CAUSE OF ACTION INSTITUTE v. UNITED STATES DEPARTMENT OF JUSTICE
MEMORANDUM OPINION. Signed by Judge Reggie B. Walton on October 10, 2017. (lcrbw2)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CAUSE OF ACTION INSTITUTE,
Civil Action No. 16-2226 (RBW)
U.S. DEPARTMENT OF JUSTICE,
The plaintiff, Cause of Action Institute (the “Institute”), brings this civil action against
the defendant, the United States Department of Justice (the “Department”), alleging that the
Department violated the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012), by
improperly withholding records responsive to its FOIA request. See Complaint (“Compl.”) ¶ 1.
Currently pending before the Court are the Department of Justice’s Motion for Summary
Judgment (“Def.’s Mot.”), ECF No. 12, the Cause of Action Institute’s Response to Department
of Justice’s Motion for Summary Judgment and Cross-Motion for Summary Judgment (“Pl.’s
Summ. J. Mot.”), ECF No. 13, and the Cause of Action Institute’s Motion for Leave to Amend
Its Complaint (“Pl.’s Mot.”), ECF No. 19. Upon careful consideration of the parties’
submissions,1 the Court concludes for the reasons set forth below that it must deny the Institute’s
motion to amend its Complaint, grant the Department’s motion for summary judgment, and deny
In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: (1) the Department’s Statement of Undisputed Material Facts (“Def.’s Facts”); (2) the Plaintiff’s Statement
of Undisputed Material Facts (“Pl.’s Facts”); (3) the Plaintiff’s Response to Defendant Department of Justice’s
Statement of Undisputed Material Facts (“Pl.’s Resp.”); (4) The Department of Justice’s Reply on Motion for
Summary Judgment and Opposition to COA’s Cross-Motion for Summary Judgment (“Def.’s Reply”); (5) the Cause
of Action Institute’s Reply in Support of Its Cross-Motion for Summary Judgment (“Pl.’s Summ. J. Reply”); (6) The
Department of Justice’s Opposition to Plaintiff’s Motion to Amend Complaint (“Def.’s Opp’n”); and (7) the Cause
of Action Institute’s Reply in Support of Its Motion for Leave to Amend Its Complaint (“Pl.’s Reply”).
the Institute’s cross-motion for summary judgment.
On July 15, 2016, the Institute sent a FOIA request by letter to the Department’s Tax
Division (the “Division”), “seeking production of two specific records relating to the detailing of
[Department] attorneys to the White House.” Compl. ¶ 6. First, the Institute sought “an email
chain involving two government employees (the ‘Bringer-Wolfinger email chain’) . . . [that was
submitted in] May 2014.” Id. ¶ 9. Second, the Institute sought “a November 2011 report entitled
the Current Practices for Attorney Assignments, Transfers, and Details” to the White House.
Pl.’s Facts ¶ 4; Def.’s Facts ¶¶ 3–4. The Division had previously produced these two specific
records “in response to another . . . FOIA request” made by the Institute. Pl.’s Facts ¶ 2.
However, the Division “had withheld large portions of those records by applying ‘NR’ or
‘Non-Responsive’ labels to the redactions.” Id.; see also Compl. ¶ 7. Thus, in its July 15, 2016
FOIA request, the Institute sought the two requested records in their entirety, without any
non-responsive redactions. See Compl. ¶ 8.
“By letter  dated August 9, 2016, [the Division] acknowledged receipt of the
[Institute’s] July 15, 2016 FOIA request . . . and requested a conference to clarify the scope of
the request.” Id. ¶ 11. On August 15, 2016, the parties “held a [tele]phone conference,” during
which the Institute explained that the use of “non-responsive” as a label to redact information
was an improper “withholding tool” and clarified that it sought only the two records in their
entirety. Id. ¶ 12; see also Def.’s Facts ¶¶ 2–6. On September 20, 2016, the Division issued its
final decision regarding the Institute’s July 15, 2016 FOIA request as clarified, producing in its
entirety the November 2011 report, without any redactions. See Def.’s Facts ¶ 7; Pl.’s Facts ¶ 7. 2
The Institute does not challenge the Department’s “processing of this record,” and this “record is not part of the
instant litigation.” Pl.’s Facts ¶ 7.
However, the Division subdivided the Bringer-Wolfinger email chain into nine separate records
and redacted “Record 7” on the basis of Exemptions 3 and 5 of the FOIA and the remaining
records as non-responsive. Pl.’s Facts ¶ 8; Compl. ¶ 17.
