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Outside Legal Couns. PLC v. TSA, No. 23-10553, 2024 WL 4361941 (E.D. Mich. Sept. 30, 2024) (Parker, J.)

Date

Outside Legal Couns. PLC v. TSA, No. 23-10553, 2024 WL 4361941 (E.D. Mich. Sept. 30, 2024) (Parker, J.)

Re:  Request for six categories of records concerning firearms seized at United States airports

Disposition:  Granting defendant’s motion to dismiss

  • Litigation Considerations, Mootness and Other Grounds for Dismissal:  The court holds that “this lawsuit is now moot.”  “[Plaintiff] in fact concedes that its request for TSA to promptly process its request is moot.”  “Nevertheless, [plaintiff] asserts several arguments for why it believes the lawsuit, itself, is not moot.”  “First, [plaintiff] claims that it has suffered costs and expenses due to ‘this clear FOIA gamesmanship.’”  “Next, it argues that ‘[a] challenge is not moot when there are allegations of an agency following an impermissible practice in evaluating FOIA requests, and that it will suffer continuing injury due to this practice.’”  “Lastly, [plaintiff] maintains that TSA’s failure to ‘release all responsive records’ renders the lawsuit still ripe.”

    “Starting with the last argument, [plaintiff’s] First Amended Complaint does not challenge the exemptions asserted by TSA for failing to produce ‘all’ records responsive to [plaintiff’s] FOIA request.” “[Plaintiff] did not move to amend its pleading to challenge TSA’s production and asserted exemptions after [plaintiff] received TSA’s July 13, 2023 response letter.”  “Thus, any challenge to the sufficiency of the production or the propriety of the exemptions TSA or the FBI invoked are not before this Court.”  “Moreover, [plaintiff] must exhaust its challenges before asserting them here.”

    “In its pleadings, [plaintiff] also does not accuse TSA of ‘following an impermissible practice’ with respect to FOIA requests generally.”  “Nor does [plaintiff] allege that TSA has a ‘policy or practice’ of denying the public access to information.”  “The claim [plaintiff] has alleged in this lawsuit relates only to the timeliness of TSA’s response to [plaintiff’s] January 1, 2023 FOIA request.”

    “[Plaintiff’s] fee request does not preclude this lawsuit from being moot, either.”  “FOIA permits an award of ‘reasonable attorney fees and other litigation costs incurred in any case under [the statute] in which the complainant has substantially prevailed.’”  “‘[T]he issue of fees and costs is ancillary to the underlying action . . . .’” “Thus, this Court can find the lawsuit moot, but still consider whether [plaintiff] is entitled to attorney’s fees and costs under FOIA for bringing it.”  “The issue of [plaintiff’s] entitlement to an award has not been briefed, however, and the Court cannot resolve the issue on the record before it.” “Accordingly, [plaintiff] may file a post-judgment motion requesting an award, if it continues to seek such relief.”
Court Decision Topic(s)
District Court opinions
Litigation Considerations, Mootness and Other Grounds for Dismissal
Updated November 15, 2024