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Judicial Watch • JW v. DHS Appeal No. 16-5339

JW v. DHS Appeal No. 16-5339

JW v. DHS Appeal No. 16-5339

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Date Created:April 21, 2017

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Tags:5339, Muttitt, Counselors, LEXIS, Enterprises, Lauren, practice, claim, PAYNE, Discovery, appeal, requests, AGENCY, HHS, complaint, policy, DHS, defendant, plaintiff, FBI, Supreme Court, FOIA, Washington, district, united, EPA, IRS, CIA


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NOT YET SCHEDULED FOR ORAL ARGUMENT THE UNITED STATES COURT APPEALS
FOR THE DISTRICT COLUMBIA CIRCUIT
_________
No. 16-5339
_________
JUDICIAL WATCH, INC.
Plaintiff-Appellant,
U.S. DEPARTMENT HOMELAND SECURITY
Defendant-Appellee.
__________ APPEAL FROM THE U.S. DISTRICT COURT
FOR THE DISTRICT COLUMBIA
__________
REPLY BRIEF APPELLANT JUDICIAL WATCH, INC.
__________
Lauren Burke
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
lburke@judicialwatch.org
Dated: April 21, 2017
TABLE CONTENTS
TABLE CONTENTS ............................................................................................i
TABLE AUTHORITIES ....................................................................................
GLOSSARY ABBREVIATIONS ......................................................................iv
SUMMARY THE ARGUMENT ........................................................................
ARGUMENT .............................................................................................................
Plaintiff Policy and Practice Claim Sufficiently Supported and Warrants
Further Development .......................................................................................
II.
Equitable Relief Appropriate .......................................................................
CONCLUSION ........................................................................................................
CERTIFICATE COMPLIANCE .......................................................................
TABLE AUTHORITIES
CASES
PAGE
Alley United States HHS, 2008 U.S. Dist. LEXIS 106884
(N.D. Al. May 2008) .......................................................................................
Asarco, Inc. EPA, No. Civ.A.08-1332 EGS-JMF,
2009 U.S. Dist. LEXIS 37182 (D.D.C. Apr. 28, 2009) ..................................
Citizens for Responsibility Ethics Washington Office Admin.,
2008 U.S. Dist. LEXIS 111094 (D.D.C. Feb. 11, 2008) ................................
Dearth Holder,
641 F.3d 499, 501 (D.C. Cir. 2011) ................................................................
Feinman FBI,
713 Supp. (D.D.C. 2010) ................................................................
Gilmore National Sec. Agency, No. 94-16165, 1995 792079
(9th Cir. Dec. 11, 1995) *unpublished ............................................................
Haase Sessions,
835 F.2d 902 (D.C. Cir. 1987) ......................................................................
Hajro U.S. Citizenship and Immigration Services,
807 1054 (9th Cir. 2015) .......................................................................
Heily U.S. Dep Commerce, Fed. App 171 (4th Cir. 2003) (per curiam) ............................................
Judicial Watch, Inc. Food and Drug Admin.,
449 F.3d 141 (D.C. Cir. 2006) ........................................................................
Long IRS,
693 F.2d 907 (9th Cir. 1982) ..........................................................................
*Mutitt Dep State, 926 Supp. 284 (D.D.C. 2013) ............. 11-12 Authorities upon which Judicial Watch chiefly relies are marked with asterisks.
*Natl Sec. Counselors CIA,
898 Supp. 233 (D.D.C. 2012) ................................................8, 10,
*Payne Enterprises United States,
837 F.2d 486 (D.C. Cir. 1987) ........................................................ 10-11
Public Citizen Food and Drug Administration,
997 F.Supp. (D.D.C. 1998) ........................................................................
Renegotiation Bd. Bannercraft Clothing Co.,
415 U.S. (1974) ..........................................................................................
Research Project, Inc. U.S. Dep Health, Educ. Welfare,
504 F.2d 238 (D.C. Cir. 1974) ........................................................................
Sparro United Air Lines, Inc.,
216 F.3d 1111(D.C. Cir. 2000) .......................................................................
Tax Analysts Internal Revenue Service,
214 F.3d 179 (D.C. Cir. 2000) ........................................................................
Washington Cameron,
411 F.2d 705 (D.D.C. 1969) ...........................................................................
RULES AND STATUTES U.S.C. 552(a)(4)(B) ........................................................................................... Authorities upon which Judicial Watch chiefly relies are marked with asterisks.
iii
GLOSSARY ABBREVIATIONS Brief
Brief Appellant Judicial Watch, Inc.