The Institute initiated this action by filing its Complaint on November 8, 2016, see
Compl. at 1, alleging that the Department “improperly segmented the Bringer-Wolfinger email
chain into nine distinct ‘records’ and improperly applied a ‘non-responsive’ designation to
withhold eight of those ‘records,’” id. ¶ 30. 3 Thereafter, on January 12, 2017, the Department
updated its policy regarding what constitutes a “record” under the FOIA, in which it urged
agencies to “use the definition of [the term] record found in the Privacy Act,” meaning that “each
‘item, collection, or grouping of information’ on the topic of the request can be considered a
distinct ‘record.’” Pl.’s Mot. to Amend, Exhibit (“Ex.”) J (OIP Guidance: Defining a “Record”
Under the FOIA (the “Guidance”)) at 3. Later, on January 18, 2017, the Division re-processed
the Bringer-Wolfinger email chain and re-produced the record to the Institute “as a single
record,” withdrawing all of the “non-responsive” redactions, but “redact[ing] significant portions
of responsive material” pursuant to FOIA exemptions 3, 5, 6, 7(A), and 7(C). Pl.’s Facts ¶ 11;
see also Def.’s Facts ¶¶ 9–11.
The Department now moves for summary judgment, asserting that its redactions of the
re-processed and re-produced Bringer-Wolfinger email chain were proper, as those contents were
exempt from disclosure under several FOIA exemptions. See Def.’s Mot. at 3. And, given that
the Department re-produced the Bringer-Wolfinger email chain as one record, and because the
Department asserts that withholding portions of the Bringer-Wolfinger email chain is proper
Prior to filing this lawsuit, the Institute filed an administrative appeal with the Department’s Office of Information
Policy (the “Office”), challenging the Department’s withholdings of the Bringer-Wolfinger email chain. See Pl.’s
Facts ¶ 9. Although the Office acknowledged receipt of the Institute’s appeal, it never ruled on the appeal. See id.
pursuant to specific FOIA exemptions and not because they are “non-responsive,” the
Department contends that the issue of “whether the email chain constitutes one record or several
records” is now “moot.” Def.’s Mot. at 15. On February 8, 2017, the Institute simultaneously
opposed the Department’s motion and cross-moved for summary judgment, see Pl.’s Summ. J.
Mot. at 1, arguing that “its claim against the [Department] for using ‘non-responsive’ as a
redaction tool and improperly segmenting one record into multiple records is not moot,” id. at
18. The Institute, however, did not oppose the Department’s motion “as to its application of
exemptions and redactions in the January 18, 2017 production” of the re-processed
Bringer-Wolfinger email chain. Id. at 8. In response, the Department maintains its position that
this case is now moot, see Def.’s Reply at 1, and argues that the Institute now effectively seeks a
broad “sweeping [advisory] decision” on the definition of a “record” as used in the Department’s
Guidance predicated on “new and wholly unsupported allegations regarding the [Department’s]
recordkeeping practices,” id. at 2; see also id. (“These allegations were not contained in the
Complaint—let alone alleged with particularly, as required for a FOIA [policy-or-]practice
On March 24, 2017, “to resolve any dispute or ambiguity about whether [the] Institute
. . . has [ ] properly pled [an explicit policy-or-practice claim], [the] Institute move[d] the Court
for leave to allow it to amend its complaint.” Pl.’s Mot. at 3. The Department opposed the
Institute’s motion, arguing that the Institute “seeks to change, at this final stage of the
proceedings, the fundamental nature and scope of the action.” Def.’s Opp’n at 1.
STANDARDS OF REVIEW
Motion for Leave to File a Supplemental Pleading
Under Rule 15(d) of the Federal Rules of Civil Procedure, a “court may, on just terms,
permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event
that happened after the date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d). 4 Rule
15(d) aims “to make pleadings a means to achieve an orderly and fair administration of justice.”
Gomez v. Wilson, 477 F.2d 411, 417 n.34 (D.C. Cir. 1973) (quoting Griffin v. Cty. Sch. Bd., 377
U.S. 218, 227 (1964)). Therefore, although the decision to grant a motion for leave to file a
supplemental pleading is “within the discretion of the district court,” Xingru Lin v. District of
Columbia, 319 F.R.D. 1, 1 (D.D.C. 2016) (quoting Wildearth Guardians v. Kempthorne, 592 F.
Supp. 2d 18, 23 (D.D.C. 2008)), such motions should be “freely granted when doing so will
promote the economic and speedy disposition of the entire controversy between the parties, will
not cause undue delay or trial inconvenience, and will not prejudice the rights of any of the other
parties to the action,” Hall v. Cent. Intelligence Agency, 437 F.3d 94, 101 (D.C. Cir. 2006)
(quoting 6A Charles Alan Wright & Arthur R. Miller, et al., Federal Practice and
Procedure § 1504 (2d ed. 1990)).
Motions for Summary Judgment
The Court must grant a motion for summary judgment “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). When ruling on a motion for summary judgment, the Court must
view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433
The parties disagree as to which provision of Rule 15 governs the Institute’s motion to amend its complaint.
