Court of Appeals Decisions

Pa. Dep't of Pub. Welfare v. Sebelius, 674 F.3d 139 (3d. Cir. Mar. 15, 2012) (Vanaskie, J.).  Holding:  Affirming the judgment of the district court, which dismissed plaintiff's FOIA claim for lack of standing.  The Third Circuit affirms the ruling of the district court, which concluded that plaintiff lacked standing to challenge HHS's failure to index certain final agency decisions and orders.  The Third Circuit determines that plaintiff's "vague and indefinite allegations" that "the lack of an index causes it difficulty" because "its counsel 'can never be certain that [it has] located all important DAB decisions on a topic because sometimes the topic is not susceptible to a key-word search'" "are inadequate to establish injury-in-fact."  Moreover, the Third Circuit notes that plaintiff "does not cure this deficiency by identifying any concrete information or cases that it was unable to find, or any other description of how this inability actually hampered its representation before the DAB."  Accordingly, "[s]ince the lack of an index has not made it 'almost impossible' for [plaintiff] to find relevant DAB precedent, [the Third Circuit] conclude[s] that the District Court did not err in concluding that [plaintiff] lacks standing."  

District Court Decisions

Nat'l Whistleblower Ctr. v. HHS, No. 10-2120, 2012 WL 1026725 (D.D.C. Mar. 28, 2012) (Boasberg, J.).  Holding:  Granting, in part, HHS's motion for summary judgment to the extent that it properly asserted Exemptions 5, 7(C) and 7(E) to withhold certain information, but directing defendants to release other discrete information that it withheld under Exemptions 5 and 7(C); and concluding that plaintiffs' lack standing with respect to their "pattern and practice" claim.  The court holds that plaintiffs lack standing to pursue their claim that "HHS maintains 'a policy or practice that intentionally avoids appellate or judicial review of withholding decisions' in violation of FOIA and the [Administrative Procedure Act]" based on HHS's decision to close plaintiffs' pending appeals following the withdrawal of its assertion of Exemption 7(A) and to process plaintiffs' requests under new tracking numbers.  The court finds that "[h]ere the undisputed facts of the case disprove the substantive injury Plaintiffs allege they suffered as a result of Defendants' dismissal of their administrative appeals."  The court finds that "Plaintiffs did not need to bring this suit to challenge Defendants' reliance on Exemption 7(A); such reliance – and, ergo, such injury – had ceased by the time of filing."  Additionally, the court finds that any allegation that plaintiffs "'stand[ ] to continue to be harmed by this ongoing practice in the future'" is "too vague."  

Menasha Corp. v. DOJ, No. 11-682, 2012 WL 1034933 (E.D. Wis. Mar. 26, 2012) (Griesbach, J.).  Holding:  Denying plaintiffs' motion for attorney's fees and costs on the basis that their interests were essentially private and the request does not serve the public interest.  As an initial matter, the court notes that although defendants conceded that plaintiffs are eligible for a fee award because they substantially prevailed, defendant nevertheless argues that plaintiffs lack standing because neither of the companies named as plaintiffs "were named in the FOIA Request."  The court rejects this argument, noting that "no fewer than four separate writings identif[y] that the FOIA Request had been submitted on their collective behalf."  Additionally, the court comments that this argument "would have been more appropriately raised in [defendants'] briefing on summary judgment – prior to the fee stage."  The court also dismisses defendants' contention that "Plaintiffs are 'not within the award category of FOIA plaintiff for whom an award of fees is appropriate,'" i.e. "the 'average person.'"  The court finds that, to the contrary, "the plain language of the FOIA and its legislative history confirm that no class of plaintiffs is automatically excluded from recovering attorneys' fees" and "[n]othing in FOIA's language or structure indicates that a corporation or municipality should per se be barred from using [the attorney's fees] provision." 

