Smartflash, LLC v. U.S. Patent and Trademark Office ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SMARTFLASH, LLC,
Plaintiff, Civil Action No. 22-1123 (BAH)
v. Judge Beryl A. Howell
U.S. PATENT AND TRADEMARK
OFFICE,
Defendant.
MEMORANDUM OPINION
Plaintiff Smartflash, LLC initiated this lawsuit to challenge the United States Patent and
Trademark Office’s (“USPTO”) withholding, pursuant to Exemptions 5 and 6 of the Freedom of
Information Act (“FOIA”), 5 U.S.C. §§ 552(b)(5), (6), of records relating to the expansion of
judicial panels of the Patent Trial and Appeal Board (“PTAB”) for certain USPTO proceedings.
USPTO has moved to dismiss for lack of subject matter jurisdiction based on plaintiff’s lack of
standing because the FOIA requests at issue were submitted by plaintiff’s attorney rather than
plaintiff, or, alternatively, for summary judgment, see generally Def.’s Mot. Dismiss Alt. Summ.
J., ECF No. 27 (“Def.’s Mot.”); Def.’s Mem. Supp. Mot., ECF No. 27-2 (“Def.’s Mem.”), and
plaintiff has cross-moved for summary judgment and opposed USPTO’s motion to dismiss, see
Pl.’s Combined Opp’n, Cross-Mot. Summ. J., & Mot. Strike (“Pl.’s Cross-Mot.”), ECF No. 28;
Pl.’s Mem. Supp. Cross-Mot., ECF No. 28-1 (“Pl.’s Cross-Mem.”). For the reasons set forth
below, USPTO’s motion to dismiss is granted, and plaintiff’s cross-motion is denied.
I. BACKGROUND
1
Summarized below is the background relevant to resolving the pending motions and the
procedural history to this lawsuit.
A. Plaintiff’s FOIA Request
Michael R. Casey is a longtime attorney for plaintiff, Pl.’s Statement of Material Facts
(“Pl.’s SMF”) ¶¶ 4-5, ECF No. 28-4, which is the patent owner of a family of patents that were
challenged in a series of proceedings at the USPTO before the PTAB, administratively titled Apple
v. Smartflash, Case Nos. CBM2014-00102 to CBM2014-00113, id. ¶¶ 1-2 (the “Smartflash
Proceedings”). In the Smartflash Proceedings, the PTAB used “expanded” panels, with more than
three judges assigned, without explaining to plaintiff why such expanded panels were used. Id.
¶¶ 2-3.
On December 31, 2020, Casey submitted the four FOIA requests at issue here (the
“Requests”) to PTO seeking records relating to PTAB’s use of expanded judicial panels for certain
proceedings as well as a March 13, 2018 presentation entitled Chat with the Chief: New PTAB
Studies in [America Invents Act] Proceedings: Expanded Panels and Trial Outcome for Orange
Book-Listed Patents (the “Presentation”). Def.’s Statement of Material Facts (“Def.’s SMF”) ¶ 1,
ECF No. 27-1 (alteration in original); accord Decl. of Caitlin Trujillo, Associate Counsel,
USPTO’s Office of General Counsel (“Trujillo Decl.”) ¶ 4, ECF No. 27-3; see also Pl.’s SMF ¶¶ 9,
16 (outlining the FOIA requests); Pl.’s Compl., Ex. 3 (Dec. 31, 2020 Email from Michael R. Casey
to “FOIARequests@uspto.gov” (“Casey Email”)), ECF No. 1-4. As relevant here, the
Presentation, states: (1) at p. 7, that a “Suggestion [for Panel Expansion] must be in writing with
reasons and basis for expansion”; (2) at p. 8, that “Early AIA practice expanded panels in families
for case resource management” and that this practice is “now discontinued”; and (3) at p. 10, that
“‘Apple Inc. v. Smartflash LLC—14 individual cases all administered by a 4-or 5-judge panel (see
2
Case CBM2014-00102, et al.)’ is an example of a family of cases ‘in which the panel was expanded
for case resource management.” Def.’s SMF ¶¶ 2, 4; Trujillo Decl. ¶ 4. 1 Notably, when submitting
his Requests to USPTO, Casey did not indicate the requests were made or submitted on behalf of
plaintiff, only using plaintiff’s name when referencing the Smartflash Proceedings. See generally
Casey Email.