Compare Pl.’s Mot. at 3 (asserting that Rule 15(a)(2)’s as “justice so requires” is the applicable legal standard), with
Def.’s Opp’n at 2 (contending that the “less-permissive Rule 15(d)” is the relevant legal standard). Because the
Institute seeks to plead additional allegations giving rise to a new cause of action challenging a Department policy
that was issued two months after the Institute initiated this action, see Pl.’s Mot. to Amend, Ex. 2 (Proposed
Amended Complaint) ¶¶ 49–55, the Court construes the Institute’s motion as a request to file a supplemental
pleading, see Fed. R. Civ. P. 15(d) (governing “supplemental pleading[s] setting out any transaction, occurrence, or
event that happened after the date of the pleading to be supplemented”). In any event, the difference between
motions filed under Rule 15(a) and those filed pursuant to Rule 15(d) is a matter of semantics, see United States v.
Hicks, 283 F.3d 380, 385 (D.C. Cir. 2002) (noting that the “distinction [between motions filed pursuant to the two
Rules] is in most instances of little moment”), as “[m]otions to amend under Rule 15(a) and motions to supplement
under Rule 15(d) are subject to the same standard,” Xingru Lin v. District of Columbia, 319 F.R.D. 1, 1 (D.D.C.
2016) (alteration in original) (quoting Wildearth Guardians v. Kempthorne, 592 F. Supp. 2d 18, 23 (D.D.C. 2008)).
F.3d 889, 895 (D.C. Cir. 2006). The Court must therefore draw “all justifiable inferences” in the
non-moving party’s favor and accept the non-moving party’s evidence as true. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The non-moving party, however, cannot rely on
“mere allegations or denials.” Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting
Anderson, 477 U.S. at 248). Thus, “[c]onclusory allegations unsupported by factual data will not
create a triable issue of fact.” Pub. Citizen Health Research Grp. v. Food & Drug Admin., 185
F.3d 898, 908 (D.C. Cir. 1999) (alteration in original) (quoting Exxon Corp. v. Fed. Trade
Comm’n, 663 F.2d 120, 126–27 (D.C. Cir. 1980)). If the Court concludes that “the nonmoving
party has failed to make a sufficient showing on an essential element of [its] case with respect to
which [it] has the burden of proof,” then the moving party is entitled to summary judgment.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, at bottom, “in ruling on
cross-motions for summary judgment, the [C]ourt shall grant summary judgment only if one of
the moving parties is entitled to judgment as a matter of law upon material facts that are not
genuinely disputed.” Shays v. Fed. Election Comm’n, 424 F. Supp. 2d 100, 109 (D.D.C. 2006).
FOIA cases “typically are resolved on a motion for summary judgment.” Ortiz v. U.S.
Dep’t of Justice, 67 F. Supp. 3d 109, 116 (D.D.C. 2014); see also Defs. of Wildlife v. U.S.
Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). “[The] FOIA requires federal agencies to
disclose, upon request, broad classes of agency records unless the records are covered by the
statute’s exemptions.” Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C.
Cir. 2001). In a FOIA action, the defendant agency has the “burden of demonstrating that the
withheld documents [requested] are exempt from disclosure.” Boyd v. Criminal Div. of U.S.
Dep’t of Justice, 475 F.3d 381, 385 (D.C. Cir. 2007). The Court will grant summary judgment to
the government in a FOIA case only if the agency can prove “that it has fully discharged its
obligations under the FOIA, after the underlying facts and the inferences to be drawn from them
are construed in the light most favorable to the FOIA requester.” Friends of Blackwater v. U.S.
Dep’t of Interior, 391 F. Supp. 2d 115, 119 (D.D.C. 2005) (quoting Greenberg v. U.S. Dep’t of
Treasury, 10 F. Supp. 2d 3, 11 (D.D.C. 1998)). Thus, in a lawsuit brought to compel the
production of documents under the FOIA, “an agency is entitled to summary judgment if no
material facts are in dispute and if it demonstrates ‘that each document that falls within the class
requested either has been produced . . . or is wholly[, or partially,] exempt [from disclosure].’”
Students Against Genocide, 257 F.3d at 833 (quoting Goland v. Cent. Intelligence Agency, 607
F.2d 339, 352 (D.C. Cir. 1978)).
