Am. Oversight v. DOE, No. 25-2981, 2026 WL 2254433 (D.D.C. Aug. 5, 2026) (Berman Jackson, J.)

Am. Oversight v. DOE, No. 25-2981, 2026 WL 2254433 (D.D.C. Aug. 5, 2026) (Berman Jackson, J.)

Re: Administrative Procedure Act (“APA”) challenge to agency notice that required all FOIA requesters with pending requests dated before October 1, 2024 to contact DOE to express their continued interest in material in order for requests to remain open

Disposition:  Denying defendants’ motion to dismiss and motion for summary judgment; granting plaintiff’s motion for summary judgment; issuing order setting aside DOE’s notice

• Litigation Considerations:  The court relates that “[o]n August 14, 2025, the Department of Energy published a notice in the Federal Register that stated:  ‘Requesters who submitted a FOIA request to DOE HQ at any time prior to October 1, 2024 . . . , that is still open and is not under active litigation with DOE (or another Federal agency) shall email StillInterestedFOIA@hq.doe.gov to continue processing of the FOIA request.’” “‘Please note that the foregoing applies to FOIA requests submitted to another agency, which were transferred to DOE and provided with a DOE control number.’”  “‘The email correspondence must include the specific DOE HQ FOIA control number(s) . . . and a request that DOE HQ continue processing the request(s).’”  “‘All responses should be received no later than 30 days from the date of this notice.’”  “‘[P]lease note that a response with the DOE HQ FOIA control number(s) is required to keep the request open.’”  “‘If DOE HQ does not receive a response from requesters within the 30-day time period with a DOE control number, no further action will be taken on the open FOIA request(s), and the file may be administratively closed.’” “The Notice stated that the agency also planned to ‘issu[e] emails to those addresses on file, referring requesters to th[e] notice.’”  “The Notice further stated the Department of Energy undertook this action to clear the backlog of FOIA requests to the agency.”
  
  “Defendants argue first that the Court lacks subject matter jurisdiction because plaintiff has not suffered a redressable injury-in-fact sufficient for standing, and because its claims are moot.”  The court finds that “[p]laintiff satisfied the first prong of the injury in fact analysis for organizational standing.”  “That prong requires it to show that the Notice would ‘impair’ it’s ‘ability to provide services,’ . . . and specifically, ‘that discrete programmatic concerns’ would be ‘directly and adversely affected by the challenged action.’”  “The Notice would close any of the requests that remained open if plaintiff did not abide by the agency’s requirements, and that would harm [plaintiff’s] service of making governmental information available to the public.”  “Plaintiff also satisfied the second prong for organizational injury, which considers whether it would ‘use[ ] its resources to counteract’ the harm caused by defendants.”  “To keep its FOIA requests open, the Notice required [plaintiff] to identify all the requests that the agency had not responded to yet and affirm that it wanted to keep those requests open.”  “Finally, plaintiff satisfied the redressability element of standing.”  “Redressability requires the plaintiff to demonstrate that it is ‘“likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”’”  “[A] favorable judgment on plaintiff’s counts under the APA would redress its injur[i]es by setting aside the Notice that would close plaintiff’s requests.”
  
  The court relates that “[d]efendants argue that the case is moot because ‘[p]laintiff already obtained . . . relief when it informed DOE through this suit that it was still interested in the continued processing of the applicable requests, and DOE informed [p]laintiff that . . . all [its] requests would remain open through final processing.’”  “But [the court finds that] a defendant’s ‘voluntary cessation of a challenged practice does not deprive a federal court of its power to determine [its] legality. . . .’”  “According to the D.C. Circuit, a case is moot only if:  1) ‘there is no reasonable expectation that the conduct will recur’; and 2) ‘interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.’”  “It is true that after plaintiff filed suit, the agency chose to recognize the ‘spirit’ of the Notice and fulfill plaintiff’s outstanding requests, which ‘eradicated’ the Notice’s effect of closing its requests.”  “But plaintiff challenges the lawfulness of issuing of a notice that puts the burden on the FOIA requester to keep its unanswered request open, and it is certainly reasonable to expect that the agency’s conduct of issuing such notices will recur.”
  
