Rocky Mountain Wild v. United States Bureau of Land Management et al

Filing 20

ORDER: 1. Defendants' Partial Motion to Dismiss 13 is GRANTED; 2. U.S. Magistrate Judge Scott T. Varholak shall determine the effect, if any, of the current partial government shutdown on Defendants' ability to proceed with this case and may enter appropriate scheduling or other orders; and 3. Assuming Defendants may currently proceed with the lawsuit, or at the time that they may, the parties are strongly encouraged to consider the utility of requesting a settlement conference before the Magistrate Judge, considering the relatively narrow scope of the remaining dispute. SO ORDERED by Judge William J. Martinez on 01/16/2019. (wjmlc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 18-cv-0314-WJM-STV
ROCKY MOUNTAIN WILD, a Colorado non-profit corporation,
Plaintiffs,
v.
UNITED STATES BUREAU OF LAND MANAGEMENT, a federal agency, and
UNITED STATES DEPARTMENT OF INTERIOR, a federal agency,
Defendants.

ORDER GRANTING PARTIAL MOTION TO DISMISS

Plaintiff Rocky Mountain Wild alleges that Defendants United States Bureau of
Land Management and United States Department of the Interior (together, “BLM” or
“Defendants”) failed to respond properly to Rocky Mountain Wild’s October 2017
request for agency records under the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552. Rocky Mountain Wild further claims that BLM’s improper handling of the request
is consistent with alleged previous instances of mishandling FOIA requests, particularly
requests for records related to oil and gas leasing decisions, which Rocky Mountain
Wild frequently submits. Rocky Mountain Wild thus seeks an injunction remedying the
alleged deficiencies in BLM’s response to the October 2017 request, as well as an
injunction against BLM’s alleged pattern or practice of deficient FOIA responses.
Currently before the Court is BLM’s Partial Motion to Dismiss. (ECF No. 13.)
BLM asks the Court to dismiss all claims except the core claim regarding whether BLM
properly responded to Rocky Mountain Wild’s October 2017 FOIA request. BLM argues

that Rocky Mountain Wild lacks standing to bring the challenged claims, and further
argues that Rocky Mountain Wild has failed to state a claim for relief as to those claims.
For the reasons explained below, the Court agrees in part with BLM’s standing
argument, and agrees that Rocky Mountain Wild otherwise fails to state a claim. The
Court will therefore grant the motion.
I. LEGAL STANDARD
A.

Rule 12(b)(1)
BLM’s standing argument falls under Rule 12(b)(1), which permits challenges to

subject matter jurisdiction. “[Federal] [d]istrict courts have limited subject matter
jurisdiction and may [only] hear cases when empowered to do so by the Constitution
and by act of Congress.” Randil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1225 (10th
Cir. 2004) (internal quotation marks omitted). “A court lacking jurisdiction cannot render
judgment but must dismiss the case at any stage of the proceedings in which it
becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495
F.2d 906, 909 (10th Cir. 1974).
Rule 12(b)(1) motions generally take one of two forms: a facial attack or a factual
attack. Here, BLM attaches certain extra-record documents and so brings, in part, a
factual attack. Given this, the Court has “wide discretion to allow affidavits, other
documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.”
Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). Furthermore, the Court’s
reference to evidence beyond the pleadings will not convert the motion to one under
Rules 56 or 12(b)(6), unless the jurisdictional question is intertwined with the merits of
the case. Id. Here, as will become clear below, the jurisdictional question is
independent from the merits.
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B.

Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a

claim in a complaint for “failure to state a claim upon which relief can be granted.” The
12(b)(6) standard requires the Court to “assume the truth of the plaintiff’s well-pleaded
factual allegations and view them in the light most favorable to the plaintiff.” Ridge at
Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a
motion, the dispositive inquiry is “whether the complaint contains ‘enough facts to state
a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is a harsh remedy which must
be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but
also to protect the interests of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169,
1178 (10th Cir. 2009) (internal quotation marks omitted). “Thus, ‘a well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and unlikely.’” Id. (quoting Twombly,
550 U.S. at 556).
II. BACKGROUND & STATUTORY STRUCTURE
A.

