UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, et al.,

Plaintiffs,

v. Civil Action No. 1:18-cv-00114 (CJN)

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,

Defendant.

MEMORANDUM OPINION

Plaintiffs Citizens for Responsibility and Ethics in Washington (“CREW”) and the

Freedom from Religion Foundation (“FFRF”) filed multiple, separate requests with the

Department of Housing and Urban Development (“HUD”) under the Freedom of Information

Act (“FOIA”),

. The requests sought information that Plaintiffs suggest might

reflect poorly on the Department’s head, Secretary Ben Carson. In addition to the document

requests, both organizations sought a waiver of the fees the Department typically charges FOIA

requesters. HUD denied the fee waivers and requests for reconsideration.

Plaintiffs then jointly filed this action, alleging both improper denial of fee waivers in

those instances and an illegal pattern or practice of denying waivers more broadly. See generally

Compl., ECF No.1. HUD promptly reevaluated its decision and waived fees for the specific

requests. HUD now moves to dismiss the Complaints, arguing that the challenges to individual

fee-waiver denials are moot and that the policy-or-practice count fails to state a claim for relief.

See generally Def.’s Mem. in Supp. of Mot. to Dismiss (“Mot.”), ECF No. 23-1. The Court

1 agrees that the as-applied challenges are moot and grants HUD’s Motion to Dismiss in part, but

it denies the Motion as to the policy-or-practice claim.

I. Background

Plaintiffs are both tax-exempt, non-profit organizations. Compl. ¶¶ 4, 6. CREW seeks to

promote governmental transparency through “a combination of research, litigation, and

advocacy,” relying in part on “government records made available to it under . . . FOIA.”

.

FFRF “advocates for the separation of church and state,” using “FOIA to access records

necessary to advance its mission.”

. There are five FOIA requests at issue in this case:

three by CREW and two by FFRF.

A. CREW’s Initial FOIA Requests

CREW filed its first request on August 25, 2017, seeking records relating to the reported

involvement of Secretary Carson’s spouse and his son, B.J., in the Department’s internal affairs.

; CREW Ltr. of Aug. 25, 2017 (“CREW Request 1”), ECF No. 23-13. CREW requested

several categories of documents, including communications and calendar entries between or

involving several senior HUD officials and either Mrs. Carson or B.J. Carson. Compl. ¶ 18.

CREW submitted a second, unrelated FOIA request on September 20, 2017, seeking “records

concerning authorization for and the costs of Secretary Carson’s use of non-commercial aircraft

for any official travel” and budgetary records showing the amounts of money earmarked for the

Secretary’s travel in 2017 and 2018, as well as comparable figures for 2016.

; CREW

Ltr. of Sep. 20, 2017 (“CREW Request 2”), ECF No. 24-3, at 6–8.

Both submissions included detailed requests for fee waivers under

(a)(4)(A) and

(k) based on two grounds. Compl. ¶¶ 19–20, 28–29.

First, CREW argued that the requests satisfied the statutory and regulatory criteria for waivers

2 because they “concern[ed] the operation of the federal government,” would “contribute to a

better understanding of relevant government procedures . . . in a significant way,” and were

“primarily and fundamentally . . . for non-commercial purposes.” CREW Request 1 at 2 (citing

(a)(4)(A)); see also CREW Request 2 at 6 (same). Second, CREW asserted that it

was exempt from the payment of fees as a member of the news media. CREW Request 1 at 2

(citing

(a)(4)(A)(ii)(II)); CREW Request 2 at 7 (same).

HUD acknowledged both requests within a few days of receiving them and assigned each

one a FOIA Control Number. See HUD Ltr. of Aug. 31, 2017 (“HUD Resp. to CREW Request

1”), ECF No. 23-15; HUD Ltr. of Sep. 21, 2017 (“HUD Resp. to CREW Request 2”), ECF No.

