Prisology v. BOP
OPINION  filed (Pages: 7) for the Court by Judge Randolph. [15-5003]
USCA Case #15-5003
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 6, 2016
Decided April 4, 2017
FEDERAL BUREAU OF PRISONS,
Appeal from the United States District Court
for the District of Columbia
Zachary Lee Newland argued the cause for appellant. On
the briefs were Jeremy B. Gordon and Joseph Fierros, Student
Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the
cause for appellee. On the brief were R. Craig Lawrence,
Assistant U.S. Attorney, and Peter R. Maier, Special Assistant
U.S. Attorney. Eric J. Young, Special Assistant U.S. Attorney,
entered an appearance.
Before: MILLETT, Circuit Judge, and SENTELLE and
RANDOLPH, Senior Circuit Judges.
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Opinion for the Court filed by Senior Circuit Judge
RANDOLPH, Senior Circuit Judge: Prisology, Inc., a nonprofit organization devoted to criminal justice reform brought an
action claiming that the Federal Bureau of Prisons had not
complied with 5 U.S.C. § 552(a)(2) of the Freedom of
Information Act (FOIA). The district court dismissed the
complaint on the ground that Prisology lacked standing.
Section 552(a)(2) requires federal agencies to make the
following types of records electronically available to the public:
(A) final opinions, including concurring and dissenting
opinions, as well as orders, made in the adjudication of
(B) those statements of policy and interpretations which
have been adopted by the agency and are not published in
the Federal Register;
(C) administrative staff manuals and instructions to staff
that affect a member of the public.
Prisology’s two and one-half page complaint began with a
brief description of § 552 and of the Bureau of Prisons’ alleged
non-compliance with the statute. Complaint ¶ 1, Prisology v.
Federal Bureau of Prisons, 74 F. Supp. 3d 88 (D.D.C. 2014)
(No. 14-0969 (ABJ)). Paragraphs 2 through 5 of the complaint
then identified the parties, invoked jurisdiction under 28 U.S.C.
§§ 1331 and 1346(a)(2), and quoted FOIA § 552(a)(2).
Paragraph 6 of the complaint repeated the general charge that
the Bureau of Prisons had not complied with § 552(a)(2) and
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paragraph 7 gave as examples the Bureau’s failure to make
available electronically: “(1) responses to administrative remedy
requests and appeals from each BOP institution, Regional
Office, and the BOP’s Central Office; (2) private settlements
outside of litigation between the BOP and its employees,
inmates, and other persons; (3) grants and denials of requests for
compassionate release; (4) all settlements, compromises, and
rejections of claims made pursuant to the Federal Tort Claims
Act and Inmate Accident Compensation Program; and (5)
Disciplinary Hearing Officer reports reflecting agency
adjudication of serious prison disciplinary charges.” The
complaint ended with a prayer for relief in the form of a
declaratory judgment and an injunction under the Administrative
Procedure Act, 5 U.S.C. § 706, “requiring the BOP to make the
paragraph 7 records that were created on or after November 1,
1996, available via computer telecommunications means.”
Complaint ¶ 8.
The government, taking note of Prisology’s failure to allege
any injury to itself, filed a Rule 12(b)(1) motion to dismiss the
complaint for lack of jurisdiction. The district court relied on
several Supreme Court opinions, including Lujan v. Defenders
of Wildlife, 504 U.S. 555 (1992), to hold that Prisology did not
have Article III standing because it had “failed to point to any
injuries sustained, by the organization itself or by its members,
as a result of the defendant’s conduct.” Prisology, 74 F. Supp.
3d at 95.
While this case was pending on appeal, our court decided
Citizens for Responsibility and Ethics in Washington v. U.S.
Department of Justice, 846 F.3d 1235 (D.C. Cir. 2017). The
court held that the Administrative Procedure Act could not be
invoked to remedy an alleged violation of FOIA § 552(a)(2). Id.
at 1246. Prisology described its complaint as having been
“brought pursuant to” the Administrative Procedure Act,
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Appellant Br. at 6 n.1, which seems to bring the case within the
holding of Citizens for Responsibility. But before we may
decide whether Prisology has stated a cause of action under the
Administrative Procedure Act, we must determine that Prisology
has Article III standing. Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 94 (1998); see also Vietnam Veterans of Am. v.
Shinseki, 599 F.3d 654, 661 (D.C. Cir. 2010).
Many years ago Justice Frankfurter described the standing
doctrine as a “complicated specialty of federal jurisdiction, the
solution of whose problems is . . . more or less determined by
the specific circumstances of individual situations . . ..” United
States ex rel. Chapman v. Fed. Power Comm’n, 345 U.S. 153,
156 (1953). Complicated or not, the Supreme Court has made
clear that in a suit against the government, it is the plaintiff’s
burden to satisfy Article III by setting forth at least “general
factual allegations of injury” at the pleading stage. Lujan, 504
U.S. at 561. It is certain as well that “injury in fact” is one of
the “irreducible constitutional” requirements of standing and
that the injury must be “concrete and particularized.” Id. at 560
(internal quotation omitted). And so a plaintiff alleging harm
common to “every citizen’s interest in proper application of the
Constitution and laws, and seeking relief that no more directly
and tangibly benefits him than it does the public at large – does
not state an Article III case or controversy.” Id. at 573-74.