The FOIA Request
Rocky Mountain Wild submitted a FOIA request to BLM on October 19, 2017,

seeking “all agency records involving [BLM’s] proposed March 2018 oil and gas leasing”
of specified parcels. (ECF No. 1-1.) Under FOIA, Rocky Mountain Wild’s request
triggered a 20-working-day clock during which BLM was required to “determine . . .
whether to comply with such request,” at which point BLM was further required to
“immediately notify [Rocky Mountain Wild] of such determination and the reasons
therefor.” 5 U.S.C. § 552(a)(6)(A)(i). However, a failure to make such a determination
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within 20 working days may be “excused for an additional 10 days” if “unusual
circumstances apply . . . and the agency provided a timely written notice to the
requester.” Id. § 552(a)(4)(A)(viii)(II)(aa); see also 43 C.F.R. § 2.19. The same day that
BLM received Rocky Mountain Wild’s request, a BLM employee e-mailed Rocky
Mountain Wild to explain that it was invoking the 10-day extension “because we need to
search for and collect responsive records from a field office separate from the office that
is processing your request.” (ECF No. 13-1 at 2.)
By letter dated December 5, 2017 (the thirty-first working day after Rocky
Mountain Wild submitted its request), BLM responded to Rocky Mountain Wild with
what it characterized as “installment 1 to your [FOIA] request.” (ECF No. 1-2.)
Installment 1 comprised 140 pages. (Id.) BLM announced that it was “still reviewing
additional records that are responsive to your request and will follow with further
installments.” (Id.)
By letter dated December 28, 2017, BLM transmitted “installment 2,” comprising
1,595 pages. (ECF No. 1-3.) BLM again announced that it was “still reviewing
additional records that are responsive to your request and will follow with further
installments.” (Id.)
B.

The Original Complaint
Rocky Mountain Wild filed this lawsuit on February 8, 2018. (ECF No. 1.) In that

original complaint, Rocky Mountain Wild asserted three claims for relief.
The first claim for relief alleged that BLM had violated FOIA “by failing to provide
a lawful determination and response . . . within the statutory [20-day or 30-day] period.”
(Id. ¶ 33; see also id. ¶ 26.) The first claim for relief also pleaded that BLM failed to
conduct a lawful search for responsive records, and that BLM continues to violate FOIA
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by withholding agency records responsive to Rocky Mountain Wild’s request and not
subject to any FOIA exemption. (ECF No. 1 ¶¶ 34–35.)
Rocky Mountain Wild’s second claim for relief alleged that BLM’s conduct is such
that it merits referral to special counsel under 5 U.S.C. § 552(a)(4)(F) for investigation
into wrongdoing. (Id. ¶¶ 38–39.) The Court will discuss this remedy further in Part III.B,
below.
Rocky Mountain Wild’s third claim for relief alleged “a pattern and [sic] practice of
not complying with FOIA’s statutory requirements in a timely manner.” (Id. ¶ 41.) Rocky
Mountain Wild also alleged a pattern or practice of withholding agency records through
intentional delay, and withholding records that are not subject to any exemption. (Id.
¶¶ 42–43.)
C.

Final Determination
By letter bearing no date, but which Rocky Mountain Wild received on March 6,

2018, BLM informed Rocky Mountain Wild that it had “complete[d] [its] response” to the
FOIA request with an additional 346 pages being disclosed in full and 97 pages being
disclosed in part. (ECF No. 12-2 at 1.) It further announced that it was withholding 63
pages in full under specific FOIA exemptions. (Id.)
D.

The Amended Complaint
With the Court’s leave, Rocky Mountain Wild filed an amended complaint on April

3, 2018. (“Amended Complaint,” ECF No. 12-1.) The Amended Complaint again
alleges three claims for relief.
The first claim for relief again alleges “fail[ure] to provide a lawful determination
and response . . . within the statutory [20-day or 30-day] period,” that BLM failed to
conduct a lawful search for responsive records, and that BLM continues to violate FOIA
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by withholding agency records responsive to Rocky Mountain Wild’s request and not
subject to any FOIA exemption. (Id. ¶¶ 36–38.)
The second claim for relief again requests referral to special counsel, but
alternatively characterizes itself “as a statutory remedy” rather than a claim for relief.
(Id. ¶¶ 40–43.)
The third claim for relief re-pleads the pattern-or-practice allegations based on
failure to provide a determination in response within the statutory time frame, illegally
withholding responsive records through delay, and also through refusal to produce
despite lack of a FOIA exemption. (Id. ¶¶ 45–48.)
III. ANALYSIS
BLM attacks every claim in the Amended Complaint save for the portions of the
first claim alleging failure to conduct a lawful search and withholding of responsive
records not subject to any exemption. (ECF No. 13 at 4–15 & n.4.) The Court will
discuss the challenged claims, or portions thereof, in order.
A.

