Harrington v. FDA, No. 20-1895, 2022 WL 179330 (D.D.C. Jan. 20, 2022) (Boasberg, J.)

Harrington v. FDA, No. 20-1895, 2022 WL 179330 (D.D.C. Jan. 20, 2022) (Boasberg, J.)

Re:  Requests for records concerning pet food

Disposition:  Denying plaintiff's motion for partial summary judgment

• Litigation Considerations:  "Plaintiff's Motion asks the Court 'to order Defendant to complete processing the outstanding requests and produce any responsive, non-exempt records immediately.'"  "Defendants, for their part, appear to contend  . . . that Plaintiff's 'requested relief effectively is for a preliminary injunction,' and that the Court 'should deny the motion on the basis that Plaintiff is seeking injunctive relief without demonstrating, or even attempting to demonstrate, how the requirements for such extraordinary relief are met here.'"  "[T]he Court has no occasion to dwell on whether this dispute is better analyzed through the summary-judgment or preliminary-injunction lens because, even under the former standard, Plaintiff's Motion founders."  "[T]he issue for the Court to decide is simple:  is FDA's timeline for processing Harrington's FOIA requests reasonable?"
  
  "First, by opting not to file a reply brief and not addressing the issue in his Motion, the Court may treat Plaintiff as conceding any objection to FDA's proposed production schedule."  "Second, even if Plaintiff had properly objected to FDA's timeline, the agency has the better argument on the merits."  "'Courts have broad discretion to determine a reasonable processing rate for a FOIA request.'"  "'Several factors inform the analysis, including the size and compelling need of the request compared to others, as well as the effect of the request on the [agency's] ability to review other FOIA requests.'" Moreover, the court notes that "[o]ther 'courts in this Circuit have considered the effect of other FOIA requests when analyzing the burden on an agency of meeting deadlines for review and production of FOIA material in a given case.'"  "[C]ourts have looked to the volume of requests an agency faces, how much requests to the agency have increased in recent years, the resources and capacity of the agency, other FOIA litigation in which the agency is involved, the agency's release policies, and how ordering swifter production would affect other FOIA requesters patiently waiting their turn."
  
  "Applying the above principles, the Court concludes that Defendants have provided a reasonable production schedule."  "Consider first the heavy FOIA-related burden that CVM is facing relative to its limited resources."  "Plaintiff has submitted a staggering 2,200+ FOIA requests to FDA since 2018, many of which concern records involving CVM."  "As this Court has frequently mused with respect to other agencies struggling under onerous FOIA burdens, one wonders how CVM has time to do anything other than handle FOIA requests." 
  
  "In addition to CVM's heavy FOIA burden  . . . Plaintiff has put forth no compelling reason why he should be allowed to jump the line in this case."  "'For example, [he] has not asserted that [he] is entitled to expedited processing under FOIA or its implementing regulations.'"  "The Government's projected timeline is all the more reasonable in light of its open offer to produce the disputed records within 60 days, if Plaintiff so chooses."  "By offering to pause processing in Harrington I to produce the records sought in this case, FDA is generously allowing Plaintiff to decide how he wishes to prioritize his various FOIA requests."  "This case is thus distinguishable from one in which an agency tells a requester that it could not begin processing her request until it completes a third party's request."  "Against this backdrop, it is reasonable for FDA to ask Plaintiff to choose how he wishes his various requests to be prioritized."  "If that were not the case, a single requester could hobble an agency and stymie all other FOIA requesters, all without satisfying the statutory criteria for expedited processing."  "In sum, even if Plaintiff is correct that FDA did not make a timely 'determination' . . . he has not put forth any compelling reason to conclude that FDA's proposed production schedule is unlawful."
   
• Litigation Considerations, Constructive Exhaustion:  "To the extent that Harrington mounts a significant counterargument that remains relevant after Defendants' Opposition, it is that "'FOIA requires agencies to issue a determination within 20 (or extended to 30) business days and produce responsive non-exempt records "promptly" thereafter.'"  "Critically, however, Harrington's argument on this score 'flows from [his] belief that [FDA]'s failure to respond to the FOIA Request within 20 days, as set forth in the FOIA statute, constitutes a per se violation of the law that entitles the requester to get the requested records immediately.'"  "On the contrary, 'nothing in the FOIA statute establishes that an agency's failure to comply with this 20-day deadline automatically results in the agency's having to produce the requested documents without continued processing.'"  "Rather, 'according to the D.C. Circuit [in CREW], "[i]f the agency does not adhere to FOIA's explicit timelines, the penalty is that the agency cannot rely on the administrative exhaustion requirement to keep cases from getting into court."'"