HALL AND ASSOCIATES v. ENVIRONMENTAL PROTECTION AGENCY

Filing 20

MEMORANDUM OPINION. See text for details. Signed by Judge John D. Bates on 12/31/14. (lcjdb2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

HALL & ASSOCIATES,
Plaintiff,
v.

Civil Action No. 14-808 (JDB)

U.S. ENVIRONMENTAL PROTECTION
AGENCY,
Defendant.

MEMORANDUM OPINION
Plaintiff Hall & Associates, a Washington, D.C., firm, recently won a lawsuit for its
clients against the Environmental Protection Agency (“EPA” or “the Agency”), the defendant in
this case. See Iowa League of Cities v. EPA, 711 F.3d 844, 878 (8th Cir. 2013). That success
led to this dispute. Hall sought access under the Freedom of Information Act (“FOIA”) to EPA
documents regarding the effect of its clients’ victory (e.g., will the decision apply only in the
Eighth Circuit or more broadly?), and the Agency responded to Hall’s request, producing some
documents but withholding many others.

Hall considered this response inadequate, and it

brought the present case to force EPA to be more forthcoming. The government, for its part, has
filed a motion to dismiss Hall’s complaint. Upon consideration of the parties’ filings, 1 and for
the reasons explained below, the Court will grant EPA’s motion and dismiss this case.
BACKGROUND
This case begins where another ends. In March 2013, the Eighth Circuit decided Iowa
League of Cities, a suit challenging two “regulatory requirements with respect to water treatment
processes at municipally owned sewer systems.” 711 F.3d at 854. Hall—representing the
1

See Gov’t’s Mot. to Dismiss Compl. [ECF No. 8] (“Gov’t’s Mot.”); Pl.’s Opp’n to Gov’t’s Mot. [ECF
No. 10] (“Pl.’s Opp’n”); Gov’t’s Reply to Pl.’s Opp’n [ECF No. 12] (“Gov’t’s Reply”).

1

League, see Compl. [ECF No. 1] at 2—argued that EPA’s regulations were invalid, either
because the Agency lacked statutory authority to impose them, or because it adopted them in
violation of the Administrative Procedures Act. See Iowa League of Cities, 711 F.3d at 854.
And the Eighth Circuit agreed, vacating the rules. Id. at 878. The reach of this victory, however,
was unclear. Although EPA repeatedly suggested that the case’s impact would be modest, Hall
sought information from EPA regarding its “intentions for implementing the . . . decision” and
whether “the Agency would be applying [it] nationwide.” Compl. at 2. Hall alleges, for
example, that “top officials” announced at public meetings that the Agency planned “to limit the
decision in the 8th Circuit,” while another administrator circulated a letter to explain that “[t]he
Eighth Circuit’s decision applies as binding precedent in the Eighth Circuit.” Id.
In light of EPA’s comments, Hall sent a series of messages to the Agency, requesting
documents under FOIA that might reveal the government’s official position vis-à-vis Iowa
League of Cities. Hall’s original request cast a wide net, seeking information from not only EPA
headquarters, but also the Agency’s ten regional offices. See Ex. to Compl. [ECF No. 1-3]
(“Ex.”) at 8–9.

Hall later amended its request three times:

the first amendment slightly

expanded the information requested, see id. at 11–12 (requesting additional information
regarding a recent meeting between “EPA . . . , the States, and the regulated community”); the
second amendment went the other direction, narrowing the categories of information requested
from EPA, see id. at 17–18 (“Please provide only the following records . . .”); and the third
amendment went further still, substantially narrowing the geographic scope of the request by
limiting the search to documents housed at EPA headquarters, see id. at 23 (“All the Regional
FOIA[] requests . . . are hereby withdrawn.”). The Agency estimated that the requested search

2

(as amended) would cost $1,073.25, id. at 25, and Hall agreed to pay EPA’s asking price—even
if begrudgingly. 2 The quoted cost, the firm complained, was “inconceivable.” Id. at 28.
Once the parties had settled on the scope (and price tag) for Hall’s request, EPA searched
its files and found several documents it considered responsive to the request. In its “interim,
partial response” dated December 24, 2013, the Agency released six documents but declined to
produce twenty-one more, claiming that the withheld documents fell within various exemptions
under FOIA. Id. at 30–34. EPA later supplemented this response with a final letter on January
29, 2014. Id. at 50. The Agency did not release any documents in this second response, but it
did identify forty-nine additional responsive documents that it chose to withhold because the
documents were either pre-decisional or attorney-client privileged (and, thus, exempt from
disclosure under 5 U.S.C. § 552(b)(5)) or investigatory documents collected for law-enforcement
purposes (and, thus, exempt under 5 U.S.C. § 552(b)(7)). See id. at 51, 52–59. EPA also
notified Hall that its search for these seventy-odd documents was slightly cheaper than expected,
and it charged the firm only $1,015.75. Id. at 51.
Hall formally appealed EPA’s response on February 25, 2014.
highlighted two concerns regarding the Agency’s efforts. 3