First Claim: Statutory Deadlines
BLM contends that a part of Rocky Mountain Wild’s first claim for relief is moot in

light of BLM’s final determination and disclosure in March 2018. (ECF No. 13 at 4–6.)
The relevant portion of Rocky Mountain Wild’s first claim asserts BLM’s “failure to
provide a lawful determination and response to Plaintiff’s October 19, 2017 request for
agency records within the statutory period.” (ECF No. 12-1 ¶ 36.) Here, “response to”
is ambiguous. The Court would prefer to presume that “response to” refers to an
agency’s duty to “immediately notify” a FOIA requester of the agency’s determination
and reasoning. 5 U.S.C. § 552(a)(6)(A)(i). And, more particularly, the Court would
prefer to presume Rocky Mountain Wild does not mean to imply that an agency has a
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duty to complete its disclosure of responsive records “within the statutory period.” The
Court prefers these presumptions because it would like to think that Rocky Mountain
Wild would not again waste the Court’s and parties’ time with a claim it lost before the
undersigned in previous litigation. See Rocky Mountain Wild, Inc. v. United States
Forest Serv., 2016 WL 362459, at *11 (D. Colo. Jan. 29, 2016) (explaining that 5 U.S.C.
§ 552(a)(6)(A)(i) only establishes deadlines for determination and notification, not for
disclosure, contrary to Rocky Mountain Wild’s argument). However, Rocky Mountain
Wild’s response brief makes clear that it continues to assert a non-existent obligation to
disclose documents within 20 days. (See Part III.C.2.b, below.) Nonetheless, the Court
will construe “response to” as a reference to the “immediately notify” obligation because
that is the only construction that leaves something to be analyzed, as opposed to
requiring dismissal.
Rocky Mountain Wild cannot deny that BLM notified Rocky Mountain Wild of its
final determination and explanation no later than March 6, 2018. Rocky Mountain Wild
nonetheless asserts three arguments that this portion of its first claim is not moot.
First, Rocky Mountain Wild argues that it needs this portion of its first claim “to
establish constructive exhaustion.” (ECF No. 14 at 7.) By “constructive exhaustion,”
Rocky Mountain Wild refers to the statutory structure by which a FOIA requester gains a
right to go directly to federal court, without administrative exhaustion, if the agency does
not respond within the statutory deadlines. 5 U.S.C. § 552(a)(6)(C)(i) (“Any person
making a [FOIA] request to any agency . . . shall be deemed to have exhausted his
administrative remedies with respect to such request if the agency fails to comply with
the applicable time limit provisions of this paragraph.”). But BLM does not argue that
Rocky Mountain Wild failed to exhaust administrative remedies, and in any event an
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allegation that establishes constructive exhaustion is not a claim for relief, any more
than an allegation to establish federal subject matter jurisdiction is a claim for relief.
Second, Rocky Mountain Wild briefly argues that “BLM does not attempt to meet
the heavy evidentiary burden imposed by the mootness doctrine,” and then cites
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167,
193 (2000) (“Laidlaw”). (ECF No. 14 at 8.) The cited page from Laidlaw mentions the
mootness exception known as “voluntary cessation.” If a defendant voluntarily ceases a
challenged action, the action remains a justiciable controversy unless the defendant
persuades the Court of two conditions: “(1) it can be said with assurance that there is no
reasonable expectation that the alleged violation will recur, and (2) interim relief or
events have completely and irrevocably eradicated the effects of the alleged violation.”
County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (internal quotation marks and
citations omitted; alterations incorporated).
Rocky Mountain Wild has not persuaded the Court that BLM’s final determination
was “voluntary cessation” within the meaning of this mootness exception. Rather, BLM
went through the normal FOIA process (albeit more slowly than Rocky Mountain Wild
would prefer), issued a final determination, and closed the FOIA request. If this Court
later determines that BLM improperly withheld documents, it would mean that BLM’s
“final determination” was incomplete, but not any less final from the agency’s
perspective. FOIA requests are not deemed open indefinitely until a court approves the
agency’s response. Cf. Muttitt v. Dep’t of State, 926 F. Supp. 2d 284, 296 (D.D.C.
2013) (“In order for its response to be ‘complete,’ an agency need not . . . obtain a
judicial declaration that its search efforts were adequate or that its withholding
determinations were warranted.”).
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Third, Rocky Mountain Wild emphasizes its claim that BLM failed to make a
“lawful determination and response . . . within the statutory period.” (ECF No. 12-1 ¶ 36
(emphasis added).) Rocky Mountain Wild does not explain what it means by “lawful.” If
it refers to a duty to produce documents within a certain time, again, no such duty
exists. Rocky Mountain Wild, 2016 WL 362459, at *11. If it means failure to provide an
explanation for disclosures and withholdings that a court would uphold, the claim
becomes nonsensical. Certainly Rocky Mountain Wild may challenge BLM’s
disclosures and withholdings, as it has done in the portions of its first claim that BLM
does not seek to dismiss. But linking this to a duty to explain those disclosures and
withholdings “within the statutory period” seems to be an argument that the agency has
a 20- or 30-day deadline to produce an unchallengeable (“lawful”) explanation. Surely
Rocky Mountain Wild would not admit that any agency determination is unchallengeable
on the agency’s own say-so, whether produced within the deadline or not. So the
adjective “lawful” does nothing to rescue this claim.
Given the foregoing, he Court agrees with the United States District Court for the
District of the District of Columbia: “Once an agency has made its final determination
under § 552(a)(6)(A), the timeliness of that determination is no longer a live controversy
fit for judicial review.” Muttitt, 926 F. Supp. 2d at 296 (emphasis in original). The Court
will grant this portion of BLM’s motion.
B.