DHS
U.S. Department Homeland Security
DHS Brief
Brief for Appellee
District Court
U.S. District Court for the District
Columbia
FOIA
Freedom Information Act
Joint Appendix
Opinion
Memorandum Opinion U.S. District Judge
Richard Leon
SUMMARY THE ARGUMENT
Plaintiff Complaint alleges sufficient facts, when accepted true and
construed the light most favorable Plaintiff, support its policy and practice
claim. Defendant conduct ongoing and continues harm Plaintiff warranting
the equitable relief Plaintiff seeks. The U.S. District Court for the District
Columbia should reversed, and the case should remanded for further
proceedings.
ARGUMENT
Plaintiff Policy and Practice Claim Sufficiently Supported and Warrants
Further Development
Defendant arguments rely the contention that Plaintiff complaint fails point identify official policy practice Defendant. See DHS Brief 12. simply not true that Plaintiff, the pleading stage, must specifically
identify specific, illegal conduct bring policy and practice claim against
agency. Plaintiff can prevail against Defendant can show agency has
adopted, endorsed, implemented unlawful policy practice. Muttitt
U.S. Dep State, 926 F.Supp.2d 284, 293 (D.D.C. 2013). show such
conduct, necessary work through the litigation and discovery process.
Defendant contends that Plaintiff alleges facts supporting its claim, and
publicly available reports furnish basis for its assertion that the victim
peculiar policy practice. DHS Brief 14. However, the facts provided its
complaint clearly support Plaintiff allegation that Defendant conduct not that diligent agency. Plaintiff Complaint identifies travel-related FOIA
requests submitted between July 2014 and August 2015 response which
Defendant did not make single determination until Plaintiff filed this lawsuit. 11-12. Plaintiff Complaint also alleges that: (1) Defendant repeated failure respond was not isolated incident, but the result policy practice; (2)
Plaintiff was personally harmed the alleged policy practice; and (3) Plaintiff
has sufficient likelihood future harm the policy practice.
Furthermore, Plaintiff Complaint identifies least prior instances which
Defendant fail[ed] issue determinations response similar VIP, travelrelated FOIA requests within the time period required FOIA, causing Plaintiff bring suit order obtain the requested records.
Defendant failure abide FOIA obligations not isolated event.
Plaintiff provided nearly instances identical, unlawful FOIA violations
defendant processing Plaintiff requests sufficiently allege policy
practice this stage litigation. Defendant asserts that [a] policy-or-practice
injunction warranted only where there systematic agency abuse bad
faith. DHS Brief citing Gilmore National Sec. Agency, No. 94-16165,
1995 792079, (9th Cir. Dec. 11, 1995) *unpublished). Here, Plaintiff has
clearly described ongoing practice well injury which continues suffer.
Therefore, Plaintiff complaint more than meets the requirements adequately
plead policy and practice claim.
Plaintiff policy and practice claim amply supported the allegations
that, between July 2014 and August 2015, Plaintiff submitted travel-related
FOIA requests Defendant, but Defendant failed issue determination
single one Plaintiff request. 6-7; 11-12. May 2016, Plaintiff filed another Complaint alleging more instances delayed disclosure travel-related records requested under FOIA. Judicial
Watch, Inc. U.S. Department Homeland Security, Case No. 16-0863 (D.D.C.).
The subject requests were served between October 13, 2015 and March 28, 2016.1
Despite its denial, Defendant pattern and practice delayed disclosure obviously
continues. The failure respond timely manner consecutive requests
plainly constitutes more than isolated mistake agency official. The May 2016 Complaint provides additional, factual support for Plaintiff assertion that
Defendant has policy and practice delayed disclosure. This continued conduct
clearly shows that judgment the pleadings was inappropriate and that these
cases require further inquiry and discovery.
The October 13, 2015 request was not ripe the time the November 10,
2015 lawsuit was filed. The others, dated January 2016, January 2016,
February 18, 2016, and March 28, 2016, had not yet been served.
