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f2eada84-0b4c-425a-803f-699d1951e219 | . 11-445 “to correct deficiencies identified by the Court in its 17 October 2012 Memorandum Opinion.” See Pl.’s Mot. for Leave to File a Second Am. Compl. (“Pl.’s Amendment Mem.”) at 3, No. 11-445, ECF No. 36 | National_Security_Counselors_2013-08-15.txt |
89b0232a-8648-4914-9f36-7a477181e137 | . First, as to 34 Count Fifteen—which challenged the CIA’s alleged policy of refusing to provide estimated dates of completion for FOIA requests (the “Non-Provision of Completion Date Policy”)—the Court dismissed that claim for lack of standing because the plaintiff had not alleged that it had been subject to the policy in question. See NSC I, 898 F. Supp. 2d at 263 | National_Security_Counselors_2013-08-15.txt |
f16f5373-784e-4dae-a38e-71affc6d2843 | . The plaintiff now seeks to amend its complaint by adding allegations that it has become subject to that alleged policy, by virtue of FOIA requests submitted after the Court issued its October 17, 2012 opinion. See Pl.’s Amendment Mem. at 3; see also Proposed Second Am. Compl. , No. 11-445, ECF No | National_Security_Counselors_2013-08-15.txt |
5291cc70-7c74-4f34-a4e6-752586012854 | . 36- 1 (alleging refusals to provide estimated dates of completion on October 18, October 24, and November 3, 2012). The Court concludes that this proposed amended must be denied for undue delay. See, e.g., Firestone, 76 F.3d at 1208 | National_Security_Counselors_2013-08-15.txt |
322672c1-58f1-4b74-9e04-1a94388a8db0 | . As alleged in the plaintiff’s First Amended Complaint, the plaintiff first became aware of the alleged Non-Provision of Completion Date Policy in November 2010—approximately three months before filing the original complaint in No. 11- 445, and approximately four months before filing the First Amended Complaint in No. 11-445. See 445 FAC | National_Security_Counselors_2013-08-15.txt |
a426ab72-05df-4d84-ae9c-52c6582dced0 | . Further, the defendants specifically challenged the plaintiff’s standing to bring this claim in its motion to dismiss, filed on June 3, 2011. See Mem. in Supp. Defs.’ Partial Mot. to Dismiss at 6–9, No. 11-445, ECF No. 10-1. Thus, the plaintiff not only had ample opportunity to allege that it had been subject to the alleged policy when it filed its first two complaints in No | National_Security_Counselors_2013-08-15.txt |
d9a06f6d-0668-4784-a757-56cbbe42a951 | . 11-445, it also had over sixteen months to seek an amendment to its complaint after the CIA raised the standing issue in its motion to dismiss. The plaintiff chose not to do so, waiting until five weeks after the Court ruled on the motion to dismiss to seek such an amendment. This, in the Court’s view, constitutes undue delay. 35 With respect to Count Eighteen in No | National_Security_Counselors_2013-08-15.txt |
ecdd1e25-fe1a-4cfd-9c65-9bde1026e3ec | . 11-445—which challenges the CIA’s alleged policy of refusing to identify responsive records withheld in their entirety at the administrative stage (the “Withheld Document Non-Identification Policy”)—the Court dismissed that claim in its October 17, 2012 opinion for failure to state a claim. See NSC I, 898 F. Supp. 2d at 285 | National_Security_Counselors_2013-08-15.txt |
b12a1539-8714-41d9-bc83-e8c553746314 | . In so ruling, the Court simply concluded that, during administrative processing, the FOIA “does not require agencies to provide a list of withheld documents, but only to make a reasonable effort to estimate the volume of the documents withheld.’” Id. (quoting Mobley v. Dep’t of Justice, 845 F. Supp. 2d 120, 124 (D.D.C. 2012)) | National_Security_Counselors_2013-08-15.txt |
08d36506-d543-4807-b0f7-af2f8326aca8 | . The plaintiff now asks to “rewrite[e] Count 18 to allege a policy, pattern, or practice of refusing to provide estimates of the volume of records withheld in full.” See Pl.’s Amendment Mem. at 3–4. This is an entirely different claim than the one alleged in the First Amended Complaint, and once again, the plaintiff’s belated attempt to reshape the nature of its claims constitutes an undue delay | National_Security_Counselors_2013-08-15.txt |
bcfc7b08-ffc1-4dd3-a6d7-aa05b6c64522 | . The plaintiff clearly “is using Rule 15 to make the complaint a moving target, to salvage a lost case by untimely suggestion of new theories of recovery.” See Minter, 451 F.3d at 1206. This is a naked “attempt to evade the effect of [the Court’s] Memorandum Opinion and Order dismissing the plaintiff’s claim[],” and therefore “the request will be denied.” See Kurtz, 2011 WL 2457923, at *1 n.1 | National_Security_Counselors_2013-08-15.txt |
8b1b8157-7afa-4403-a04c-a1b629b5211f | . In sum, the plaintiff’s motion to amend its complaint “to correct deficiencies identified by the Court in its 17 October 2012 Memorandum Opinion,” see Pl.’s Amendment Mem. at 3, is not a proper use of Rule 15. The defects in Counts Fifteen and Eighteen in No | National_Security_Counselors_2013-08-15.txt |
