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Administrative Procedure Act Claim

Court of Appeals Decisions

Cent. Platte Nat. Res. Dist. v. USDA,643 F.3d 1142 (8th Cir. 2011) (Murphy, J.). Holding: Affirming the district court's ruling which granted summary judgment to the USDA on the basis that it properly withheld the requested geospatial data pursuant to Exemption 3 and dismissed plaintiff's Administrative Procedure Act claim. The Eighth Circuit holds that the district court properly dismissed plaintiff's APA claim "seek[ing] declaratory judgment and a court order requiring the production of documents under both its APA claim and its FOIA claim." The Eighth Circuit finds that FOIA "provides [plaintiff] with an 'adequate remedy in a court'" and notes that "Congress did not mean for the APA's review process to duplicate existing review mechanisms." "Such a duplication would result if both [plaintiff's] APA and FOIA claims proceeded simultaneously because the district court would twice determine whether the agency should be required to disclose the same data."

District Court Decisions

National Security Counselors v. CIA, Nos. 11-443, 11-444, 11-445, 2012 WL 4903377 (D.D.C. Oct. 17, 2012) (Howell, J.). Holding: Concluding that plaintiff has standing to pursue certain claims under FOIA and the APA; granting CIA's motion to dismiss on certain claims and denying CIA's motion to dismiss for certain claims. The court concludes "where a plaintiff claims that an agency has wrongfully withheld agency records in connection with discrete FOIA requests, an APA claim seeking compelled disclosure of the withheld records is precluded." "[A]lthough the language of the FOIA could be read strictly to limit the equitable powers of federal courts to enjoining the agency from withholding records…, the D.C. Circuit and the Supreme Court have interpreted those equitable powers more broadly." With the exception of the claims that "allege a policy or practice of the CIA of violating its own FOIA regulations," "APA relief is foreclosed" for the other claims "because the FOIA itself can provide the plaintiff with an adequate equitable remedy."

The court dismisses the one claim considered under the APA, concluding that "individual refusals by the CIA to 'work with' requesters [as defined by the defendant's regulations] may be subject to challenge within the framework of the APA,"… but at a broader policy level, the plaintiff has failed to allege a 'final agency action,' and thus the plaintiff's APA challenge … will be dismissed for failure to statue a claim."

Inst. for Pol'y Stud. v. CIA, No. 06-960, 2012 WL 3301028 (D.D.C. Aug. 14, 2012) (Lamberth, J.). Holding: Granting, in part, defendants' motion for summary judgment on the basis that certain withholdings under Exemptions 1, 2, 3 and 7(E) were proper and that plaintiff conceded other withholdings under Exemptions 2, 3, 6, 7(C), 7(D) and 7(F), and that all reasonably segregable material was released; denying plaintiff's motion to strike portions of the declarations; and ordering CIA to conduct searches for responsive records in three different directorates which were not initially searched. The court denies plaintiff's APA claim because it finds that the "FOIA itself provides plaintiff with an adequate remedy."

Gonzales & Gonzales Bonds & Ins. Agency Inc. v. DHS, No. 11-2267, 2012 WL 1815632 (N.D. Cal. May 17, 2012) (Ryu, Mag.). Holding: Declining to dismiss plaintiff's challenge to DHS's third-party consent requirements in its FOIA regulations on exhaustion grounds; dismissing, with prejudice, plaintiff's facial challenge brought under the Administrative Procedure Act (APA) to DHS's regulations because the claim falls outside the statute of limitations; and denying DHS's motion to dismiss plaintiff's "as-applied" challenge also brought under the APA to the agency's consent requirements. The court dismisses plaintiff's APA claim, with prejudice, inasmuch as it facially challenges DHS's failure "'to comply with the notice and public procedure requirements with respect to the consent provision'" of the agency's FOIA regulations. The court finds that "[t]he statute of limitations for a facial regulatory challenge begins to run when the agency publishes the regulation in the Federal Register,... which in this case was January 27, 2003." Here, the court concludes that plaintiff's complaint was filed outside the six-year statute of limitations. However, the court holds that "[p]laintiff's as-applied challenge to the regulation... faces no such bar." The court notes that "[w]hen 'a challenger contests the substance of an agency decision as exceeding... its statutory authority,' as Plaintiff does in its Amended Complaint, '[t]he challenge must be brought within six years of the agency's application of the disputed decision to the challenger.'" Here, the court finds that because "[p]laintiff's as-applied claim... falls well within the six-year statute of limitations," it denies DHS's motion to dismiss this portion of its APA claim.