Hall’s appeal letter

First, Hall complained that the

“documents produced by [EPA] Headquarters did not respond to the FOIA request.” Id. at 62.
And second, Hall argued that—because EPA’s search had not revealed any responsive
documents—the final bill for its efforts was “inappropriate and excessive.” Id. at 63. Hall
therefore vowed “not [to] pay the Agency for [its] non-responsive, frivolous response.” Id.
2

Hall’s FOIA request was for “commercial use” within the meaning of EPA’s regulations. 40 C.F.R.
§ 2.107(c)(1). Per these regulations: “A requester seeking access to records for a commercial use will be charged for
the time spent searching for the records, reviewing the records for possible disclosure, and for the cost of each page
of duplication. The charges for searching for and/or reviewing the records may be charged even if no responsive
records are found or if the records are located but are determined to be exempt from disclosure.” Id.
3
Hall’s complaint alleges that the firm also raised a third issue: “the appropriateness of withholding
documents [from release], or segregable portions thereof.” Compl. at 8. Whether Hall actually raised this issue in
its appeal letter is, of course, an important question in this case that will be discussed infra at 6–10.

3

A month later, EPA denied Hall’s appeal—for the most part. The Agency explained its
decision by first noting what Hall had not appealed in the firm’s February letter. “Nowhere in
your letter of appeal,” EPA wrote, “do you mention or challenge the FOIA exemptions which
were the basis for withholding of documents and portions of documents by [the Agency]. Nor
do you raise concerns regarding the sufficiency of the search conducted in order to provide
documents to you.” Id. at 66. And regarding what Hall did appeal, EPA rejected the firm’s noresponsive-documents claim, concluding that the records “explicitly relate to the subject of
[Hall’s] request, i.e., Agency action subsequent and related to the Iowa League of Cities decision
by the 8th Circuit Court of Appeals.” Id. at 67. Hall did not leave the appeal empty-handed,
however. EPA offered to reduce its final bill to $903.75—a $112 discount. 4 Id.
Still unsatisfied, Hall answered EPA’s March 2014 letter with the present complaint.
Hall now alleges that EPA violated FOIA when it (1) “fail[ed] to provide a legitimate basis for
withholding[] responsive documents”; (2) “fail[ed] to fully and completely respond to [the
firm’s] FOIA request”; and (3) charged the firm an “excessive and inappropriate” fee. Compl. at
9. In response, the Agency has moved to dismiss Hall’s complaint, because (it argues) Hall
failed to exhaust at least one of its FOIA claims before resorting to the federal courts, and
because its complaint otherwise fails to state a claim. See Gov’t’s Mot. at 6–8.
DISCUSSION
I.

MOTION TO DISMISS
A.

Legal Standard

The government brings its motion to dismiss Hall’s complaint under two Federal Rules of
Civil Procedure: 12(b)(1), which counsels dismissal for lack of subject-matter jurisdiction, and
4

EPA did not admit any wrongdoing by this reduction, however. The Agency explained “that the fees
charged cover both the necessary search and review of documents potentially responsive to [Hall’s] request,” but it
nonetheless “agreed to reduce the total fees . . . from five hours to . . . one hour of manager time.” Ex. at 67.

4

12(b)(6), which does the same for failure to state a claim. But only one of these rules is
appropriate here. EPA contends that Rule 12(b)(1) applies to Hall’s complaint because the firm
failed to administratively exhaust at least one of its claims, thus depriving this Court of
jurisdiction over that claim. See Gov’t’s Mot. at 5–6. But binding precedent says otherwise. As
this Circuit has held, the “exhaustion requirement is not jurisdictional because . . . FOIA does not
unequivocally make it so.” Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003) (emphasis
added). Courts instead treat exhaustion as “a condition precedent to the bringing of a FOIA
action,” which means that a plaintiff’s failure to exhaust a FOIA claim is “properly the subject of
a motion [to dismiss] brought under Rule 12(b)(6) for failure to state a claim upon which relief
may be granted.” Jones v. U.S. Dep’t of Justice, 576 F. Supp. 2d 64, 66 (D.D.C. 2008). The
Court will therefore consider EPA’s motion to dismiss under the standards of Rule 12(b)(6),
rather than those of Rule 12(b)(1). 5
The 12(b)(6) standards are not overly taxing. To survive a motion to dismiss under this
rule, a complaint must contain “a short and plain statement of the claim showing that the pleader
is entitled to relief . . . [that] give[s] the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted).