58865649-0014-41a2-9635-50882e0f8eeb | . 11-445 were identified by the CIA in moving to dismiss those claims, yet the plaintiff did not seek an amendment upon being alerted to these defects. Instead, the plaintiff waited until after the Court granted the defendants’ motion regarding these claims | National_Security_Counselors_2013-08-15.txt |
3414d863-1d00-487c-81ba-b3c9873d6b7a | .11 The plaintiff does not claim that it 11 The plaintiff stated in its reply brief that it would “not address the meritless allegation that it should have immediately conceded and amended its complaint the moment Defendants opposed it . . | National_Security_Counselors_2013-08-15.txt |
751815cd-258a-41ac-a15b-f66cd3739298 | . especially in light of the 36 would have been incapable of seeking amendment to its complaint much earlier,12 and if amendment were permitted now, the CIA would be prejudiced by having to file yet another responsive motion regarding the newly reshaped claims—nearly a year after the Court already granted its prior motion to dismiss in relevant part | National_Security_Counselors_2013-08-15.txt |
78e3927e-e7a2-4ea0-b81e-6e4e07203c78 | . Therefore, the Court denies the plaintiff’s motion for leave to file a second amended complaint in No. 11-445. B. Motion for Sanctions In its motion for sanctions in No. 11-443, the plaintiff contends that the CIA “engaged in an extended campaign of misrepresentation . . . regarding the nature of the information it redacted from the two documents at issue.” See Pl.’s Mot. Sanctions (“Pl | National_Security_Counselors_2013-08-15.txt |
45671666-03c7-417a-b8c8-ed2d7c1808bc | .’s Sanctions Mem.”) at 1, No. 11-443, ECF No. 50. The plaintiff relies on three bases in moving for sanctions: (1) 28 U.S.C. § 1927, (2) Federal Rule of Civil Procedure 11, and (3) the inherent power of the Court. minor technicalities which resulted in the Court’s granting Defendants’ Motion to Dismiss with respect to the two counts in question.” Pl.’s Reply in Supp. Mot | National_Security_Counselors_2013-08-15.txt |
c5936dca-1c6a-4724-9f0f-21f2176c8c39 | . for Leave to File Second Am. Compl. at 3 n.2, No. 11-445, ECF No. 40. The argument referenced by the plaintiff is not “meritless,” however. When faced with a motion to dismiss, a plaintiff is faced with a choice—oppose the motion on the merits or amend the complaint to address the deficiencies raised in the motion | National_Security_Counselors_2013-08-15.txt |
6e14e036-b64c-4faa-b54c-d7c58950a885 | . When a plaintiff elects to oppose a motion to dismiss on the merits, the plaintiff assumes the risk that the court will grant the motion and the plaintiff’s claims will be dismissed | National_Security_Counselors_2013-08-15.txt |
2d508fb7-9d2d-43a2-8223-1c3aa9d83b26 | . A plaintiff is not entitled simply to have its proverbial cake and eat it too by first opposing a motion to dismiss on the merits (thereby forcing the court to resolve the motion to dismiss), and then, upon losing the motion, amend its complaint to correct the very deficiencies it refused to acknowledge previously. See, e.g | National_Security_Counselors_2013-08-15.txt |
7df5fc59-67d3-4a8f-aeeb-4e087a6f1892 | ., 6 CHARLES ALAN WRIGHT, ET AL FEDERAL PRACTICE & PROCEDURE § 1488 (3d ed. 2013) (observing that “a motion to amend should be made as soon as the necessity for altering the pleading becomes apparent” and “[a] party who delays in seeking an amendment is acting contrary to the spirit of the rule and runs the risk of the court denying permission because of the passage of time”) | National_Security_Counselors_2013-08-15.txt |
174e9b0b-d982-4186-80a3-586d45510eb0 | . 12 The plaintiff attempts to sidestep the “undue delay issue” by focusing on the five weeks that passed between the filing of the Court’s opinion and the filing of the motion to amend. See Pl.’s Amendment Mem. at 4; Pl.’s Reply in Supp. Mot. for Leave to File Second Am. Compl. at 3, No. 11-445, ECF No. 40 | National_Security_Counselors_2013-08-15.txt |
0dbcbcf5-afc1-49ee-8ff8-87b2c1d7a8d0 | . The relevant time period for undue delay, however, is the time that passed between the filing of the defendant’s motion to dismiss and the filing of the plaintiff’s motion for leave to amend. If the plaintiff “needed to make several requests for estimated dates of completion . . | National_Security_Counselors_2013-08-15.txt |
106d88e2-b8a6-4fa8-b1ff-c64875913ddb | . and give CIA a reasonable time to respond before it could sufficiently allege to the Court’s satisfaction that it was still being affected by CIA’s practice,” see Pl.’s Amendment Mem | National_Security_Counselors_2013-08-15.txt |
28174c5b-2969-4454-b556-84d4675e1f87 | . at 4, then the time to submit those requests was either before filing the First Amended Complaint or, at the very least, in the sixteen months between the defendant’s motion to dismiss and the Court’s October 17, 2012 opinion. In any event, the plaintiff continues to misunderstand the deficiency in its allegations | National_Security_Counselors_2013-08-15.txt |