Pub. Emps. for Envtl. Resp. v. U.S. Int'l Boundary & Water Comm'n, No. 10-19, 2012 WL 375517 (D.D.C. Feb. 7, 2012) (Lamberth,J.). Holding: Dismissing plaintiff's Administrative Procedure Act claim sua sponte; granting plaintiff's motion for summary judgment and issuing declaratory relief that the Commission "is in violation of FOIA by failing to perform an adequate search for records"; and remanding the matter to the Commission in order to conduct a search in accordance with the court's order and to submit a Vaughn index. The court sua sponte dismisses plaintiff's Administrative Procedure Act claim "since it arises from the Commission's response to the FOIA request and seeks the same relief as can be obtained through the FOIA claim itself."

Brancheau v. Sec'y of Labor, No. 11-1416, 2012 WL 140239 (M.D. Fla. Jan. 18, 2012) (Presnell, J.). Holding: Dismissing, without prejudice, plaintiffs' claim that OSHA's previous release of a summary of a video depicting the incident violated the APA; and dismissing plaintiffs' remaining APA claims with prejudice. At the outset, the court concludes that two of plaintiffs' claims, namely, that "[d]efendants' denial of the Plaintiffs' request to block any possible release of the video; and . . . [d]efendants' refusal to declare the Performance Video[, an underwater video of the incident,] as exempt from disclosure under FOIA," "cannot be challenged by way of a reverse FOIA suit." The court finds that "[a] plaintiff seeking to prevent disclosure under FOIA has no remedy until the agency determines that it will release the requested information" and, here, OSHA has made no such determination. As to plaintiffs' claim premised on OSHA's "refusal to provide notice to the Plaintiffs whenever someone makes a future FOIA request for the Performance Video," the court finds that, unlike the notification requirements for "confidential commercial information" set forth in Executive Order12,600, "[n]o party has suggested language in any other statute, regulation or order that would require OSHA to notify the Plaintiffs when a request for the Performance Video is made." As such, the court determines that "Plaintiffs have no standing under the APA to challenge OSHA's refusal to provide notice that the law does not require it to provide, as they are not 'adversely affected or aggrieved . . . within the meaning of the relevant statute.'"

With respect to plaintiffs' claim concerning OSHA's "intention to release the OSHA written summary to anyone making a FOIA request for the Performance Video," the court first finds that "Plaintiffs have not identified any information in OSHA's summary that is not present in the longer, more detailed summary [of the incident] compiled by the [local] Sheriff's Office," which is in the public domain. The court, however, rejects defendants' argument that "given that the Sherriff's Office had released its (more detailed) summary before OSHA released its summary, OSHA was obligated to release its summary, and the decision to do so could not have been arbitrary and capricious." Rather, the court states that it cannot make such a finding where there is no evidence showing that OSHA was aware that the other summary had been publicly disclosed. However, the court finds that plaintiffs have failed to meet their burden to show that OSHA acted arbitrarily and capriciously because they could not point to a "law that required withholding of the information." Furthermore, the court notes that plaintiffs cannot rely on FOIA exemptions for this purpose because "FOIA exemptions allow a government agency to withhold documents, but do not require withholding."

Gagan v. Holder, No. 11-3062, 2011 WL 6216971 (D. Colo. Dec. 14, 2011) (Babcock, J.) Holding: Dismissing plaintiff's Administrative Procedure Act claim where relief is available under FOIA; dismissing claims brought against individual defendants; and deferring adjudication of the merits of plaintiff's FOIA claim brought against DOJ. The court dismisses plaintiff's APA claim regarding the processing of his FOIA request, holding that "because all of the relief [plaintiff] seeks in this action is available under FOIA, he may not pursue the same relief under the APA."

ExxonMobil Corp. v. U.S. Dep't of Commerce, No. 10-250, 2011 WL 6091470 (D.D.C. Dec. 8, 2011) (Lamberth, J.). Holding: Granting defendant's motion for summary judgment on the basis that plaintiff failed to exhaust its administrative remedies with respect to three requests, and that other requested records were not "agency records" subject to the FOIA; and dismissing plaintiff's FOIA claims brought under the Administrative Procedure Act and the Mandamus Act. With respect to plaintiff's APA claim, the court finds that "it is well established that the existence of an adequate remedy under FOIA precludes the availability of a plaintiff's APA claim."

