Enterprises and subsequent cases recognizing
policy and practice claims involved more egregious, intentional agency conduct than mere
delay. In Payne Enterprises, the Air Force officers responsible for processing FOIA
requests persisted in withholding documents from requesters well after the Secretary of the
Air Force had determined that the invoked statutory exemptions did not apply, and the
court therefore permitted a policy and practice claim to go forward so as to prevent ongoing
injury. 837 F.Zd at 488-90. See also NewportAeronautical Sales v. Depl. of the Air Force,
684 F.3d 160, 164 (D.C. Cir. 2012) (permitting policy and practice claim when requester
alleged that Air Force had routine policy of unlawfully denying FOIA requests for certain
types of data in order to force requester to obtain data through a more restrictive DOD
process). Judicial Watch does not allege any agency policy or practice, either formal or
informal, that rises to the level recognized in Payne or Newport, and cannot rest on the

mere fact of delay alone to establish a claim.

III. The Remainder of the Complaint Must Be Dismissed as Moot.

Although DHS only moved for judgment on Count II, the Court is compelled to
dismiss Count I of the Complaint as well. Unlike Count II, which alleges that DHS has a
policy and practice of delaying responses to FOIA requests, Count I is a traditional FOIA
claims alleging that DHS violated FOIA by unlawfully withholding records responsive to
19 travel-related requests. Compl. jj 18-20. Neither DHS nor Judicial Watch has formally
moved to dismiss or withdraw Count I, but the parties have jointly represented to the Court
“that Count I of the complaint has been satisfied by the DHS’s production of all of the
requested, responsive non-exempt records.” Jt. Mot. to Vacate Summ. J. Briefing
Schedule, at 11 5 [Dkt. # 17].

As a result, Count I no longer presents a live case or controversy for the Court to
resolve, and therefore it must be dismissed for lack of subject matter jurisdiction Fed. R.
Civ. P. 12(h)(3) (instructing Court to dismiss an action “at any time” it determines subject
matter jurisdiction is lacking); Lewl's v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990)
(holding that parties “must continue to have a personal stake in the outcome of the lawsuit”
throughout all stages of litigation for the Court to sustain jurisdiction of the case.”(internal
quotation marks and citations are omitted)); Bayala v. U.S. Dep ’t of Homelana’ Securz`ly,
827 F.3d 31, 34 (D.C. Cir. 2016) (“In the FOIA context, . . . once all the documents are

released to the requesting party, there no longer is any case or controversy.”)

CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s Motion for Judgment
on the Pleadings and DISMISSES both counts of the Complaint. An Order consistent

with this decision accompanies this Memorandum Opinion.

Ukaw,l

RICHA J. EoN
United Sta istrict Judge