23-16. HUD also denied both fee waiver requests. Using identical, boilerplate language laying

out the statutory factors for fee waivers, HUD concluded that CREW’s justifications were mere

conclusory statements and asserted that CREW’s requests for documents were not “in the public

interest.” HUD Resp. to CREW 1 at 1–2; HUD Resp. to CREW 2 at 1–2. The responses made

no mention of CREW’s claimed media status. HUD Resp. to CREW Request 1 at 1–2; HUD

Resp. to CREW Request 2 at 1–2. CREW timely appealed both denials through the proper

administrative channels, providing more detailed descriptions of its work and legal justifications

for the waiver requests. See CREW Ltr. of Sep. 6, 2017 (“CREW Appeal 1”), ECF No. 24-2, at

2–4; CREW Ltr. of Sep. 21, 2017 (“CREW Appeal 2”), ECF No. 24-3, at 2–4. HUD affirmed

both denials, this time providing slightly more substantive grounds for its decisions. HUD Ltr.

of Oct. 6, 2017 (“HUD Resp. to CREW Appeal 1”), ECF No. 23-17, at 2; HUD Ltr. of Oct. 24,

2017 (“HUD Resp. to CREW Appeal 2”), ECF No. 23-18, at 2. Both letters declined to address

whether CREW was entitled to news media status, stating that because HUD had not yet made

3 an initial determination on that question, the issue was “not ripe for appeal.” HUD Resp. to

CREW Appeal 1 at 2; HUD Resp. to CREW Appeal 2 at 2.

B. FFRF’s FOIA Requests

Around the same time, FFRF was engaged in its own quest for HUD’s internal records.

It filed its first request on August 7, 2017. Compl. ¶ 39; FFRF Ltr. of Aug. 7, 2017 (“FFRF

Request 1”), ECF No. 23-7. FFRF sought all correspondence between HUD personnel and

officials from Capitol Ministries, a Christian group that works with political leaders, as well as

any internal communications and calendar entries related to weekly Bible studies that Secretary

Carson allegedly arranged for his fellow Cabinet members at the White House. Compl. ¶ 39.

The request included a fee waiver petition with a short justification statement noting that FFRF is

a non-profit organization and asserting that production of the records was in the public interest.

.

FFRF submitted its second request on October 26, 2017. Compl. ¶ 46; FFRF Ltr. of Oct.

26, 2017 (“FFRF Request 2”), ECF No. 23-8. It sought records regarding Secretary Carson’s

alleged appearance at an event entitled “Revive Us 2,” hosted by the Museum of the Bible in

Washington. Compl. ¶ 46. Just like the first request, this request also asked for a fee waiver and

included the same short justification statement.

.

HUD responded within 24 hours of each request. Compl. ¶¶ 41, 48; HUD Ltr. of Aug. 7,

2017 (“HUD Resp. to FFRF Request 1”), ECF No. 23-9; HUD Ltr. of Oct. 27, 2017 (“HUD

Resp. to FFRF Request 2”), ECF No. 23-10. It included the same boilerplate language contained

in the responses to the CREW requests, briefly reviewed FFRF’s grounds for fee waivers, and

summarily denied the requests. HUD Resp. to FFRF Request 1 at 1–2; HUD Resp. to FFRF

Request 2 at 1–2. FFRF appealed both decisions, submitting longer letters with more substantive

4 justification statements outlining how its requests fulfilled each of the statutory and regulatory

criteria for fee waivers. Compl. ¶¶ 42–45, 49–51; FFRF Ltr. of Dec. 8, 2017 (“FFRF Appeal

2”), ECF No. 24-4 at 2–5. 1 HUD denied the first request on the grounds that Secretary Carson’s

participation in Bible studies did not relate to HUD’s operations, thereby failing to satisfy the

statutory criteria for a fee waiver. HUD Ltr. of Sep. 11, 2017 (“HUD Resp. to FFRF Appeal 1”),

ECF No. 23-11, at 2. It denied the second appeal on the grounds that FFRF failed to explain how

it would disseminate the information to the general public (rather than solely to its own

members) and that the requested information was not in the public interest. HUD Ltr. of Jan. 9,

2018 (“HUD Resp. to FFRF Appeal 2”), ECF No. 23-12.