91552acd-e0e6-49e2-bda6-d457972f4890 | . The problem is not, as the plaintiff states, that it did not “allege to the Court’s satisfaction that it was still being affected by CIA’s practice.” Id. (emphasis added). The problem, as the Court stated in its October 17, 2012 opinion, is that the plaintiff had not alleged that it was ever subject to the policy in question. See NSC I, 898 F. Supp. 2d at 263 | National_Security_Counselors_2013-08-15.txt |
f13d08eb-36a8-422b-94e3-194c7ce17512 | . That allegation could easily have been added to the plaintiff’s Complaint before or after the defendant’s motion to dismiss was filed, but it never was. The plaintiff, it should also be noted, does not address the undue delay issue with respect to Count Eighteen at all. 37 See id. at 6–7 | National_Security_Counselors_2013-08-15.txt |
18942c42-99a5-484d-b143-f5ff1a983f63 | . Regardless of the source of the sanctions, the plaintiff contends that “the evidence is clear that CIA’s counsel intentionally, unreasonably, vexatiously, and in bad faith misrepresented the nature of the withheld information in the two Indices for two months, bringing the orderly progression of the case to a screeching halt.” Id. at 8 | National_Security_Counselors_2013-08-15.txt |
2e45fcba-6347-4a75-b65d-eac35b473249 | . In this regard, the plaintiff clarifies that it “is not maintaining that CIA’s opposition to the initial Motion to Compel was sanctionable conduct, nor is [it] saying that the making of the mistake in the first place was sanctionable conduct.” Id | National_Security_Counselors_2013-08-15.txt |
bee2aefb-d642-4906-a4df-306e083d315c | . Rather, according to the plaintiff, “[i]t was not until CIA refused to acknowledge the mistake, forced the extensive subsequent arguments, and repeatedly represented to the Court that its assessment was correct and the undersigned was wrong that the actions of its counsel became worthy of sanction.” Id | National_Security_Counselors_2013-08-15.txt |
6f86c043-3786-4702-97a9-b5c04c5728f7 | . To impose sanctions under the Court’s inherent power, “it is settled that a finding of bad faith is required.” United States v. Wallace, 964 F.2d 1214, 1219 (D.C. Cir. 1992). With respect to 28 U.S.C. § 1927, which permits a court to impose sanctions against an attorney “who so multiplies the proceedings in any case unreasonably and vexatiously,” the D.C | National_Security_Counselors_2013-08-15.txt |
5e091564-30af-4b59-a11f-4e80f0d650a0 | . Circuit “has not established whether the standard [for unreasonable and vexatious conduct] should be recklessness or the more stringent bad faith.” See LaPrade v. Kidder Peabody & Co., 146 F.3d 899, 905 (D.C. Cir. 1998) | National_Security_Counselors_2013-08-15.txt |
be411963-1e63-4bcd-8420-22f4d50e0e03 | . Finally, Rule 11 requires that when an attorney “present[s] to the court a pleading, written motion, or other paper,” such a representation may not be “presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” FED. R. CIV. P. 11(b). Rule 11 “imposes on any party who signs a pleading, motion, or other paper . . | National_Security_Counselors_2013-08-15.txt |
d9489b5c-a152-491f-bd5f-15ba554fdfb4 | . an affirmative duty to conduct a reasonable inquiry into the facts and the law before filing, and the applicable standard is one of reasonableness under the 38 circumstances.” Bus. Guides, Inc. v. Chromatic Commc’ns Enterprises, Inc., 498 U.S. 533, 551 (1991). Based on the CIA’s submissions, the Court is satisfied that sanctions are not warranted in this case | National_Security_Counselors_2013-08-15.txt |
e6262a3f-d37a-4a3c-bdc2-24cebbe3469e | . In particular, the CIA’s explanation of the circumstances that led to the inaccurate representations by CIA’s counsel establishes that no sanctionable conduct occurred | National_Security_Counselors_2013-08-15.txt |
3dda1e0a-f561-4862-88a4-869755cc0ee3 | . Of particular importance is the revelation in the CIA’s declaration that the CIA’s information review officer (“IRO”) used a confusing and easily misunderstood notation system when classifying the redactions made to the two documents in question. See Sixth Lutz Decl. ¶–8 | National_Security_Counselors_2013-08-15.txt |
4d42287b-b00a-4d9c-9f90-7972684e899c | . It was objectively reasonable for the CIA’s counsel to rely on the IRO’s statements, though unfortunately that reliance turned out to be misplaced. Although the plaintiff is correct to assert that the CIA’s inaccurate representations “br[ought] the orderly progression of the case to a screeching halt,” Pl.’s Sanctions Mem | National_Security_Counselors_2013-08-15.txt |
ecf484d5-96fe-465d-9c4c-20926d2fad8f | . at 8, the conduct on the part of the CIA’s counsel was not sanctionable because it appears to have been premised on a reasonable, good-faith belief that the representations were correct at the time | National_Security_Counselors_2013-08-15.txt |