Casey’s first Request sought records showing certain information concerning the
Presentation’s suggestion for panel expansion in the Smartflash Proceedings, as that term was used
in the Presentation, at pp. 7 and 10, including the identities of the individuals who suggested the
need for panel expansion in PTAB proceedings, what criteria was used to decide whether to expand
certain panels, what documents were considered, and any objections to panel expansion. Trujillo
Decl. ¶ 4; Def.’s SMF ¶ 3. The second Request sought records identifying other expanded panels
“for case resource management,” as listed in the Presentation, at p. 8, in addition to records
showing when and why the practice of expanding panels for case resource management had been
discontinued. Def.’s SMF ¶¶ 4-5; Trujillo Decl. ¶ 4. The third Request sought “(1) a copy of any
documents showing what documents were considered when determining that any ‘panel was
expanded for case resource management’ in the [Smartflash Proceedings] described on page 10 of
[the Presentation] and (2) to the extent that the considered documents are not part of . . . the
[Smartflash Proceedings] described on page 10 of [the Presentation], copies of the considered
documents.” Def.’s SMF ¶ 6; accord Trujillo Decl. ¶ 4. The fourth Request sought records
showing certain information concerning panel expansion for certain PTAB proceedings in which
1
An “AIA” proceeding is one in which “[a] third party who is not the patent owner . . . challenge[s] the
validity of the claims in an issued patent[.]” What Are AIA Proceedings?, UNITED STATES PATENT AND TRADEMARK
OFFICE (2023), available at https://perma.cc/ZUE2-H6R9; see also Cannon v. Dist. of Columbia, 717 F.3d 200, 205
n.2 (D.C. Cir. 2013) (“Judicial notice is appropriately taken of information posted on government agencies’ official
public websites.”).
3
plaintiff “was a party that is not part of the ‘14 individual cases’ (as that term is used on page 10
[of the Presentation]).” Trujillo Decl. ¶ 4; accord Def.’s SMF ¶ 7.
USPTO acknowledged to Casey receipt of the Requests on February 23, 2021, and issued
an initial determination, on May 10, 2021, disclosing twelve pages of responsive documents, which
were partially redacted, pursuant to FOIA Exemption 5. Def.’s SMF ¶ 8; Trujillo Decl. ¶ 6.
According to Trujillo, USPTO searched through all possible locations of records responsive to the
Requests, including records of PTAB judges, who authored the Presentation, case dockets for all
proceedings in which plaintiff was a party, records of PTAB management personnel, and records
of relevant PTAB personnel with responsibility for paneling decisions. See Trujillo Decl. ¶¶ 18-
31.
Unsatisfied with USPTO’s response, Casey then filed two administrative appeals with
some apparent success. Specifically, in response to Casey’s first administrative appeal, filed on
August 9, 2022, USPTO, on September 7, 2021, denied Casey’s objections to the withheld
information, under Exemption 5, but noted that additional responsive documents were uncovered
and directed that those records be reviewed for possible disclosure subject to any exemptions.
Def.’s SMF ¶¶ 9-10; Trujillo Decl. ¶¶ 9-10. Indeed, a month later, on October 5, 2021, USPTO
provided Casey with 55 pages of documents, with some responsive records withheld pursuant to
FOIA Exemptions 5 and 6. Def.’s SMF ¶ 11; Trujillo Decl. ¶ 11. Casey again appealed, on
December 30, 2021, which appeal the USPTO largely denied, lifting redactions on just one page
of records while otherwise upholding the withholdings and redactions. Def.’s SMF ¶¶ 12-13;
Trujillo Decl. ¶¶ 12, 14. Following its supplemental releases, USPTO continued to withhold
information from only four records: three emails and a spreadsheet. Def.’s SMF ¶ 17.
B. USPTO’s Justifications for Withholding Responsive Records
4
USPTO withheld information responsive to the Requests under both Exemptions 5 and 6.
In particular, relying on Exemption 5, USPTO withheld (1) a PTAB judge’s proposal for assigning
specific judges to particular cases, and (2) notes in a spreadsheet reflecting one judge’s opinions
and impressions, which were provided in conjunction with USPTO’s study on panel expansion,
the findings and conclusions of which were publicly announced in the Presentation. Def.’s SMF
¶ 18; Trujillo Decl. ¶ 37; see also Trujillo Decl. at 15-17 (“Vaughn Index”), ECF No. 27-3. USPTO
views the withheld information or records as pre-decisional since, in each case, the information
was “relayed prior to the agency reaching a final decision or making findings and conclusions.”
