# Smallwood v. United States Department of Justice > District Court, District of Columbia · July 19, 2017 · 266 F. Supp. 3d 217 URL: https://www.frixlaw.com/law-library/cases/4187308 ## Case - **Full name:** William H. SMALLWOOD, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant - **Court:** District Court, District of Columbia - **Decided:** July 19, 2017 - **Citations:** 266 F. Supp. 3d 217 - **Precedential status:** Published - **Opinion:** Opinion by Cooper - **Judges:** Judge Christopher R. Cooper - **Nature of suit:** Civil - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4187308 ## How later opinions describe it (automated extraction) - finding, with citations to the record, that “the agency’s response to the FOIA request indicates that it was not aware that the attorney was making the request for a client” ## Opinion text 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