98fb66d0-d25e-45df-abc4-f66d3923f52e | . The CIA is admonished to engage in clearer internal communication before making representations to the Court about the agency’s positions in the future, but in this particular instance the Court denies the plaintiff’s Motion for Sanctions. C. Policies or Practices The Court next turns to the plaintiff’s remaining policy-or-practice claims | National_Security_Counselors_2013-08-15.txt |
b83a50d7-39ef-4a61-b4aa-bfb4a0722b04 | . Although both of these claims were summarized in the Court’s previous opinion, see NSC I, 898 F. Supp. 2d at 243–44, 248–49, the Court will briefly summarize those claims here to aid the clarity of the Court’s analysis. 1. Assignment of Rights Policy In Count Two of No | National_Security_Counselors_2013-08-15.txt |
12347f42-7501-492a-b4f3-7c7e8d08aadd | . 11-443, the plaintiff complains that the CIA has a policy of refusing to recognize the assignment of rights related to FOIA requests (the “Assignment of Rights 39 Policy”). See 443 Compl. ¶–28. This policy-or-practice claim is closely connected to Count One of No | National_Security_Counselors_2013-08-15.txt |
17da3f6f-8540-4239-9e09-44adf6ca4558 | . 11-443, in which the plaintiff alleges that the CIA refused to permit NSC to participate in the administrative appeal proceedings related to a FOIA request that had been assigned to NSC by an organization called the James Madison Project (“JMP”).13 See id. ¶– 17. The CIA openly admits that it has a policy of not recognizing the assignment of FOIA requests, see Mem. in Supp. Def.’s Mot. Summ. J | National_Security_Counselors_2013-08-15.txt |
0e74ddeb-440d-4435-a05e-55b537488578 | . on Counts One & Two (“Def.’s Second 443 Mem.”) at 2, No. 11-443, ECF No. 54 (“The CIA has adopted a categorical policy against recognizing the assignment of FOIA claims . . . .”), and the plaintiff contends that such a policy violates the FOIA, see Pl.’s Mem. in Opp’n to Def.’s Mot. Summ. J. on Counts One & Two & in Supp. Pl.’s Cross-Mot. Partial Summ. J. on Counts One & Two (“Pl | National_Security_Counselors_2013-08-15.txt |
064bac44-4d29-47f3-bf9e-efa4f7b73502 | .’s 443 Cross-Mot. Mem.”) at 6–7, No. 11-443, ECF No. 57 | National_Security_Counselors_2013-08-15.txt |
6db5bfdf-f2f5-46e2-a854-ce81abe6dd5e | . The question presented by the Assignment of Rights Policy is as follows: Is it a violation of the FOIA for an agency to refuse to recognize a valid assignment of the rights attached to a FOIA request | National_Security_Counselors_2013-08-15.txt |
2a13ece4-4993-49d8-8a29-7c52b8e6c2bb | ? The CIA says that a policy of not recognizing assignments does not violate the FOIA, relying on the conclusory assertion that “[a]gencies are not required by the FOIA to recognize the assignment of FOIA requests | National_Security_Counselors_2013-08-15.txt |
489884b7-41a3-4b7a-b5a7-50149e26b27d | .” Def.’s Second 443 Mem. at 5. The CIA elaborates its interpretation of the statute by pointing to several provisions of the FOIA “that require agencies to make determinations based on the identity of the FOIA requester,” such as the fee- waiver provision, see 5 U.S.C. § 552(a)(4)(A)(ii), the expedited processing provision, see id. § 552(a)(6)(E)(i)(I), and Exemptions 6 and 7(C), see id | National_Security_Counselors_2013-08-15.txt |
562bbf79-3e43-47b8-a48b-a6e50b05693f | . § 552(b)(6), 552(b)(7)(C). See Def.’s Second 443 Mem. at 5–6. The CIA contends that such “requester-specific provisions . . . would 13 Indeed, the only argument offered by the CIA in support of summary judgment on Count One in No. 11-443 is that “the FOIA does not require agencies to recognize the assignment of FOIA requests.” See Mem. in Supp. Def.’s Mot. Summ. J. on Counts One & Two (“Def | National_Security_Counselors_2013-08-15.txt |
26aa16ce-d56c-476a-9290-77b04688045f | .’s Second 443 Mem.”) at 12, No. 11-443, ECF No. 54. Therefore, the merits of Count One rise or fall with the merits of the policy challenged in Count Two. 40 be frustrated if agencies were required to recognize the assignment of FOIA requests.” Id. at 6– 7 | National_Security_Counselors_2013-08-15.txt |
7983617b-fa13-4ee9-aed5-b9c9d77526de | . Finally, the CIA contends—as a policy matter—that requiring it to recognize assignments of FOIA requests would impose an “undue burden,” and would not result in any added benefit to requesters. See id. at 8–12. In particular, the CIA contends that refusing to recognize assignments “does not prejudice parties . . | National_Security_Counselors_2013-08-15.txt |
74859497-b9d8-414b-bc12-7fd7ed5a1d6f | . that claim to have been assigned FOIA claims” because “‘[r]equests for previously requested records are processed on an accelerated basis” and therefore “[b]y filing new requests, professional requesters can receive the records they seek at the same time they would if they were assigned the original requests.” Id. at 11–12 | National_Security_Counselors_2013-08-15.txt |
