Citizens for Responsibility and Ethics in Washington v. U.S. Department of Housing and Urban Development ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY AND
ETHICS IN WASHINGTON, et al.,
Plaintiffs,
v. Civil Action No. 1:18-cv-00114 (CJN)
U.S. DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Defendant.
MEMORANDUM OPINION
Plaintiffs Citizens for Responsibility and Ethics in Washington (“CREW”) and the
Freedom from Religion Foundation (“FFRF”) filed multiple, separate requests with the
Department of Housing and Urban Development (“HUD”) under the Freedom of Information
Act (“FOIA”), 5 U.S.C. § 552. The requests sought information that Plaintiffs suggest might
reflect poorly on the Department’s head, Secretary Ben Carson. In addition to the document
requests, both organizations sought a waiver of the fees the Department typically charges FOIA
requesters. HUD denied the fee waivers and requests for reconsideration.
Plaintiffs then jointly filed this action, alleging both improper denial of fee waivers in
those instances and an illegal pattern or practice of denying waivers more broadly. See generally
Compl., ECF No.1. HUD promptly reevaluated its decision and waived fees for the specific
requests. HUD now moves to dismiss the Complaints, arguing that the challenges to individual
fee-waiver denials are moot and that the policy-or-practice count fails to state a claim for relief.
See generally Def.’s Mem. in Supp. of Mot. to Dismiss (“Mot.”), ECF No. 23-1. The Court
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agrees that the as-applied challenges are moot and grants HUD’s Motion to Dismiss in part, but
it denies the Motion as to the policy-or-practice claim.
I. Background
Plaintiffs are both tax-exempt, non-profit organizations. Compl. ¶¶ 4, 6. CREW seeks to
promote governmental transparency through “a combination of research, litigation, and
advocacy,” relying in part on “government records made available to it under . . . FOIA.” Id. ¶ 4.
FFRF “advocates for the separation of church and state,” using “FOIA to access records
necessary to advance its mission.” Id. ¶ 6. There are five FOIA requests at issue in this case:
three by CREW and two by FFRF.
A. CREW’s Initial FOIA Requests
CREW filed its first request on August 25, 2017, seeking records relating to the reported
involvement of Secretary Carson’s spouse and his son, B.J., in the Department’s internal affairs.
Id. ¶ 18; CREW Ltr. of Aug. 25, 2017 (“CREW Request 1”), ECF No. 23-13. CREW requested
several categories of documents, including communications and calendar entries between or
involving several senior HUD officials and either Mrs. Carson or B.J. Carson. Compl. ¶ 18.
CREW submitted a second, unrelated FOIA request on September 20, 2017, seeking “records
concerning authorization for and the costs of Secretary Carson’s use of non-commercial aircraft
for any official travel” and budgetary records showing the amounts of money earmarked for the
Secretary’s travel in 2017 and 2018, as well as comparable figures for 2016. Id. ¶ 27; CREW
Ltr. of Sep. 20, 2017 (“CREW Request 2”), ECF No. 24-3, at 6–8.
Both submissions included detailed requests for fee waivers under 5 U.S.C.
§ 552(a)(4)(A) and 24 C.F.R. § 15.106(k) based on two grounds. Compl. ¶¶ 19–20, 28–29.
First, CREW argued that the requests satisfied the statutory and regulatory criteria for waivers
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because they “concern[ed] the operation of the federal government,” would “contribute to a
better understanding of relevant government procedures . . . in a significant way,” and were
“primarily and fundamentally . . . for non-commercial purposes.” CREW Request 1 at 2 (citing
5 U.S.C. § 552(a)(4)(A)); see also CREW Request 2 at 6 (same). Second, CREW asserted that it
was exempt from the payment of fees as a member of the news media. CREW Request 1 at 2
(citing 5 U.S.C. § 552(a)(4)(A)(ii)(II)); CREW Request 2 at 7 (same).
HUD acknowledged both requests within a few days of receiving them and assigned each
one a FOIA Control Number. See HUD Ltr. of Aug. 31, 2017 (“HUD Resp. to CREW Request
1”), ECF No. 23-15; HUD Ltr. of Sep. 21, 2017 (“HUD Resp. to CREW Request 2”), ECF No.