A. The Institute’s Motion for Leave to File a Supplemental Complaint
The Institute contends that in order “to accommodate the [Department’s] position that
any claim implicating its FOIA policy must be expressly pleaded in the Complaint and to remove
any doubt that the Court may address all issues in this dispute,” Pl.’s Reply at 2, it should be
permitted to supplement its Complaint to “add an explicit policy-or-practice claim based on the
[Department’s] recently formalized and published . . . [G]uidance,” Pl.’s Mot. at 6. “[A]
supplemental pleading may include a new ‘cause of action’ when it would be convenient to
litigate all the claims between the parties in the same action.” Wright & Miller, Federal Practice
and Procedure § 1506 (3d ed. 2017) (footnote omitted). However, a supplemental pleading may
assert a “cause of action not alleged in the original complaint so long as [its] introduction does
not create surprise or prejudice the rights of the adverse party.” Aftergood v. Cent. Intelligence
Agency, 225 F. Supp. 2d 27, 30 (D.D.C. 2002). The Department argues that the Institute’s
motion to supplement its Complaint to assert a new cause of action “constitutes undue surprise
and prejudices [its] interest in resolving the present . . . [FOIA] records-denial case.” Def.’s
Opp’n at 1. The Court will address in turn the Department’s arguments regarding undue surprise
1. The Department’s Undue Surprise Argument
The Department argues that the Institute’s “attempt to drastically change the subject
matter and nature of this case amounts to undue surprise” because the Institute’s “proposed new
claim would transform th[is] case into a wide-ranging pattern-and-practice claim that could
affect the [Department’s] response to virtually every FOIA request it receives.” Id. at 3; see also
id. (asserting that “[t]he original claim in this case was a garden-variety FOIA suit seeking access
to a single chain of emails”). The Court disagrees.
The Court acknowledges that what constitutes undue surprise for purposes of resolving
motions for leave to file a supplemental complaint alleging a new cause of action has not been
specifically defined in this Circuit. But, courts in this jurisdiction have granted such motions
where defendants could not demonstrate surprise because they were aware of the issue or
allegations sought to be added. See Bloche v. Dep’t of Def., et. al, No. 07-2050 (HHK/JMF),
2009 WL 1330388, at *2 (D.D.C. May 13, 2009) (concluding that “supplementation of the
complaint would not create any undue surprise for [the] defendants,” presumably because the
defendants were aware of the facts sought to be added to the plaintiffs’ complaint when the
request to supplement was made (i.e., that the defendants had yet to respond to their FOIA
request when supplementation was requested)); see also Aftergood, 225 F. Supp. 2d at 31
(finding that the defendant “[wa]s already familiar with the” plaintiff’s newly asserted claims in
his second FOIA request, because that FOIA request was “substantially identical” to the
plaintiff’s first FOIA request, and therefore, the defendant was not surprised by the claim). Here,
as the Institute correctly notes, the Department “cannot credibly claim unfair surprise,” as the
Department, in its opposition to the Institute’s cross-motion, “characterized [the] Institute’s
response to its mootness arguments as implicating a policy-or-practice claim,” demonstrating a
“recognition and awareness of a [potential] policy-or-practice claim” prior to the Institute’s
efforts to supplement its Complaint to include this claim. Pl.’s Reply at 5. Accordingly, the
Court is not convinced that the Department is unduly surprised by the new claim.
2. The Department’s Undue Prejudice Argument
The Department contends that granting the Institute’s motion would cause it undue
prejudice “because the supplemental claim would force the parties back to the beginning of
litigation and through another round of dispositive motion briefing—all in a case where [the
Institute] ha[s] conceded that [the Department’s] bases for [its] withholding were proper.” Def.’s
Opp’n at 3; see also id. (“Courts in this district have held that where resolution of the original
claim is close at hand, a new supplemental claim that would delay final resolution of the case
constitutes prejudice to the defendant.”). Additionally, the Department argues that the Institute
unduly delayed seeking to supplement its complaint, as the Institute “knew about the
[Department’s] [G]uidance before filing its [cross-]motion for summary judgment, and in fact it
cites the . . . [G]uidance in that motion.” Id.
“Delay and prejudice are precisely the matters to be addressed in considering whether to
grant motions for supplemental pleadings.” Hall, 437 F.3d at 101. “To demonstrate ‘prejudice
sufficient to justify a denial of leave to [supplement,] the opposing party must show that it was
unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would
have offered had the [supplement] been timely.’” Butler v. White, 67 F. Supp. 3d 59, 67–68
(D.D.C. 2014) (quoting In re Vitamins Antitrust Litig., 217 F.R.D. 30, 32 (D.D.C. 2003)). The
prejudice alleged “must in fact be ‘undue,’” Dove v. Wash. Metro. Area Transit Auth., 221
F.R.D. 246, 248 (D.D.C. 2004) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)), which is
more than “mere harm to the non-movant,” id.; see also id. (“Examples of such prejudice include
situations where the opposed [supplement] will alter either the choice of counsel or the nature of
the opposing party’s strategy.”). In determining whether “the threat of prejudice to the opposing
party is ‘undue,’ courts should consider ‘the hardship to the moving party if leave to
[supplement] is denied.’” United States v. Honeywell Int’l, Inc., 318 F.R.D. 202, 206 (D.D.C.
2016) (citation omitted). Here, the Court finds that permitting the Institute to supplement its
Complaint at this stage of the litigation would unduly prejudice the Department.