da8fa985-67ae-4a4d-954a-0a930269b584 | . The plaintiff responds by focusing on the factual underpinnings of the CIA’s policy arguments—in particular the CIA’s contentions about “undue burden.” See Pl.’s 443 Cross-Mot. Mem. at 2–7. For example, the plaintiff points out that the CIA waives FOIA fees “‘as an act of administrative discretion’ . . | National_Security_Counselors_2013-08-15.txt |
da08eafb-bafb-4c8d-a08e-90d8bed2093b | . in the overwhelming majority of requests,” which the plaintiff says “further exemplifies the lack of any fee-related burden that assignments could possibly impose.” Id. at 3–4 | National_Security_Counselors_2013-08-15.txt |
3ddc6062-b59a-4a45-8f7e-34fd7a11a7f0 | . The plaintiff also quibbles that the CIA has “consistently classified JMP as an ‘all other’ requester,” and that the CIA’s classification of JMP as a “representative of the news media” with regard to the one FOIA requests assigned to the plaintiff was an “anomaly.” Id. at 4.14 As a final example, the plaintiff argues that the CIA’s policy of “‘piggybacking’ a later request on an earlier request | National_Security_Counselors_2013-08-15.txt |
8ec4715d-40c2-4d77-a5a6-6aaae5c88dd7 | . . . has no bearing on whether recognizing assignments would impose an undue burden.” Id. at 6 | National_Security_Counselors_2013-08-15.txt |
bace1a48-4852-42e5-9b65-dac9d182c990 | . Indeed, the plaintiff argues that such a “piggybacking” policy “puts the lie to all of [the CIA’s] arguments regarding why assignments should not be recognized,” since a piggy-backed request “free-rides” off the earlier request in the same way an assignee would arguably “free-ride” off an assigned request. See id. at 6 | National_Security_Counselors_2013-08-15.txt |
c1d87b1f-35c3-47bb-b32d-a525874a44c6 | . 14 Although JMP assigned five FOIA requests to the plaintiff, see Fifth Lutz Decl. Ex. A, No. 11-443, ECF No. 54- 1, the plaintiff only challenges the CIA’s refusal to process one of those requests (F-2008-01105) in Count One of No. 11-443, see 443 Compl. ¶–7. 41 At the outset, both an argument posited by the plaintiff and another argument by the CIA warrant discussion | National_Security_Counselors_2013-08-15.txt |
c7cc2c2d-55c8-47b6-8574-57b330e3af37 | . First, the plaintiff is under the misimpression that the Court already decided the merits of the claim regarding the Assignment of Rights Policy, and in making that assumption the plaintiff mistakenly claims victory in its cross-motion for summary judgment. See Pl.’s 443 Cross-Mot. Mem | National_Security_Counselors_2013-08-15.txt |
b5c82356-8c47-4734-9321-cf0f9a6c40c1 | . at 2 (“[T]he Court made it very clear that it was resolving [that the CIA’s policy violate the FOIA] on the merits in NSC’s favor.”). To the contrary, the Court did not decide the merits of this claim in its prior decision. Rather, in ruling on the CIA’s motion to dismiss Counts One and Two in No | National_Security_Counselors_2013-08-15.txt |
1c068bfb-32c8-47f1-87f0-b1806c0cb356 | . 11-443, the Court simply made two holdings: (1) the plaintiff has standing to bring both claims; and (2) in both claims, the plaintiff stated claims upon which relief may be granted. See NSC I, 898 F. Supp. 2d at 259 | National_Security_Counselors_2013-08-15.txt |
ece87198-8c59-4f9c-9e5b-e0bd9bed71f9 | . The Court made no determination at that time about whether the plaintiff was entitled to any relief, and such a determination would have been unwarranted since the plaintiff had not yet sought judgment on its claim through an appropriate motion. Second, in support of summary judgment on the Assignment of Rights Policy, the CIA contends that “NSC’s purported assignments . . | National_Security_Counselors_2013-08-15.txt |
eb3b53fd-29b4-4cbe-921e-b6c4773818b8 | . underscore the reasonableness of the CIA’s decision not to recognize the assignment of FOIA requests.” Def.’s Second 443 Mem. at 13 | National_Security_Counselors_2013-08-15.txt |
63e806a0-595a-4d5b-954e-dc98806e164d | . In this vein, the CIA attempts to argue that NSC and JMP have “dissimilar objectives” because JMP “‘holds itself out as a non-profit organization under the laws of the District of Columbia,’” while NSC “‘is a for-profit entity located in the Commonwealth of Virginia.” Id. (quoting Fifth Lutz Decl. ) | National_Security_Counselors_2013-08-15.txt |
5bd9536d-9eee-4067-b378-9e7d99568183 | . By making this argument, perhaps swept up in litigation fervor, the CIA is bending the record in this case in a highly misleading way. The Court has previously discussed “the common bonds connecting JMP and NSC,” and how their identity of interests “establishes that their relationship ‘is such that [NSC] would protect [JMP’s] interests if their interests diverge.’” 42 NSC I, 898 F. Supp | National_Security_Counselors_2013-08-15.txt |
