1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

NATIONAL SECURITY COUNSELORS, et al.,

Plaintiffs,

v.

CENTRAL INTELLIGENCE AGENCY, et al.,

Defendants.

Civil Action No. 12-284 (BAH)

Judge Beryl A. Howell

MEMORANDUM OPINION

The plaintiffs—a group consisting of journalists, academics, and government watchdog 

groups—bring this action against the defendants Central Intelligence Agency (“CIA”) and Office 

of the Director of National Intelligence (“ODNI”) pursuant to, inter alia, the Freedom of 

Information Act (“FOIA”), 5 U.S.C. § 552 and the Administrative Procedure Act (“APA”), 5 

U.S.C. §§ 701, et seq. The plaintiffs each submitted at least one FOIA request or Mandatory 

Declassification Review (“MDR”) request to the CIA between July 2011 and January 2012, and

they challenge the CIA’s responses to those requests in a number of ways. In addition to issues 

related to specific FOIA requests, the plaintiffs claim that the CIA is engaging in a variety of

policies or practices that constitute ongoing and systematic violations of the FOIA. Furthermore, 

the plaintiffs challenge the CIA’s promulgation of a final rule regarding how fees are assessed 

for MDR requests, without first subjecting the rule to notice-and-comment procedures. The CIA 

has now moved to dismiss nine of the twenty-six causes of action pleaded in the plaintiff’s First 

Amended Complaint, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). This 

partial motion to dismiss will be granted in part and denied in part.
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I. BACKGROUND

This case, in its entirety, ultimately implicates over thirty separate FOIA and MDR 

requests submitted by the plaintiffs, along with four alleged policies or practices of the CIA and 

one final rule promulgated by the CIA. See First Am. Compl. (“FAC”) ¶¶ 19–233, ECF No. 9. 

The CIA’s pending partial motion to dismiss, however, only touches upon fourteen of these 

specific requests,1 in addition to the four policies or practices and the single final rule. 

Therefore, the Court will only set forth the facts that are relevant to deciding the pending motion.

A. Specific FOIA Requests

On October 20, 2010, plaintiff National Security Counselors (“NSC”) submitted to ODNI 

a FOIA request “for all FOIA Referral Memos sent to other government agencies in Fiscal Year 

2010 and any subsequent correspondence with the agencies regarding these memos or the 

records to which they refer.” Id. ¶ 221. In response to this request, on July 20, 2011 (“Request 

#1”) and November 4, 2011 (“Request #2”), the ODNI “referred an unknown amount of CIA 

material to CIA for review and direct response to NSC.”2

 See id. ¶¶ 222, 225. On March 13, 

2012 and March 15, 2012, the CIA “withheld all information” from Request #1 and Request #2, 

respectively, citing FOIA Exemptions 3 and 5. Id. ¶¶ 229–30. NSC did not file an 

administrative appeal of these withholding determinations. Nevertheless, NSC claims that the 

CIA’s denial letters for Request #1 and Request #2 were “legally insufficient” to trigger an 

administrative appeal because they did not “provide an estimate of the volume of any denied 

 1 Nine of these fourteen specific requests are implicated, however, not because the plaintiffs challenge the CIA’s 

responses to the individual requests per se, but because the plaintiffs cite the CIA’s responses to the requests in 

order to allege the existence of a larger policy or practice within the CIA, see, e.g., FAC ¶¶ 68–77 (Count Five), or 

to illuminate the context of their APA challenge to the CIA’s promulgation of a final rule regarding fees assessed to 

MDR requesters, see id. ¶¶ 19–39 (Count One). Only four of the counts challenged in the pending partial motion to 

dismiss are substantive challenges to the CIA’s responses to specific FOIA requests. See id. ¶¶ 159–68 (Count 

Nineteen); id. ¶¶ 176–94 (Counts Twenty-One and Twenty-Two); id. ¶¶ 220–33 (Count Twenty-Six).

2 The CIA assigned each of these referrals a unique request number, and thus the First Amended Complaint treats 

them as separate requests for information under the FOIA. See FAC ¶¶ 222, 225.
3

matter” pursuant to 5 U.S.C. § 552(a)(6)(F). See FAC ¶¶ 231–32. Therefore, NSC alleges that it 

has constructively exhausted its administrative remedies because “twenty working days have 

elapsed without a substantive determination by CIA which meets the volume estimate 

requirement of FOIA.” See id. ¶ 232.

