Smallwood v. United States Department of Justice

UNITED STATES DISTRICT COURT

F()R THE DISTRICT OF COLUMBIA

WILLIAM H. SMALLWO()D,

Plaintiff,

V Case No. l:lé~cv-01654~CRC

UNITED STATES I)EPARTMENT

OF JUSTICE,

Defendant.

OPINION ANI) ORDER

An attorney makes a Freedorn of Information Act request for documents that are of

interest to her client, but does not indicate that the request is being made on the client’s behalf

Does the client have standing to tile suit challenging the agency’s response to the request? The

Couit joins numerous of its colleagues in answering no_ lt will therefore grant the Government’s

motion for judgment on the pleadings and dismiss the suit

I. Background

William Smallwood’s attorney filed a FOIA request seeking documents related to a class

action settlement in which Mr. Smallwood was a party. Def’s Mot. Summ. J. (“MSJ”), Decl. of

DOJ Oi'i'ice of lnformation Policy Attorney Vanessa Brinkmann at 11 3 (“Brinkmann Deci.”)',

Compl. il 2. The request identified the attorney as the “Requester_” S_e_e MSJ, Ex. A, It did not

include any reference to a client generally, or to Mr. Smaliwood specifically _l_c_L

in a letter dated May 5, 2016, DOJ informed Smaliwood’s attorney that it had received

the request and determined that the request fell within FO]A’s “unusuai circumstances” l

exception _S_e_e MSJ, lix. B. Under FOIA, the deadline for an agency to respond to a request is

extended where the request concerns “unusual circumstances,” such as “the need to search for

and collect the requested records from field facilities or other establishments that are separate

from the office processing the request.” 5 U.S.C. § 552 (a)(o)(B)(iii). Smallwood`s attorney

filed an administrative appeal of this determination In the appeal, the attorney noted that the

request was “[c]reated on behalf ot`: William H. Smallwood.” S_ee MSJ, Ex. C. The agency

affirmed the determination on July 21, 2016. _Se_e_ MSJ, Ex. E. In doing so, it noted that such a

determination is not an “adverse determination” that is subject to administrative appeal I_d. The

agency did not make any reference to Smallwood in its decision or in any of its correspondence

with his attorney concerning the request §e_e MSJ, Exs. B, C, E.

Smallwood filed suit in this Court on August 16, 2016. He alleges that DOJ’s

determination of “unusual circumstances” violated FOIA and the associated regulationsl _S_e_e

Compl. 11 13. He seeks an order from the Court directing the agency to produce ali responsive

records and demonstrate that it has conducted an adequate search. l_d. at 1111 15-19. DOJ has

moved for judgment on the pieadings, asserting that the attorney’s failure to indicate that the

initial request was made on Smallwood’s behalf deprives him of standing to sue.

II. Legal Standard

Federal Rule of Civil Procedure lZ(c) provides that “[a]fter the pleadings are closed-but

early enough not to delay trial-~a party may move for judgment on the pleadings_” Fed. R. Civ.

P. lZ(c). rt"he appropriate standard for reviewing a motion for judgment on the pleadings is that

of a motion to dismiss under Rule iZ(b). w Robinson-Reeder v. Am. Council on Educ., 532 F.

Supp. 2d 6, 12 (D.D.C. 2008). Because standing is jurisdictional, se_e Grocery i\/]frs. Ass’n v.

_E_I_-`A, 693 F.3d 169, 174 (D.C. Cir. 2012), the Court will apply the standard of a motion to

dismiss for lack of subj ect-niatter jurisdiction under Ruie lZ(b)(l). Whiie the Couit must accept

the factual allegations in the complaint as true, “[t]he plaintiffs 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.” Comrnon Purpose USA. lnc. v. Obama_ 227 F. Supp. 3d 21,

21 (D.D.C. 2016) (intemai citation omitted). After all, the Court has an “affirmative obligation

to ensure that it is acting within the scope of its jurisdictional authority.” Grand Lodge of

Fraternal Order of Policv v. Ashcrof.`t. 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (internal citation

omitted).

III. Discussion

Article III of the Constitution limits the jurisdiction of federal courts to actual “cases” and

“controversiesi” U.S. Const. art, IH, § 2. This limitation requires a party to establish standing

Wetz;el v. U_S. Deo‘t of Veterans Affairs, 949 F. Supp. 2d 198, 201-02 (D.D.C. 2013) (citing

Lujan v.lDefs. ofWildlife, 504 U`.S. 555, 560 (1992)). A party establishes standing by showing

(l) that it has sustained an injury-in~fact; (2) a causal connection between the injury and the

conduct of the defendant; and (3) a likelihood that the court can redress the injury with a

favorable decision Nat'l Sec. Counselors v. CIA, 898 F. Supp. 2d 233, 253 (D.D.C. 2012)

(citing M, 504 U.S. at 560-61) (internal quotation marks omitted).

DO}` contends that Smaliwood has not sustained an injury because he did not make the

initial FOIA request “Although the identity of the requester is generally immaterial to the

exercise of the rights provided by [FOIA], the nature of an entity suing under the FOIA is not

without relevance.” Feinman v. FBI, 680 F. Supp. 2d 169, 173 (D.D.C. 2010) (citing Mjli_ta_;y

Audit Pro]`ect v. Casey, 656 F_2d 724, 730 n. il (D.C_ Cir. 1981)) (internal quotation marks

omitted) (ernphasis in original). In the context of standing under FOlA, [t]he filing of a

request, and its denial,’ constitutes an injury."’ Wetzei v, U.S. Dept. ofVeterans Af`t`airs, 949 F.