C. Litigation

On January 28, 2018, CREW and FFRF jointly filed a Complaint alleging (I) an

impermissible pattern or practice of denying fee waivers; (II) improper denials of CREW’s fee

waiver requests; (III) improper denials of FFRF’s fee waiver requests; and (IV) improper denials

of CREW’s request for news media status. Compl. ¶¶ 71–93. The Complaint sought injunctive

and declaratory relief, including an order to grant fee waivers for the requests at issue.

at 21–

22. Two months later, HUD suddenly reversed itself on its own initiative and waived the fees

for CREW’s and FFRF’s requests. Without commenting on the requests’ merits, HUD

determined that “[t]he search[es] can be performed using HUD’s automated e-discovery system

and the results can be provided . . . electronically, so no fees are required for search time,

document review, or duplication.” HUD Ltr. of Mar. 15, 2018 (“FFRF Fee Waiver 1”), ECF No.

23-3; HUD Ltr. of Mar. 15, 2018 (“FFRF Fee Waiver 2”), ECF No. 23-4; HUD Ltr. of Mar. 20,

1 A copy of FFRF’s appeal of its first request seems to have been omitted from the record inadvertently.

5 2018 (“CREW Fee Waiver 1”), ECF No. 23-5; HUD Ltr. of Mar. 20, 2018 (“CREW Fee Waiver

2”), ECF No. 23-6. HUD then moved to dismiss, arguing that the challenges to individual fee

waiver determinations were moot and that the policy-or-practice count failed to state a claim for

relief. See Def.’s Original Mot. to Dismiss, ECF No. 13.

While that motion was pending, CREW filed a third FOIA request seeking copies of

Secretary Carson’s schedule for three days in July. CREW Ltr. of Oct. 1, 2018 (“CREW

Request 3”), ECF No. 23-19, at 1–2. As before, CREW sought a fee waiver, asserting it satisfied

the same public interest and news media criteria.

Unsurprisingly, HUD replied the following

day and denied the fee waiver with the same boilerplate language it used in earlier denials (and

making no mention of automated e-discovery). HUD Ltr. of Oct. 2, 2018 (“HUD Resp. to

CREW Request 3”), ECF No. 23-20. CREW again appealed with a more substantive

justification statement, CREW Ltr. of Oct. 2, 2018 (“CREW Appeal 3”), ECF No. 24-7 at 2–4,

and HUD again denied the appeal, HUD Ltr. of Nov. 6, 2018 (“HUD Resp. to CREW Appeal

3”), ECF No. 23-21. As before, HUD refrained from deciding whether CREW qualified as a

member of the news media.

.

CREW filed a second Complaint, renewing its policy-or-practice claim and bringing

separate claims for improper denial of a fee waiver and news media status as to its third FOIA

request. See Citizens for Responsibility & Ethics in Wash. v. Dep’t of Housing & Urban Dev.,

No. 1:18-cv-2737, Complaint ¶¶ 82–102, ECF No. 1 (D.D.C. Nov 26, 2018). The Court

consolidated the two cases, vacated the pending Motion to Dismiss, and ordered new briefing.

Min. Order (Jan. 9, 2019). On March 1, 2019, HUD again determined that CREW’s third

request could be facilitated through the use of automated e-discovery and waived the associated

fee. HUD Ltr. of March 1, 2019 (“CREW Fee Waiver 3”), ECF No. 23-22. It then renewed its

6 motion to dismiss on substantially the same grounds as before, arguing that the challenges to

individual denials of fee waivers were moot and that the policy-or-practice count failed to state a

claim. See generally Mot. The Court analyzes the consolidated Complaints together.

II. Legal Standard

HUD moves to dismiss the as-applied counts as moot. See Mot. at 4–6. Such a motion

“is properly brought under [Federal Rule of Civil Procedure] 12(b)(1) because mootness itself

deprives the court of jurisdiction.” Indian River Cty. v. Rogoff,

(D.D.C.

2017). “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a

legally cognizable interest in the outcome.” Cty. of Los Angeles v. Davis,

(1979) (internal quotation omitted). “The rule against deciding moot cases forbids federal courts

from rendering advisory opinions or deciding questions that cannot affect the rights of litigants in

the case before them.” Hall v. CIA,

(D.C. Cir. 2006) (internal quotation

omitted). When plaintiffs have already “obtained everything that [they] could recover by a

judgment of this court in [their] favor,” there is nothing left to do but dismiss the case.