On September 6, 2011, plaintiff Kathryn Sack submitted a FOIA request (“Request #3”)

that sought “thirty-two specified documents currently published in the CIA Records Search Tool 

(‘CREST’).” Id. ¶ 177. This request specified that “‘[r]ecords which are currently published in 

CREST in redacted form should be reviewed for full release under FOIA,’” and requested a 

public-interest fee waiver and production of any responsive records in an electronic format. See 

id. On September 13, 2011, the CIA “released paper copies of the redacted versions of the 

thirty-two documents which were published in CREST” and also “denied Sack’s request for a 

public interest fee waiver and assessed a duplication fee of $13, stating that there could be no 

public interest in releasing records which were already published in CREST.” Id. ¶ 178. On 

September 26, 2011, Sack “[administratively] appealed all redactions in the thirty-two 

documents” and the fee-waiver denial. Id. ¶ 179. On October 18, 2011, the CIA responded to 

Sack’s administrative appeal, stating that “[i]t was not clear that you were requesting a re-review 

of these documents,” though “we can open a new request to address this re-review if you wish.” 

Id. ¶ 180. The CIA’s response also stated that “you were not given appeal rights in the earlier 

response, and, as such, we cannot accept your appeal.” Id. The plaintiffs challenge this response 

by the CIA, both because “Sack has a legal right . . . to obtain the information she seeks” and 

because “Sack has a legal right . . . to receive a public interest fee waiver.” See id. ¶¶ 181–82. 

Specifically, the plaintiffs allege that “there is no legal basis for CIA to simply provide records 

which had been previously processed when Sack explicitly specified in her initial request letter 
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that all records currently published in redacted form were to be re-processed for release under 

FOIA.” Id. ¶ 181.3

Also on September 6, 2011, NSC submitted a FOIA request to the CIA (“Request #4”)

that was related to one of its previous requests. See id. ¶ 161. In particular, the CIA’s response 

to a prior FOIA request had stated that review of certain documents “would impose an excessive 

and unreasonable burden on the [CIA], and pursuant to relevant precedent, we must decline to 

process such requests.’” See id. ¶ 160. Hence, Request #4 requested “records pertaining to the 

‘relevant precedent’ to which this letter referred.” Id. ¶ 161. On October 21, 2011, the CIA 

“released one document comprised solely of the paragraph which had been used in the response 

letter to” the previous request and “did not list the records withheld in their entirety.” See id.

¶ 163. On December 29, 2011, NSC sent a letter to the CIA, requesting a list that “identifies the 

records being withheld and describes the reasons for their withholding in general terms.” Id.

¶ 164. NSC’s letter further stated that “[u]ntil we obtain such a list, we do not consider your 

response to constitute a proper final determination response and reject your appeal deadline.” Id. 

Similar to its challenge to Request #1 and Request #2, discussed above, NSC contends that it 

constructively exhausted its administrative remedies regarding Request #4 because “twenty 

working days have elapsed without a substantive determination by CIA which meets the volume 

estimate requirement of FOIA.” See id. ¶ 167.

On May 4, 2010, NSC submitted a FOIA request to the CIA for, inter alia, “the 15 FOIA 

requests received by the [CIA] during Fiscal Year 2008 that were classified as full denials 

because the Records were not Reasonably Described in” the CIA’s 2008 Annual Report. See id.

¶ 184 (internal quotation marks omitted); see also Defs.’ Ex. C at 1, ECF No. 14-3. That same 

 3 Similarly, the plaintiffs allege that “CIA’s denial of Sack’s request for a public interest fee waiver was predicated 

on an incorrect assumption that [Sack] had requested the thirty-two records as they were published in CREST.” 

FAC ¶ 182 (emphasis in original).
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day, NSC also submitted a similar FOIA request to the CIA that sought, inter alia, “[t]he 290 

FOIA requests received by the CIA during Fiscal Year 2008 that were classified as full denials

because they were considered Improper FOIA Requests for Other Reasons” in the CIA’s 2008 

Annual Report. See Defs.’ Ex. D at 1 (internal quotation marks omitted), ECF No. 14-4; FAC 

¶ 187; see also Decl. of Martha Lutz ¶ 65, Nat’l Sec. Counselors v. CIA, No. 11-444 (D.D.C. 