Based the facts provided the pleadings, the court certainly can infer
that this not matter few isolated incidents, but rather policy practice
regarding FOIA requests submitted Plaintiff. See Payne Enterprises United
States, 837 F.2d 486 (D.C. Cir. 1987). Plaintiff should have the opportunity
take discovery and obtain admissible evidence support its claim. Payne Enters., Inc., the Court held that pattern practice claim remains
viable [s]o long agency refusal supply information evidences policy
practice delayed disclosure some other failure abide the terms the
FOIA, and not merely isolated mistakes agency officials. 837 F.2d 491; see
also Hajro U.S. Citizenship and Immigration Services, 807 1054 (9th Cir.
2015). Plaintiff alleged this the case, has demonstrated factual basis for its
claim, and must allowed discovery obtain admissible evidence support
its claim. Discovery must proceed Plaintiff policy and practice claim before
the Court can adjudicate Defendant motion for judgment.
Judicial Watch asserted reason for DHS egregious, repeated violation
its FOIA obligations that there unlawful policy and practice place can reasonably inferred and well supported the detailed description
FOIA requests provided Judicial Watch Complaint. See Sparro United Air
Lines, Inc. 216 F.3d 1111, 1113 (D.C. Cir. 2000).
Although parties typically not engage the normal civil discovery
process FOIA litigation, discovery permitted certain circumstances. See,
e.g, Tax Analysts Internal Revenue Service, 214 F.3d 179, 185 (D.C. Cir. 2000)
(remanding for discovery narrow and fact-specific question concerning
disclosability specific type document); Citizens for Responsibility Ethics
Washington Office Admin., 2008 U.S. Dist. LEXIS 111094 (D.D.C. Feb. 11,
2008) (order authorizing jurisdictional discovery FOIA/PRA case); Public
Citizen Food and Drug Administration, 997 F.Supp. 56, (D.D.C. 1998)
(permitting discovery investigating the scope the agency search for responsive
documents, the agency indexing procedures, and the like see also Heily U.S.
Dep Commerce, Fed. App 171, 174 (4th Cir. 2003) (per curiam)
(explaining that discovery may permitted regarding the scope agency
search and its indexing and classification procedures Alley U.S. Dep
Health and Human Services, 2008 U.S. Dist. LEXIS 106884, **19-20 (N.D. Ala.
May 2008) (granting plaintiff leave conduct limited discovery flesh out his
claim that agency has policy unreasonably denying FOIA requests that take
over two hours process and/or that require create computer programming
Discovery meant allow party uncover facts which might prove the
claims alleged. Washington Cameron, 411 F.2d 705, 710-11 (D.D.C. 1969).
Plaintiff, like most civil litigant plaintiffs, limited the facts and evidence its
disposal. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145
(D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between
FOIA requester and agency FOIA cases). only through discovery the
litigation process that further facts and evidence are drawn out fully develop the
record support Plaintiff claim. [I]t must remembered that the entitlement discovery occurs when there has emerged genuine issue material fact which
can only resolved evidentiary hearing. Asarco, Inc. EPA, No.
Civ.A.08-1332 EGS-JMF, 2009 U.S. Dist. LEXIS 37182 (D.D.C. Apr. 28, 2009).
Here, Plaintiff has specifically identified genuine issue material fact upon
which seeks discovery whether Defendant has policy and practice place
regarding Plaintiff FOIA requests. Plaintiff properly pled pattern and practice
claim falls within the norms the regular civil litigation process, including
engaging discovery develop the factual dispute issue for the Court
determination. Id.