  “The Administrative Procedure Act permits courts to review only ‘final agency action[s] for which there is no other adequate remedy,’ unless otherwise authorized by statute.”  “Defendants argue that the Notice is neither an agency action, nor a final agency action, and that plaintiff has an adequate alternative remedy through the Freedom of Information Act.”  “Defendants contend that the Notice was simply part of its ‘day-to-day operations’ in managing FOIA requests, not a formal agency action.” “But that is not what the Notice purports to be, or how it functions.”  “The Department of Energy posted it in the Federal Register to notify all FOIA requesters that they had to meet certain requirements in order to receive responses to their requests.”  “In that way, it was a ‘statement of general applicability and future effect’ to ‘implement’ a policy and/or describe a procedure or practice requirement of the agency, much like a rule.”  “That falls within the meaning of ‘agency action’ as defined by the APA.” “For an agency action to be ‘final,’ the action must:  (1) ‘mark the consummation of the agency’s decisionmaking process’ and (2) ‘be one by which rights or obligations have been determined, or from which legal consequences will flow.’”  “The Notice fulfills the first prong of the analysis.”  “Under this prong, courts ‘consider whether the action is “informal, or only the ruling of a subordinate official, or tentative.”’”  “The administrative record includes the memorandum from the Acting General Counsel of the Department of Energy that describes the function of the Notice and recommends that the Secretary of Energy approve its issuance, as well as the Secretary’s approval.”  “The Notice also satisfies the second prong of the finality test.”  “As discussed, the Notice set out a requirement that FOIA requesters would have to fulfill – the still-interested email – in order to receive records under their FOIA requests.”  “That is an obligation that affects their legal entitlements under the Freedom of Information Act, and it would affect FOIA requesters by requiring them to take affirmative steps to keep their requests open.”  “Therefore, the Notice constitutes a final agency action.” “Finally, plaintiff does not have an adequate alternative remedy under the Freedom of Information Act.”  “[FOIA] only authorizes plaintiff ‘to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant’ under a particular FOIA request.” “That is not what plaintiff seeks here, and therefore, it can proceed to challenge the Notice under the Administrative Procedure Act.”
  
  The court also finds that “[n]othing in the Freedom of Information Act authorizes an agency to require all requesters to take affirmative steps to reassert their interest in FOIA requests still awaiting a response, even if the request has been open and untouched for a significant amount of time.” “If anything, the plain text of FOIA suggests the opposite.”  “[Nothing in the statute] indicates that the agency can tackle a backlog of requests en masse by making every requester identify and reaffirm requests it has already submitted on a very short timeframe, and unilaterally closing or ignoring requests.”
  
  “Defendants argue that the Court must find the entire practice of using ‘still-interested’ inquiries to be unlawful in order to reach the conclusion that the agency acted in excess of its statutory authority in issuing the Notice.”  “But the Notice here is a far cry from the limited, individually directed ‘still-interested’ inquiries which the Office of Information Policy recommended could be utilized in those situations where the agency has specific grounds to believe the request[er] has moved on.”  “While efficient disclosure is a legitimate goal, . . . defendants did not have authority under FOIA to compel all individuals and organization with requests of a certain age to manifest their continuing interest.”
  
  “In addition to an order setting aside the Notice, plaintiff also seeks an order ‘enjoining [d]efendants from closing any FOIA requests based on the . . . Notice.’”  “Although the APA provides that a court must ‘set aside agency action’ that is in excess of statutory authority,’ . . . ‘[s]uccess on an APA claim does not automatically entitle the prevailing party to a permanent injunction.’”  “‘When a district court reverses agency action and determines that the agency acted unlawfully, ordinarily the appropriate course is simply to identify a legal error and then remand to the agency, because the role of the district court in such situations is to act as an appellate tribunal.’”  “Vacating the Notice would already effectuate what plaintiff seeks through injunctive relief – defendants cannot close any requests under the Notice if it is vacated.” “Therefore, the Court will not issue the requested injunction.”