(internal quotation omitted).

“When evaluating a motion to dismiss, the Court must treat the complaint’s factual

allegations as true and afford the plaintiff the benefit of all inferences that can be derived from

the facts alleged.” Atlas Brew Works, LLC v. Barr,

(D.D.C. 2019)

(internal quotations and citations omitted). “But because the Court has an affirmative obligation

to ensure that it is acting within the scope of its jurisdictional authority, the plaintiff’s factual

allegations in the complaint will bear closer scrutiny in resolving a 12(b)(1) motion than in

resolving a 12(b)(6) motion for failure to state a claim.”

(internal quotations and citations

omitted).

7 HUD also argues that the Complaints fail to state a claim upon which relief can be

granted. See Fed. R. Civ. P. 12(b)(6); Mot. at 6–16. “A pleading that states a claim for relief

must contain . . . a short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). Although the Court accepts all well pleaded facts in the

Complaints as true, “[f]actual allegations must be enough to raise a right to relief above the

speculative level.” Bell Atl. Corp. v. Twombly,

(2007). “While a complaint

. . . does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of

[its] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of

the elements of a cause of action will not do.”

at 554–55 (internal quotations and citations

omitted). The claim to relief must be “plausible on its face,” enough to “nudge[ the] claims

across the line from conceivable to plausible.”

.

III. Analysis

1. Statutory and Regulatory Scheme

FOIA permits agencies to charge reasonable fees to cover costs associated with processing

and producing records, but it differentiates between types of requesters in determining what costs

agencies must bear themselves.

(a)(4)(A). “When, as here, records are not

requested for commercial use, an agency may only charge reasonable fees ‘for document search

and duplication.’” Bartko v. U.S. Dep’t of Justice,

(D.C. Cir. 2018) (quoting

§ 552(a)(4)(A)(ii)(III)). “And FOIA directs that the fee be waived ‘if disclosure of the

information is in the public interest because it is likely to contribute significantly to public

understanding of the operations or activities of the government and is not primarily in the

commercial interest of the requester.’” Id. (quoting § 552(a)(4)(A)(iii)). “Fee-waiver

applications are to be liberally construed in favor of requesters.” Id. (internal quotation omitted).

8 As FOIA directs, HUD has published implementing regulations setting out the fee

schedule and interpreting the statutory language for requests directed its way. See

. HUD does not charge any fees for requests by news media organizations,

§ 15.106(d)(1), and it has its own criteria to evaluate whether a request is “in the public interest,”

§ 15.106(k). HUD used those criteria to determine that CREW’s and FFRF’s fee-waiver

requests did not qualify for the public-interest exemption. See, e.g., HUD Resp. to CREW

Appeal 3 at 1–2.

2. Plaintiffs’ As-Applied Challenges are Moot

In arguing that Counts II–IV of the original Complaint (and the corresponding counts in

the second Complaint 2) are now moot, HUD advocates for a narrow reading of the Complaints.

Count II alleges that HUD improperly denied CREW’s requested fee waivers. Compl. ¶¶ 81–84.

Count III makes the same allegations as to FFRF’s requests. Id. ¶¶ 85–88. Count IV alleges that

HUD improperly denied CREW recognition as a member of the news media. Id. ¶¶ 89–93. All

three counts seek injunctive and declaratory relief to obtain fee waivers as to the specific

requests. Id. ¶¶ 84, 88, 93. In HUD’s view, those counts demand that HUD waive the fees at

issue for those individual requests, and HUD has done exactly that. It contends that there is

therefore nothing left to litigate on those claims. See, e.g., Better Gov’t Ass’n v. Dep’t of State,

, 90–91 (D.C. Cir. 1986) (agreeing that challenge to fee waiver denials was mooted

by subsequent waiver of fees but permitting facial challenge to the fee waiver guidelines to go

forward).