In terms of the entitlement factors, the court finds that the public benefit factor "does not meaningfully support Plaintiffs' request for costs and fees" because "there is little suggestion that any person or entity beyond . . . litigants [involved in a separate environmental enforcement action] have an actual 'public' interest in these specific communications, or that the disclosure will further the central purpose of the Act, which is to assist citizenry in making informed choices so vital to 'the maintenance of a popular form of government.'"  Moreover, the court finds that "the likelihood that these particular internal DOJ communications and memoranda will be disseminated beyond the [other] litigation remains entirely speculative."  In terms of the commercial benefit to the plaintiffs and the nature of their interest in the records, the court determines that they "had a strong private incentive to pursue this FOIA action as a means to secure discovery in the related . . . lawsuit and to limit their liability for contributions to PCB pollution in the Fox River."  Additionally, the court finds that "[t]he fact that Plaintiffs were not requesting information pertaining to their own liability does not mean that they did not have private interests in the information."  As to the reasonableness of defendants' withholdings, the court finds that although it ultimately "did not agree with the government's interpretation of precedent [as to certain documents withheld pursuant to the civil discovery privileges of Exemption 5], and indeed ruled that the DOJ was not justified in withholding the requested documents, given the lack of case law [on the underlying legal issue, the court] cannot conclude that the government's withholding was entirely unreasonable or without basis."  In addition, the court notes that "there is no evidence that the United States acted in bad faith or with an intent to frustrate Plaintiffs or avoid embarrassment."  Indeed, "[w]ithin six weeks of the administrative FOIA request, DOJ produced thousands of responsive documents consisting of almost 40,000 pages" and worked with plaintiffs "to narrow the scope of the request."  In sum, the court concludes that plaintiffs are not entitled to an award of attorney's fees and costs because their "interests were essentially private and the request does not greatly serve any public interest." 

Nat'l Whistleblower Ctr. v. HHS, No. 10-2120, 2012 WL 769478 (D.D.C. Mar. 12, 2012) (Boasberg, J.).  Holding:  Dismissing plaintiffs' FOIA claim for lack of subject matter jurisdiction based on lack of standing; and granting defendant's motion for summary judgment with respect to the adequacy of HHS's search, which was not contested by plaintiffs.  The court dismisses for lack of subject matter jurisdiction plaintiffs' claim alleging that HHS failed to promulgate a regulation providing for expedited processing in violation of the FOIA, 5 U.S.C. § 552(a)(6)(E)(i).  The court concludes that plaintiffs lack standing to bring such a claim because they "have identified no real support for their allegation that they have suffered and will likely in the future suffer a cognizable injury."  Here, the court notes that, in the absence of a final regulation, "[t]he agency considered and rejected Plaintiffs' request for expedited processing using the 'compelling need' standard outlined in the general FOIA statute."  Accordingly, the court comments that "[i]f the standard HHS currently employs in evaluating requests for expedited processing is the same as that outlined in the statute and the same as that which a final regulation would likely entrench – given the language of the proposed rule and the agency's representations here – what injury accrued to Plaintiffs from HHS's failure to finalize its expedited-processing rule?"  Moreover, the court finds that plaintiffs had notice regarding HHS's criteria for evaluating expedited processing, noting that "[i]t is clear on the face of Plaintiffs' first FOIA request that they were aware of HHS's use of FOIA's 'compelling need' standard because the request made specific reference to the 'compelling need' terminology" and this standard "is clearly set forth in FOIA itself and also on the agency's FOIA web page."  Additionally, the court notes that "should HHS in the future fail to follow the statutorily mandated criteria for expedited processing or fail to provide requesters with notice of those criteria, a requester may well suffer a judicially cognizable injury sufficient to confer standing."  Further, the court finds that such relief may be available against other agencies that "diverge from the statutory criteria so as to cause injury to requesters."  Lastly, the court notes that while this provision of the FOIA "requires agencies to promulgate a regulation . . . [it] simultaneously dictat[es], with notable specificity, what the contents of such a regulation must be." 

Fla. Med. Assoc., Inc. v. Dep't of Health, Educ. & Welfare, No. 78-CV-178, 2011 WL 4459387 (M.D. Fla. Sept. 26, 2011) (Howard, J.).  Holding:  Adopting, in part, magistrate's report and recommendation, granting Dow Jones' motion to reopen case, and granting Dow Jones' and RTMD's motions to intervene for the limited purpose of vacating or modifying the Final Declaratory Judgment and Permanent Injunction entered in this case on October 22, 1979; but disallowing all other cross-claims raised by the intervenors.  Although the magistrate judge did not address the issue of standing, the court finds sua sponte that the proposed intervenors have standing to intervene in this case.  The court finds that their alleged injury, namely, that the 1979 FMA Injunction "precludes them from securing, pursuant to FOIA, specific government documents they seek in pursuit of their business interests," "is concrete and particularized, continuing, and traceable to the Injunction, as opposed to generalized, and may be redressed by a favorable decision vacating or modifying the injunction."