Scoville v. U.S. Dep’t of State, No. 22-91, 2022 WL 3601596 (E.D. Wis. Aug. 23, 2022) (Joseph, Mag. J.)

Scoville v. U.S. Dep’t of State, No. 22-91, 2022 WL 3601596 (E.D. Wis. Aug. 23, 2022) (Joseph, Mag. J.)

Re:  Requests for records concerning ambassadorial nominees

Disposition:  Denying defendant’s partial motion to dismiss one claim in amended complaint

Litigation Considerations, Pattern-or-Practice Claims:  The court holds that “[defendant’s] partial motion to dismiss Claim Three is denied.”  The court finds that “while an extreme backlog or repeated delays may evidence a ‘policy or practice,’ it cannot be that the delay or backlog, in and of itself, is sufficient to state a ‘policy or practice’ claim.”  “As such, a plaintiff must plead some specific facts that indicate that the agency’s FOIA violation was not an isolated event but indicates a ‘pattern or practice’ of violating FOIA.”  “Thus, had [plaintiff] merely alleged, as he does in paragraphs 34 through 39 of the complaint, that [defendant] has a backlog of FOIA requests, this would be insufficient to state a plausible ‘policy or practice’ claim.”  “But [plaintiff’s] complaint alleges more.”  “Specifically, he alleges that he submitted FOIA requests to [defendant] in April 2014, March 2016, October 2016, February 2018, March 2020, and August 2021, and [defendant] has failed to comply with FOIA for each request without proper excuse.”  “In other words, he alleges a non-isolated practice of delay as to his requests.”  “As such, [plaintiff] alleges that he reasonably expects that he will continue to experience unreasonable, unexcused delays with future FOIA requests.”  “On these allegations, [the court] find[s] that [plaintiff’s] complaint alleges sufficient facts to state a plausible ‘policy or practice’ claim.”