As support for its position that it did not unduly delay its request to supplement its
Complaint to add a policy-or-practice claim against the Department, the Institute explains that
the Department’s Guidance, which it now seeks to challenge, “was published only a week before
the [Department] filed its summary judgment motion and reproduced the [Bringer-Wolfinger
email chain] without the offending segmentation.” Pl.’s Reply at 5 (noting that “[a]t the first
opportunity . . . [it] argued in its cross-motion for summary judgment that the [Department’s
G]uidance . . . and its FOIA policy defeat the [Department’s] claim that the case is moot”).
However, as the Institute acknowledges, it “sought leave to [supplement] its Complaint only
after the [Department’s legal arguments as to why this case is now moot] bec[a]me fully
apparent in [the Department’s] opposition to [the Institute’s] cross-motion for summary
judgment.” Id. Consequently, despite the Institute’s claim as to when it understood the
Department’s position, its motion to supplement the Complaint “appears to be nothing more than
an effort to avoid an adverse summary judgment ruling,” Local 472 v. Ga. Power Co., 684 F.2d
721, 724–25 (11th Cir. 1982), and such legal maneuvering has been rejected by other members
of this Court, see, e.g., Hoffmann v. United States, 266 F. Supp. 2d 27, 34 (D.D.C. 2003) (“[I]t is
fairly well established that ‘[d]enying leave to [supplement] is particularly appropriate when a
lawsuit is on the verge of final resolution.’ A plaintiff, quite simply, cannot be permitted to
‘circumvent the effects of summary judgment by [supplementing] the complaint every time a
termination of the action threatens.’” (second alteration in original) (citations omitted)).
Furthermore, granting the Institute’s motion to supplement “would permit [the Institute]
to transform [its] case into something entirely new.” Miss. Ass’n of Coops. v. Farmers Home
Admin., 139 F.R.D. 542, 544 (D.D.C. 1991). Generally,
in FOIA cases, leave to [supplement] has been granted so that further requests for
documents could be added. Where, however, the complaint, [if supplemented as
proposed], would radically alter the scope and nature of the case and bears no
more than a tangential relationship to the original action, leave to [supplement]
should be denied.
Id. (citations omitted) (noting that the Supreme Court’s concern in Foman “was that leave to
[supplement] should be granted liberally in order to ensure that litigants have their day in court,”
but was not intended to provide litigants a tool to preclude “the sun [from] set[ting] on their or
any case”). The Institute asserts that “the proposed policy-or-practice claim relates to the same
FOIA request presented in the original Complaint, concerns the [Department’s] conduct with
regard to that same FOIA request, and would allow the Court to reach the merits of the parties’
dispute.” Pl.’s Reply at 3. While it may be true that the Institute’s proposed policy-or-practice
claim relates to the same FOIA request, it does so only tangentially, as the Institute’s Complaint
is entirely predicated on the improper withholding of responsive records through the designation
of those records as “non-responsive.” See generally Compl. (focusing on the Department’s
redactions of information in the Bringer-Wolfinger email chain). In fact, the Institute, in its
Complaint, alleges only that the Bringer-Wolfinger email chain “constitute[d] a single record,”
id. ¶ 29, and that the Division “improperly segmented the Bringer-Wolfinger email chain into
nine distinct ‘records,’” id. ¶ 30 (asserting that the Department “improperly applied a
‘non-responsive’ designation” to segment and withhold portions of the Bringer-Wolfinger email
chain). However, the Institute never asserted that the Department’s action was pursuant to an
improper policy or practice that violates the FOIA, see generally id. (failing to assert any
allegations regarding the Department’s record keeping practices or FOIA policy concerning what
constitutes a “record” under the FOIA). And, as the Court already noted, the Division ultimately
re-produced the Bringer-Wolfinger email chain “as a single record,” and withdrew all of the
“non-responsive” redactions. Pl.’s Facts ¶ 11; see also Def.’s Facts ¶¶ 9–11. Thus, permitting
the Institute to supplement its Complaint at this time to allege a new cause of action would
“fundamentally reshape the landscape of [this] litigation,” Bode & Grenier, LLP v. Knight, 808
F.3d 852, 860 (D.C. Cir. 2015), and result in more than “the garden-variety prejudice that attends
a party sharpening the allegations of the complaint,” Honeywell Int’l, Inc., 318 F.R.D. at 207.
By contrast, the prejudice the Institute may suffer from a denial of its motion for leave to
supplement its Complaint does not outweigh the prejudice the Department will incur if the Court
grants the Institute’s motion. The Institute asserts that, if the Court denies leave to file its
supplement, “it w[ill] have to wait until a future, as-of-yet unfiled and unidentified request is ripe
for judicial review to challenge [the Department’s] actions, and then only if the [Department]
acts in the same manner as it did here (i.e., improperly segmenting a responsive record into
multiple records).” Pl.’s Reply at 4; see also id. (“[T]he [Department] is now aware that [the]
Institute is attempting to challenge the agency’s unlawful FOIA policy, [and the Department]
may attempt to respond to any future . . . Institute [FOIA] request in such a way as to prevent
judicial review while also implementing its unlawful FOIA policy against other requesters.”).
