BARBARA FEINMAN AND GARRETT M. GRAFF, PLAINTIFFS, V. FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS
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Feinman v. Federal Bureau of Investigation, Dist. Court,
Dist. of Columbia 2010
BARBARA FEINMAN and GARRETT M. GRAFF,. Plaintiffs,
V.
FEDERAL BUREAU OF INVESTIGATION, et al:, Defendants.
Civil Action No. 09-2047 (ESH).
United States District Court, District of Columbia.
January 26, 2010.
MEMORANDUM OPINION
ELLEN SEGAL HUVELLE, District Judge.
APPROVED FOR
RELEASEL DATE:
21-Mar-2011
Plaintiffs Barbara Feinman and Garrett M. Graff have filed a class action against the Federal
Bureau of Investigation ("FBI"), the Executive Office for United States Attorneys ("EOUSA"),
and the U.S. Department of Justice ('DOJ"), alleging that defendants have violated the
Freedom of Information Act ("FOIA"), 5 U.S.C. ? 552, and the Administrative Procedure Act
("APA"), 5 U.S.C. ?? 701-706. This matter is before the Court on defendants' partial motion to
dismiss plaintiff Feinman for lack of standing and Count I in its entirety pursuant to Federal
Rule of Civil Procedure 12(b)(1). For the reasons discussed herein, the Court will grant
defendants' motion.
BACKGROUND
The sole question before the Court is whether Feinman has standing to sue under FOIA and
the APA for claims arising from a FOIA request made by a non-party, Catherine Beime, who
allegedly assigned all rights and interest in that request to Feinman. Accordingly, the Court's
discussion of the factual background will be limited to the allegations relating to Feinman's
claims.
As alleged in the complaint, Feinman is "a representative of the news media as that term is
defined by the FOIA statute." (See Compi. ? 3.) The complaint does not explain Beime's
relationship to Feinman, but on April 13, 2009, Beirne faxed a FOIA request to the FBI,
seeking records regarding a suspected terrorist, Qari Ismail. (1d. ? 17.) On April 17, the FBI
wrote to Beirne and returned her request 'on the basis that the FBI required the submission
of proof of death or a signed privacy waiver from Qari Ismail before it would begin processing
the request for records." (Id. ? 18.) The FBI's letter explained that absent proof of Ismail's
death or a signed privacy waiver, any responsive records about him would be categorically
exempt from disclosure 'as unwarranted invasions of privacy' under FOIA Exemption 6 and 7
(C). (Id.) The letter was accompanied by a Privacy Waiver and Certification of Identity form,
but the letter "failed to accord Beime any rights to an administrative appeal of the FBI's
refusal to process the FOIA request." (1d.)
Several months later on August 27, 2009, Feinman submitted two letters to the FBI. (Compl.
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? 19.) One was signed by Beime and stated that she had assigned "her rights and interests in
the FOIA request to Feinman." (Id.) The second letter was signed by Feinman and stated that
Feinman had accepted the assignment (Id.)
Plaintiffs' complaint was filed on October 30, 2009. Count I asserts that Feinman has a legal
right under FOIA "to obtain the information she seeks," that the FBI has unlawfully denied that
right, and that Feinman has "constructively exhausted any or all necessary administrative
remedies." (Compl. ?$ 20-21.) Count VI, as it relates to Feinman, asserts that the FBI violated
the APA through policies that allow FOLA personnel (1) to categorically "refuse to process
searches for records pertaining to foreign nationals absent proof of death or a signed privacy
waiver" and (2) to refuse to process any such. request without informing the requesters that
they have the right to administratively appeal the denial. (See id. ?1145-46.)[1j Feinman
seeks, inter alia, an order requiring defendants to disclose the requested records, a
declaration that defendants' alleged policies violate their statutory and regulatory obligations,
and an order requiring the FBI to discontinue the alleged policies.
Defendants moved to dismiss on December 16, 2009, arguing that the Court lacks subject
matter jurisdiction over Feinman's claims. Specifically, defendants contend that Feinman
lacks standing to seek disclosure of documents under FOIA because her name "did not
appear on the original request that is the subject of Count I," and because she "cannot assert
standing based on someone else's FOIA request." (Mot. to Dismiss at 2.) Similarly,
defendants argue that Feinman lacks standing to raise Count VI's claim under the APA
because she has not suffered an injury-in-fact as a result of the alleged policies. (Id. at 2-3.)