2 Counts I–III of the second Complaint are nearly identical to Counts I, II, and IV of the original Complaint; they merely add additional factual bases for the same legal arguments. For simplicity’s sake, the Court’s references to Counts I–IV include analysis of the corresponding counts in the second Complaint.

9 That was essentially what happened in Hall v. CIA. Among other claims, the plaintiff

sought a fee waiver on his FOIA requests to the CIA.

. Although the district court

determined that Hall was not entitled to the waivers, the CIA produced all responsive documents

and waived the fees on its own accord while the case was pending on appeal.

. That was

enough to moot the case, and the Court of Appeals thus lacked jurisdiction to decide whether

Hall was entitled to a fee waiver as a matter of law.

at 99–100.

Here, as in Hall, after CREW and FFRF went to court, HUD “use[d] its administrative

discretion to voluntarily” waive the fees.

. Although HUD never changed its position as

to whether the Plaintiffs are legally entitled to such waivers, it argues that a judicial decision on

Counts II–IV “cannot affect the rights of the litigants in the case” at bar.

(internal

quotation omitted).

Naturally, Plaintiffs take issue with such a narrow reading of the Complaints. Although

HUD has indicated its intent to waive the fees and produce the documents, it has not yet

completed production. In supplemental briefing, the Parties reported that three of the five FOIA

requests are still in progress and that HUD anticipates the production will continue through at

least February 2020. See Joint Status Report (Oct. 21, 2019), ECF No. 28, at 2–3. Plaintiffs

contend that fact distinguishes this case from Hall, in which the government both waived the fees

and produced all requested documents.

; accord Bayala v. U.S. Dep’t of

Homeland Sec., Office of Gen. Counsel,

(D.C. Cir. 2016) (“[O]nce all the

documents are released to the requesting party, there is no longer any case or controversy.”).

Plaintiffs urge the Court to construe the counts alleging an improper denial of fee waivers as also

encompassing any potential future FOIA violation HUD may commit while processing these

10 requests, such as improperly exempting material or unreasonably delaying the production of

documents.

But there is less to this dispute than the Parties contend. HUD is correct that the plain

language of the counts alleges no FOIA violation beyond a wrongful denial of fees and a failure

to address CREW’s claimed news media status. The Complaint does not allege a failure to

produce documents in a timely fashion or improper withholding of documents under one of

FOIA’s permitted exemptions. For that reason and because HUD has waived fees for the

requests, Counts II–IV are moot. If HUD were to change its mind and charge fees for these

requests, Plaintiffs would be entitled to resurrect their claims. Moreover, to the extent that

Count IV seeks a judicial declaration that CREW is entitled to news media status in all future

FOIA requests (whether as to HUD or other agencies, the Complaint is unclear), that request

either is outside the scope of the Complaint or overlaps with the illegal policy-or-practice

allegation contained in Count I. There is no reason to leave Count IV in place on those bases.

Finally, in its prayer for relief, the Complaint urges the Court to “[r]etain jurisdiction of this

action to ensure no agency records are wrongfully withheld.” Compl. at 22. Because the Court

denies the Motion to Dismiss as to Count I, it retains jurisdiction over the controversy. Plaintiffs

will be able to seek leave to amend their Complaint if some dispute arises during production.

3. Plaintiffs Have Stated a Valid “Policy-or-Practice” Claim

The plaintiff in Hall tried to avoid the question of mootness by arguing that the denial of

fee waivers was “capable of repetition, yet evading review.”

. The Court of

Appeals disagreed, holding that “[d]enials of fee waivers do not seem inherently of such short

duration that they cannot ordinarily be fully litigated before their cessation.” Id.; see also Cause

of Action Inst. v. U.S. Dep’t of Justice,

, 77–79 (D.D.C. 2017) (“[I]t is unclear

11 whether . . . [that] doctrine applies to FOIA disclosures, given the general duration of the

proceedings in such litigation.”).

But that does not mean that government agencies may choose not to comply with FOIA

and force every request into court, then moot every case by voluntarily complying thereafter.

Instead, the D.C. Circuit has recognized the viability of a challenge to an agency’s FOIA policy

or practice. See Payne Enters., Inc. v. United States,

(D.C. Cir. 1988). It has

held that “even though a party may have obtained relief as to a specific request . . . , this will not

moot a claim that an agency policy or practice will impair the party’s lawful access to

information in the future.”