Dec. 20, 2011). NSC agreed to combine these two requests into one, and the CIA provided NSC 

with records responsive to the merged request on August 31, 2011. See FAC ¶¶ 186, 188. NSC 

alleges that “it is not possible to discern from the records themselves which records are 

responsive to which request,” and so NSC “asked CIA several times to identify the fifteen 

records which were responsive to” the first request, but “CIA refused to provide any 

clarification.” See id. ¶ 189. NSC therefore submitted a new FOIA request on October 12, 2011

(“Request #5”), which sought “the first page of the initial response letter for each of the fifteen 

FOIA requests identified in” its first May 4, 2010 FOIA request. Id. ¶ 190. The CIA 

nevertheless “refused to process the request, stating that it was a duplicate of one of the line 

items of the merged [r]equest.” See id. ¶ 191. NSC attempted to appeal this determination by 

the CIA not to process Request #5, but the CIA “refused to accept NSC’s appeal” because the 

request was never processed. See id. ¶¶ 192–93. NSC challenges the CIA’s response to Request 

#5 and asserts that it has a legal right to the information sought in that request. See id. ¶ 194.

B. Alleged Policies or Practices Violating the FOIA

The plaintiffs also challenge what they allege are four separate policies or practices of the 

CIA that constitute ongoing violations of the FOIA. The Court will summarize below the 

plaintiffs’ allegations regarding each claimed policy or practice.
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1. Policy or Practice of Requiring Commitment to Pay Applicable Fees

Between September 6, 2011 and September 14, 2011, NSC submitted five FOIA requests 

to the CIA. See FAC ¶ 69. In response to each of these requests, the CIA notified NSC that 

“[w]e determined that your request falls into the ‘all other’ fee category, which may require you 

to pay charges to cover the cost of searching for and reproducing responsive records (if any) 

beyond the first 100 pages of reproduction and the first two hours of search time, which are 

free.” Id. ¶ 70. The CIA’s letters also stated that “we will need your commitment to pay all 

applicable fees before we can proceed with our searches.” Id. NSC sought clarification of these 

letters, asking the CIA, via letter on October 4, 2011, to “[p]lease confirm that you mean that you 

will conduct the first two hours of search regardless of our promise to pay, since we are entitled 

to that by law, and that you will not conduct any further searches absent a promise to pay.” Id.

¶ 71 (emphasis omitted). The CIA responded to NSC’s request on October 7, 2011, stating that 

“it is not possible to limit our searches for records on a particular topic to precisely two hours” 

since “some of the searches are automated, whereas others are not,” and therefore “the total 

search effort cannot be limited in an arbitrary way, such as the maximum amount that can be 

performed as you requested.” Id. ¶ 72. In light of this correspondence, the plaintiffs allege that 

“CIA’s refusal to provide two free hours of search time to ‘all other’ requesters who refuse to 

pay any fees represents an ongoing policy, practice, or Standard Operating Procedure (‘SOP’),” 

which “is in violation of FOIA.” See id. ¶¶ 74–75.4

 4 The term “all other” FOIA requester is a reference to the CIA’s FOIA fee categories, and the “all other” category 

consists of all individuals who are not “commercial” requesters, “non-commercial educational or scientific 

institution” requesters, or “representatives of the news media” requesters, as those terms are defined in the CIA’s 

FOIA regulations. See 32 C.F.R. § 1900.02(h).
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2. Policy or Practice of Charging Search Fees for Automated Searches

The second alleged policy or practice of the CIA challenged by the plaintiffs is based on 

the same facts just discussed. Specifically, the plaintiffs point to the language in the CIA’s 

October 7, 2011 response letter, which stated that “it is not possible to limit our searches for 

records on a particular topic to precisely two hours” since “some of the searches are automated, 

whereas others are not.” Id. ¶ 72. From this language the plaintiffs claim that “[t]he fact that 

some of the searches are automated has no bearing on the length of the search for fee purposes 

unless CIA counts the time that a computer takes to perform an automated search with no human 

participation as part of the search time.” See id. ¶ 80. Accordingly, the plaintiffs allege that 

“CIA’s reference to automated searches indicates an ongoing policy, practice, or SOP,” and “[a] 

policy, practice, or SOP of counting for fee purposes the time spent by a computer performing an 

automated search with no human participation is in violation of FOIA.” See id. ¶¶ 81–82.