Although “detailed factual allegations” are not necessary in a

complaint, plaintiffs must furnish “more than labels and conclusions” or “a formulaic recitation
of the elements of a cause of action.” Id. at 555 (internal quotation marks omitted). Put
differently, the “complaint must contain sufficient factual matter, accepted as true, to state a
5

The Court will apply the 12(b)(6) standard to both EPA’s failure-to-exhaust argument and its failure-tostate-a-claim argument. See infra at 6–14. “Although FOIA cases typically and appropriately are decided on
motions for summary judgment, where an agency argues that the requester has failed to exhaust his administrative
remedies, courts analyze the matter under Rule 12(b)(6) for failure to state a claim.” Jean-Pierre v. Fed. Bur. of
Prisons, 880 F. Supp. 2d 95, 100 n.4 (D.D.C. 2012) (internal quotation marks and citation omitted). Moreover,
neither party relies on any evidence outside the pleadings in this case; thus, there is no reason to treat EPA’s motion
to dismiss as one for summary judgment. See Fed. R. Civ. P. 12(d); Russell v. Harman Int’l Indus., Inc., --- F.3d ---,
2014 WL 6996138, at *1 (D.C. Cir. Dec. 12, 2014); Colbert v. Potter, 471 F.3d 158, 164 (D.C. Cir. 2006).

5

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks omitted).

When conducting these sufficiency-of-the-complaint tests, “the

allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes,
416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800
(1982). Courts must therefore presume that plaintiffs’ factual allegations are true and give
plaintiffs every favorable inference regarding their alleged facts. See id.; see also Sparrow v.
United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). There are limits to this plaintifffriendly gloss, however. The presumption of truth does not extend to “‘legal conclusion[s]
couched as . . . factual allegation[s],’” and the same goes for inferences that lack factual support
in the complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)).
B.

Failure to Exhaust

On the merits of the 12(b)(6) motion, then: “It goes without saying that exhaustion of
remedies is required in FOIA cases.” Dettman v. U.S. Dep’t of Justice, 802 F.2d 1472, 1476
(D.C. Cir. 1986).

That is to say, plaintiffs must first raise their FOIA arguments to the

administrative agency “before filing suit in federal court so that the agency has an opportunity to
exercise its discretion and expertise on the matter and to make a factual record to support its
decision.” Hidalgo, 344 F.3d at 1258 (internal quotation marks omitted). And “[i]t is likewise
clear that a plaintiff may have exhausted administrative remedies with respect to one aspect of a
FOIA request—and thus properly seek judicial review regarding that request—and yet not have
exhausted her remedies with respect to another aspect of a FOIA request.” Dettman, 802 F.2d at
1477. In cases like this, the courts will “consider only those aspects . . . which [s]he properly
exhausted.” Kenney v. U.S. Dep’t of Justice, 603 F. Supp. 2d 184, 190 (D.D.C. 2009).

6

This exhaustion-of-remedies rule dooms one of Hall’s three FOIA claims. As described,
Hall seeks relief based in part on EPA’s alleged “failure to provide a legitimate basis and
rationale for withholding[] responsive documents, or segregable portions thereof.” Compl. at 9.
But Hall did not raise this ground for relief until it filed the complaint in this case—and that is
far too late. A close look at Hall’s February 2014 appeal letter confirms the point. “For the
reasons set forth more thoroughly below,” Hall wrote, “please consider this letter to be an
administrative appeal of EPA’s [FOIA] response . . . .” Ex. at 61. And what were those
“reasons”?

Hall (using numbered, bolded text) gave two:

“1. The responsive documents

produced by Headquarters did not respond to the FOIA request”; and “2. Headquarters’ fee of
$1,015.75 is inappropriate and excessive.” Id. at 62, 63. There is no third reason listed in the
letter; nowhere in the letter does Hall specifically challenge EPA’s decision to withhold any
document; and, more to the point, nowhere in the letter does Hall complain about the “basis and
rationale” for EPA’s decision to withhold. Hall’s withholding claim is therefore an unexhausted
one, and it must fall by the wayside. See Dettman, 802 F.2d at 1477 (“If exhaustion of remedies
is to have meaning, it surely must bar review of the claim advanced here.”).
Hall, of course, disagrees, and the firm points to two stray lines in its February 2014
appeal letter for support.