ANALYSIS
1. LEGAL STANDARDS
A. Motion to Dismiss for Lack of.Jurisdiction
On a motion to dismiss pursuant to Rule 12(b)(1), plaintiff bears the burden of establishing by
a preponderance of the evidence that the court has subject matter jurisdiction. See Lin v.
Defenders of Wildlife. 504 U.S. 555, 561 (1992). The Court must accept all factual allegations
in the complaint as true and give plaintiff the benefit of all reasonable inferences from the
facts alleged. See Jerome Stevens Pharm Inc v. Food &'DrugAdmin 402 F .3d 1248
1253-54 (D.C. Cir. 2005). A court may dismiss for lack of subject matter jurisdiction only if "it
appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief."' Richardson v. United States 193 F.3d 545549 (DC Cir. 19991
(quoti ng Caribbean Brad Sys Ltd. v. Cable & Wireless PLC 148 Fwd -1080 f 086.(D C
Cir. 1998)). Moreover, where a court's subject matter jurisdiction is called into question, the
court may consider matters outside the pleadings to ensure it has power over the case. Teva
Marrn USA. Inc v. U.S. Food & Drug Admin 182 F .3d 1003, 1008 (D C Cir. 1999).
B. Standing
"Article III of the United States Constitution limits the judicial power to deciding'Cases and
Controversies."In re Navy Chaplaincy. 534 F .3d 756, 759 (D.C. Cir. 2008). (quoting U.S.
Const. art. ill, ? 2). "[T]he core component of standing is an essential and unchanging part of
the case-or-controversy requirement of Article Ill." Lujan.504 U.S.at560. Standing requires,
inter alia, that a plaintiff demonstrate that she has suffered an "injury in fact," i.e., the invasion
of a legally protected interest that is "concrete and particularized" and "actual or imminent, not
conjectural or hypothetical." Id. (internal quotation marks omitted).
'The Supreme Court has recognized that'Congress may enact statutes creating legal rights,
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the invasion of which creates standing, even though no injury would exist without the statute.'"
2 voto ex rel. Aril v. Sect' of State. 444 F.3d 614.617 Q.C. Cir. 2006). (quoting Linda
R.S. V. Richard D.. 410 U.S. 614.617 n.3 (19730. This Court's subject matter jurisdiction thus
"extends only so far as Congress provides by statute." Commodiiy.Futures Trading Commh
v.'Nahas. 738 F2d 487.492 (D.C. Cir. 1984). "When a federal court reaches beyond its
statutory grant of subject-matter jurisdiction, its judgment is void." Id. "A party must therefore
affirmatively allege in his pleadings the facts showing the existence of jurisdiction, and the [C]
ourt must scrupulously observe the precise jurisdictional limits prescribed by Congress." Id. at
492 n.9.
II. FEINMAN LACKS STANDING
A. Count I
Defendants argue that Feinman may not sue under FOIA as the assignee of someone else's
rights, because it is well established that standing under FOIA is limited to the person who
made the initial request. Feinman counters that neither FOIA nor case law precludes the
assignment of rights, and courts have observed in other contexts that standing to raise a
claim can be established by way of an assignment of rights. This appears to be a question of
first impression. Ultimately, the Court concludes that the case law and sound policy support
defendants' position.
FOIA provides that upon any request for records that complies with certain requirements, a
public agency "shall make the records promptly available to any person." 5 U.S.C. ? 552(a)
(3). When an agency determines that it will not comply with the request, it must "immediately
notify the person making such request of such determination and the reasons therefor, and of
the right of such person to appeal to the head of the agency any adverse determination ...."
Id. ? 552(a)(6)(A)(i) (emphasis added). Thus, the statute "'creates a private cause of action
for the benefit of persons who have requested certain records from a public agency and
whose request has been'denied.... [l]t confers a right on "any person" to receive those
records, subject to published regulations regarding time, place, fees, and procedure.'"