3. Policy or Practice of Refusing to Provide Electronic Records

The third alleged CIA policy or practice challenged by the plaintiffs relates to the format 

in which records are produced to FOIA requesters. The plaintiffs allege that they “have never 

received electronic records from CIA in response to FOIA requests.” Id. ¶ 134. In this regard, 

the plaintiffs also allege that “CIA admits that it has a blanket policy of considering every record 

‘not readily reproducible in electronic format’ with the exception of a select few categories of 

frequently requested records.” Id. ¶ 135. According to the plaintiffs, “CIA defends this policy 

with the argument that its FOIA processing software is only located on its classified computer 

system, and that after processing records for release using that software it is unduly burdensome 

to then remove the records from the classified system and burn them to digital media.” Id.5

 The 

 5 In support of this contention, the plaintiffs generally cite the CIA’s “filings in Case Nos. 11-443, 11-444.” See

FAC ¶ 135. Those two related cases are also currently pending before this Court.
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plaintiffs thus allege that “[a] policy, practice, or SOP of refusing to provide any releasable 

records in electronic format (with the exception of a select few predefined categories) is in 

violation of FOIA.” See id. ¶ 136 (emphasis in original).

4. Policy or Practice of Invoking FOIA Exemption 3 Without 

Authorization

The final alleged CIA policy or practice challenged by the plaintiffs has to do with the 

CIA’s authority to invoke the National Security Act, 50 U.S.C. §§ 401, et seq., as a withholding 

statute under FOIA Exemption 3, 5 U.S.C. § 552(b)(3). “Prior to 2004, the National Security 

Act vested the Director of Central Intelligence (‘DCI’) with the authority to protect intelligence 

sources and methods.” FAC ¶ 208. According to the plaintiffs, “[i]n 2004, the Intelligence 

Reform and Terrorism Prevention Act (‘IRTPA’) transferred this authority to make such a

decision from the DCI to the newly-created [Director of National Intelligence, or ‘DNI’].” Id.

¶ 209. Thus, the plaintiffs allege that, after 2004, the CIA would only have the authority to 

invoke the “protect intelligence sources and methods” clause of the National Security Act as an 

Exemption (b)(3) withholding statute in one of two instances: “(1) it consulted with ODNI in 

each instance and ODNI authorized each invocation; or (2) ODNI authorized CIA to 

independently make such invocations.” See id. ¶ 210. The plaintiffs claim that, although 

“[s]ince 2004, CIA has repeatedly invoked the ‘protect intelligence sources and methods’ clause 

of the National Security Act” pursuant to Exemption 3, “CIA possesses no independent authority 

to withhold records from FOIA requests under Exemption (b)(3) to protect intelligence sources 

and methods.” See id. ¶¶ 211, 214. This is so because, according to the plaintiffs, “the DNI has 

not authorized CIA to independently invoke the National Security Act as an Exemption (b)(3) 

withholding statute,” and therefore “every time CIA invokes the ‘intelligence sources and 

methods’ language of the National Security Act as an Exemption (b)(3) withholding statute at the 
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administrative stage, it is doing so without authorization from the agency vested with that 

authority.” Id. ¶¶ 215–16. Based on these allegations, the plaintiffs claim that “[a] policy, 

practice, or SOP of invoking an Exemption (b)(3) withholding statute without proper 

authorization is in violation of FOIA.” Id. ¶ 217.

With respect to each of these four alleged policies or practices, the plaintiffs allege that 

they “stand to continue to be harmed by this ongoing policy in the future, as they regularly file 

FOIA requests with CIA and will continue to do so in the future.” See id. ¶¶ 137, 218; see also

id. ¶¶ 76, 83 (making same allegations with respect to NSC only). The plaintiffs also allege in 

each of these policy-or-practice claims that they are “entitled to relief in the form of a declaratory 

order that CIA is in violation of its statutory responsibilities under FOIA and an injunction 

compelling CIA” to cease each unlawful policy or practice. See id. ¶¶ 77, 84, 138, 219.

C. CIA’s Rule Regarding Fees Charged to MDR Requesters

The final claim that the CIA has moved to dismiss is the plaintiffs’ challenge, under the 

APA, to the CIA’s decision to promulgate a final rule without notice-and-comment procedures. 

On June 16, 1997 the CIA promulgated an “interim rule” to “implement its obligations under the 

[FOIA], the Privacy Act, and Executive Order 12958 (or successor Orders) provisions relating to 

classification challenges by authorized holders, requests for mandatory declassification review, 

and access by historical researchers.” See Freedom of Information Act; Privacy Act; and 

Executive Order 12958; Implementation (“Interim Rule”), 62 Fed. Reg. 32,479 (June 16, 1997) 

(codified as amended at 32 C.F.R. pts. 1900–01, 1907–09); see also FAC ¶ 20.

6

 6 MDR requests are requests filed with government agencies that “seek[] declassification review of records” that are 

classified but that, according to the requesters, should now be available to the public. See FAC ¶ 12; see also Exec. 