Second Claim: Special Counsel
BLM argues that Rocky Mountain Wild’s second claim for relief is a request for a

remedy only and cannot be pleaded as a cause of action. (ECF No. 13 at 6–7.)
Rocky Mountain Wild’s second claim asks the Court to refer BLM employees to
“Special Counsel” per 5 U.S.C. § 552(a)(4)(F)(i):
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Whenever the court orders the production of any agency
records improperly withheld from the complainant and
assesses against the United States reasonable attorney fees
and other litigation costs, and the court additionally issues a
written finding that the circumstances surrounding the
withholding raise questions whether agency personnel acted
arbitrarily or capriciously with respect to the withholding, the
Special Counsel[1] shall promptly initiate a proceeding to
determine whether disciplinary action is warranted against
the officer or employee who was primarily responsible for the
withholding. The Special Counsel, after investigation and
consideration of the evidence submitted, shall submit his
findings and recommendations to the administrative authority
of the agency concerned and shall send copies of the
findings and recommendations to the officer or employee or
his representative. The administrative authority shall take
the corrective action that the Special Counsel recommends.
As this language makes clear, the Court must proceed through at least two steps before
considering such a referral: (1) ordering production of improperly withheld records,
which the Court may do under 5 U.S.C. § 552(a)(4)(B); and (2) awarding attorneys’ fees
against the agency, which the Court may do under 5 U.S.C. § 552(a)(4)(E)(i) if the
requester “substantially prevail[s]” in the lawsuit.
In the federal system, whether to award prevailing party attorneys’ fees is a
question nearly always reserved until after judgment. Thus, the Special Counsel
referral is also something that, in nearly every case, may not be considered until after
judgment. A cause of action that cannot be resolved until after judgment is essentially a
contradiction in terms. The Court accordingly agrees with BLM that a request for a
Special Counsel referral is a remedy, not a cause of action. Rocky Mountain Wild has
alternatively pleaded this request as a remedy. (ECF No. 12-1 ¶ 43; id. at 16, ¶ F.) The
Court will therefore dismiss Rocky Mountain Wild’s second claim.
1

FOIA does not explicitly say as much, but “Special Counsel” almost certainly refers to
the Office of Special Counsel, whose enabling legislation is codified later in Title 5. See
5 U.S.C. §§ 1211–19.

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C.

Third Claim: Pattern or Practice
BLM argues Rocky Mountain Wild lacks standing to assert, or at least fails to