Prisology’s complaint contains no allegation of injury,
general or otherwise. Even if we inferred an injury to Prisology
from the Bureau’s alleged failure to publish its records
electronically, this would not differentiate Prisology from the
public at large. All that inference would reveal is a harm
common to everyone, a harm of the sort Lujan described as not
stating an Article III case or controversy.
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Prisology tries to fit itself within cases litigated under FOIA
§ 552(a)(3). This provision requires an agency to make nonexempt records (other than those made available under FOIA
§§ 552(a)(1) & (2)) “available to any person” upon that person’s
request “reasonably describ[ing] such records.” 5 U.S.C.
§ 552(a)(3). We have said of § 552(a)(3) that “Anyone whose
request for specific information has been denied has standing to
bring an action; the requester’s circumstances – why he wants
the information, what he plans to do with it, what harm he
suffered from the failure to disclose – are irrelevant to his
standing.” Zivotofsky ex rel. Ari Z. v. Sec’y of State, 444 F.3d
614, 617 (D.C. Cir. 2006). The point of this passage is that the
requester has suffered a particularized injury because he has
requested and been denied information Congress gave him a
right to receive. See id. at 619. The Supreme Court said much
the same in Public Citizen v. U.S. Department of Justice, 491
U.S. 440, 449 (1989): “Our decisions interpreting the Freedom
of Information Act have never suggested that those requesting
information under it need show more than that they sought and
were denied specific agency records.” See Sargeant v. Dixon,
130 F.3d 1067, 1070 (D.C. Cir. 1997).
We do not understand how the FOIA § 552(a)(3) decisions
apply to this case. Prisology made no request of the Bureau of
Prisons before bringing suit and therefore received no denial
from that agency. As to FOIA § 552(a)(2), our decisions
dealing with the enforcement of this subsection have not
discussed standing. But in each such case the plaintiff made a
request of the agency and the agency denied the request. See
Citizens for Responsibility, 846 F.3d at 1239; Irons v. Schuyler,
465 F.2d 608, 614 (D.C. Cir. 1972) (the “opinions and orders
referred to in Section 552(a)(2), when properly requested, are
required to be made available, and . . . such requirement is
judicially enforceable without further identification under
Section 552(a)(3), even though the agency has failed to make
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them available as required by Section 552(a)(2)”); American
Mail Line, Ltd. v. Gulick, 411 F.2d 696, 698 (D.C. Cir. 1969)
(separate opinion of Tamm, J.). In Gulick it also appears that
the plaintiff articulated a separate, particularized injury suffered
as a result of the agency’s denial of its request for a FOIA
§ 552(a)(2) document. See 411 F.2d at 698. And in Citizens for
Responsibility, the plaintiff claimed that the agency’s refusal to
make documents available under § 552(a)(2) harmed its “core
programmatic activities,” which included research from public
government records. Amended Complaint ¶¶ 6, 11, Citizens for
Responsibility & Ethics in Washington v. U.S. Dep’t of Justice,
164 F. Supp. 3d 145 (D.D.C. 2016) (No. 13-01291 (APM)). It
is little wonder that during oral argument Prisology conceded
that its complaint contained no allegation of harm from the
Bureau’s failure to make the records electronically available.
Instead of alleging a particularized injury, Prisology seems
to argue that any violation of a statutory right to information is
an injury in fact. Appellant Br. at 11. Congress can create new
legal rights the violation of which may constitute an injury in
fact. Lujan, 504 U.S. at 578. Yet the Supreme Court, after
discussing Lujan, has held that the “requirement of injury in fact
is a hard floor of Article III jurisdiction” that not even a statute
can remove. Summers v. Earth Island Inst., 555 U.S. 488, 497
(2009). We read these cases to mean that at the pleading stage
the plaintiff must still at least allege a particularized injury.
Prisology also claims that it has standing because its
complaint amounted to a request for particular information.
Appellant Br. at 12. The argument goes nowhere. To the extent
that a complaint may be seen as a request, it is a request for
relief from a court. If the court denies the request, the plaintiff
may appeal. But a court’s refusal to grant relief cannot confer
Article III standing that otherwise does not exist. No one would
say that the plaintiffs in Lujan had standing because the
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Supreme Court ruled against their claim of standing. To accept
Prisology’s argument would be to read out of the law the
requirement that at the pleading stage the plaintiff at least has to
allege some injury in fact. Lujan, 504 U.S. at 561.
The result here may seem overly technical. But Prisology’s
predicament is one of its own making. With little effort it may
have been able to satisfy the requirements of Article III. The
Supreme Court over the years has taken steps to clarify the law
of standing. We would not muddy the waters in order to
accommodate Prisology’s recalcitrance even if we had the
power to do so, which we do not.
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