Democracy Forward Found. v. OMB, No. 25-858, 2025 WL 1078778 (D.D.C. Apr. 9, 2025) (Sooknanan, J.)

Democracy Forward Found. v. OMB, No. 25-858, 2025 WL 1078778 (D.D.C. Apr. 9, 2025) (Sooknanan, J.)

Re:  Request for plans for reductions in force across the federal government pursuant to Exec. Order No. 14210

Disposition:  Denying defendant’s motion to dismiss; denying plaintiff’s motion for preliminary injunction

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court relates that “Defendants move to dismiss the Complaint for failure to exhaust administrative remedies.”  “While they do not clarify whether this motion should fall under Rule 12(b)(1) or 12(b)(6), the Court construes their motion as a Rule 12(b)(6) motion because they acknowledge that ‘FOIA’s exhaustion requirements’ are ‘not jurisdictional.’”  The court finds that “Defendants make much of the fact that they have not missed their twenty-business-day deadline to determine whether to comply with [plaintiff’s] FOIA requests.”  “But that is not the applicable statutory time limit for [plaintiff’s] claim.” “The Complaint alleges that the Defendants ‘failed to notify [plaintiff] of determinations regarding [plaintiff’s] requests for expedited processing,’ . . . so the Court must look to the deadline for this notification.”  “Here, [plaintiff] filed their requests for expedited processing on March 12, 2025.” “And the Complaint was filed on March 23, 2025, alleging that the Defendant still had not responded.” “That means the Defendants did not notify [plaintiff] of their decision to decline expedited processing by the ‘applicable time limit provision[ ],’ . . . and [plaintiff] shall be ‘deemed to have exhausted its administrative remedies,’ . . . as to its only claim – that the Defendants failed to grant expedited processing in violation of 5 U.S.C. § 552(a)(6)(E)(iii) . . . .”  “[Plaintiff] was therefore ‘entitled to file a lawsuit . . . for review of [the Defendants’] failure to respond to its request for expedited processing[.]’”
  
  The court observes that “Defendants quibble with this timeline as to OPM.”  “They acknowledge that [plaintiff] submitted its requests for expedited processing to OPM on March 12, 2025.”  “But they point out that the requests were submitted ‘after business hours,’ . . . and therefore were ‘not received until March 13, [2025],’ . . . .”  “According to the Defendants, this means that ‘the Complaint was filed even before the statutory ten-day period for issuing a determination on expedited processing had passed.’”  “The Defendants’ argument fails for two reasons.”  “First, this has been construed as a Rule 12(b)(6) motion, so the Court may not look beyond the Complaint, . . . which says nothing about late-night submissions . . . .”  “Second, the statutory deadline does not give agencies ten days from the date of receipt; it gives them ten days from ‘the date of the request.’”  “And according to the Complaint, the FOIA requests for expedited processing were submitted on March 12, 2025.”  “[Plaintiff] has therefore constructively exhausted its administrative remedies, and the Court denies the Defendants’ Motion to Dismiss under Rule 12(b)(6).”
   
• Litigation Considerations, Preliminary Injunctions; Procedural Requirements, Expedited Processing:  The court relates that “[plaintiff] first requests an order requiring the Defendants to expedite their processing of the FOIA requests.”  First, “[t]he Court concludes that [plaintiff] has not demonstrated a compelling need and has therefore failed to show a substantial likelihood of success on the merits.”  “Defendants agree that the FOIA requests concern federal government activity.” “And [plaintiff] has demonstrated that the current Administration’s ‘large scale terminations of federal workers’ is a matter of current exigency to the American people.”  “Here, [plaintiff] has provided no shortage of articles, including many from major publications.”  “Defendants appeared to concede this factor at oral argument as well.” “But [plaintiff] has failed to show that delay in receiving a response to its FOIA requests would compromise a significant recognized interest.”  “[Plaintiff] argues that it must have access to the RIF plans ‘before they are put into effect and agencies take irreparable steps toward gutting their functional capacities, not months or years later.’”  “But the Court is less convinced, on this record, that implementation of the RIF plans at issue is imminent.”  “At oral argument, [plaintiff] advanced two arguments on this point.”  “It first pointed to the two-phase nature of the Joint Memorandum at the heart of these FOIA requests . . . where Phase 1 focuses on agency cuts and reductions and Phase 2 focuses on a vision for more efficient agency operations moving forward . . . .”  “[Plaintiff] said that Phase 2 ‘has a firm date of being finally completed on September 30, 2025, per [the] [M]emorandum,’ and that Phase 1 must ‘necessarily occur before that time period.’”  “But a close reading of the document reveals that the firings may well occur after September 30, 2025.”  “Nowhere does it say that Phase 1 RIFs must occur before Phase 2 is implemented.” “To the contrary, it contemplates RIFs being implemented in 2026 and 2027, . . . and cites to an Appendix ‘for specific steps and timing,’ . . . which expressly states that ‘RIF timing may vary based on agency-specific requirements[]’ . . . .”
  