Halperin v. Cent. Intelligence Ageen y 629 E .2d 144, 153 (D.C. Cir 1980) (quoting United
States v. Richardson. 418 U.S. 166, 204 (1974) (Stewart J., dissenting)). The denial of this
right to request "specific information" constitutes an injury-in-fact for standing purposes,
"because [the requester] did not get what the statute entitled him to receive." Ziv f .iskx 444
F.3d at 617-18.
Although "the identity of the requester" is generally "immaterial" to "the exercise of the rights
provided by the Act," "the nature of an entity suing under the FOIA is not without relevance . .
.." Military Audit Project v. Casey. 656 F.2d 724.730 n.11 (D.C_Cir. 198 (emphasis
added). For example, courts have held that a plaintiff whose name does not appear on a
FOIA request lacks standing to challenge its denial, because she has not made a formal
request within the meaning of the statute and therefore "has not administratively asserted a
right to receive [the documents] in the first place." McDonnell v_ United States. 4 F.3d 1227,
1236-37 (3rd Cir. 1993); accord MAXXAM, Inc. v. F.D.LC., No. 98-CV-989, 1999 WL
33912624, at `2 (D.D.C. Jan. 29, 1999) (dismissing for lack of standing because attorney
"made the FOIA request in its own name" and plaintiffs name did not appear on request, and
noting that "plaintiff's attorney, but not plaintiff, [was] the real party-in-interest" under Federal
Rule of Civil Procedure 17); The Haskell Co. v. Dept of Justice, No. 05-CV-1 110, 2006 WL
627156, at *2 (D.D.C. Mar. 13, 2006) (dismissing case for lack of standing because FOIA
request was "submitted solely by" plaintiffs attorney and plaintiff was "not the real party in
interest"). This Court has also repeatedly observed that even if a plaintiff is mentioned in the
original request, she would still lack standing if the request was not clearly made "on [her]
behalf" or otherwise failed to state.her interest in the request. See, e.g., Three Forks Ranch
Corp v. Bureau of Land Mgmt 358.F. Supp. 2d 1.3 (D.D.C, 2005) (holding that corporation
lacked standing to bring FOIA claims where underlying request was made by corporation's
attorney, but it was "not clear" that request was made "on behalf -of" corporation); 1E
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Productions. Inc. v. FB i 589 F. Supp. 2d 76 80 (D.D C. 2008) (finding that corporation
lacked standing where original request was made by its corporation's president, who "did not
adequately indicate that the FOIA Requests at issue here were made on the behalf of
Plaintiff"); see also Haskell, 2006 WL 627156, at *2 ("Nowhere in its correspondence with [the
agency] did.[the attorney who made the request] identify [the plaintiff] as an interested party
or co-requester."); cf. Brown v. EPA. 384.F. Supp 2d 271, 276-77 (D.D C 2005) (holding that
plaintiff had standing to challenge denial of attorney's FOIA request that was expressly made
on plaintiff's behalf).
Here, there is no allegation that Beime's original request also named Feinman, whether as a
co-requester, an interested party, or in some other capacity. Instead, Beime appears to have
made the original request solely in her own name. Only later did Feinman assert that she had
a stake in the request as an assignee of Beime's rights and interests in it.
Feinman argues that FOIA and its legislative history are "devoid of anything approaching
clear, unambiguous language prohibiting an assignment" (Opp'n to Mot. to Dismiss at 11; see
also id. at 6), and that in general, assignees can have standing to bring an assigned claim.
See, e.g., t7t Agency of Natural Res v. United Stales. 529 U.S. 765,773 (2000) (observing
that False Claims Act "can reasonably be regarded as effecting a partial of the Government's
damages claim" to qui tam relator, whose own standing to bring suit "is to be found in the
doctrine that the assignee of a claim has standing to assert the injury in fact suffered by the
assignor"). This may be true, but it does not answer the question of whether FOIA in
particular should be interpreted sous to permit assignment. Cf. id. at 774-78 (observing that
"the long tradition of qui tam actions in England and the American colonies" was "particularly
relevant" to interpreting the meaning of Article III's case-or-controversy requirement). If
anything, the cases discussed above suggest that FOIA should not be interpreted so as to let
plaintiffs "free-ride" on a requester's administrative exhaustion if the plaintiff did not participate
in the underlying request.