23-16. HUD also denied both fee waiver requests. Using identical, boilerplate language laying
out the statutory factors for fee waivers, HUD concluded that CREW’s justifications were mere
conclusory statements and asserted that CREW’s requests for documents were not “in the public
interest.” HUD Resp. to CREW 1 at 1–2; HUD Resp. to CREW 2 at 1–2. The responses made
no mention of CREW’s claimed media status. HUD Resp. to CREW Request 1 at 1–2; HUD
Resp. to CREW Request 2 at 1–2. CREW timely appealed both denials through the proper
administrative channels, providing more detailed descriptions of its work and legal justifications
for the waiver requests. See CREW Ltr. of Sep. 6, 2017 (“CREW Appeal 1”), ECF No. 24-2, at
2–4; CREW Ltr. of Sep. 21, 2017 (“CREW Appeal 2”), ECF No. 24-3, at 2–4. HUD affirmed
both denials, this time providing slightly more substantive grounds for its decisions. HUD Ltr.
of Oct. 6, 2017 (“HUD Resp. to CREW Appeal 1”), ECF No. 23-17, at 2; HUD Ltr. of Oct. 24,
2017 (“HUD Resp. to CREW Appeal 2”), ECF No. 23-18, at 2. Both letters declined to address
whether CREW was entitled to news media status, stating that because HUD had not yet made
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an initial determination on that question, the issue was “not ripe for appeal.” HUD Resp. to
CREW Appeal 1 at 2; HUD Resp. to CREW Appeal 2 at 2.
B. FFRF’s FOIA Requests
Around the same time, FFRF was engaged in its own quest for HUD’s internal records.
It filed its first request on August 7, 2017. Compl. ¶ 39; FFRF Ltr. of Aug. 7, 2017 (“FFRF
Request 1”), ECF No. 23-7. FFRF sought all correspondence between HUD personnel and
officials from Capitol Ministries, a Christian group that works with political leaders, as well as
any internal communications and calendar entries related to weekly Bible studies that Secretary
Carson allegedly arranged for his fellow Cabinet members at the White House. Compl. ¶ 39.
The request included a fee waiver petition with a short justification statement noting that FFRF is
a non-profit organization and asserting that production of the records was in the public interest.
Id. ¶ 40.
FFRF submitted its second request on October 26, 2017. Compl. ¶ 46; FFRF Ltr. of Oct.
26, 2017 (“FFRF Request 2”), ECF No. 23-8. It sought records regarding Secretary Carson’s
alleged appearance at an event entitled “Revive Us 2,” hosted by the Museum of the Bible in
Washington. Compl. ¶ 46. Just like the first request, this request also asked for a fee waiver and
included the same short justification statement. Id. ¶ 47.
HUD responded within 24 hours of each request. Compl. ¶¶ 41, 48; HUD Ltr. of Aug. 7,
2017 (“HUD Resp. to FFRF Request 1”), ECF No. 23-9; HUD Ltr. of Oct. 27, 2017 (“HUD
Resp. to FFRF Request 2”), ECF No. 23-10. It included the same boilerplate language contained
in the responses to the CREW requests, briefly reviewed FFRF’s grounds for fee waivers, and
summarily denied the requests. HUD Resp. to FFRF Request 1 at 1–2; HUD Resp. to FFRF
Request 2 at 1–2. FFRF appealed both decisions, submitting longer letters with more substantive
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justification statements outlining how its requests fulfilled each of the statutory and regulatory
criteria for fee waivers. Compl. ¶¶ 42–45, 49–51; FFRF Ltr. of Dec. 8, 2017 (“FFRF Appeal
2”), ECF No. 24-4 at 2–5. 1 HUD denied the first request on the grounds that Secretary Carson’s
participation in Bible studies did not relate to HUD’s operations, thereby failing to satisfy the
statutory criteria for a fee waiver. HUD Ltr. of Sep. 11, 2017 (“HUD Resp. to FFRF Appeal 1”),
ECF No. 23-11, at 2. It denied the second appeal on the grounds that FFRF failed to explain how
it would disseminate the information to the general public (rather than solely to its own
members) and that the requested information was not in the public interest. HUD Ltr. of Jan. 9,
2018 (“HUD Resp. to FFRF Appeal 2”), ECF No. 23-12.