But neither line suffices to show that Hall “exhaust[ed] [its]

administrative remedies . . . in a way that put[] the agency on notice of what aspects of the
agency’s response [were] contested.” Nat’l Sec. Counselors v. CIA, 931 F. Supp. 2d 77, 100
(D.D.C. 2013) (emphasis added). Consider Hall’s first proffered line, which comes from the
letter’s opening paragraph: “As the primary purpose of FOIA is to ensure an informed citizenry
. . . it is inappropriate that EPA would withhold records . . . from the public.” Ex. at 61 (internal
quotation marks omitted). To be sure, this introductory, background sentence uses the words

7

“withhold” and “inappropriate,” but these two words could not put EPA on notice that Hall took
issue with the Agency’s use of FOIA exemptions to withhold documents.

The very next

sentence, after all, explains that Hall is appealing “[f]or the reasons set forth more thoroughly
below”—and those reasons do not include EPA’s withholding decisions. Id.
A similar story goes for Hall’s second line. “[I]t was inappropriate for EPA to withhold
such documents from the public and charge an excessive fee for conduct[ing] a search that does
not relate to the records actually requested,” Hall wrote. Id. at 63–64. This line, too, uses the
words “withhold” and “inappropriate”—but, again, context matters. For one thing, the sentence
falls within the inappropriate-and-excessive-fees section of the appeal letter, which suggests that
Hall’s real complaint is with the price the Agency charged for its (purportedly) less-thanrevealing search. Indeed, fairly read and in context, that is what the sentence says. For another,
the sentence says nothing to contest the rationale EPA used to explain its withholding choices
(i.e., that FOIA exempts these documents from disclosure). Hall, in short, failed to raise any
specific complaint regarding EPA’s withholding behavior, it did not put the Agency on notice of
its looming withholding claim, and it therefore deprived EPA—and this Court—of the benefits
of exhaustion. In other words, EPA managers had no opportunity “to correct mistakes made at
lower levels,” the Agency was not able “to make a factual record to support its decision,” and it
could not “obviate[] unnecessary judicial review.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57,
61 (D.C. Cir. 1990); see also Hidalgo, 344 F.3d at 1259.
Hall argues in response that EPA’s FOIA regulations did not require the firm to explicitly
raise a withholding challenge in order to administratively exhaust that claim. As Hall reads
things, so long as the firm appealed some aspect of EPA’s FOIA response, it necessarily
appealed all aspects of EPA’s response. See Pl.’s Opp’n at 9–11. But this is wrong, for several

8

reasons. First, the text of EPA’s regulations does not support Hall’s reading. The regulations
say: “If you are dissatisfied with any adverse determination of your request by an office, you
may appeal that determination . . . . The appeal letter may include as much or as little related
information as you wish, as long as it clearly identifies the determination being appealed.” 40
C.F.R. § 2.104(j) (emphasis added). Moreover, the regulations define “adverse determination”
as, among other things, “a determination to withhold any requested record in whole or in part;
. . . a determination that what has been requested is not a record subject to the FOIA; [or] a
determination on any disputed fee matter.” Id. § 2.104(g). The upshot of these two provisions is
that Hall was obligated to do more than just generally appeal EPA’s final response letter. The
firm, instead, was required to clearly and specifically appeal each adverse determination within
the response letter that it disagreed with and sought review of—including EPA’s determination
“to withhold . . . requested record[s].” It failed to do so here; hence, this claim is unexhausted.
Second, even if the language of EPA’s FOIA regulations were ambiguous, this Court has
no license to upset EPA’s preferred reading, which requires specificity in adverse-determination
appeals.

The courts, after all, must give substantial deference to an “agency’s reasonable

interpretation of its own . . . regulations”—including FOIA regulations. Al-Fayed v. CIA, 254
F.3d 300, 307 n.7 (D.C. Cir. 2001); see also United States v. Cleveland Indians Baseball Co.,
532 U.S. 200, 220 (2001). And here, EPA’s interpretation is more than just a reasonable one; it
is the best one, given the text. Other courts have enforced a specificity-of-appeal requirement in
the FOIA exhaustion context, see, e.g., Dettman, 802 F.2d at 1477 (plaintiff may exhaust one
aspect of a request without exhausting others); Kenney, 603 F. Supp. 2d at 190 (same); Lair v.