Plaintiff asserts that discovery necessary develop and resolve the
question whether the agency has unlawful policy and practice regarding
Plaintiff FOIA requests. There clear need gain insight and answers the
agency FOIA processing policies and procedures considering the FOIA
requests that Defendant failed respond over period years, and the
expediency with which requested records were produced after Plaintiff filed its
lawsuit, and Plaintiff should given the opportunity show Defendant
behavior amounts more than just systemic limitations. The factual record must developed appropriately and Plaintiff should permitted engage
discovery provide deeper documentation for the Court make [a]
determination. Judicial Watch, Inc. Dep State, C.V. 14-1242 (RCL)
(D.D.C. March 29, 2016). state claim for relief under the policy practice doctrine articulated [Payne Enterprises United States, 837 F.2d 486 (D.C. Cir. 1987)] plaintiff
must allege facts establishing that the agency has adopted, endorsed,
implemented some policy practice that constitutes ongoing failure abide the terms the FOIA. Muttitt Dep State, 926 Supp. 284, 293
(D.D.C. 2013) (quoting Payne Enterprises, 837 F.2d 491). Plaintiff has clearly
met this burden. Plaintiff claim falls squarely within the requirements Payne
Enterprises. There heightened pleading threshold for policy and practice
claim suggested Defendant. Whether Plaintiff will succeed its policy and
practices claim developed through discovery and litigation.
Discovery, not dismissal, into Defendant handling Plaintiff FOIA
requests and, particular, why many Plaintiff requests went unanswered
for more than year clearly warranted. Specifically, discovery should
pursued into the number and nature FOIA requests Defendant receives;
Defendant processes for responding FOIA requests; whether other FOIA
requestors experienced the same delays experienced Plaintiff; the existence
any communications directives concerning the processing Plaintiff FOIA
requests; and why how Defendant was able provide responses quickly
the FOIA requests identified the Complaint when confronted with litigation.
Permitting discovery targeted these factually disputed issues appropriate and
necessary fully adjudicate Plaintiff policy and practice claim.
II.
Equitable Relief Appropriate
Here, Plaintiff claim precisely the circumstance[] where agency
simply refuses conform its action the known requirements the [FOIA]
order deter requests for information repetitive litigation, that would tempt
court use any all the usual weapons the arsenal equity. Natl Sec.
Counselors CIA, 898 Supp. 233, 264 (D.D.C. 2012) (quoting Research
Project, Inc. U.S. Dep Health, Educ. Welfare, 504 F.2d 238, 252 (D.C.
Cir. 1974)). Plaintiff complaint alleges multiple facts that indicate the agency
conduct willful and deliberate.
The Payne court was quite clear: The FOIA imposes limits courts
equitable powers enforcing its terms. 837 F.2d 494 (specifically noting that
the district court decision not grant equitable relief Payne was actually
abuse discretion). See also Nat Sec. Counselors, 898 F.Supp.2d 264. The
Payne court reliance Long IRS, 693 F.2d 907 (9th Cir. 1982) supports
plaintiff claim for equitable relief here (noting Congress did not intend for the
IRS, any other agency, use the FOIA offensively hinder the release nonexempt documents was the IRS abuse this scheme that forced the
appellants bring several lawsuits obtain release the documents These
unreasonable delays disclosing non-exempt documents violate the intent and
purpose the FOIA, and the courts have duty prevent these abuses.
The courts Muttitt and Nat Security Counselors have further reiterated
that the Court has the power enjoin FOIA procedural violation under the
equitable jurisdiction the FOIA itself long that violation was
connection with the processing the plaintiff FOIA requests. Nat Sec.
Counselors, 898 F.Supp.2d 265 (quoting Muttitt, 813 F.Supp.2d 229). This
Court stated Muttitt that, even though policy practice would not necessarily
result directly [the] withholding [of agency records], nevertheless falls within
the Court broad equitable powers under the FOIA. Id. (quoting Muttitt, 813
F.Supp.2d 228-29 n.4). seeking injunctive declaratory relief, plaintiff must show [it]
suffering ongoing injury faces immediate threat injury. Natl Sec.
Counselors CIA, 898 Supp. 233, 260 (D.D.C. 2012) citing Dearth
Holder, 641 F.3d 499, 501 (D.C. Cir. 2011). plaintiff challenging alleged
policy practice government agency must demonstrate that realistically
threatened repetition [its] experience. Id. (citing Haase Sessions, 835
F.2d 902, 910-11 (D.C. Cir. 1987)). This threat must real and immediate, or,
alternatively, realistic[] nature. Id. (internal citations ommitted). Here,
Plaintiff not only asserts that there threat repetition and that likely subjected the policy again, but actually has been subjected Defendant
continued policy and practice. Natl Sec. Counselors, 898 Supp. 260
(citing Haase, 835 F.2d 911). Plaintiff complaint contains more than
nebulous assertion the existence policy and Plaintiff was forced file
suit again receive records for five additional travel-related FOIA requests that
Defendant failed make determinations over period months. See
Plaintiff Motion for Leave File Supplement (ECF No. 20).2
FOIA grants federal courts jurisdiction enjoin the agency from
withholding agency records and order the production any agency records
improperly withheld from the complainant. U.S.C. 552(a)(4)(B). The D.C.