Def.’s SMF ¶ 19; accord Trujillo Decl. ¶ 37. In addition, according to USPTO, the withheld
information is deliberative, and “reflect[s] an internal exchange of ideas, the release of which
would tend to have a chilling effect on the open and frank expression of views in formulating
agency policy.” Def.’s SMF ¶ 19; accord Trujillo Decl. ¶ 37. “Disclosure would jeopardize the
candid and comprehensive discussions that are essential for efficient and effective agency
decision-making” because “PTAB judges must be able to discuss agency decisions and changes in
policy without fearing that these sensitive internal communications will be released publicly,”
since otherwise they would “not be able to perform their duties in a forthright, diligent, and
effective manner.” Trujillo Decl. ¶ 38; accord Def.’s SMF ¶ 19.
Invoking FOIA Exemption 6, USPTO also withheld records “that contained information
about an employee’s vacation plans and discussion of another employee’s performance metrics.”
Trujillo Decl. ¶ 40; accord Def.’s SMF ¶ 20. This exemption was appropriately applied, according
to USPTO, “because employees have a strong privacy interest in what they do when they are not
on government time[,] and [they] have a strong privacy interest in their performance[,]” and Casey,
5
by contrast, “provided no public interest in disclosure.” Trujillo Decl. ¶ 38; accord Def.’s SMF
¶ 20.
In sum, USPTO claims it “released all non-exempt information not inextricably intertwined
with exempt information as well as all exempt information for which it could not reasonably
foresee harm associated with the release.” Def.’s SMF ¶ 21; accord Trujillo Decl. ¶¶ 42, 44; see
also Vaughn Index.
C. The Instant Lawsuit
Plaintiff then initiated the instant suit against USPTO on April 25, 2022, for withholding
documents in response to the Requests and seeking “to compel compliance with the Freedom of
Information Act.” Compl. at 1, ECF No. 1. After USPTO filed its combined motion to dismiss
and motion for summary judgment, Def.’s Mot., plaintiff responded to the dismissal demand by
including in its combined opposition and cross-motion for summary judgment a declaration from
Casey, in which he declared that he “assigned any rights in the [Requests] . . . that [he] might have
had to Smartflash,” Decl. of Dr. Michael Casey (“Casey Decl.”) ¶ 20, ECF No. 28-5. Attached to
that declaration is an assignment letter signed by Casey and plaintiff, on December 18 and 19,
2022, respectively, id. at Ex. A. 2 With briefing complete, see Def.’s Reply Supp. Mot. Summ. J.
(“Def.’s Reply”), ECF No. 31; Pl.’s Reply Supp. Cross-Mot. Summ. J. (“Pl.’s Reply”), ECF No.
34, the parties’ cross-motions are ripe for resolution.
II. LEGAL STANDARD
2
Plaintiff also moves to strike potions of the Trujillo Declaration, arguing, inter alia, that the declaration
references communications that were not previously produced in response to the Requests. Pl.’s Cross-Mem. at 16–
17 (citing Trujillo Decl. ¶¶ 20-23). USPTO essentially concedes that plaintiff is correct about the referenced
communications not being disclosed but remedies that circumstance by making a supplemental production to Casey,
including emails described in the Trujillo Declaration that were not previously disclosed, Def.’s Reply Supp. Mot.
Summ. J., Second Decl. of Caitlin Trujillo (“Second Trujillo Decl.”) ¶ 7, ECF No. 32-1.
6
“Article III of the Constitution prescribes that ‘[f]ederal courts are courts of limited subject-
matter jurisdiction’ and ‘ha[ve] the power to decide only those cases over which Congress grants
jurisdiction.’” Bronner ex rel. Am. Stud. Ass’n v. Duggan, 962 F.3d 596, 602 (D.C. Cir. 2020)
(alterations in original) (quoting Al-Zahrani v. Rodriguez, 669 F.3d 315, 317 (D.C. Cir. 2012));
see also Gunn v. Minton, 568 U.S. 251, 256 (2013) (“‘Federal courts are courts of limited
jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’” (quoting
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994))). Absent subject-matter
jurisdiction over a case, the court must dismiss it. See Arbaugh v. Y & H Corp., 546 U.S. 500,
506–07 (2006) (citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004)); FED. R. CIV. P. 12(h)(3).
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the plaintiff
bears the burden of demonstrating the court’s subject-matter jurisdiction over the claim at issue.
Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). When considering a motion to dismiss under
Rule 12(b)(1), the court must determine jurisdictional questions by accepting as true all factual
allegations contained in the complaint, “‘construe the complaint liberally, [and] grant[] plaintiff
the benefit of all inferences that can be derived from the facts alleged.’” Hemp Indus. Ass’n v.
DEA, 36 F.4th 278, 281 (D.C. Cir. 2022) (alteration omitted) (quoting Am. Nat’l Ins. Co. v. FDIC,
642 F.3d 1137, 1139 (D.C. Cir. 2011)). The court need not accept inferences drawn by the
plaintiff, however, if those inferences are unsupported by facts alleged in the complaint or amount
merely to legal conclusions. Id. at 288 (alteration in original) (quotation marks omitted) (making
clear that liberally construing complaint in plaintiff’s favor “does not entail accept[ing] inferences
unsupported by facts or legal conclusions cast in the form of factual allegations”).
III. DISCUSSION
While maintaining that an appropriate search for records responsive to the Requests was
conducted and that FOIA exemptions were properly applied to withhold certain responsive records
7
or information, USPTO asserts that plaintiff fails to clear the threshold standing requirement for
the exercise of subject matter jurisdiction here because Casey filed the Requests and, consequently,
plaintiff suffered no injury in fact. Def.’s Mem. at 4–7. Indeed, Casey stated, when submitting
the Requests, that “[t]he undersigned”—meaning Casey himself—“hereby submits a request for
documents under the Freedom of Information Act[,]” Casey Email at 1, rather than clarifying that
the Requests sought “the information on behalf of any client[,]” let alone plaintiff, Def.’s Mem. at
6–7. USPTO thus maintains that plaintiff lacks standing to sue. Id.USPTO is right. An attorney filing a FOIA request on behalf of his or her client must
clearly indicate that the request was filed on the client’s behalf. This Casey failed to do. Plaintiff
therefore lacks standing to assert its claims under FOIA, requiring dismissal of the Complaint for
lack of subject matter jurisdiction.
A. Article III Standing and FOIA
Article III of the Constitution restricts the power of federal courts to hear only “Cases” and
“Controversies.” U.S. CONST. art. III, § 2, cl. 1; see also Fla. Audubon Soc’y v. Bentsen, 94 F.3d
658, 661 (D.C. Cir. 1996) (en banc) (“The Constitution limits the jurisdiction of federal courts to
actual cases or controversies between proper litigants.”). “The doctrine of standing gives meaning
to these constitutional limits by ‘identify[ing] those disputes which are appropriately resolved
through the judicial process.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014)
(alteration in original) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). To establish
Article III standing, plaintiff must allege sufficient facts to show the following: (1) an “injury in
fact” that is “concrete and particularized” and “actual or imminent, not conjectural or
hypothetical[,]” Lujan, 505 U.S. at 560 (quotation marks omitted); (2) “a causal connection
between the injury and the conduct complained of,” id. (quotation marks omitted); and (3) it “be
8
likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision[,]” id. (quotation marks omitted); accord Spokeo, Inc. v. Robbins, 578 U.S. 330, 338
(2016). The plaintiff bears the burden of proof on standing, and at summary judgment, the plaintiff
must support all factual assertions for each standing element with specific evidence. Humane
Soc’y of the United States v. Perdue, 935 F.3d 598, 602 (D.C. Cir. 2019).
FOIA provides that “each agency, upon any request for records” that is sufficiently specific
and made in accordance with published procedures for submitting such requests, “shall make the
records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). An agency’s duties under
FOIA are triggered by a properly framed request for information, and the agency’s obligations
flowing from that request are with respect to “the requester” of that
information. See id. § 552(a)(6)(A)(i) (requiring agency to notify “the person making [the]
request” whether the agency will comply with the request).
“Anyone whose request for specific information has been denied has standing to bring an
action [under FOIA,]” Zivotofsky ex rel. Ari Z. v. Sec’y of State, 444 F.3d 614, 617 (D.C. Cir.
2006), since that person “has suffered a particularized injury because he has requested and been
denied information Congress gave him a right to receive,” Prisology, Inc. v. Fed. Bureau of
Prisons, 852 F.3d 1114, 1117 (D.C. Cir. 2017). At the same time, however, “if a party has not
made a request within the meaning of FOIA, then he does not have standing to bring a lawsuit.”
Wetzel v. U.S. Dep’t of Veterans Affs., 949 F. Supp. 2d 198, 202 (D.D.C. 2013) (citing McDonnell
v. United States, 4 F.3d 1227, 1236–39 (3d Cir. 1993)); accord Feinman v. FBI, 680 F. Supp. 2d
169, 172 (D.D.C. 2010).