  “[Plaintiff] next argued that many employees at the Department of Education will be terminated by June 9, 2025, based on the Department’s already-released RIF notices.”  “But this Department-specific timeline does not justify expediting [plaintiff’s] FOIA requests at issue here, which ask for all RIF plans submitted by agency heads across the federal government . . . .”  “The Court reserves judgment as to whether expedition would be warranted for a more targeted FOIA request seeking RIF plans submitted by the Department of Education or RIF plans that have been implemented by way of notice.”  “The Court is also not convinced that information about the RIF plans will become stale after the anticipated future widespread firings.”  “While [plaintiff’s] ‘FOIA requests seek records that will be indisputably valuable in informing the public about how the federal government functioned’ throughout this process, they are not ‘“time-sensitive” in the sense of losing value vis-à-vis any date certain.’”  “The public has demonstrated great interest in these issues even as some ‘RIF plans have already begun to be put into effect.’”  “And on the current record, there is no reason to believe that this interest will evaporate.”  “[Plaintiff] also argues that ‘the public . . . badly needs information about the extent of the RIFs, and the consequent future impacts on government services, to meaningfully engage elected representatives to seek remedies or a change in course.’”  “But accepting this justification ‘would likely sweep almost any FOIA request into the ambit of “urgency” since FOIA requests are regularly designed to elicit information about how the government is performing its work.’”  “And [plaintiff’s] supplemental requests for expedition show that there has already been public reporting on the extent of the RIFs and their impacts on government services, allowing the public – and [plaintiff] – to engage elected officials on this issue.”
  
  Second, the court finds that “courts often look for an ‘imminent event, after which . . . the utility of the records would “be lessened or lost.”’”  “And [plaintiff] has failed to identify a sufficiently imminent event after which the desired information (i.e., RIF plans for all federal agencies) would become stale.”  “And [plaintiff] has proven it does not need to jump to the front of the FOIA line to galvanize the public conversation about mass federal firings.”  “It is true that [plaintiff’s] commentary ‘will not include information it might receive from the FOIA request[s],’ but the Court is unconvinced that this harm would be irreparable, especially since much of the information ‘could fall under exemptions to the FOIA and thus be withheld or redacted.’”
  
  “The final two factors are ‘whether an injunction would substantially injure other interested parties’ and ‘whether the grant of an injunction would further the public interest.’”  “The Court concludes that they favor the Defendants.” “[W]idespread coverage of the mass firings is already in the public sphere.”  “Meanwhile, allowing [plaintiff] to jump to the front of the FOIA processing line risks harming other requestors with more urgent needs.” “The Court does not see fit to order the ‘extraordinary remedy’ of a preliminary injunction.”
  
  Additionally, the court finds that “[plaintiff] also requests that the Court order the Defendants to ‘produce, [by] no later than April 9, 2025, a limited subset of the requested records:  those RIF plans that [the] Defendants have approved with rolling productions thereafter.’”  “[I]t appears that [plaintiff] will have to clear an even higher burden than that which was required for expedited processing.”  “And [plaintiff] conceded at oral argument that it is not entitled to this relief if the Court declines to grant expedited processing.”  “The Court therefore denies the motion for preliminary injunction.”