Despite the inconvenience the Institute argues it will experience from not being able to assert its
wholly new cause of action against the Department in this litigation, this is not the type of
inconvenience that implicates the principles of fairness and judicial economy that justify
application of the standard that leave to file a supplemental pleading should “be liberally
granted.” See Abdullah v. Washington, 530 F. Supp. 2d 112, 115 (D.D.C. 2008). This form of
inconvenience is not something uncommon to federal litigation, as federal courts are limited to
considering matters that present a currently existing case or controversy. U.S. Const. art. III § 2;
see also Already, LLC v. Nike, Inc., 568 U.S. 85, 90–91 (2013) (“We have repeatedly held that
an ‘actual controversy’ must exist not only ‘at the time the complaint is filed,’ but through ‘all
stages’ of the litigation.” (citations omitted)). This is because without a live case or controversy,
federal courts would essentially be tasked with rending advisory opinions, which they are
prohibited from doing. See Public Serv. Elec. & Gas Co. v. FERC, 783 F.3d 1270, 1274 (D.C.
Cir. 2015) (“The oldest and most consistent thread in the federal law of justiciability is that the
federal courts will not give advisory opinions. To satisfy the firmly established Article III case
or controversy requirement, there must be a live controversy at the time we review the case.”
(citations and internal quotation marks omitted)). In any event, the Institute remains “free to
raise [its policy-or-practice] claim in separate litigation,” if and when circumstances warrant
such action. City of Jersey City v. Consol. Rail Corp., 968 F. Supp. 2d 302, 307 (D.D.C. 2013).
In sum, the Court finds that granting the Institute leave to supplement its Complaint
would unduly prejudice the Department by expanding this litigation from a simple FOIA claim
for the production of responsive documents into a more complex case with an additional
policy-or-practice FOIA claim, particularly when this litigation is on the verge of final
resolution. Accordingly, the Court must deny the Institute’s motion for leave to supplement its
B. The Parties’ Cross-Motions for Summary Judgment
As previously noted, the parties do not dispute the Division’s withholding of the
Bringer-Wolfinger email chain based on FOIA exemptions 3, 5, 6, 7(A), and 7(C). See Pl.’s
Summ. J. Mot. at 8 (noting that it “does not oppose the [Department’s] Motion for Summary
Judgment as to its application of exemptions and redactions in the January 18, 2017 production”
of the reprocessed email chain). 5 However, the parties dispute whether the Institute’s claim is
now moot. See Pl.’s Summ. J. Mot. at 9–18; Def.’s Reply at 2–6.
The Department contends that this case is now moot given that it has released to the
Institute all of the records that the Institute sought through its FOIA request. See Def.’s Reply at
2 (“Because [the Institute] sought disclosure of specific materials, and obtained those materials,
the case is moot.”). “Article III’s limitation of federal-court jurisdiction to cases and
controversies requires that ‘an actual controversy . . . be extant at all stages of review, not merely
at the time the complaint is filed.’” Bayala v. U.S. Dep’t of Homeland Sec., Office of Gen.
Counsel, 827 F.3d 31, 34 (D.C. Cir. 2016) (alteration in original) (quoting Genesis Healthcare
Corp. v. Symczyk, 569 U.S. 66, 71 (2013)). Thus, “[i]f an intervening circumstance deprives the
plaintiff of a personal stake in the outcome of the lawsuit, at any point during litigation, the
action can no longer proceed and must be dismissed as moot.” Id. (alteration in original)
(quoting Genesis Healthcare Corp., 569 U.S. at 72). The party seeking dismissal has the burden
of establishing mootness, and its burden is a “heavy” one. Honeywell Int’l, Inc. v. Nuclear
Regulatory Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010).
The parties also do not dispute the adequacy of the Division’s search for the requested records or the segregability
of the reproduced Bringer-Wolfinger email chain. See generally Def.’s Mot.; Pl.’s Summ. J. Mot.
Applying this standard to FOIA claims, “once all the documents are released to the
requesting party, there no longer is a case or controversy.” Bayala, 827 F.3d at 34; see also Perry
v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982) (“[H]owever fitful or delayed the release of
information under the FOIA may be, once all requested records are surrendered, federal courts
have no further statutory function to perform.”). This is so “[b]ecause the [FOIA] only
authorizes a court ‘to enjoin the agency from withholding agency records and to order the
production of any agency records improperly withheld.’” Harvey v. Lynch, 123 F. Supp. 3d 3, 7
(D.D.C. 2015) (quoting 5 U.S.C. § 552(a)(4)(B)). Therefore, “[o]nce the records are produced
the substance of the controversy disappears and becomes moot since the disclosure which the
suit seeks has already been made.” Perry, 684 F.2d at 125 (alteration in original) (quoting
Crooker v. U.S. State Dep’t, 628 F.2d 9, 10 (D.C. Cir. 1980)).