plausibly state a claim for, its third claim for relief, which alleges a pattern or practice of
FOIA violations. (ECF No. 13 at 7–15.)
Thus far, it appears that the Ninth and D.C. Circuits are the only circuits to
recognize a FOIA pattern-or-practice claim, i.e., a claim that an agency should be
enjoined from a policy that will likely lead it to withhold documents unlawfully when it
receives future requests from the plaintiff. See Payne Enters., Inc. v. United States, 837
F.2d 486, 490–94 (D.C. Cir. 1988) (authorizing FOIA pattern-or-practice claim); Long v.
IRS, 693 F.2d 907, 909 (9th Cir. 1982) (same). The Tenth Circuit has addressed the
matter only indirectly and nonprecedentially. Cf. Liverman v. OIG, 139 F. App’x 942,
944–45 (10th Cir. 2005) (acknowledging a FOIA plaintiff’s argument for a pattern-orpractice claim, and, without ruling on whether such a claim exists, finding the record
insufficient to support it).
BLM does not ask this Court to hold that the pattern-or-practice cause of action
does not exist. Rather, BLM assumes for argument’s sake that the cause of action
exists under the contours established by the Ninth and D.C. Circuits, and that Rocky
Mountain Wild lacks standing or fails to state a claim under those contours. The Court
will therefore also assume without deciding that the cause of action exists under those
contours.
1.

Standing

Standing to challenge a pattern-or-practice claim requires, among other things, a
“substantial risk” that the agency will invoke the challenged practice against the plaintiff
in response to a future or still-pending FOIA request. Smith v. U.S. Immigration &
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Customs Enf’t, 249 F. Supp. 3d 1203, 1209 (D. Colo. 2017) (internal quotation marks
omitted). Rocky Mountain Wild has adequately pleaded that it will continue to submit
FOIA requests—it submitted two similar requests during the briefing period. (See ECF
No. 14 at 13–14.)2 Under authority from the United States District Court for the District
of the District of Columbia, on whose decisions this Court has drawn for guidance in
these matters, this is often enough to plead a sufficient possibility of future injury. See
Smith, 249 F. Supp. 3d at 1209 (summarizing relevant authority). This assumes, of
course, that the alleged pattern(s) or practice(s) exists. The Court may assume as
much for standing purposes, but that does not mean that the plaintiff has pleaded the
alleged pattern(s) or practice(s) with sufficient plausibility to withstand a Rule 12(b)(6)
challenge. The Court therefore turns to that analysis.
2.

Failure to State a Claim

Rocky Mountain Wild’s allegations of patterns and practices are somewhat
unfocused. (See ECF No. 12-1 ¶¶ 30, 32, 46–48.) BLM reduces Rocky Mountain
Wild’s allegations into two categories: (1) allegations on information and belief of
purposeful delay through intentionally allocating resources away from FOIA matters,
and (2) allegations of intentional delay of FOIA requests related to oil and gas leasing
until after public comment periods on the lease decisions are closed, for purposes of
frustrating the public’s ability to participate in the comment period on a more informed
basis. (ECF No. 13 at 10–13.)

2

BLM claims that one of these two requests was not mentioned in the Amended
Complaint, and BLM therefore accuses Rocky Mountain Wild of attempting to implicitly amend
the complaint again through its response brief. (ECF No. 18 at 7–8.) But when subject matter
jurisdiction is at stake, the Court may consider matters outside the pleadings. (See Part I.A,
above.) BLM’s attempt to prevent consideration of both subsequent requests is therefore
meritless.

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Rocky Mountain Wild does not argue that BLM’s two categories improperly distill
Rocky Mountain Wild’s pattern-or-practice claims. Rather, Rocky Mountain Wild argues
that BLM missed a third category, namely, “the allegation that BLM wrongfully ‘withheld’
records through delay and by failing to carry out its FOIA duties in accordance with
FOIA deadlines.” (ECF No. 14 at 13 (purportedly quoting ECF No. 12-1 ¶ 36, although
the word “withheld” does not appear there).) In terms of a claim for forward-looking
relief, this assertion makes sense only by assuming that Rocky Mountain Wild means to
say that the Court should look at the alleged FOIA violation in this case as one factor to
consider when deciding whether Rocky Mountain Wild has pleaded pattern-or-practice
relief against expected future violations. Under that assumption, the Court agrees, but
does not see how this already-accomplished purported violation represents its own
pattern or practice, separate from the two categories BLM describes. Accordingly, the
Court will analyze the propriety of Rocky Mountain Wild’s pattern-or-practice claims with
reference to those two categories.
a.