Supp. 2d 198, 202 (D.D.C. 2013) (quoting McDonneIi v. United States. 4 F,3d 1227, 1238 (3d

Cir. 1993). “'I`lre requester is inj ured-in~fact for standing purposes because he did not get what

the statute entitled him to receive.” Zivotovsky ex rel. Ari. Z. v_ Sec’v of State_ 444 F.3d 614,

617 (D.C. Cir. 2006) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973)).

Accordingly, “if a party has not made a request within the meaning of FOIA, then he does not

have standing to bring a lawsuit.” Wetzel, 949 F. Supp. 2d at 202.

To be sure, an attorney may make a FOIA request on behalf ofa client But the attorney

“must clearly indicate that it is being made on behalf of the [client] to give that [client] standing

to bring a FOIA challenge.” Three Forks Ranch Corn. v. Bureau of Land Mgmt., 358 F. Supp.

2d 1, 2 (D.D.C. 2005). For example, in Brown v. EPA, 384 F. Supp. 2d 271 (D.D.C. 2005), the

defendant agency sought to dismiss a FOIA suit on standing grounds because the plaintiffs

attorney, rather than the plaintiff herself, made the initial request The Court disagreed, noting

that the attorney indicated in the first line of the request that it was being made on behalf of a

clientl 1_d_. at 276~#77 (“Plaintiffs counsel stated in the first line of his request to the EPA

requesting the documents that ‘I represent Paula D. Brown,’ and that ‘Ms. Brown has hired me to

obtain certain documentation pursuant to FOIA.”’). The Court also noted that the

correspondence from the agency to the attorney in response to the request “confirms that it was

the understanding of all of the parties that [the attorney] was making a request for his client

rather than on his own behalf.” 1_d. at 276.

ln contrast, courts routinely dismiss FOIA suits where an attorney filed the initial request

without indicating that the request was made on behalf of the plaintiff M, McDonnell v.

United States, 4 F.3d 1227, 1237~»38 (3d Cir. 1993); Osterman v. U.S. Armv Corps of Eng’rs,

13-cv- 1737, 2014 wL 5500396(w.1). Wa.sh. 2014); _w_e_iz_ei, 949 F. supp 2d ar 202; §”A_E_

Productions lnc. v. FBI, 589 F. Supp. 2d 76, 80 (D.D.C. 2008); Hasl<ell Co. v. Den’t of l`ustice1

No. 05»»11 ]0, 2006 WL 627156, at *l»“Z (D.D.C. Mar. l3, 2006); Three Forks Ranch Corp., 358

F. Supp. 2d at 2-3`, MAXXAM Inc. v. FDIC, No. 98£989, 1999 WL 33912624, at *2 (D.D.C.

Jan. 29, 1999); Unigard Ins_ Co_ v_ Deo’t ofthe Treasurv, 997 F. Supp. 1339, 1342 (S.D_ Cal_

1997)_ Although such a rule might seem somewhat rigid, “a line must be drawn to assure that

the ‘request’ requirement does not devolve into a general interest inquiry,” Wetzei, 949 F. Supp.

2d at 204, that would be at odds with both the Constitution’s standing requirement and the intent

of Congress in enacting FOIA. McDonnell, 4 F.3d at 1237 (noting that FOIA’s legislative

history reflects Congress’s intent that only an individual who submitted a formal request under

FOIA may challenge an agency’s decision not to release the requested documents).

The FOIA request at issue in this case clearly indicates that Smallwood’s attorney is the

requesterl _S*e_e MSI, Ex. A (“Requester: Mrs. Sunni R. Harris”). The “Request Description”

portion of the request, moreover, does not indicate that the request was made on behalf of any

client, let alone Smallwood. § In fact, his name does not appear anywhere in the request L

And unlike in §gpmwmnm, the agency’s response to the FOIA request indicates that it was not aware

that the attorney was making a request for a client §§g MSJ, Ex_ B (acknowledging Mrs. Harris

as the requester without mentioning Mr. Smallwood); MSJ, Ex. C (acknowledging Mrs. Harris’s

administrative appeal without mentioning Mr. Smallwood). Accordingly, while Smallwood’s

attorney might have standing to pursue her FOIA request in federal court, Smallwood himself

“has not made a formal request within the meaning of the statute,” Feinman, 680 F. Supp. 2d at

173, and therefore lacks standing to do so.

Smallwood seeks to avoid this conclusion by arguing that his attorney indicated that the

request was made on his behalf during the administrative»appeal. Smallwood is, indeed,-

mentioned in that appeall E M`SJ, Ex, C (“Requester: Mrs. Sunni R. Harris . \ . Created on

behalf of: William H. Smallwood"’). But “[t]he elucidation of [an attorney-client] relationship

on appeal does not change the nature of the request itself.” M, 949 F. Supp. at 204

(rejecting the argument that standing in a FOIA suit can be conferred on administrative appeal).

A contrary rule “would {do] nothing to prohibit a party from piggy-backing onto an existing

request at any point in the administrative and/or judicial process Such was not the intent of

Congress.” Osterman 2014 WL 5500396 at ”‘4 (citing McDonnell, 4 F.3d at 123 7).

Accordingly, the Court must dismiss this suit for lack of standing

IV. Conclusion

For the foregoing reasons, it is hereby {)RDERED that Defendant’s Motion for

J`udgment on the Pleadings is GRANTED. This case is hereby dismissed in its entirety This is

a final, appealable order.

57a-reyna /z. data

CHRISTOPHER R. COOPER

United States District ludge

Date.' July 19, 2017