48adbaf2-7306-4130-9408-699313dd014a | . 2d at 257-58 (alteration in original) (quoting Feinman v. FBI, 680 F. Supp. 2d 169, 175 (D.D.C. 2010)). The Court also observed in the first sentence of the Background section of its opinion that “[t]he plaintiff in these related actions is a not-for-profit organization.” Id. at 242 | National_Security_Counselors_2013-08-15.txt |
c21256e3-faf6-45cc-b92e-8ad2322d00ca | . The CIA appears to conclude that NSC is a for-profit entity based on the fact that “its website appears to solicit paying customers.” Def.’s Reply in Supp. Mot. Summ. J. on Counts One & Two (“Def.’s Second 443 Reply”) at 7 n.2, No. 11-443, ECF No. 64. The mere earning of income, however, is not at all an indication that an entity is organized for profit | National_Security_Counselors_2013-08-15.txt |
63b848ea-2744-410e-ab86-9384ab79a996 | . Even non- profit organizations must pay their bills. The government, of all entities, should know that the difference between a for-profit corporation and a non-profit organization is not whether the entity earns income (or even whether it earns income at a profit) | National_Security_Counselors_2013-08-15.txt |
0bdfa98c-deff-433a-89ef-012ca1581dec | . Rather, “[i]n contrast to a for- profit corporation, a non-profit organization must utilize its earnings to finance the continued provision of the goods or services it furnishes, and may not distribute any surplus to the owners.” Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 344 (1987) (Brennan, J., concurring) | National_Security_Counselors_2013-08-15.txt |
c7928bfe-82a1-4714-99c5-6448c3a42926 | . The CIA’s shameless twisting of the factual record in this case to portray their assignment of rights position in a better light falls short of the level of representation that this Court expects of a United States government agency | National_Security_Counselors_2013-08-15.txt |
c7990046-daf2-449e-b2d0-1ab46751ac90 | . The CIA should know better than to make such an obviously unfounded argument, particularly in light of the many allegations of bad faith that have been leveled by the plaintiff in these cases, including allegations that prompted a nonfrivolous motion for sanctions. See supra Part III.B; infra Parts III.F, III.H.1 | National_Security_Counselors_2013-08-15.txt |
770e04d0-bc16-4bfe-90d2-2d1d6b12581c | . With these preliminary matters put to rest, the Court will now turn to answering the legal question raised by the CIA’s Assignment of Rights Policy. To answer that question, the Court must look to the FOIA itself. The Court is mindful that the D.C | National_Security_Counselors_2013-08-15.txt |
d14b64d0-1b07-4d53-8583-d002ce74d3e8 | . Circuit has expressly held that a 43 policy-or-practice claim under the FOIA may only survive “[s]o long as an agency’s refusal to supply information evidences a policy or practice of delayed disclosure or some other failure to abide by the terms of the FOIA, and not merely isolated mistakes by agency officials.” Payne, 837 F.2d at 491 (emphasis added); accord 5 U.S.C | National_Security_Counselors_2013-08-15.txt |
191aa9ab-b0f7-4b2a-9475-ee3806f16999 | . § 552(4)(B) (conferring to federal district courts “jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant”) | National_Security_Counselors_2013-08-15.txt |
29b51728-fd57-4e03-ac7c-e1619271c1de | . Accordingly, under Payne, the Court must determine, based on the undisputed facts, whether the CIA’s refusal to recognize assignments of the rights attached to FOIA requests (1) results in “delayed disclosure” of information; or (2) reflects a “failure to abide by the terms of the FOIA.” See Payne, 837 F.2d at 491. a) The Plaintiff Has Standing to Challenge the Assignment of Rights Policy | National_Security_Counselors_2013-08-15.txt |
430a9a23-2c65-4a1b-b964-6e62c2544da0 | . Before addressing the merits, however, the Court must briefly address a renewed standing argument put forth by the CIA with respect to Counts One and Two in No. 11-443 | National_Security_Counselors_2013-08-15.txt |
eca9e9ee-e648-4f2d-b108-c9486e9bbfdc | . The CIA argues “[b]ecause NSC could file new, duplicate FOIA requests and receive the requested records at the same time it would if the CIA recognized assignments, NSC cannot show that it is harmed by the CIA’s assignment policy and, therefore, does not have standing to bring Counts One and Two.” See Def.’s Second 443 Reply at 9–10 | National_Security_Counselors_2013-08-15.txt |
23265e09-97e3-4458-876a-bc0bd2073186 | . The CIA recognizes that “the Court did not accept the CIA’s standing arguments at the motion to dismiss stage,” but it nevertheless “respectfully requests that the Court reexamine the issue.” Id. at 10 n.3. The plaintiff’s response to the CIA’s renewed standing argument is that such an argument “is . . . staggeringly improper,” and therefore the plaintiff has elected to “not even address it | National_Security_Counselors_2013-08-15.txt |