9

Dep’t of Treasury, 2005 WL 645228, at *3–4 (D.D.C. Mar. 21, 2005) (same), 6 and this Court
will do the same.
Third, Hall has not uncovered any authority that counsels a contrary reading of EPA’s
regulations. The firm (in a footnote) cites a Fourth Circuit case to support the proposition that
plaintiffs need only raise “some objection” to a FOIA response “in order to satisfy the exhaustion
requirement.” Pl.’s Opp’n at 11 n.12 (citing Coleman v. DEA, 714 F.3d 816, 825 (4th Cir.
2013)). But this citation changes nothing. While the Fourth Circuit follows the (common sense)
rule that “a requester need not provide the agency with every nuance and detail of a particular
claim before exhaustion can be found,” 714 F.3d at 825, this approach does not thereby relieve
FOIA requesters of their burden to be at least somewhat specific regarding the bases for their
appeals. Indeed, the Coleman court endorsed elsewhere the (also common sense) rule that
“requests . . . must be made with reasonable specificity,” and it found that the FOIA plaintiff in
that case had met this requirement. Id. at 826 (internal quotation marks omitted). The same
cannot be said here, where Hall uttered “‘not a word’” about EPA’s withholding justifications.
Id. at 825 (quoting Dettman, 802 F.2d at 1476)).
C.

Failure to State a Claim

The Court will also dismiss Hall’s remaining claims—but for a different reason. Beyond
its withholding-of-documents argument, recall that Hall’s complaint alleges two problems with
EPA’s FOIA response: that the Agency “fail[ed] to fully and completely respond to [the firm’s]
6

Hall hopes to distinguish these cases, arguing that they did not involve EPA regulations, and that these
cases were decided at the summary-judgment (rather than motion-to-dismiss) stage. But these are distinctions
without a difference. EPA’s regulations are materially consistent with, for example, the Department of Justice
regulations at issue in Dettman and Kenney. Compare 40 C.F.R. § 2.104(j) (“The appeal letter may include as much
or as little related information as you wish, as long as it clearly identifies the determination being appealed.”) with
28 C.F.R. § 16.9(a) (“Your appeal letter may include as much or as little related information as you wish, as long as
it clearly identifies the . . . determination . . . that you are appealing.”). And it is beyond dispute that questions of
exhaustion are just as appropriately decided at the motion-to-dismiss stage of litigation as they are at the summaryjudgment stage. See, e.g., Hidalgo, 344 F.3d at 1257 (“[W]e conclude Hidalgo failed to exhaust his administrative
remedies and, accordingly, we . . . remand to the district court to dismiss the complaint for failure to exhaust.”).

10

FOIA request,” and that the Agency charged the firm an “excessive and inappropriate” fee for its
search. Compl. at 9. To the extent these claims reiterate the arguments from Hall’s February
2014 appeal letter (i.e., that EPA failed to produce any responsive documents in its FOIA search,
and that this failure makes the price tag for EPA’s search excessive, see Ex. at 62–63), the firm
has administratively exhausted these claims. 7 But that is not the end of the matter. The question
remains whether the allegations in Hall’s complaint—accepted as true—suffice to state a claim
upon which relief can be granted.
The answer is no. Start with Hall’s no-responsive-documents claim. Even if the Court
credited the firm’s version of events, the claim fails because general complaints about the results
of a search do not amount to a cognizable FOIA claim. See Cleary, Gottlieb, Steen & Hamilton
v. Dep’t of Health and Human Servs., 844 F. Supp. 770, 777 n.4 (D.D.C. 1993) (Courts “look[]
to the method of search rather than sheer results.”). That is to say: FOIA recognizes challenges
to the adequacy of an agency’s search (the methods used in the search, the places searched, etc.),
although Hall, of course, did not raise such a claim, focusing instead on the (disappointing)
results obtained from EPA’s search. See supra at 11 n.7. But the firm has not identified a single
7

