1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

AMERICAN CENTER FOR LAW AND 

JUSTICE,

Plaintiff,

v.

UNITED STATES DEPARTMENT OF 

STATE,

Defendants.

Case No. 1:16-CV-01975-TNM

ORDER

In Count II of its Amended Complaint, the American Center for Law and Justice alleges 

that the Department of State has a pattern or practice of violating the Freedom of Information Act

by “intentionally refusing to issue a determination, produce documents and/or respond in any 

manner required by 5 U.S.C. § 552(a)(6) unless and until Plaintiff files suit.” Am. Compl. ¶ 78. 

State moves to dismiss this count, contending that ACLJ has failed to plead enough facts to make 

its claim plausible, and that even if so, the allegations are not outrageous enough to warrant relief 

under Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988). Def.’s Partial 

Mot. Dismiss or to Stay Proceedings at 8-15.1 After initially dismissing an inadequately-pleaded 

version of this claim, Am. Ctr. for Law & Justice v. United States Dep't of State, 249 F. Supp. 3d 

275, 281-82 (D.D.C. 2017) (ACLJ I), another judge in this district has already upheld the 

 

1 Defendant also seeks a stay pending the D.C. Circuit’s decision in Judicial Watch, Inc., v. 

United States Dep’t of Homeland Security, No. 16-5339. However, the pattern-or-practice claim 

in that case appears to bear only limited factual similarities to the claims made against State. See 

Judicial Watch, Inc. v. United States Dep't of Homeland Sec., 211 F. Supp. 3d 143, 146 (D.D.C. 

2016) (“[Plaintiff] points to no fact or statement to establish why the requests were delayed 

or how the delays were the result of an either formal or informal DHS policy”) (emphasis in 

original). Accordingly, I find that considerations of judicial efficiency weigh against a stay.
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sufficiency of substantially identical allegations. Am. Ctr. for Law & Justice v. United States 

Dep't of State, 254 F. Supp. 3d 221, 223 (D.D.C. 2017) (ACLJ II). Seeing no need to reinvent the 

wheel, I deny State’s Partial Motion to Dismiss for the same reasons.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim 

crosses from conceivable to plausible when it contains factual allegations that, if proved, would 

‘allow the court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged.’” Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (alteration 

omitted) (quoting Iqbal, 556 U.S. at 678). In this inquiry, a court must “draw all reasonable 

inferences from those allegations in the plaintiff’s favor.” Id. 

To make out a valid pattern or practice claim under FOIA, a plaintiff “must allege, inter 

alia, facts establishing that the agency has adopted, endorsed, or implemented some policy or 

practice that constitutes an ongoing ‘failure to abide by the terms of the FOIA.’” Muttitt v. Dep't 

of State, 926 F. Supp. 2d 284, 293 (D.D.C. 2013) (quoting Payne, 837 F.2d at 491); see also 

ACLJ I, 249 F. Supp. 3d at 281-82 (summarizing applicable case law). ACLJ makes such an 

allegation, claiming that State has an “impermissible practice, policy, and pattern of refusing to 

[comply with FOIA] unless and until Plaintiff files suit.” Am. Compl. ¶ 85. As Judge Boasberg 

has already explained, State’s conduct is allegedly more insidious than delay in “isolated 

incidents” or the challenge of an “enlarged FOIA docket,” ACLJ II, 254 F. Supp. 3d at 226, 

instead resulting from a systemic failure to remedy staffing, training, and management issues

identified by their own Inspector General in 2012 and 2016. Id. at 225; Am. Compl. ¶¶ 46-59. 

Despite State’s arguments to the contrary, ACLJ has sufficiently alleged a pattern of violating 
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FOIA akin to the “persistent refusal” to comply with the law that justified equitable intervention 

in Payne. 837 F.2d at 494. Accordingly, the Amended Complaint satisfies the pleading 

standards of Iqbal and Twombly.

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For these reasons, Defendant’s Partial Motion to Dismiss or to Stay Proceedings is 

hereby DENIED. 

SO ORDERED.

Dated: February 8, 2018 TREVOR N. MCFADDEN

United States District Judge

 

2 However, this is no guarantee of eventual success. See Am. Ctr. for Law & Justice v. United 

States Dep't of State, 2018 WL 623827, at *1 (D.D.C. Jan. 30, 2018) (granting State’s 

subsequent motion for partial summary judgment).