Graff v. FBI, No. 09-2047, 2011 WL 5401928 (D.D.C. Nov. 9, 2011) (Jackson, J.). Holding: Granting, in part, defendants' motion for summary judgment as to the validity of their policies concerning third party law enforcement records; and denying, in part, defendants' summary judgment motion concerning the application of that policy to the two requests, and remanding for plaintiff to proffer a public interest and for defendants to balance that interest against any privacy interests; and denying, in full, plaintiff's cross-motion for summary judgment. The court construes plaintiff's claim "that the disputed practice is not authorized by FBI, EOUSA, or DOJ regulations or policies" as one brought under the Administrative Procedure Act. In order to determine whether the agency's action was "'arbitrary and capricious,'" the court notes that "[t]he first inquiry . . . is whether the agency has departed from established policy at all." Finding that plaintiff's argument "borders on frivolous," the court finds that "a statement of opinion, made by a DOJ official in response to a question at a conference after her prepared remarks were concluded" proffered by plaintiff as an expression of agency policy, does not, in fact, serve "as a source of official DOJ policy." Moreover, the court notes that the official "did not opine that a policy that also embraced the concept that the public interest could outweigh privacy concerns would be improper, and she did not articulate any other official policy against which the policy alleged [by plaintiff in his Compliant] could be measured." Accordingly, the court finds that "plaintiff has provided absolutely no support for his argument that the rule cited in response to his FOIA requests was contrary to agency policy" and, therefore, concludes that "the government practice at issue here does not violate FOIA or constitute an irrational departure from agency policy."

Hajro v. U.S. Citizenship & Immigration Servs., No. 08-1350, 2011 U.S. Dist. LEXIS 117964 (N.D. Cal. Oct. 12, 2011) (Grewal,Mag.). Holding: Dismissing FOIA claims brought against individual defendants; holding that party who did not submit FOIA request at issue has standing to assert a "pattern or practice" claim under FOIA; granting declaratory relief that defendant engaged in pattern or practice of failing to abide by FOIA; granting plaintiffs' request for injunctive relief; concluding that defendant is required to release certain non-exempt information previously withheld pursuant to Exemption 5; concluding defendant's FOIA processing policy violates a previous settlement agreement as well as the terms of the Administrative Procedure Act (APA) and the FOIA; dismissing a claim brought under APA; and granting partial summary judgment to defendants on plaintiffs' equal protection claims. With respect to plaintiffs' claim that USCIS improperly withheld records pursuant to the APA, "the court agrees with Defendants that Plaintiffs' claims under the APA may not stand," "[b]ecause FOIA provides an adequate remedy."

Hajro v. U.S. Citizenship & Immigration Servs., No. 08-1350, 2011 U.S. Dist. LEXIS 117964 (N.D. Cal. Oct. 12, 2011) (Grewal,Mag.). Holding: Dismissing FOIA claims brought against individual defendants; holding that party who did not submit FOIA request at issue has standing to assert a "pattern or practice" claim under FOIA; granting declaratory relief that defendant engaged in pattern or practice of failing to abide by FOIA; granting plaintiffs' request for injunctive relief; concluding that defendant is required to release certain non-exempt information previously withheld pursuant to Exemption 5; concluding defendant's FOIA processing policy violates a previous settlement agreement as well as the terms of the Administrative Procedure Act (APA) and the FOIA; dismissing a claim brought under APA; and granting partial summary judgment to defendants on plaintiffs' equal protection claims. The court awards summary judgment to plaintiffs on their claim that USCIS's FOIA policy and regulations establishing certain processing tracks violates a 1992 settlement agreement between the immigration attorney plaintiff and USCIS's predecessor agency concerning expedited processing of certain FOIA requests. The court also concludes that this policy "was promulgated in violation of the APA and FOIA" because it was adopted "without opportunity for receipt of public comment" as required by5 U.S.C. §552(b)(3)(A) and 5U.S.C. §552(a)(6)(D)(i).

Muttitt v. U.S. Cent. Command, No. 10-00202, 2011 WL 4478320 (D.D.C. Sept. 28, 2011) (Howell, J.). Holding: Dismissing plaintiff's APA claim; and concluding his claim under the FOIA's Section552(a)(7)(B), requiring agencies to provide time estimates for completion of FOIA requests, can proceed against State, but dismissing a similar claim brought against Treasury. The court dismisses plaintiff's claims that the Department of State and Department of the Treasury violated the APA by failing to provide him with estimated dates of completion for his FOIA requests. Although the court observes that, in certain cases disclosure of the requested record alone may not provide a sufficient remedy, here, the FOIA offers "an adequate remedy [which] include[s] the possibility of equitable relief directing a habitually noncompliant agency to comply with [the FOIA's provision requiring agencies to provide time estimates for the completion of FOIA requests,] §552(a)(7)(B)." Citing the D.C. Circuit's decision in Payne Enterprises Inc. v. United States, the court finds that "[c]ourts have interpreted Payne as authorizing declaratory or injunctive relief under FOIA even when a plaintiff's specific claim regarding a FOIA request is moot because the requested documents have been released." Similar to Payne, plaintiff "seeks declaratory and injunctive relief" – here, on the basis that defendants "allegedly violated FOIA by refusing to provide him with estimated dates of completion of his FOIA requests." The court finds that, "assuming . . . plaintiff has stated a claim for relief based on an impermissible agency pattern or practice of violating FOIA," then the "FOIA, as interpreted by Payne, provides plaintiff with an opportunity for the declaratory and injunctive relief he is seeking, [and therefore] relief under the APA is not available."