Hall, however, has not limited itself to these exhausted claims. Though its appeal letter is silent about the
“adequacy” of EPA’s review, Hall now argues—in its brief in opposition to EPA’s motion to dismiss—that “it is
indisputable that the adequacy of EPA’s search was challenged by [Hall] multiple times throughout the
administrative process and is a factual issue that is clearly in dispute.” Pl.’s Opp’n at 13. But calling something
indisputable does not make it so. A close look at Hall’s appeal letter reveals that the firm repeatedly questioned the
“responsive[ness]” of the documents uncovered in EPA’s search, concluding that “the Agency conducted the wrong
assessment.” See Ex. at 62–63. But adequacy-of-the-search claims are not about “the fruits of the search” (i.e., the
quality, quantity, or responsiveness of documents an agency finds); they are, instead, about “the appropriateness of
[the agency’s search] methods.” Hodge v. FBI, 703 F.3d 575, 579 (D.C. Cir. 2013) (internal quotation marks
omitted). In other words, to raise an adequacy-of-the-search challenge, Hall must give some indication that EPA
failed to search for documents in certain locations, for example, or that it failed to speak to certain individuals. See
id. at 580. Hall’s appeal letter does not include such allegations. Moreover, even if the appeal letter (read very
generously) did raise an adequacy claim, the firm opted against repeating that claim in its complaint. Indeed, Hall’s
complaint alleges only that it contemplates lodging some future adequacy challenge—and therefore has not yet done
so. See Compl. at 9 (asking the Court to “[o]rder EPA to respond to each of Plaintiff’s requests fully and completely
in a manner that will allow [Hall] to gauge the adequacy of the response” (emphasis added)). In sum, Hall’s
adequacy challenge comes far too late, and the Court will give no weight to it. See, e.g., Guzman v. U.S. Dep’t of
Homeland Sec., 679 F.3d 425, 429 (6th Cir. 2012) (“When presented with . . . a [12(b)(6)] motion, courts consider
whether the complaint states a claim upon which relief could be granted, not whether the plaintiff has stated—or
could state—such a claim elsewhere [e.g., in a brief in opposition to a motion to dismiss].”).

11

case that stands for the proposition that mere frustration with the outcome of a search entitles a
FOIA requester to relief. The authorities, indeed, suggest that no such relief is available. See,
e.g., 40 C.F.R. § 2.107(c)(1)(i) (“The charges for searching for and/or reviewing the records
may be charged even if no responsive records are found.”); SafeCard Servs., Inc. v. SEC, 926
F.2d 1197, 1201 (D.C. Cir. 1991) (“Mere speculation that as yet uncovered documents may exist
does not undermine the finding that the agency conducted a reasonable search for them.”);
Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (“[T]he issue . . . is not
whether there might exist any other documents possibly responsive to the request, but rather
whether the search . . . was adequate.”). Thus, the Court must dismiss this claim.
And even if FOIA recognized such claims, Hall’s allegations fall short of stating one. In
its appeal letter, Hall alleged that “none of the documents provided by the Agency in its Partial
Response are responsive to [Hall’s] FOIA request, nor is it apparent that the documents withheld
in the Partial and Final Responses were related to the actual request.” Ex. at 63 (emphasis
added). But the firm tells quite a different story in its complaint. On more than one occasion,
Hall’s complaint alleges that EPA’s search uncovered responsive documents. “Upon review of
the Agency’s exempt document list,” Hall wrote, “there are numerous documents that, based
upon their titles, were responsive and improperly withheld.” Compl. at 8 (emphasis added).
And elsewhere: “As the list of withheld documents makes clear, EPA has prepared several
detailed assessments of the Agency’s position as to the applicability of the Iowa League of
Cities[] decision. These basic documents should be released for the public to review.” Id.
Taking these factual allegations as true—that EPA’s search did uncover responsive documents,
which the Agency chose to withhold—renders Hall’s no-responsive-documents claim
“[im]plausible on its face.” Iqbal, 556 U.S. at 678. Dismissal is therefore appropriate.