While “a lawyer may make a request on behalf of a client,” “[t]he rule commonly applied
in this District provides that . . . the attorney ‘must clearly indicate that it is being made on behalf
9
of the [client] to give that [client] standing to bring a FOIA challenge.” Ameen v. U.S. Dep’t of
State, No. CV 21-1399 (BAH), 2021 WL 4148532, at *3 (D.D.C. Sept. 13, 2021) (alterations in
original) (quoting Smallwood v. U.S. Dep’t of Just., 266 F. Supp. 3d 217, 220 (D.D.C. 2017));
accord Three Forks Ranch Corp. v. Bureau of Land Mgmt., 358 F. Supp. 2d 1, 2 (D.D.C. 2005).
Even though “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,’ that would be at odds with
both the Constitution’s standing requirement and the intent of Congress in enacting FOIA.”
Smallwood, 266 F. Supp. 3d at 220 (quotation marks and citation omitted) (quoting Wetzel, 949
F.Supp.2d at 204); see also McDonnell, 4 F.3d at 1236–37 (“[A] person whose name does not
appear on a request for records has not made a formal request for documents within the meaning
of [FOIA]” and “[s]uch a person, regardless of his or her personal interest in disclosure of the
requested documents, has no right to receive either the documents . . . or notice of an agency
decision to withhold the documents[.]”).
Although the D.C. Circuit “has never specifically articulated the requirements for filing a
FOIA request on behalf of another,” Three Forks Ranch Corp., 358 F. Supp. 2d at 3; accord
Ameen, 2021 WL 4148532, at *3, caselaw illuminates where the line is drawn to distinguish
between cases in which the plaintiff has standing from those where the plaintiff does not. For
example, in Smallwood v. U.S. Department of Justice, the defendant agency moved to dismiss a
FOIA lawsuit alleging the plaintiff lacked standing because the plaintiff’s attorney filed the
original FOIA request and both “identified the attorney as the ‘Requester’” and “did not include
any reference to a client generally, or to [the plaintiff] specifically.” 266 F. Supp. 3d at 218–
19 (citations omitted). The Court agreed, explaining that “[t]he FOIA request at issue . . . clearly
indicates that [plaintiff's] attorney is the requester” in large part because the “Request Description”
10
portion of the request “d[id] not indicate that the request was made on behalf of any client, let
alone [the plaintiff],” and since the plaintiff's name did not “appear anywhere in the request.” Id. at
221; see also Wetzel, 949 F. Supp. 2d. at 200–02 (holding that plaintiff lacked standing, even
though plaintiff’s counsel submitted an authorization from the plaintiff when making the FOIA
request, because plaintiff’s counsel failed to indicate that the purpose of the request was for use in
representation of the plaintiff). By contrast, in Ameen v. U.S. Department of State, the plaintiff
was found to have standing where the FOIA requests “sufficiently indicated that [they] were made
on behalf of the plaintiff” because “the requests (1) indicated that counsel was requesting the
documents in connection with and for use in the representation of plaintiff, and (2) contained
release forms signed by plaintiff ‘authoriz[ing] and request[ing]’ the release of records to counsel.”
2021 WL 4148532, at *5 (alterations in original); see also Brown v. EPA, 384 F. Supp. 2d 271,
276 (D.D.C. 2005) (denying defendant’s motion to dismiss for lack of standing because the
attorney “stated in the first line of his request” that he represented the plaintiff and was hired to
obtain documents pursuant to FOIA, and because the “second page of the request contain[ed] a
signed and dated authorization from plaintiff stating that she” authorized her attorney to obtain
documents on her behalf).
B. Plaintiff Lacks Article III Standing
Plaintiff has plainly not evinced that Casey filed the Requests on its behalf. Like the
Smallwood plaintiff and unlike the Ameen plaintiff, Casey did not identify that he was making the
Requests on behalf of plaintiff or as part of his representation of plaintiff in his email to USPTO
detailing the Requests. See Casey Email at 1, 3 (stating that “[t]he undersigned”—meaning
Casey—“hereby submits a request for documents under the Freedom of Information Act[,]” and
that responsive records should be sent to Casey, who “will pay reproduction costs up to $500”).