The court then goes on to find that plaintiff has "stated a plausible claim for relief against State for a pattern and practice of violating FOIA," but has not done so with respect to the Department of the Treasury. The court finds that plaintiff's allegations that State failed to respond to his inquires for estimated completion dates "for five separate FOIA requests" "are sufficiently detailed to state a pattern or practice claim." The court further notes that "[t]hese are not the type of 'naked assertions devoid of further factual enhancement' that require dismissal under [Ashcroft v.] Iqbal." In comparison, the court finds that "[u]nlike the multiple failures to provide time estimates alleged against State, the plaintiff alleges that Treasury failed to provide him with an estimated completion date only one time in relation to a single FOIA request" and "concludes that an allegation of a single FOIA violation is insufficient as a matter of law to state a claim for relief based on a policy, pattern, or practice of violating FOIA."

Ray v. BOP, No. 06-1673, 2011 WL 4015656 (D.D.C. Sept. 12, 2011) (Roberts, J.). Holding: Granting BOP's motion for summary judgment on the basis that it conducted an adequate search; and denying plaintiff's motion for leave to file additional "pleadings." The court dismisses plaintiff's Administrative Procedure Act (APA) claim that BOP "systematically delays processing prisoners' FOIA requests." The court concludes that "[b]ecause the FOIA provides an adequate remedy for agency delay – which [plaintiff] utilized in bringing this case – a claim under the APA is not maintainable." Moreover, the court notes that BOP's 98 percent processing rate, along with its "admitted mishandling" of plaintiff's request due to a processing error, "belie a sweeping claim predicated on a broken system."

Rimmer v. Holder, No. 10-1106, 2011 WL 3565224 (M.D. Tenn. Aug. 15, 2011) (Trauger,J.). Holding: Granting defendant's motion to dismiss plaintiff's Administrative Procedure Act claim and his claim for mandamus relief; and holding that the case will proceed solely as a FOIA action. The court dismisses plaintiff's APA claim because it concludes that he has an adequate remedy under FOIA. The court finds that, here, "plaintiff seeks the exact same remedy for all of his claims – the production of the full FBI file, un-redacted." The court notes that "there appears to be judicial unanimity that, where a plaintiff asserts both a FOIA and an APA claim, both of which only seek production of documents allegedly wrongly withheld by an agency, the FOIA claim, with its de novo standard of review, provides the sole avenue for relief."

Elec. Priv. Info. Ctr. v. NSA, No. 10-196, 2011 WL 2650206 (D.D.C. July 7, 2011) (Howell,J.). Holding: Granting defendants' partial motion to dismiss NSC as defendant and plaintiff's Administrative Procedure Act claim. The court dismisses plaintiff's APA claim, which alleged that NSA violated the FOIA by referring to the documents to NSC and failing "to observe procedures required by law, including the procedures set forth in NSA regulations." The court concludes that "plaintiff is requesting the same relief for its APA claim that it is requesting for its FOIA claims – a court order requiring production of all responsive agency records and requiring the NSA to file a Vaughn Index describing and justifying all claimed exemptions." As such, "adequate relief is available to the plaintiff under FOIA."

Kubik v. BOP, No. 10-6078, 2011 U.S. Dist. LEXIS 71300 (D. Or. July 1, 2011) (Coffin,Mag.). Holding: Granting, in part, BOP's motion for summary judgment with respect to its assertion of Exemption 5 and certain redactions under Exemption 7(C); granting, in part, plaintiffs' motion for summary judgment with respect to the adequacy of the search and information withheld pursuant to Exemptions 7(C), 7(E) and 7(F). The court "declines to consider the [plaintiffs'] APA claim because FOIA itself provides them an adequate remedy."

Ray v. BOP, No. 06-1673, 2009 WL 4643485 (D.D.C. Dec. 8, 2009) (Roberts, J.). BOP has failed to address plaintiff's APA claim "that it systematically delays processing FOIA requests from prisoners in violation of the FOIA." The court notes that BOP "will be required to [address this claim] in any future motion for summary judgment."

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