e3e7d688-b44c-4b13-8046-5875eb563426 | .” See Pl.’s Corrected Reply in Supp. Cross-Mot. Partial Summ. J. on Counts One & Two (“Pl.’s 443 Reply”) at 3 n.1, No. 11- 443, ECF No. 66-1. The plaintiff also vaguely states that it is aware of and “can provide several 44 examples of cases in which” the CIA has not piggy-backed duplicate FOIA requests, which presumably would demonstrate a delayed disclosure of information. See id | National_Security_Counselors_2013-08-15.txt |
32daf238-0d1c-4683-9985-ddcd017eba33 | . Despite the plaintiff’s refusal to address the issue, and even assuming that the CIA’s purported policy of piggy-backing duplicate FOIA requests eliminates any delay in the processing of duplicate FOIA requests as compared with assigned FOIA requests, the absence of delay would not deprive the plaintiff of standing to challenge the CIA’s Assignment of Rights Policy | National_Security_Counselors_2013-08-15.txt |
473dbce1-9e52-4a3c-9b03-bb9c37be1cd5 | . The CIA narrowly frames the plaintiff’s injury as a delay in receiving information under the FOIA, see Def.’s Second 443 Reply at 9–10, but the Court has already held that the plaintiff’s injury is something different in kind: the inability to exercise the statutory rights validly assigned to it by JMP, see NSC I, 898 F. Supp. 2d at 259 | National_Security_Counselors_2013-08-15.txt |
ce299905-5e44-4a02-a089-1e62f4f1591a | . Although the Court previously addressed this issue in the context of statutory, rather than constitutional, standing to sue in its previous opinion, see id. at 254 (“[T]he CIA’s argument presents a question of statutory, rather than Article III standing.”), the Court’s previous analysis also establishes that a legally protected interest of the plaintiff has been harmed. See, e.g., Lujan v | National_Security_Counselors_2013-08-15.txt |
1ae7eb4e-8094-4289-80ac-7b32efdae03e | . Defenders of Wildlife, 504 U.S. 555, 560 (1992). The logic of this conclusion is simple: (1) the plaintiff’s assignment is valid and enforceable, see NSC I, 898 F. Supp. 2d at 259; (2) the CIA will not permit the plaintiff to enforce the assignment, see Def.’s Second 443 Mem. at 2; and thus (3) the CIA is harming the plaintiff’s legally protected interest | National_Security_Counselors_2013-08-15.txt |
7f4e17cb-372a-42f5-9609-fc09565b3aee | . There is also no question that the relevant injury— interference with the plaintiff’s legally protected interest in exercising statutory rights validly assigned to it—was caused by the CIA’s policy and would be redressed by a judgment invalidating that policy. See, e.g., Lujan, 504 U.S. at 560–61 | National_Security_Counselors_2013-08-15.txt |
062d2978-e3f5-4e5b-a8a9-b99e6d343064 | . Thus, the CIA’s standing argument is unavailing now, just as it was unavailing in its motion to dismiss. 45 b) The CIA’s Assignment of Rights Policy Violates the FOIA. As to the merits, the Court concludes that the categorical Assignment of Rights Policy constitutes a “failure to abide by the terms of the FOIA.” See Payne, 837 F.2d at 491 | National_Security_Counselors_2013-08-15.txt |
e7de2718-d3c7-4903-9091-768a32ad7721 | . This conclusion follows ineluctably from the Court’s previous holding that “the plaintiff’s Assignment is valid and enforceable.” See NSC I, 898 F. Supp. 2d at 259. The Supreme Court has observed that “[a]ssignees of a claim . . . have long been permitted to bring suit.” Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 275 (2008) | National_Security_Counselors_2013-08-15.txt |
d260f23e-11c3-4c80-b7ff-5532c3509fdf | . Indeed, “[a] statutory right of action is generally assignable, except where it is conferred on one of a particular class, in the nature of a personal privilege, or penalty available to him or her alone.” 6A C.J.S. ASSIGNMENTS § 49 (2013). “[T]he general rules concerning assignability control in determining whether [a statutory right of action] is assignable,” id | National_Security_Counselors_2013-08-15.txt |
f1c0d521-e303-4ef1-a566-5d47b14517bb | . (footnote omitted), and “[t]he traditional test for assignability of a cause of action . . . is whether the cause of action survives the assignor and passes to his or her personal representative; if it does, the cause of action is assignable,” id. § 44; accord Accrued Fin. Servs., Inc. v. Prime Retail, Inc., 298 F.3d 291, 296 (4th Cir. 2002) (“[S]tandard principles of assignment law . . | National_Security_Counselors_2013-08-15.txt |
c37eeb97-3943-429f-98d2-e5ee5347409e | . recognize the legality of assigning both existing and potential choses in action, so long as the causes of action survive the death of the assignor.”).15 Since the D.C. Circuit has held that FOIA claims survive death and can be transferred to a deceased requester’s legal representative, see Sinito v. U.S. Dep’t of Justice, 176 F.3d 512, 517 (D.C. Cir | National_Security_Counselors_2013-08-15.txt |