“So long as an agency’s refusal to supply information evidences

a policy or practice of . . . some . . . failure to abide by the terms of the FOIA, and not merely

isolated mistakes by agency officials, a party’s challenge to the policy or practice cannot be

mooted by the release of the specific documents that prompted the suit.”

The Court of Appeals built on Payne last year in Judicial Watch, Inc. v. U.S. Department

of Homeland Security,

(D.C. Cir. 2018). There, the plaintiff alleged that the United

States Secret Service had an internal policy of declining to respond to FOIA requests within the

statutory 20-day deadline and ignoring them until the requester filed a lawsuit; then it would

produce the documents, moot the controversy, and avoid an adverse judgment in litigation.

. Judicial Watch filed nineteen requests in a three-year period, leading to five lawsuits that

all became moot before any court could rule on the denials.

. Recognizing that the

allegations were enough to state a claim under Payne, the court held that a “plaintiff must allege

a pattern of prolonged delay amounting to a persistent failure to adhere to FOIA’s requirements

and that the pattern of delay will interfere with its right under FOIA to promptly obtain non-

exempt records from the agency in the future.”

. It held that there is no requirement to

12 allege “egregious, intentional agency conduct,” instead requiring only that a complaint allege

“‘some . . . failure to abide by the terms of the FOIA’ that could be the basis for finding the

agency has an unlawful practice a policy.”

at 781–82 (quoting Payne,

).

District courts have reached a consensus on several points. First, for a claim to go

forward, a plaintiff need not “point to a regulation that establishes the policy [or practice], [and]

the agency [need not] concede the policy’s existence.” Muckrock, LLC v. CIA,

(D.D.C. 2018). Second (and relatedly), the alleged policy may be informal and need

not have been published or written anywhere. Muttitt v. U.S. Cent. Command,

(D.D.C. 2011). Third, a plaintiff cannot state a valid claim arising out of a single

incident—there must be a pattern—but a single plaintiff does not need extrinsic evidence from

the agency’s treatment of other requesters.

(holding lack of response to two separate

requests for estimated completion dates in five outstanding requests was enough under Payne);

see also Muckrock,

(five non-responsive requests enough); Cause of

Action Inst. v. Eggleston, 224 F. Supp. 3d. 63, 72 (D.D.C. 2016) (one delayed request not

enough). Finally, the plaintiff must allege agency conduct consistent with the alleged illegal

policy or practice. See Scudder v. CIA,

, 127 (D.D.C. 2017) (dismissing

complaint that acknowledged that the agency sometimes acted appropriately).

Here, Count I states a claim under Payne. CREW and FFRF allege that HUD “is

engaged in a policy and practice of violating the FOIA’s fee waiver provisions by intentionally

refusing to grant fee waivers to non-profit, public interest organizations that satisfy all the

statutory and regulatory criteria . . . where disclosure of the requested documents is likely to cast

the agency or HUD Secretary Ben Carson in a negative light.” Compl. ¶¶ 72, 76 (internal

citation omitted). They contend that HUD “makes an initial decision to deny requested public

13 interest fee waivers from non-profit requesters shortly after receiving the requests, using

boilerplate language and failing to address” the requesters’ justifications, then it “affirms these

denials on appeal in broad conclusory terms that fail to address” the requesters’ subsequent

detailed justification statements.

¶¶ 73–74. They assert that HUD’s “actions have resulted,

and will continue to result, in the untimely access to documents to which the plaintiffs and the

public are entitled” and “will continue to harm plaintiffs by requiring them to either pay

processing fees notwithstanding their statutory entitlement to a fee waiver or incur the costs and

delayed associated with litigating their entitlement.”

