Filed February 27, 2013
Courts have generally relied on Rule 12(b)(6) of the Federal Rules of Civil Procedure in dismissing FOIA lawsuits brought against entities that are not agencies under FOIA. See, e.g., Citizens for Responsibility & Ethics in Wash. v. Office of Admin., 566 F.3d 219, 225 (D.C. Cir. 2009) (“CREW”); Sweetland v. Walters, 60 F.3d 852, 855 (D.C. Cir. 1995). At least one decision has alternatively suggested that such claims should be dismissed pursuant to Rule 12(b)(1), for lack of subject matter jurisdiction.
Filed September 29, 2011
See Citizens for Responsibility and Ethics in Washington, 566 F.3d at 222-23 (“[C]ommon to every case in which we have held that an EOP unit is subject to FOIA has been a finding that the entity in question ‘wielded substantial authority independently of the President.’” (quoting Sweetland v. Walters, 60 F.3d 852, 854 (D.C. Cir. 1995) (per curiam))). Dismissal for failure to state a claim is proper where a FOIA action has been brought against a defendant that is not an agency covered by FOIA.
Filed January 29, 2008
Other cases have found that a failure to comply with the FOIA’s requirements is more properly the subject of a motion to dismiss for the failure to state a claim upon which relief can be granted. See Sweetland v. Walters, 60 F.3d 852, 855 (D.C. Cir. 1995) (dismissing FOIA claim under Rule 12(b)(6) where plaintiff could not show that the records in question were agency records under FOIA, and noting that the district court has subject matter jurisdiction over Case 1:07-cv-01987-PLF Document 8-2 Filed 01/29/2008 Page 17 of 38 10 If this Court finds that the issue presented by Defendant’s Motion to Dismiss is not a jurisdictional one, it should consider the motion under Federal Rule of Civil Procedure 12(b)(6). Although Defendant submits that, as to its Motion to Dismiss, the Robison declaration is used predominately for background information, if this Court’s consideration of the declaration on this issue then converts the instant motion into one for summary judgment, the Court should nonetheless award summary judgment to Defendant.
Filed March 9, 2007
On February 16, 2007, Defendant Herman filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6), arguing that Mr. Coleman’s complaint against her fails to state a claim upon which relief can be granted, for several reasons – chiefly, because the District of Columbia Bar (“D.C. Bar”) is not a federal agency subject to the requirements of FOIA and neither is it subject to the District of Columbia’s similar statute. See Defendant Herman’s Motion to Dismiss at 3-6 (Docket No. 10); see also Sweetland v. Walters, 60 F.3d 852, 855 (D.C. Cir. 1995) (FOIA suit against Chief Usher of the Executive Residence of the President was properly dismissed under Rule 12(b)(6) for failure to state a claim, because staff of the Executive Residence is not an “agency” as defined in FOIA and therefore not subject to FOIA’s reporting requirements). Ms. Herman also asserted in her motion to dismiss that she was improperly named as a defendant in this lawsuit, noting that the D.C. Bar is capable of being sued and that she herself is expressly immune from suit under the Rules of the District of Columbia Court of Appeals that establish the D.C. Bar.