Intentional Delay through Intentional Misallocation of Resources

Rocky Mountain Wild appears to rest on the existence of four other cases with
apparently similar allegations. (ECF No. 12-1 ¶ 32.) Two of these cases were lawsuits
by Rocky Mountain Wild against the United States Forest Service, not BLM. Rocky
Mountain Wild does not explain how allegations against the Forest Service (part of the
Department of Agriculture) relate to BLM.
As to the other two cases, in which BLM is the defendant, Rocky Mountain Wild
nowhere explains how these cases support the allegation that BLM purposefully
allocates resources away from FOIA activities. (See ECF No. 14 at 15.) The cases are
Rocky Mountain Wild, Inc. v. United States Bureau of Land Management et al., Civil
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Action No. 17-cv-636-PAB-SKC (D. Colo., filed Mar. 10, 2017), and San Juan Citizens
Alliance, Inc. v. Bureau of Land Management, Civil Action No. 14-cv-2784-RPM (filed
Oct. 10, 2014). Although the Court is not required to do Rocky Mountain Wild’s work for
it, the Court has reviewed the pleadings in both cases to see if they provide any support
for Rocky Mountain Wild’s argument. They do not. In the first case, over which U.S.
District Judge Philip A. Brimmer presides, the pleadings say nothing about a policy of
misallocating resources. In the second case, over which Senior U.S. District Judge
Richard P. Matsch presides, such allegations exist but are specific to an alleged
agreement between BLM’s Farmington, New Mexico, field office and the New Mexico
Oil and Gas Association. Rocky Mountain Wild does not explain how that allegation has
any relevance to energy leasing in Colorado.
Accordingly, Rocky Mountain Wild has failed to overcome BLM’s Rule 12(b)(6)
challenge as to this alleged pattern or practice. It will be dismissed.
b.

Delay Calibrated to Outlast Public Comment Periods

The only factual substantiation Rocky Mountain Wild provides for its pattern-orpractice claim based on an alleged intent to thwart better-informed participation in public
comment periods is Judge Brimmer’s case, discussed above, as well as allegations
about the timing of certain FOIA requests as compared to public comment periods.
Judge Brimmer’s case contains no allegations approaching this sort of alleged pattern
or practice. As for allegations regarding timing, they reveal Rocky Mountain Wild’s
continuing misconception that FOIA requires disclosure of documents within 20 or 30
days. (See ECF No. 14 at 13–14 & nn.6–7 (arguing that BLM “violat[ed] FOIA
deadlines” by “fail[ing] to produce responsive records,” and explaining how records
produced within 20 days would have permitted Rocky Mountain Wild to provide
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informed comments during a 30-day comment period).) FOIA imposes no such
deadlines. To repeat the undersigned’s previous ruling from January 2016:
An agency’s requirement under the statute to
“determine...whether to comply with [a FOIA] request,”
5 U.S.C. § 552(a)(6)(A)(i), is not a requirement to produce
responsive records at the same time. “Under the statutory
scheme, a distinction exists between a 'determination' and
subsequent production.” Citizens for Responsibility & Ethics
in Wash. v. FEC, 711 F.3d 180, 188 (D.C. Cir. 2013).
Moreover, “[i]f the agency does not adhere to FOIA's explicit
timelines, the 'penalty' is that the agency cannot rely on the
administrative exhaustion requirement to keep cases from
getting into court.” Id. at 189; see also 5 U.S.C.
§ 552(a)(6)(C)(i) (“Any person making a [FOIA] request to
any agency . . . shall be deemed to have exhausted his
administrative remedies with respect to such request if the
agency fails to comply with the applicable time limit
provisions of this paragraph.”). Thus, a failure to make a
“determination” within 20 days—even a repeated failure—
already contains a statutory remedy: the right to sue.
Rocky Mountain Wild, 2016 WL 362459, at *11. 3 Accordingly, the legal basis for this
version of Rocky Mountain Wild’s pattern-or-practice claim is as absent now as it was
three years ago. Rocky Mountain Wild accordingly fails to state a claim for a pattern-orpractice violation.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Defendants’ Partial Motion to Dismiss (ECF No. 13) is GRANTED;

2.

U.S. Magistrate Judge Scott T. Varholak shall determine the effect, if any, of the
current partial government shutdown on Defendants’ ability to proceed with this
case and may enter appropriate scheduling or other orders; and
3

The only portion of FOIA that addresses timing of disclosure is a command that the
agency make properly requested records “promptly available.” 5 U.S.C. § 552(a)(3)(A). Rocky
Mountain Wild does not invoke this provision, nor does it give any indication that it could
successfully base a claim on this provision.

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3.

Assuming Defendants may currently proceed with the lawsuit, or at the time that
they may, the parties are strongly encouraged to consider the utility of requesting
a settlement conference before the Magistrate Judge, considering the relatively
narrow scope of the remaining dispute.
Dated this 16th day of January, 2019.
BY THE COURT:

______________________
William J. Martinez
United States District Judge

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