b02addef-a2d6-4592-b2ad-9977475234c3 | . 1999), it stands to reason that at least some FOIA requests are properly 15 Numerous other kinds of federal statutory claims have been held to be assignable, such as claims under the Miller Act, see United States ex rel. Sherman v. Carter, 353 U.S. 210, 220 (1957) (“The trustees stand in the shoes of the employees and are entitled to enforce their rights | National_Security_Counselors_2013-08-15.txt |
2f0535ed-0788-4327-8b85-177f14880ffd | .”); claims for welfare benefits under the Employee Retirement Income Security Act (“ERISA”), see, e.g., Misic v. Bldg. Serv. Emps. Health & Welfare Trust, 789 F.2d 1374, 1379 (9th Cir. 1986); antitrust claims, see, e.g., Martin v. Morgan Drive Away, Inc., 665 F.2d 598, 603 n.3 (5th Cir. Unit A 1982) (“It is well settled in the federal courts that antitrust claims are assignable | National_Security_Counselors_2013-08-15.txt |
d55e18a2-befd-4b8c-8c32-84a88fa47340 | .”); and civil claims under the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, see Lerman v. Joyce Int’l, Inc., 10 F.3d 106, 113 (3d Cir. 1993). 46 assignable, and thus a categorical policy of refusing to recognize assignments violates the FOIA.16 Indeed, the CIA does not appear to contest the fact that the plaintiff has been validly assigned the rights to JMP’s FOIA requests | National_Security_Counselors_2013-08-15.txt |
3c72f6a2-0879-4b54-9ec6-30c4e9bd499b | . Rather, the CIA relies on two aspects of the FOIA to justify its Assignment of Rights Policy: (1) the FOIA’s silence with respect to assignments; and (2) the FOIA’s “requester-specific provisions.” See Def.’s Second 443 Mem. at 5–7. The FOIA’s silence regarding assignments, however, supports the plaintiff’s position, if it supports either position at all | National_Security_Counselors_2013-08-15.txt |
86698156-6135-4d79-a955-9c343981cb3f | . “‘Congress is understood to legislate against a background of common-law adjudicatory principles.’” Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 1709 (2012) (quoting Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991)). It is a well-established “canon of construction that statutes should be interpreted consistently with the common law.” See Samantar v. Yousuf, 130 S. Ct | National_Security_Counselors_2013-08-15.txt |
26545904-870d-4048-abe1-391bc745e2af | . 2278, 2289 (2010); accord Solimino, 501 U.S. at 108 (“[W]here a common-law principle is well established . . . the courts may take it as given that Congress has legislated with an expectation that the principle will apply except when a statutory purpose to the contrary is evident.” (internal quotation marks omitted)) | National_Security_Counselors_2013-08-15.txt |
72509fa4-b200-4940-b327-3d0d54af67ae | . “‘In order to abrogate a common-law principle, [a] statute must speak directly to the question addressed by the common law.’” Manoharan v. Rajapaksa, 711 F.3d 178, 179–80 (D.C. Cir. 2013) (internal quotation marks omitted) (quoting United States v. Texas, 507 U.S. 529, 534 (1993)) | National_Security_Counselors_2013-08-15.txt |
8e157aa4-5e19-47be-b10a-f81c23f94424 | . Thus, absent a statement from Congress in the FOIA regarding assignments, the common-law principles regarding the recognition of assignments presumably apply, and, as discussed above, under 16 Since the CIA’s Assignment of Rights Policy is categorical, the Court need not decide in what circumstances an agency can, consistent with the FOIA, refuse to recognize the assignment of a particular | National_Security_Counselors_2013-08-15.txt |
ffdd36e1-e5f2-47f7-90c6-17550a425a59 | request | National_Security_Counselors_2013-08-15.txt |
0e125915-1d93-43ac-a3b1-075d694e4b6c | . The answer to that question likely will depend upon, inter alia, the identity of interests between the two parties and the stage at which the request is being processed at the time of assignment. See Sinito, 176 F | National_Security_Counselors_2013-08-15.txt |
eca2c2c2-11c3-4c95-9249-16be6c3eacc6 | .3d at 516–17 (limitations on substitution for FOIA claims “assuage[es] the government’s concern that allowing a FOIA case to survive the death of the requester would allow ‘any person’ to step into the shoes of the decedent” (citation omitted)); NSC I, 898 F. Supp. 2d at 257–58 (discussing identity of interests between assignor and assignee of FOIA request) | National_Security_Counselors_2013-08-15.txt |
f6981a87-dd72-48fa-8320-16091f3344e0 | . 47 common-law principles, “[a] statutory right of action is generally assignable.” 6A C.J.S. ASSIGNMENTS § 49.17 The assignability of FOIA requests is also consistent with the animating principle behind the FOIA, which is “to increase the public’s access to governmental information.” Blazy v. Tenet, 194 F.3d 90, 97 (D.C. Cir. 1999) (emphasis in original) (quoting Greentree v. U.S. Customs Serv | National_Security_Counselors_2013-08-15.txt |
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