C. Litigation
On January 28, 2018, CREW and FFRF jointly filed a Complaint alleging (I) an
impermissible pattern or practice of denying fee waivers; (II) improper denials of CREW’s fee
waiver requests; (III) improper denials of FFRF’s fee waiver requests; and (IV) improper denials
of CREW’s request for news media status. Compl. ¶¶ 71–93. The Complaint sought injunctive
and declaratory relief, including an order to grant fee waivers for the requests at issue. Id. at 21–
22. Two months later, HUD suddenly reversed itself on its own initiative and waived the fees
for CREW’s and FFRF’s requests. Without commenting on the requests’ merits, HUD
determined that “[t]he search[es] can be performed using HUD’s automated e-discovery system
and the results can be provided . . . electronically, so no fees are required for search time,
document review, or duplication.” HUD Ltr. of Mar. 15, 2018 (“FFRF Fee Waiver 1”), ECF No.
23-3; HUD Ltr. of Mar. 15, 2018 (“FFRF Fee Waiver 2”), ECF No. 23-4; HUD Ltr. of Mar. 20,
1
A copy of FFRF’s appeal of its first request seems to have been omitted from the record
inadvertently.
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2018 (“CREW Fee Waiver 1”), ECF No. 23-5; HUD Ltr. of Mar. 20, 2018 (“CREW Fee Waiver
2”), ECF No. 23-6. HUD then moved to dismiss, arguing that the challenges to individual fee
waiver determinations were moot and that the policy-or-practice count failed to state a claim for
relief. See Def.’s Original Mot. to Dismiss, ECF No. 13.
While that motion was pending, CREW filed a third FOIA request seeking copies of
Secretary Carson’s schedule for three days in July. CREW Ltr. of Oct. 1, 2018 (“CREW
Request 3”), ECF No. 23-19, at 1–2. As before, CREW sought a fee waiver, asserting it satisfied
the same public interest and news media criteria. Id. Unsurprisingly, HUD replied the following
day and denied the fee waiver with the same boilerplate language it used in earlier denials (and
making no mention of automated e-discovery). HUD Ltr. of Oct. 2, 2018 (“HUD Resp. to
CREW Request 3”), ECF No. 23-20. CREW again appealed with a more substantive
justification statement, CREW Ltr. of Oct. 2, 2018 (“CREW Appeal 3”), ECF No. 24-7 at 2–4,
and HUD again denied the appeal, HUD Ltr. of Nov. 6, 2018 (“HUD Resp. to CREW Appeal
3”), ECF No. 23-21. As before, HUD refrained from deciding whether CREW qualified as a
member of the news media. Id. at 2.
CREW filed a second Complaint, renewing its policy-or-practice claim and bringing
separate claims for improper denial of a fee waiver and news media status as to its third FOIA
request. See Citizens for Responsibility & Ethics in Wash. v. Dep’t of Housing & Urban Dev.,
No. 1:18-cv-2737, Complaint ¶¶ 82–102, ECF No. 1 (D.D.C. Nov 26, 2018). The Court
consolidated the two cases, vacated the pending Motion to Dismiss, and ordered new briefing.
Min. Order (Jan. 9, 2019). On March 1, 2019, HUD again determined that CREW’s third
request could be facilitated through the use of automated e-discovery and waived the associated
fee. HUD Ltr. of March 1, 2019 (“CREW Fee Waiver 3”), ECF No. 23-22. It then renewed its
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motion to dismiss on substantially the same grounds as before, arguing that the challenges to
individual denials of fee waivers were moot and that the policy-or-practice count failed to state a
claim. See generally Mot. The Court analyzes the consolidated Complaints together.
II. Legal Standard
HUD moves to dismiss the as-applied counts as moot. See Mot. at 4–6. Such a motion
“is properly brought under [Federal Rule of Civil Procedure] 12(b)(1) because mootness itself
deprives the court of jurisdiction.” Indian River Cty. v. Rogoff, 254 F. Supp. 3d 15, 18 (D.D.C.