11
Moreover, Casey attached no manner of release form to his Email to permit the release of
responsive records to plaintiff. See generally id. In fact, nothing in the Casey Email “clearly
indicate[s] that it is being made on behalf of [plaintiff] to give [plaintiff] standing to bring a FOIA
challenge.’” Ameen, 2021 WL 4148532, at *3 (quoting Smallwood, 266 F. Supp. 3d at 220).
Plaintiff nonetheless maintains that Casey filed the Requests on its behalf because (1)
“Casey has . . . been acting on behalf of Plaintiff . . . [and] represent[ing] Plaintiff, [ ] at each of
his last three firms[;]” (2) “the FOIA Request included not Dr. Casey’s personal mailing address
and email address but rather his then work address and then work email address[;]” (3) “[t]he FOIA
Request included an Oblon Reference Number 526934US[,] which was a Smartflash Reference
Number[;]” and (4) as of the time of response to USPTO’s dismissal motion, “Casey ha[d] assigned
his rights to the results of the FOIA Request[.]” Pl.’s Cross-Mem. at 4–5.
None of these arguments is persuasive. Merely because Casey represents plaintiff in some
matters and used his work mailing and email addresses when filing the Requests, does not show—
let alone clearly demonstrate—that Casey submitted the Requests on plaintiff’s behalf. See
Smallwood, 266 F. Supp. 3d at 218–19 (dismissing the lawsuit for lack of standing because the
plaintiff’s attorney’s failed “indicate that the request was made on behalf of any client” when
submitting the FOIA request). Further, plaintiff fails to explain the meaning or import of “an
Oblon Reference Number” and “a Smartflash Reference Number,” and how or why an obscure
reference number evince that Casey filed the Requests on plaintiff’s behalf. Simply put, plaintiff
has cited no authority whatsoever for the proposition that a representational relationship, standing
alone, results in an assignment of rights between attorney and client sufficient to confer Article III
standing, particularly since “there is nothing unusual about an attorney or a law firm making a
12
FOIA request in their own right concerning a client matter.” Osterman v. Army Corps of Eng’rs,
Civ. A. No. 13-1787, 2014 WL 5500396, at *3 (W.D. Wash. Oct. 30, 2014).
To be sure, Casey eventually assigned his rights to plaintiff when USPTO raised the issue
in this litigation. Assignment of a FOIA claim is permissible. See Nat’l Sec. Couns. v. C.I.A., 898
F. Supp. 2d 233, 259 (D.D.C. 2012) (Howell, J) (holding that organizational assignee of FOIA
claim has standing to pursue remedy in federal court where original FOIA requester, a separate
organization with similar mission to assignee, assigned rights during administrative appeal
process, prior to filing of lawsuit, when lawyer for original requester moved to assignee). Yet, the
belated assignment here, on December 19, 2022—nearly eight months after the Complaint was
filed—does not suffice for standing purposes. The Supreme Court has made clear that “[t]he
existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint
is filed.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1989); accord Grupo
Dataflux v. Atlas Glob. Grp., 541 U.S. 567, 571 (2004). Given that Casey’s assignment was only
made after the Complaint was filed, plaintiff plainly lacked standing when it initiated this lawsuit.
Having failed to show that Casey filed the Requests on plaintiff’s behalf or that Casey
timely assigned to plaintiff his FOIA rights, plaintiff makes a last-ditch attempt to avoid dismissal
by arguing that USPTO conceded in its Answer, ECF No. 18, that “Plaintiff submitted” the
Requests and failed to raise the issue of standing until now. See Pl.’s Cross-Mem. at 7–9. This
argument is a misfire because “standing is jurisdictional[,] and it can never be forfeited or waived.”
Bauer v. Marmara, 774 F.3d 1026, 1029 (D.C. Cir. 2014) (citing Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94–95 (1998). As such, “[s]tanding can be raised at any point in a case
proceeding and, as a jurisdictional matter, may be raised, sua sponte, by the court.” Steffan v.
Perry, 41 F.3d 677, 697 n. 20 (D.C. Cir. 1994) (en banc); accord Kontrick v. Ryan, 540 U.S. 443,
13
455 (2004). Resultantly, notwithstanding defendant’s erroneous admissions in its Answer as to
the person who submitted the Requests, plaintiff lacks standing to assert claims here.
IV. CONCLUSION
For the foregoing reasons, plaintiff lacks Article III standing to file the Complaint, which
accordingly must be dismissed, and plaintiff’s cross-motion for summary judgment is denied. An
order consistent with this Memorandum Opinion will be issued contemporaneously.
Date: August 17, 2023
__________________________
BERYL A. HOWELL
United States District Court Judge
14