Judicial Watch, Inc. v. DHS

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued September 15, 2017 Decided July 17, 2018 No. 16-5339 JUDICIAL WATCH, INC., APPELLANT v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, APPELLEE Appeal from the United States District Court for the District of Columbia (No. 1:15-cv-01983) Lauren M. Burke argued the cause and filed the briefs for appellant. Paul J. Orfanedes entered an appearance. Sarah Carroll, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief was Mark B. Stern, Attorney. Before: ROGERS, SRINIVASAN, and PILLARD, Circuit Judges. Opinion for the Court filed by Circuit Judge ROGERS. Concurring opinion filed by Circuit Judge PILLARD. 2 Dissenting opinion filed by Circuit Judge SRINIVASAN. ROGERS, Circuit Judge: For years, Judicial Watch has monitored expenditures of U.S. Government funds on “VIP” travel by submitting requests for records pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to the U.S. Secret Service and other agencies and reporting its findings to the public. Between 2012 and 2014, when the Secret Service failed to make requested records available in a timely manner, Judicial Watch was forced to file a lawsuit on five separate occasions in order to obtain the records. Upon such filing, the Secret Service produced non-exempt records, mooting the litigation. In November 2015, Judicial Watch was forced again to file a lawsuit when the Secret Service failed to make available records in response to nineteen travel-related FOIA requests submitted over a thirteen-month period. This time, in addition to seeking an order that the Secret Service produce requested records, Judicial Watch sought injunctive relief so the Secret Service would not continue to violate FOIA’s mandate that federal agencies “shall” make requested records “promptly available.” 5 U.S.C. § 552(a)(3)(A). Judicial Watch alleged that the Secret Service “has a policy and practice of violating FOIA’s procedural requirements,” by “regularly failing” to either produce requested records or make a determination regarding their availability in accord with FOIA’s timetables, 5 U.S.C. § 552(a)(6)(A), or within a reasonable time. Compl. ¶ 22. Four months after the lawsuit was filed, the Secret Service, much as it had done on the five prior occasions when Judicial Watch had sued, produced non-exempt records, thereby mooting the production request. 3 The only question now before the court is whether the complaint adequately alleged a “policy or practice” claim under FOIA. The district court ruled that Judicial Watch had failed to plead sufficiently egregious facts and granted judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Because the court’s precedent recognizes that a policy or practice claim may be predicated upon an agency’s abuse of FOIA’s statutory scheme, we reverse and remand to the district court for further proceedings. I. The Freedom of Information Act provides that federal agencies, “upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available.” 5 U.S.C. § 552(a)(3)(A) (emphasis ...

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