Virginia Lawyers Weekly//February 17, 2020
Virginia Lawyers Weekly//February 17, 2020//
Where the Southern Environmental Law Center pleaded that policies and practices of the Department of the Interior were being used to violate the Freedom of Information Act, and that it was being injured by those policies, it had standing to move to enjoin application of the allegedly unlawful policies.
SELC filed this action under the Freedom of Information Act against various officials in the Department of the Interior, or DOI, in their official capacities. The case is presently before the court on the DOI defendants’ partial motion to dismiss for lack of subject-matter jurisdiction, in which the DOI defendants argue that SELC does not have standing to pursue the policy-or-practice claim asserted in Count Two of the complaint.
Injury in fact
In Hajro v. United States Citizenship & Immigration Servs., 811 F.3d 1086 (9th Cir. 2016), on which the DOI defendants rely, the court identified three requirements for establishing an injury in fact when a plaintiff alleges a pattern or practice of violations and seeks declaratory or injunctive relief: “(1) the agency’s FOIA violation was not merely an isolated incident, (2) the plaintiff was personally harmed by the alleged policy, and (3) the plaintiff himself has a sufficient likelihood of future harm by the policy or practice.” Assuming that the Fourth Circuit would adopt the same test, the court concludes that SELC has satisfied each requirement at this stage of the proceedings.
The court turns to the causation requirement. To satisfy this requirement, a plaintiff must allege that its injury in fact is “fairly traceable” to the defendants’ challenged conduct. SELC claims that the DOI defendants have violated FOIA by failing to timely respond to SELC’s request and by improperly withholding responsive documents. SELC further alleges that its FOIA request has been subject to the policies and practices reflected in the memoranda, and that such policies and practices have caused or contributed to the delays and withholdings of the records sought by SELC’s request. The court is convinced that SELC’s allegations, considered in combination, are sufficient to satisfy the causation requirement at the pleading stage.
The third and final requirement for Article III standing is redressability. At the pleading stage, a plaintiff must allege that the claimed injury in fact is “likely to be redressed by a favorable judicial decision.”
In this case, SELC alleges that the policies and practices reflected in the memoranda “will continue to harm SELC’s interests unless enjoined” by the court. Thus, SELC requests that the court (1) enjoin the DOI defendants’ application of the allegedly unlawful policies described in the memoranda and (2) declare that the policies violate FOIA because they interfere with the agency’s responsibility to make records promptly available upon request and are inconsistent with the agency’s disclosure obligations.
Because such relief would address the alleged injury in fact, at least to some extent, the court concludes that SELC has satisfied the redressability requirement at this stage of the proceedings.
Defendants’ motion to dismiss denied.
Southern Environmental Law Center v. Bernhardt, Case No. 19-cv-00011, Jan. 9, 2020. WDVA at Charlottesville (Conrad). VLW 020-3-014. 13 pp.