2017). “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a
legally cognizable interest in the outcome.” Cty. of Los Angeles v. Davis, 440 U.S. 625, 631
(1979) (internal quotation omitted). “The rule against deciding moot cases forbids federal courts
from rendering advisory opinions or deciding questions that cannot affect the rights of litigants in
the case before them.” Hall v. CIA, 437 F.3d 94, 99 (D.C. Cir. 2006) (internal quotation
omitted). When plaintiffs have already “obtained everything that [they] could recover by a
judgment of this court in [their] favor,” there is nothing left to do but dismiss the case. Id.
(internal quotation omitted).
“When evaluating a motion to dismiss, the Court must treat the complaint’s factual
allegations as true and afford the plaintiff the benefit of all inferences that can be derived from
the facts alleged.” Atlas Brew Works, LLC v. Barr, 391 F. Supp. 3d 6, 11 (D.D.C. 2019)
(internal quotations and citations omitted). “But because the Court has an affirmative obligation
to ensure that it is acting within the scope of its jurisdictional authority, the plaintiff’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.” Id. (internal quotations and citations
omitted).
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HUD also argues that the Complaints fail to state a claim upon which relief can be
granted. See Fed. R. Civ. P. 12(b)(6); Mot. at 6–16. “A pleading that states a claim for relief
must contain . . . a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). Although the Court accepts all well pleaded facts in the
Complaints as true, “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “While a complaint
. . . does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of
[its] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Id. at 554–55 (internal quotations and citations
omitted). The claim to relief must be “plausible on its face,” enough to “nudge[ the] claims
across the line from conceivable to plausible.” Id. at 570.
III. Analysis
1. Statutory and Regulatory Scheme
FOIA permits agencies to charge reasonable fees to cover costs associated with processing
and producing records, but it differentiates between types of requesters in determining what costs
agencies must bear themselves. 5 U.S.C. § 552(a)(4)(A). “When, as here, records are not
requested for commercial use, an agency may only charge reasonable fees ‘for document search
and duplication.’” Bartko v. U.S. Dep’t of Justice, 898 F.3d 51, 75 (D.C. Cir. 2018) (quoting
§ 552(a)(4)(A)(ii)(III)). “And FOIA directs that the fee be waived ‘if disclosure of the
information is in the public interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is not primarily in the
commercial interest of the requester.’” Id. (quoting § 552(a)(4)(A)(iii)). “Fee-waiver
applications are to be liberally construed in favor of requesters.” Id. (internal quotation omitted).
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As FOIA directs, HUD has published implementing regulations setting out the fee
schedule and interpreting the statutory language for requests directed its way. See 24 C.F.R.
§ 15.106. HUD does not charge any fees for requests by news media organizations,
§ 15.106(d)(1), and it has its own criteria to evaluate whether a request is “in the public interest,”
§ 15.106(k). HUD used those criteria to determine that CREW’s and FFRF’s fee-waiver
requests did not qualify for the public-interest exemption. See, e.g., HUD Resp. to CREW
Appeal 3 at 1–2.
2. Plaintiffs’ As-Applied Challenges are Moot
In arguing that Counts II–IV of the original Complaint (and the corresponding counts in
the second Complaint 2) are now moot, HUD advocates for a narrow reading of the Complaints.
Count II alleges that HUD improperly denied CREW’s requested fee waivers. Compl. ¶¶ 81–84.
Count III makes the same allegations as to FFRF’s requests. Id. ¶¶ 85–88. Count IV alleges that
HUD improperly denied CREW recognition as a member of the news media. Id. ¶¶ 89–93. All
three counts seek injunctive and declaratory relief to obtain fee waivers as to the specific
requests. Id. ¶¶ 84, 88, 93. In HUD’s view, those counts demand that HUD waive the fees at
issue for those individual requests, and HUD has done exactly that. It contends that there is
therefore nothing left to litigate on those claims. See, e.g., Better Gov’t Ass’n v. Dep’t of State,
780 F.2d 86, 90–91 (D.C. Cir. 1986) (agreeing that challenge to fee waiver denials was mooted
by subsequent waiver of fees but permitting facial challenge to the fee waiver guidelines to go
forward).
2
Counts I–III of the second Complaint are nearly identical to Counts I, II, and IV of the original
Complaint; they merely add additional factual bases for the same legal arguments. For
simplicity’s sake, the Court’s references to Counts I–IV include analysis of the corresponding
counts in the second Complaint.