Feinman responds that the above cases do not address assignments, and that the
assignability of a FOIA claim is in fact directly supported by Sinito v. DW7.ofJustice. 176
F.3d 512 (D.C. Cir. 1999). There, the D.C. Circuit held that a cause of action seeking the
disclosure of records under FOIA can survive the death of the original requestor. See id. at
513. However, Sinito is distinguishable. Unlike Beime, the plaintiff in Sinito had also made the
underlying FOIA request, and the D.C. Circuit's reasoning emphasized the unique
considerations that arise when the original requester has already commenced litigation. "An
original requestor who goes to court to compel disclosure by the agency has a stake in the
legal action which transcends that of 'any person' who might seek the,FO[A document. He
has invested time, and in all likelihood money, in the action." Sinftq. 176'F-3d at 515
(emphasis added). By contrast, Beime did not invest any time, money, or other effort into
pursuing this litigation. At most, according to the complaint, she sent one letter to the FBI and
signed another letter that Feinman subsequently submitted to the agency.Beirne never
acquired a stake in her FOIA claim that might counsel against letting her investment of
litigation resources go to waste.
Sinito also rejected the argument that "anyone [must] be allowed to step into the deceased
plaintiff's shoes," because "federal courts have institutional interests of their own in regulating
the substitution of qualified parties even if a cause of action survives the death of the original
plaintiff." 176 F.3d at 515, see also id. ("[W]e are dealing here not with a vast pool of potential
FOIA applicants, any of whom might seek to take Thomas Sinito's place in the litigation.").
This interest in "institutional regularity" is served by Federal Rule of Civil Procedure 25(a),
which expressly permits a court to order substitution of the "proper parties" upon a litigant's
death. Id. at 515-16; see Fed. R. Civ. P. 25(a)(1). In certain situations, there may be rights in
a FOIA claim that are particular to a specific requester-plaintiff and which would survive her
death, such as privacy or reputational interests in the disclosed information or the right to
recover attorney's fees under the statute. See id. at 516-17. Sinito concluded that the only
"proper party" under Rule 25 would be the decedent's "legal representative" or "successor,"
because this would ensure the protection of the decedent's estate's rights in the claim. See id.
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at 517.j2] In the case at bar, however, not only is Rule 25 irrelevant because Beirne did not
initiate this litigation, but there is no allegation that she was incapable of protecting her rights
by suing on her own behalf, or that the relationship between Beirne and Feinman is such that
Feinman would protect Beime's interests if their interests diverge. Cf. McDonnell. 4 F.3d at
1238 n.6 (noting that a single "passing reference" to the plaintiff in the FOIA correspondence
underlying the lawsuit "does not sufficiently identify him with the person making the request to
confer on him standing").
In short, unlike previous cases where the plaintiff claims to act on behalf of the original
requester, Feinman purports to act in her own right, as Beime has apparently divested herself
of all "rights and interests" in her FOiA request. Neither the Court nor the parties have located
any cases on point, but strong policy concerns counsel against permitting assignments.
First, although the identity of a FOIA requester is typically irrelevant to the request, there are
important exceptions to that rule. Feinman concedes that a requester's identity "is relevant
when determining applicable fees to be assessed." (Opp'n at 9 n.5.) For example, FOIA
permits agencies to charge fees for document search, duplication, and review when the
records are requested for commercial use, but agencies may only collect duplication fees if
the request is made by a "representative of the news media." See 5 U.S.C. ? 552(a)(4)(A)(ii)
(i) & (Ii); Hall v. C.I.A. 437 F.3d 94.97 (D.C. Cir. 2006). To permit the assignment of pre-
litigation FOIA rights could undermine this statutory distinction between categories of
requesters by allowing requesters who need not pay certain fees to "share" their status, via
assignment, with potential plaintiffs who would otherwise be required to pay those fees. In
addition, assignments would complicate FOIA administrators' adherence to the principle that
disclosure exemptions based on privilege protections should not be invoked against "first-
party" requesters who are the very persons protected by the privilege: See Stnilo.176 F.3d at
516-i7: U.S. Dept of Justice v. Reporters Comm.for Freedom of Pfe. s. 489 I.J.S. 749, 771
1989. If a first-party requester assigned her claim to a third party before the agency has
made its disclosure determination, FOIA personnel would risk litigation if they subsequently
determined that privacy or similar exemptions should be invoked against the third-party
assignee.