Here, the Institute concedes that the Department has produced all the records it sought
and in the format it requested (i.e., without the offending redactions or segmentation based on
those redactions). See Pl.’s Summ. J. Mot. at 8. More importantly, the Institute does not object
to the redactions and withholdings made by the Department pursuant to various FOIA
exemptions. See id. Consequently, “there is nothing of the underlying FOIA dispute left for the
Court to adjudicate.” Harvey, 123 F. Supp. 3d at 7.
Despite the Institute’s concession that is has now received from the Department all of the
documents it requested and is entitled to receive under the FOIA, the Institute argues that this
case is not moot because two exceptions to the mootness doctrine apply. See Pl.’s Summ. J.
Mot. at 9. Specifically, the Institute argues that the “voluntary cessation of the challenged
behavior” and the “repetition yet evading review” exceptions permit this Court to retain
jurisdiction of this case. See id. However, the Institute’s reliance on these two exceptions is to
Under the voluntary cessation doctrine, “[a] case will not be moot . . . where a defendant
has voluntarily stopped the [challenged behavior], but may ‘return to [its] old ways.’” Citizens
for Responsibility & Ethics in Wash. v. U.S. Sec. Exch. Comm’n, 858 F. Supp. 2d 51, 61
(D.D.C. 2012) (third alteration in original) (quoting United States v. W.T. Grant Co., 345 U.S.
629, 632 (1953)). And, “[a] party’s voluntary cessation will be found to moot a case where: ‘(1)
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.’” Id.
(second alteration in original) (quoting Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C. Cir. 2008)).
The Institute asserts that in this case, “although the [Department] is no longer attempting to
segment the email chain into multiple records as a basis for redacting information, [the
Department] does not explicitly concede that the email chain is one record.” Pl.’s Summ. J. Mot.
at 11 (citations omitted). Therefore, according to the Institute, “[a]bsent a court decision that the
[Department’s] use of ‘non-responsive’ redactions and treatment of one record as many records
is improper, the ‘dispute over the legality of the challenged practices’ and the ‘public interest in
having the legality of the practices settled’ will remain unresolved.” Id. (quoting W.T. Grant
Co., 345 U.S. at 632). In addition, the Institute contends that the “Court should not presume that
the [Department] will refrain from returning to its old ways” because the Department’s
Guidance, issued this year, “if implemented as written, will ensure the continuation of the same
offending behavior challenged in this litigation.” Id. at 12.
The Court finds that the Institute’s position that the Department’s voluntary cessation of
its challenged conduct does not moot this case is fundamentally flawed. Primarily, as the
Department correctly notes, the Institute has not pleaded in its Complaint allegations of “any
pattern or practice by the [Department] with respect to FOIA responses.” Def.’s Reply at 4.
Rather, the Institute sought only the disclosure of the Bringer-Wolfinger email chain. See
Compl. at 7; see also Cause of Action Inst. v. Eggleston, 224 F. Supp. 3d 63, 71 (D.D.C. 2016)
(“To state a claim for relief under the ‘policy or practice’ doctrine articulated in Payne[ Enters.,
Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988)] . . . 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.’” (quoting Muttitt v. Dep’t of
State, 926 F. Supp. 2d 284, 293 (D.D.C. 2013))). Furthermore, each of the cases the Institute
cites to demonstrate the applicability of the voluntary cessation of the challenged behavior
doctrine all involved plaintiffs who expressly challenged an agency policy or practice as a cause
of action pleaded in their complaints. See Pl.’s Summ. J. Mot. at 10–13 (citing cases where
courts did not find the plaintiffs’ claims moot after the production of the requested documents
because they also explicitly challenged the agency’s FOIA policy or practice). Therefore,
because the Institute has not challenged a Department’s FOIA policy or practice in regards to
segmenting e-mail chains into multiple records in its Complaint, the Court is not convinced that
the voluntary cessation of the challenged behavior exception applies in this case.
Regarding the capable of repetition yet evading review exception, a case is “not moot if
‘(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or
expiration, and (2) there [is] a reasonable expectation that the same complaining party would be
subjected to the same action again.’” Ctr. for Study of Servs. v. U.S. Dep’t of Health & Human
Servs., 130 F. Supp. 3d 1, 8 (D.D.C. 2015) (alterations in original) (quoting McDonnell Douglas
Corp. v. Nat’l Aeronautics & Space Admin., 102 F. Supp. 2d 21, 23 (D.D.C. 2000)). The
Institute argues that both of these requirements are satisfied in this case because it “has not been
afforded an opportunity to fully litigate its claim,” Pl.’s Summ. J. Mot. at 15, and “because [it] is
a frequent FOIA requester and litigator, has more than twenty FOIA requests currently pending
at the [Department], and the [Department] has not recanted the disputed legal position but
instead has issued [the G]uidance reaffirming its position that the challenged behavior is
acceptable,” id. at 16.