12

The failure of Hall’s no-responsive-documents claim also sinks the firm’s excessive-andinappropriate fee claim. Hall’s appeal letter included just one explanation for its sticker shock:
“EPA has charged [Hall] a fee of $1,015.75 for conducting a search and review of records which
clearly do not respond to [Hall’s] FOIA request. Thus, the fee is inappropriate and excessive.”
Ex. at 63 (emphasis added). Hall’s complaint echoes this allegation. See, e.g., Compl. at 3
(“EPA charged an excessive fee in light of the fact the Agency did not respond to [Hall’s]
narrowly-crafted FOIA request.” (emphasis added)). But as explained above, Hall also admits
that the Agency’s search actually did produce responsive documents. And Hall has not offered
any alternative factual allegation to support its excessive-fee claim. Without more, the Court is
left with Hall’s bare assertion that EPA’s fee is somehow excessive or inappropriate. This is not
enough to avoid dismissal. See Twombly, 550 U.S. at 555 (“[A] plaintiff’s obligation . . .
requires more than labels and conclusions.”); see also Hall & Assocs. v. U.S. Envt’l. Prot.
Agency, --- F. Supp. 2d ---, 2014 WL 400677, at *4 (D.D.C. Feb. 4, 2014) (“[P]laintiff’s bare
allegation that a fee assessment is unreasonable . . . is insufficient to avoid summary judgment.”).
Hall responds that it is premature to dismiss its no-responsive-documents claim,
contending that it has not admitted that EPA uncovered any responsive documents, and accusing
the Agency of taking quotes from Hall’s appeal “wildly out of context.” Pl.’s Opp’n at 12. But
Hall’s admission or non-admission is immaterial; as described above, the firm’s mere frustration
with the results of EPA’s search does not a cognizable FOIA claim make. Moreover, Hall’s
complaint says what it says: “[T]here are numerous documents that . . . were responsive and
improperly withheld.” Compl. at 8 (emphasis added). That statement—read in context—is a
necessary allegation to support one of the firm’s claims for relief: that the Court “[e]njoin EPA
from withholding all responsive records, or segregable portions thereof, that were requested by

13

Plaintiffs, and order their immediate disclosure to Plaintiff.” Id. at 9 (emphasis added). The
context thus confirms the Court’s decision to dismiss this no-responsive-documents claim,
because the allegations in the complaint undercut the appealed, exhausted version of this claim.
Finally, Hall argues that its excessive-fee claim ought to survive, because “the
responsiveness and adequacy of EPA’s search is clearly in dispute,” and because “EPA has
provided no affidavits justifying its fee or the hours spent reviewing and searching by its
personnel.” Pl.’s Opp’n at 14. Neither argument is convincing. To start, responsiveness and
adequacy are not “in dispute”—both parties now admit that EPA’s search uncovered responsive
documents, 8 see supra at 12–13, and Hall failed to raise any adequacy-of-the-search claim in its
appeal letter and complaint, which makes the argument unexhausted or irrelevant (or both) for
purposes of this case, see supra at 11 n.7. Moreover, EPA is not obligated to produce affidavits
to support its motion to dismiss for at least two reasons. First, a Rule 12(b)(6) motion to dismiss
tests the legal sufficiency of the plaintiff’s complaint—not the defendant’s answer to that
complaint. See Iqbal, 556 U.S. at 677–78. And second, Hall’s complaint does not challenge any
aspect of EPA’s invoice—not the number of hours the Agency spent on its search, not the billing
rate the Agency used to calculate its fee, etc. See Ex. at 43–45 (documenting these calculations).
EPA therefore had no reason to provide an affidavit to explain its unchallenged search-fee math.
II.

MOTION TO STRIKE
There is one final matter the Court must resolve. 9 Three days after submitting a reply in

support of its motion to dismiss, EPA filed a notice of errata that sought to modify a single
8

And, again, disappointment with the results of a search does not forgive Hall’s obligation to pay,
regardless of what the firm did or did not admit. See 40 C.F.R. § 2.107(c)(1)(i).
9
See Gov’t’s Errata [ECF No. 13] (“Errata”); Pl.’s Mot. to Strike Errata [ECF No. 14] (“Pl.’s Mot.”);
Gov’t’s Opp’n to Pl.’s Mot. [ECF No. 15] (“Gov’t’s Opp’n”); Gov’t’s Cross-Mot. to Substitute Corrected Reply
Mem. [ECF No. 16] (“Gov’t’s Cross-Mot.”); Pl.’s Reply to Gov’t’s Opp’n [ECF No. 17] (“Pl.’s Reply”); Pl.’s
Opp’n to Gov’t’s Cross-Mot. [ECF No. 18] (“Pl.’s Cross-Mot. Opp’n”); Gov’t’s Reply to Pl.’s Cross-Mot. Opp’n
[ECF No. 19].