Circuit Payne, however, held that [t]he FOIA imposes limits courts
equitable powers enforcing its terms, and where agencys actions response FOIA request violate the intent and purpose the FOIA the courts have
Judicial Watch U.S. Department Homeland Security (15-863) the
related case before Judge Leon District Court. The case presently stayed
pending the outcome this appeal.
duty prevent these abuses. Payne, 837 F.2d 494; see also Wash. Research
Project, Inc. Dept Health, Educ. Welfare, 504 F.2d 238, 252, (D.C. Cir.
1974) (One can imagine circumstances, such where agency simply refuses conform its action the known requirements the [FOIA] order deter
requests for information repetitive litigation, that would tempt court use any all the usual weapons the arsenal equity. (internal quotation marks
omitted)). Therefore, although the language the FOIA could read strictly
limit the equitable powers federal courts enjoining the agency from
withholding records and ordering production improperly withheld records, the
D.C. Circuit and the U.S. Supreme Court have interpreted those equitable powers
more broadly. See Renegotiation Bd. Bannercraft Clothing Co., 415 U.S. 1920 (1974) (holding that [t]he broad language the FOIA, among other factors,
demonstrate that there little suggest, despite the Acts primary purpose, that
Congress sought limit the inherent powers equity court). The scope the
equitable powers available under the FOIA nevertheless still unclear because the
D.C. Circuit has yet specify the breadth Payne-style relief. The only concrete
guidance has been from Payne itself, which stated that FOIA policy-or-practice
claims extend any failure abide the terms the FOIA. Payne, 837 F.2d 491. This Court has previously held that where plaintiff challenges alleged
pattern and practice violating procedural requirements FOIA connection
with the processing the plaintiffs FOIA requests[,] the Court has the power
under FOIA and Payne provide the requested declaratory and injunctive
remedies. Muttitt U.S. Cent. Command, 813 Supp. 221, 229 (D.D.C.
2011); see also Feinman FBI, 713 Supp. 70, (D.D.C. 2010) (dismissing
APA policy practice claim because the relief available under FOIA the
same genre the relief available under the APA). Thus, under Muttitt, the Court
has the power enjoin FOIA procedural violation under the equitable
jurisdiction the FOIA itself long that violation was connection with the
processing the plaintiffs FOIA requests. Muttitt, 813 Supp. 229.
Indeed, this Court stated Muttitt that, even though policy practice would
not necessarily result directly [the] withholding [of agency records],
nevertheless falls within the Courts broad equitable powers under the FOIA. Id.
228-29 n.4. Natl Sec. Counselors CIA, 898 Supp. 233, 264-65 (D.D.C.
2012).
CONCLUSION
For the reasons set forth Judicial Watch opening brief and the additional
reasons set forth above, the District Court should reversed, and the case should remanded for further proceedings.
Dated: April 21, 2017
Respectfully submitted,
JUDICIAL WATCH, INC.
/s/ Lauren Burke
Lauren Burke
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
lburke@judicialwatch.org
Counsel for Plaintiff-Appellant
CERTIFICATE COMPLIANCE
The undersigned certifies that this brief complies with the type-volume
limitations Fed. App. 32(a)(7). The brief, excluding exempted portions,
contains 3,497 words (using Microsoft Word 2010), and has been prepared
proportional Times New Roman, 14-point font.
/s/ Lauren Burke
CERTIFICATE SERVICE hereby certify that April 21, 2017, filed via the CM/ECF system the
foregoing REPLY BRIEF APPELLANT JUDICIAL WATCH, INC. with
the Clerk the Court. Participants the case are registered CM/ECF users and
service will accomplished the Appellate CM/ECF system. also certify that caused eight copies delivered the Clerk Court
via hand delivery.
/s/ Lauren Burke