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That was essentially what happened in Hall v. CIA. Among other claims, the plaintiff
sought a fee waiver on his FOIA requests to the CIA. 437 F.3d at 97. Although the district court
determined that Hall was not entitled to the waivers, the CIA produced all responsive documents
and waived the fees on its own accord while the case was pending on appeal. Id. at 98. That was
enough to moot the case, and the Court of Appeals thus lacked jurisdiction to decide whether
Hall was entitled to a fee waiver as a matter of law. Id. at 99–100.
Here, as in Hall, after CREW and FFRF went to court, HUD “use[d] its administrative
discretion to voluntarily” waive the fees. Id. at 98. Although HUD never changed its position as
to whether the Plaintiffs are legally entitled to such waivers, it argues that a judicial decision on
Counts II–IV “cannot affect the rights of the litigants in the case” at bar. Id. at 99 (internal
quotation omitted).
Naturally, Plaintiffs take issue with such a narrow reading of the Complaints. Although
HUD has indicated its intent to waive the fees and produce the documents, it has not yet
completed production. In supplemental briefing, the Parties reported that three of the five FOIA
requests are still in progress and that HUD anticipates the production will continue through at
least February 2020. See Joint Status Report (Oct. 21, 2019), ECF No. 28, at 2–3. Plaintiffs
contend that fact distinguishes this case from Hall, in which the government both waived the fees
and produced all requested documents. 437 F.3d at 98; accord Bayala v. U.S. Dep’t of
Homeland Sec., Office of Gen. Counsel, 827 F.3d 31, 34 (D.C. Cir. 2016) (“[O]nce all the
documents are released to the requesting party, there is no longer any case or controversy.”).
Plaintiffs urge the Court to construe the counts alleging an improper denial of fee waivers as also
encompassing any potential future FOIA violation HUD may commit while processing these
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requests, such as improperly exempting material or unreasonably delaying the production of
documents.
But there is less to this dispute than the Parties contend. HUD is correct that the plain
language of the counts alleges no FOIA violation beyond a wrongful denial of fees and a failure
to address CREW’s claimed news media status. The Complaint does not allege a failure to
produce documents in a timely fashion or improper withholding of documents under one of
FOIA’s permitted exemptions. For that reason and because HUD has waived fees for the
requests, Counts II–IV are moot. If HUD were to change its mind and charge fees for these
requests, Plaintiffs would be entitled to resurrect their claims. Moreover, to the extent that
Count IV seeks a judicial declaration that CREW is entitled to news media status in all future
FOIA requests (whether as to HUD or other agencies, the Complaint is unclear), that request
either is outside the scope of the Complaint or overlaps with the illegal policy-or-practice
allegation contained in Count I. There is no reason to leave Count IV in place on those bases.
Finally, in its prayer for relief, the Complaint urges the Court to “[r]etain jurisdiction of this
action to ensure no agency records are wrongfully withheld.” Compl. at 22. Because the Court
denies the Motion to Dismiss as to Count I, it retains jurisdiction over the controversy. Plaintiffs
will be able to seek leave to amend their Complaint if some dispute arises during production.
3. Plaintiffs Have Stated a Valid “Policy-or-Practice” Claim
The plaintiff in Hall tried to avoid the question of mootness by arguing that the denial of
fee waivers was “capable of repetition, yet evading review.” 437 F.3d at 99. The Court of
Appeals disagreed, holding that “[d]enials of fee waivers do not seem inherently of such short
duration that they cannot ordinarily be fully litigated before their cessation.” Id.; see also Cause
of Action Inst. v. U.S. Dep’t of Justice, 282 F. Supp. 3d 66, 77–79 (D.D.C. 2017) (“[I]t is unclear
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whether . . . [that] doctrine applies to FOIA disclosures, given the general duration of the
proceedings in such litigation.”).
But that does not mean that government agencies may choose not to comply with FOIA
and force every request into court, then moot every case by voluntarily complying thereafter.
Instead, the D.C. Circuit has recognized the viability of a challenge to an agency’s FOIA policy
or practice. See Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988). It has
held that “even though a party may have obtained relief as to a specific request . . . , this will not
moot a claim that an agency policy or practice will impair the party’s lawful access to
information in the future.” Id. “So long as an agency’s refusal to supply information evidences
a policy or practice of . . . some . . . failure to abide by the terms of the FOIA, and not merely
isolated mistakes by agency officials, a party’s challenge to the policy or practice cannot be
mooted by the release of the specific documents that prompted the suit.” Id.