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footnote in its brief. The change? Footnote 1 in the original brief said: “In contrast, the final
decision here—the public decision of the Agency to only apply Iowa League of Cities in the
Eighth Circuit—is publicly known and is not ‘secret law’ of the sort that section 553(a)(2) was
designed to prevent.” Gov’t’s Reply at 3 n.1. EPA now wants the footnote to read as follows:
“In contrast, EPA’s letter of April 2, 2014 (Compl., Ex. 2)—which, according to Plaintiff, is the
culmination of an alleged decision by the Agency to only apply Iowa League of Cities in the
Eighth Circuit—is publicly available and is not ‘secret law’ of the sort that section 553(a)(2) was
designed to prevent.” Errata at 1. As EPA sees things, this change simply “clarif[ies] that . . .
EPA accepts the truth of the allegations of Plaintiff’s complaint . . . only for purposes of EPA’s
pending motion to dismiss.” Id. But Hall has called foul, filing a motion to strike EPA’s errata
because (Hall argues) it is a material change that will cause the firm prejudice. The Court is
unpersuaded and will deny Hall’s motion.
“[M]otions to strike, as a general rule, are disfavored,” although the grant or denial of
such motions is ultimately left to this Court’s discretion. Stabilisierungsfonds Fur Wein v. Kaiser
Stuhl Wine Distrib., 647 F.2d 200, 201 (D.C. Cir. 1981) (per curiam). And here, Hall has not
met its burden to convince the Court to buck the general rule. See Nwachukwu v. Rooney, 362
F. Supp. 2d 183, 190 (D.D.C. 2005). The firm argues first that EPA “materially change[d] its
arguments” and therefore “exceeded th[e] standard” for errata, which are only meant “‘to correct
. . . clerical errors,’” Pl.’s Mot. at 1 (quoting Odland v. Fed. Energy Regulatory Comm’n, --- F.
Supp. 2d ---, 2014 WL 1244773, at *12 (D.D.C. Mar. 27, 2014)). But this argument gets both
the facts and the law wrong. On the facts: the only difference between the original footnote and
its correction is the nuance that although EPA accepts as true Hall’s factual allegations regarding
the decision to apply (or not apply) Iowa League of Cities in various jurisdictions, it does so only

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for purposes of this motion. But in the motion-to-dismiss context, EPA must accept Hall’s
version of the facts—with or without this nuance. See Iqbal, 556 U.S. at 678. EPA’s change
therefore materially changes nothing. And on the law: courts will sometimes allow errata to
correct more than “clerical errors,” as Odland itself demonstrates. 2014 WL 1244773, at *12
(accepting errata that “included additional substantive legal argument” because defendants were
“not prejudiced by the filing”); see also Willis v. U.S. Dep’t of Justice, 581 F. Supp. 2d 57, 64
n.7 (D.D.C. 2008) (“Defendants also submitted an Errata to correct a footnote and to submit an
additional exhibit.”).
Hall persists that the Court should nevertheless strike EPA’s errata because the
modification will cause it prejudice in both a separate case and the present one. See Pl.’s Reply
at 6–7. Neither allegation suffices. First, Hall points to Center for Regulatory Reasonableness v.
EPA, No. 14-1150, a case pending before the D.C. Circuit. Apparently, EPA argued in that case
that it has not yet made a decision regarding the application of Iowa League of Cities outside the
Eighth Circuit, and Hall wants to use EPA’s original footnote to rebut this argument. But Hall is
not a party to the D.C. Circuit case—it merely serves as appellant’s counsel. And so it cannot
suffer any prejudice in that case—at least not prejudice of the legally cognizable variety. See,
e.g., Charles Alan Wright, et al., 5C Fed. Prac. & Proc. Civ. § 1382 (3d ed. 2014) (motions to
strike are limited to those that “may cause . . . significant prejudice to one or more of the parties
to the action” (emphasis added)). Second, Hall contends that allowing EPA’s errata will cause
prejudice in this case, because the change might bolster EPA’s argument for withholding records
under FOIA. But the Court has already dismissed Hall’s withholding-of-records challenge for
failure to exhaust, see supra at 6–10—a failure that has nothing to do with EPA’s errata. That
challenge, in other words, was a loser from the start and therefore cannot support Hall’s

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prejudice claim. See Andretti v. Borla Performance Indus., 426 F.3d 824, 830 (6th Cir. 2005)
(finding no prejudice in motion-to-strike context where “there is no indication that the outcome
of the motion [for summary judgment] would have been different”).
CONCLUSION
The Court will therefore deny Hall’s motion to strike EPA’s errata. Moreover, the Court
will grant EPA’s motion to dismiss this case, because Hall failed to exhaust one of its claims,
and because Hall’s remaining allegations fail to state a claim upon which relief can be granted.
A separate Order has issued on this date.

/s/
JOHN D. BATES
United States District Judge
Dated: December 31, 2014

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