The Court finds that the capable of repetition yet evading review exception does not
provide support for the Institute’s position for several reasons. Primarily, as the parties
acknowledge, it is unclear whether the capable of repetition yet evading review doctrine applies
to FOIA disclosures, given the general duration of the proceedings involved in such litigation.
See Def.’s Reply at 5 (arguing that “[t]he ‘capable of repetition, yet evading review’ doctrine
does not apply to FOIA disclosures” (quoting McDonnell Douglas Corp., 102 F. Supp. 2d at
23)); Pl.’s Summ. J. Mot. at 15 (arguing that McDonnell Douglas Corp. is distinguishable from
the facts in this case). 6 But, even if this exception was applicable, the Institute’s claim in this
case, as previously noted, was the improper withholding of the Bringer-Wolfinger email chain,
not a challenge to any of the Department’s established FOIA policies or practices. See generally
Compl. Considering that the Department has now disclosed the Bringer-Wolfinger email chain
to the Institute’s satisfaction, it cannot conceivably be said that this challenged action was “too
short to be fully litigated,” Ctr. for Study of Servs., 130 F. Supp. 3d at 8, as the Institute made its
FOIA request well over a year ago, see Compl. ¶ 6, or that the Department is capable of
repeating the same harm (i.e., improperly withholding the Bringer-Wolfinger email chain). And,
In holding that this mootness exception does not apply to FOIA disclosures, the McDonnell Douglas court relied
on Gulf Oil Corp. v. Brock, 778 F.2d 834, 839 (D.C. Cir. 1985). See 102 F. Supp. 2d at 23. However, in Gulf Oil
Corp, the Circuit stated that “[t]he prolonged proceedings of this case are testimony that the first requirement under
the ‘capable of repetition, yet evading review’ exception is not met with regard to FOIA disclosures.” 778 F.2d at
839 (noting in that reverse FOIA action, that eleven years had elapsed between when an organization made a request
from the United States Department of Labor for disclosure of the plaintiff’s 1973 affirmative action plan and when
that organization withdrew its request, and that the plaintiff’s 1973 affirmative action plan had not in fact yet been
the purported policy or practice which the Institute now desires to challenge (i.e., the
Department’s Guidance) “is [not] likely to evade review,” as the Institute remains free to
challenge the Department’s Guidance in subsequent litigation if there is a factual basis to
challenge the Guidance and the challenge is properly pleaded.
In sum, the Institute concedes that it has received the Bringer-Wolfinger email chain in
the format requested, the disclosure of which was the subject of its FOIA request and the
underlying basis for its Complaint, and it does not oppose the redactions the Division applied to
the Bringer-Wolfinger email chain pursuant to several FOIA exemptions. See generally Pl.’s
Summ. J. Mot. Consequently, because the Institute has obtained the relief that it sought, the
Institute’s case is now moot. See Hall, 437 F.3d at 99. Accordingly, the Court must grant the
Department’s motion for summary judgment and deny the Institute’s cross-motion for summary
For the foregoing reasons, the Court concludes that it must grant the Department’s
motion for summary judgment, deny the Institute’s cross-motion for summary judgment, and
deny the Institute’s motion for leave to file a supplemental complaint. 8
The Institute also asserts that, because this case is not moot, it is entitled to summary judgment and a finding by the
Court “that the [Department] violated the FOIA by redacting information as non-responsive and improperly
segmenting one record into multiple records.” Pl.’s Summ. J. Mot. at 18; see generally Pl.’s Summ. J. Reply.
Having concluded that this case is moot, the Court need not address this argument by the Institute, as “[t]he rule
against deciding moot cases forbids federal courts from rendering advisory opinions or ‘decid[ing] questions that
cannot affect the rights of litigants in the case before them.’” Hall, 437 F.3d at 99 (alteration in original) (citation
In its cross-motion, the Institute states that “upon completion of summary judgment proceedings, [it] intends to
move for attorney[s’] fees and costs.” Pl.’s Summ. J. Mot. at 9. The Court notes that this memorandum opinion
does not determine whether the Institute was a prevailing party for purposes of determining whether the Institute is
eligible for an award of attorneys’ fees and costs. Additionally, the Court’s conclusion that this case is moot does
not prevent the Institute from filing a motion seeking attorneys’ fees and costs. See Harvey, 123 F. Supp. 3d at 8–9
(holding that, even though the plaintiff’s case was moot, the plaintiff may still seek reasonable attorneys’ fees and
costs for bringing the action to the extent he is a prevailing party).
SO ORDERED this 10th day of October, 2017. 9
REGGIE B. WALTON
United States District Judge
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
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