AMERICAN CENTER FOR LAW AND JUSTICE v. UNITED STATES DEPARTMENT OF STATE
ORDER denying Defendant's 32 Partial Motion to Dismiss or to Stay Proceedings. See order for details. Signed by Judge Trevor N. McFadden on 2/8/2018. (lctnm2)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN CENTER FOR LAW AND
Case No. 1:16-CV-01975-TNM
UNITED STATES DEPARTMENT OF
In Count II of its Amended Complaint, the American Center for Law and Justice alleges
that the Department of State has a pattern or practice of violating the Freedom of Information Act
by “intentionally refusing to issue a determination, produce documents and/or respond in any
manner required by 5 U.S.C. § 552(a)(6) unless and until Plaintiff files suit.” Am. Compl. ¶ 78.
State moves to dismiss this count, contending that ACLJ has failed to plead enough facts to make
its claim plausible, and that even if so, the allegations are not outrageous enough to warrant relief
under Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988). Def.’s Partial
Mot. Dismiss or to Stay Proceedings at 8-15.1 After initially dismissing an inadequately-pleaded
version of this claim, Am. Ctr. for Law & Justice v. United States Dep't of State, 249 F. Supp. 3d
275, 281-82 (D.D.C. 2017) (ACLJ I), another judge in this district has already upheld the
Defendant also seeks a stay pending the D.C. Circuit’s decision in Judicial Watch, Inc., v.
United States Dep’t of Homeland Security, No. 16-5339. However, the pattern-or-practice claim
in that case appears to bear only limited factual similarities to the claims made against State. See
Judicial Watch, Inc. v. United States Dep't of Homeland Sec., 211 F. Supp. 3d 143, 146 (D.D.C.
2016) (“[Plaintiff] points to no fact or statement to establish why the requests were delayed
or how the delays were the result of an either formal or informal DHS policy”) (emphasis in
original). Accordingly, I find that considerations of judicial efficiency weigh against a stay.
sufficiency of substantially identical allegations. Am. Ctr. for Law & Justice v. United States
Dep't of State, 254 F. Supp. 3d 221, 223 (D.D.C. 2017) (ACLJ II). Seeing no need to reinvent the
wheel, I deny State’s Partial Motion to Dismiss for the same reasons.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
crosses from conceivable to plausible when it contains factual allegations that, if proved, would
‘allow the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.’” Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (alteration
omitted) (quoting Iqbal, 556 U.S. at 678). In this inquiry, a court must “draw all reasonable
inferences from those allegations in the plaintiff’s favor.” Id.
To make out a valid pattern or practice claim under FOIA, a plaintiff “must allege, inter
alia, facts establishing that the agency has adopted, endorsed, or implemented some policy or
practice that constitutes an ongoing ‘failure to abide by the terms of the FOIA.’” Muttitt v. Dep't
of State, 926 F. Supp. 2d 284, 293 (D.D.C. 2013) (quoting Payne, 837 F.2d at 491); see also
ACLJ I, 249 F. Supp. 3d at 281-82 (summarizing applicable case law). ACLJ makes such an
allegation, claiming that State has an “impermissible practice, policy, and pattern of refusing to
[comply with FOIA] unless and until Plaintiff files suit.” Am. Compl. ¶ 85. As Judge Boasberg
has already explained, State’s conduct is allegedly more insidious than delay in “isolated
incidents” or the challenge of an “enlarged FOIA docket,” ACLJ II, 254 F. Supp. 3d at 226,
instead resulting from a systemic failure to remedy staffing, training, and management issues
identified by their own Inspector General in 2012 and 2016. Id. at 225; Am. Compl. ¶¶ 46-59.
Despite State’s arguments to the contrary, ACLJ has sufficiently alleged a pattern of violating
FOIA akin to the “persistent refusal” to comply with the law that justified equitable intervention
in Payne. 837 F.2d at 494. Accordingly, the Amended Complaint satisfies the pleading
standards of Iqbal and Twombly.2
For these reasons, Defendant’s Partial Motion to Dismiss or to Stay Proceedings is
TREVOR N. MCFADDEN
United States District Judge
Dated: February 8, 2018
However, this is no guarantee of eventual success. See Am. Ctr. for Law & Justice v. United
States Dep't of State, 2018 WL 623827, at *1 (D.D.C. Jan. 30, 2018) (granting State’s
subsequent motion for partial summary judgment).
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