The Court of Appeals built on Payne last year in Judicial Watch, Inc. v. U.S. Department
of Homeland Security, 895 F.3d 770 (D.C. Cir. 2018). There, the plaintiff alleged that the United
States Secret Service had an internal policy of declining to respond to FOIA requests within the
statutory 20-day deadline and ignoring them until the requester filed a lawsuit; then it would
produce the documents, moot the controversy, and avoid an adverse judgment in litigation. Id. at
776. Judicial Watch filed nineteen requests in a three-year period, leading to five lawsuits that
all became moot before any court could rule on the denials. Id. at 773. Recognizing that the
allegations were enough to state a claim under Payne, the court held that a “plaintiff must allege
a pattern of prolonged delay amounting to a persistent failure to adhere to FOIA’s requirements
and that the pattern of delay will interfere with its right under FOIA to promptly obtain non-
exempt records from the agency in the future.” Id. at 780. It held that there is no requirement to
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allege “egregious, intentional agency conduct,” instead requiring only that a complaint allege
“‘some . . . failure to abide by the terms of the FOIA’ that could be the basis for finding the
agency has an unlawful practice a policy.” Id. at 781–82 (quoting Payne, 837 F.2d at 491).
District courts have reached a consensus on several points. First, for a claim to go
forward, a plaintiff need not “point to a regulation that establishes the policy [or practice], [and]
the agency [need not] concede the policy’s existence.” Muckrock, LLC v. CIA, 300 F. Supp. 3d
108, 131 (D.D.C. 2018). Second (and relatedly), the alleged policy may be informal and need
not have been published or written anywhere. Muttitt v. U.S. Cent. Command, 813 F. Supp. 2d
221, 231 (D.D.C. 2011). Third, a plaintiff cannot state a valid claim arising out of a single
incident—there must be a pattern—but a single plaintiff does not need extrinsic evidence from
the agency’s treatment of other requesters. Id. at 231 (holding lack of response to two separate
requests for estimated completion dates in five outstanding requests was enough under Payne);
see also Muckrock, 300 F. Supp. 3d at 131 (five non-responsive requests enough); Cause of
Action Inst. v. Eggleston, 224 F. Supp. 3d. 63, 72 (D.D.C. 2016) (one delayed request not
enough). Finally, the plaintiff must allege agency conduct consistent with the alleged illegal
policy or practice. See Scudder v. CIA, 281 F. Supp. 3d 124, 127 (D.D.C. 2017) (dismissing
complaint that acknowledged that the agency sometimes acted appropriately).
Here, Count I states a claim under Payne. CREW and FFRF allege that HUD “is
engaged in a policy and practice of violating the FOIA’s fee waiver provisions by intentionally
refusing to grant fee waivers to non-profit, public interest organizations that satisfy all the
statutory and regulatory criteria . . . where disclosure of the requested documents is likely to cast
the agency or HUD Secretary Ben Carson in a negative light.” Compl. ¶¶ 72, 76 (internal
citation omitted). They contend that HUD “makes an initial decision to deny requested public
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interest fee waivers from non-profit requesters shortly after receiving the requests, using
boilerplate language and failing to address” the requesters’ justifications, then it “affirms these
denials on appeal in broad conclusory terms that fail to address” the requesters’ subsequent
detailed justification statements. Id. ¶¶ 73–74. They assert that HUD’s “actions have resulted,
and will continue to result, in the untimely access to documents to which the plaintiffs and the
public are entitled” and “will continue to harm plaintiffs by requiring them to either pay
processing fees notwithstanding their statutory entitlement to a fee waiver or incur the costs and
delayed associated with litigating their entitlement.” Id. ¶¶ 77–78. To support those allegations,
Plaintiffs have pointed to five separate FOIA requests by two unrelated organizations that
encountered similar responses consistent with the alleged policy. That claim fits squarely within
the contours of Judicial Watch—it would even likely satisfy the criteria outlined in Judge
Srinivasan’s dissent. See 895 F.3d at 799 (Srinivasan, J., dissenting) (arguing that a consistent
failure to respond to FOIA requests within the default 20-day timeline is not actionable under
Payne but that “if an agency has a practice of unlawfully withholding the disclosure of
responsive records . . . [,] it will be subject to an injunction barring the practice.” (citing Payne,