¶¶ 77–78. To support those allegations,

Plaintiffs have pointed to five separate FOIA requests by two unrelated organizations that

encountered similar responses consistent with the alleged policy. That claim fits squarely within

the contours of Judicial Watch—it would even likely satisfy the criteria outlined in Judge

Srinivasan’s dissent. See

(Srinivasan, J., dissenting) (arguing that a consistent

failure to respond to FOIA requests within the default 20-day timeline is not actionable under

Payne but that “if an agency has a practice of unlawfully withholding the disclosure of

responsive records . . . [,] it will be subject to an injunction barring the practice.” (citing Payne,

837 F.2d at 490–92)).

HUD’s Motion to Dismiss suffers from several flaws. First, it points to media stories

about CREW’s funding to suggest that CREW might not have suffered significant injury from

the denials. See Mot. at 9. It also provides internal data about the percentage of fee waiver

requests HUD has granted in recent years to suggest that Plaintiffs’ policy-or-practice allegations

are false.

at 9–10. But those materials are better suited to the summary judgment stage, not

to a motion to dismiss. At this point, the Court must accept the allegations in the Complaint and

14 attached documents (such as the correspondence between the Parties) as true. Am. Nat’l. Ins. Co.

v. FDIC,

(D.C. Cir. 2011). 3

Second, HUD argues that because the regulations create a list of factors it must weigh in

deciding whether to grant a fee waiver, that decision is committed to the agency’s discretion and

cannot be the subject of a policy-or-practice claim. See, e.g., Judicial Watch,

(holding that a pattern of violating a strict, statutory 20-day response deadline states a claim);

Del Monte Fresh Produce N.A. v. United States,

(D.D.C. 2010)

(“Payne Enterprises regards the repeated denial of [FOIA] requests based on the invocation of

inapplicable statutory exemptions rather than delay of an action over which the agency had

discretion.”). But once again, that is a question for summary judgment. It may be the case that

HUD engages in a good faith effort to exercise its discretion over fee waivers; or perhaps it has a

practice of denying every waiver request in the hope that requesters will abandon their efforts.

But on a motion to dismiss, the question is merely whether the Complaint adequately alleges a

persistent, willful policy of violating FOIA’s commands. It does. 4

Third, HUD points to language in Judicial Watch to suggest that policy-or-practice

claims are limited to undue delays in the production of documents and cannot encompass a

3 HUD argues that portions of the Complaint describing similar experiences by other non-profit organizations, at issue in separate litigation, are not properly before the Court. See Mot. at 15 (citing Compl. ¶¶ 53–70). Because the Court did not rely on those portions of the Complaint to reach its decision, it declines to reach the question of whether they were properly pleaded. 4 Most of the cases to which HUD cites dealt with summary judgment, so they do not necessarily support dismissal of the Complaint. And Del Monte, to which HUD cites repeatedly, was an APA challenge to the FDA’s alleged failure to conduct regulatory inspections of food processing plants. 706 F. Supp. 2d at 117–18. It declined to follow Payne because that case was limited to the context of FOIA.

. It also speculated that Payne was no longer good law because of subsequent developments in the doctrine of standing as articulated by the Supreme Court,

but Judicial Watch—which, of course, is binding—confirmed Payne’s continuing validity.

.

15 dispute over fee waivers. See

(“[T]he plaintiff must allege a pattern of

prolonged delay amount to a persistent failure to adhere to FOIA’s requirements . . . .”). But the

statutory violation at issue in that case was undue delay. Nothing in Judicial Watch or in FOIA’s

text suggests that plaintiffs cannot allege a policy or practice of violating some other aspect of

FOIA. See, e.g., Muttitt,

(recognizing a policy-or-practice claim for

alleged failure to provide estimated completion dates for production as required under FOIA).

IV. Conclusion

Although the question of whether CREW and FFRF were entitled to fee waivers is no

longer live, Plaintiffs have sufficiently alleged that, as a matter of policy or practice, HUD denies

such waivers without giving them adequate consideration, particularly when the request’s subject

may reflect poorly on the agency or its senior officials.

For the foregoing reasons, HUD’s Motion to Dismiss is DENIED as to Count I and

GRANTED as to Counts II, III, and IV. Those counts are DISMISSED without prejudice as

moot. An Order will be entered contemporaneously with this Memorandum Opinion.

DATE: November 25, 2019 CARL J. NICHOLS United States District Judge

16