Second, pre-litigation assignments would multiply opportunities for mistake and mischief,
particularly since FOIA requests need not be made with the assistance of counsel. For
example, an individual who informs an agency that she is the assignee of a requester's FOIA
rights may be incorrect for a number of reasons; For instance, an individual - or even a non-
existent entity, cf. Military Audit Project 656 F.2d at 730 n.11- could seek to thwart an
adversary's search for information by claiming falsely to have been assigned a previous
requester's FOIA rights. If FOIA administrators took such claims at face value, the earlier
requester could find herself improperly excluded from the FOIA process, perhaps without
even knowing it. Conversely, it would be unreasonable to expect overburdened FOIA
administrators to verify the validity of an assignment by determining whether it complies with
local law and reflects the original requester's actual intent.j3j Cf. Three Forks Ranch. 358 F.
Supp. 2d at 3 ("It is unreasonable to expect overburdened FOIA administrators to interpret
whether a request is being made by the individual writing the request letter, by someone else
mentioned in the letter, or both.").
The Court concludes that the agency's burden to verify the validity of an assignment in each
instance is greater than the minimal burden on any given assignee to make her own FOIA
request. Just as Sinito sought to promote "institutional regularity" by placing restrictions on
who could step into a deceased FOIA plaintiff's shoes, 176 F:3d at 515.. this Court concludes
that institutional regularity at the administrative level weighs against permitting pre-litigation
assignments of FOIA rights where, as here, there is no indication (1) that the requester is
unable to pursue her own litigation or (2) that the original requester shares the same interests
and purposes as the plaintiff-assignee. As a result, the Court concludes that Feinman lacks
standing to assert a claim under FOIA.
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B. Count VI
Feinman's claim under the APA presumes that the FBI's conduct with respect to its FOIA
obligations and policies has injured Feinman in some way. However, Feinman lacks standing
to assert a claim under FOIA. Because the complaint does not allege that Feinman made any
other FOIA request or suffered some other injury, she cannot claim any injury-in-fact. Cf.
Zlvotofskv. 444 F.3d at 617. Accordingly, she lacks standing to assert an APA claim.
CONCLUSION
For the foregoing reasons, defendants' partial motion to dismiss is granted. Feinman will be
dismissed as a plaintiff for lack of standing, and Count I will be dismissed with prejudice. A
separate order accompanies this Memorandum Opinion.
[fl Counts II, III, IV, and V are not at issue because they are based on FOIA requests
submitted by plaintiff Graff.
[21 In Sinito, the original requester's son had sought to be substituted as a plaintiff. The Court
of Appeals observed that he "could not have joined his father's original lawsuit," because the
decedent "did not bring a lawsuit under FOIA to acquit a right that was. also violated as to his
son. In addition, the FOIA requires each requestor to exhaust administrative remedies, and
[the son] unquestionably did not do so." Id. at 516 (emphasis added; citation omitted).
instead, the Court remanded for consideration of whether the son was his father's legal
representative. See id. at 517.
[3] It would also seem improper for administrators or courts to presume an assignment's
validity, because courts already refuse to presume a commonality of rights and interests
even where the plaintiff is the client of the attorney who made the original request. See, e.g.,
Three Forks Ranch. 358 F. Supp. 2d at 3; Haskell, 2006 WL 627156, at `2; 11nioard Ins. Co.
v. Qep? of Treasmrv 997 F. Supp.1339. 1342 (S.D. Cal. 1997) (holding that plaintiff lacked
standing to bring FOIA suit where its.lawyer had made original request but only the name of
the attorney and his law firm appeared on the request, and where his request never stated
"that he represents [the plaintiff), or any other party, in making the request").
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