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Legal group has standing for FOI claim

Virginia Lawyers Weekly//February 17, 2020

Legal group has standing for FOI claim

Virginia Lawyers Weekly//February 17, 2020//

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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.

VLW 020-3-014

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