837 F.2d at 490–92)).
HUD’s Motion to Dismiss suffers from several flaws. First, it points to media stories
about CREW’s funding to suggest that CREW might not have suffered significant injury from
the denials. See Mot. at 9. It also provides internal data about the percentage of fee waiver
requests HUD has granted in recent years to suggest that Plaintiffs’ policy-or-practice allegations
are false. Id. at 9–10. But those materials are better suited to the summary judgment stage, not
to a motion to dismiss. At this point, the Court must accept the allegations in the Complaint and
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attached documents (such as the correspondence between the Parties) as true. Am. Nat’l. Ins. Co.
v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011). 3
Second, HUD argues that because the regulations create a list of factors it must weigh in
deciding whether to grant a fee waiver, that decision is committed to the agency’s discretion and
cannot be the subject of a policy-or-practice claim. See, e.g., Judicial Watch, 895 F.3d at 780
(holding that a pattern of violating a strict, statutory 20-day response deadline states a claim);
Del Monte Fresh Produce N.A. v. United States, 706 F. Supp. 2d 116, 120 (D.D.C. 2010)
(“Payne Enterprises regards the repeated denial of [FOIA] requests based on the invocation of
inapplicable statutory exemptions rather than delay of an action over which the agency had
discretion.”). But once again, that is a question for summary judgment. It may be the case that
HUD engages in a good faith effort to exercise its discretion over fee waivers; or perhaps it has a
practice of denying every waiver request in the hope that requesters will abandon their efforts.
But on a motion to dismiss, the question is merely whether the Complaint adequately alleges a
persistent, willful policy of violating FOIA’s commands. It does. 4
Third, HUD points to language in Judicial Watch to suggest that policy-or-practice
claims are limited to undue delays in the production of documents and cannot encompass a
3
HUD argues that portions of the Complaint describing similar experiences by other non-profit
organizations, at issue in separate litigation, are not properly before the Court. See Mot. at 15
(citing Compl. ¶¶ 53–70). Because the Court did not rely on those portions of the Complaint to
reach its decision, it declines to reach the question of whether they were properly pleaded.
4
Most of the cases to which HUD cites dealt with summary judgment, so they do not necessarily
support dismissal of the Complaint. And Del Monte, to which HUD cites repeatedly, was an
APA challenge to the FDA’s alleged failure to conduct regulatory inspections of food processing
plants. 706 F. Supp. 2d at 117–18. It declined to follow Payne because that case was limited to
the context of FOIA. Id. at 120. It also speculated that Payne was no longer good law because
of subsequent developments in the doctrine of standing as articulated by the Supreme Court, id.,
but Judicial Watch—which, of course, is binding—confirmed Payne’s continuing validity. 895
F.3d at 778.
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dispute over fee waivers. See 895 F.3d at 780 (“[T]he plaintiff must allege a pattern of
prolonged delay amount to a persistent failure to adhere to FOIA’s requirements . . . .”). But the
statutory violation at issue in that case was undue delay. Nothing in Judicial Watch or in FOIA’s
text suggests that plaintiffs cannot allege a policy or practice of violating some other aspect of
FOIA. See, e.g., Muttitt, 813 F. Supp. 2d at 230 (recognizing a policy-or-practice claim for
alleged failure to provide estimated completion dates for production as required under FOIA).
IV. Conclusion
Although the question of whether CREW and FFRF were entitled to fee waivers is no
longer live, Plaintiffs have sufficiently alleged that, as a matter of policy or practice, HUD denies
such waivers without giving them adequate consideration, particularly when the request’s subject
may reflect poorly on the agency or its senior officials.
For the foregoing reasons, HUD’s Motion to Dismiss is DENIED as to Count I and
GRANTED as to Counts II, III, and IV. Those counts are DISMISSED without prejudice as
moot. An Order will be entered contemporaneously with this Memorandum Opinion.
DATE: November 25, 2019
CARL J. NICHOLS
United States District Judge
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