Order No. 13,526 § 3.5(a), 75 Fed. Reg. 707, 717–18 (Dec. 29, 2009) (“[A]ll information classified under this order 

or predecessor orders shall be subject to a review for declassification by the originating agency if, [inter alia,] . . . 

the request for a review describes the document or material containing the information with sufficient specificity to 

enable the agency to locate it with a reasonable amount of effort . . . .”).
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Two sections of this 1997 Interim Rule described the CIA’s fee structure for FOIA and 

MDR requests. The section regarding fees for FOIA requests stated, in pertinent part, that 

“[r]ecords will be furnished without charge or at a reduced rate whenever the Agency 

determines,” inter alia, that “it is in the public interest because it is likely to contribute 

significantly to the public understanding of the operations or activities of the United States 

Government and is not primarily in the commercial interest of the requester.” See Interim Rule, 

62 Fed. Reg. at 32,483. In this same vein, the Interim Rule delineated three categories of FOIA 

requesters: (1) “[c]ommercial use” requesters, who were to be charged for “the full direct costs 

of searching for, reviewing, and duplicating responsive records (if any),” (2) “[e]ducational and 

non-commercial scientific institution” and “representatives of the news media” requesters who 

were to be charged only for “reproduction beyond the first 100 pages,” and (3) “[a]ll other” 

requesters, who were to be charged “the full direct cost of searching for and reproducing 

responsive records (if any) beyond the first 100 pages of reproduction and the first two hours of 

search time which will be furnished without charge.” Id. at 32,484. The Interim Rule further 

stated that “[MDR] [r]equests made directly to [the CIA] will be liable for costs in the same 

amount and under the same conditions as specified in 32 CFR part 1900,” id. at 32,496, which is 

the portion of the CIA’s regulations dealing with FOIA requests, see 32 C.F.R. § 1900.01 (“This 

part is issued under the authority of and in order to implement the [FOIA and other related 

statutes].”).

The plaintiffs allege that “prior to 23 September 2011, CIA rarely if ever charged fees to 

process MDR requests” and “[o]f the multiple frequent MDR requesters surveyed by Plaintiffs, 

none recalled ever being charged by CIA for MDR requests.” See FAC ¶ 23. On September 23, 

2011, however, the CIA published in the Federal Register a final rule that amended the CIA’s 
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regulations regarding fees for MDR requests. See Mandatory Declassification Review (“Final 

Rule”), 76 Fed. Reg. 59,032 (Sept. 23, 2011) (codified at 32 C.F.R. pt. 1908). The Final Rule 

added 32 C.F.R. § 1908.14, which sets forth several provisions governing whether and how fees 

are assessed for MDR requests. In relevant part, the new provisions (1) assess reproduction fees 

for all MDR requests, including a fee of fifty cents per page, $10 per CD, and a minimum fee of 

$15 per request for reproductions; and (2) assess search and review fees of between $20 and $72 

per hour for all MDR requests, which are due “even if our search locates no responsive 

information or some or all of the responsive information must be withheld under applicable 

authority.” See 32 C.F.R. § 1908.14; see also FAC ¶ 25.

Since the passage of this rule, the plaintiffs allege that “CIA began responding to MDR 

requests with demands that requesters commit to pay all search, review, and duplication fees at 

the new fee schedule described in 32 C.F.R. § 1908.14.” FAC ¶ 26. Specifically, three of the 

plaintiffs (NSC, Stein, and Mark Zaid) each submitted one or more MDR requests to the CIA 

following promulgation of the Final Rule, and the CIA responded to each request by asking the 

requester to commit to pay the fees outlined in 32 C.F.R. § 1908.14 and holding the request in 

abeyance until such a commitment was given. See id. ¶¶ 27–35. Based on these allegations, the 

plaintiffs claim that “CIA violated the APA by publishing a Final Rule substantially altering [the 

former 32 C.F.R. § 1908.13] without first using a Proposed Rule subject to notice and comment.” 

Id. ¶ 38. The plaintiffs further allege that the CIA’s Final Rule “does not meet the narrow 

requirements for an interpretive rule that is exempt from the notice and comment requirement.” 

Id. To remedy this alleged violation, the plaintiffs seek, inter alia, vacatur of the Final Rule. See 

id. ¶ 39.
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II. LEGAL STANDARDS

A. Subject-Matter Jurisdiction

When faced with a motion to dismiss for lack of subject-matter jurisdiction under Rule 

12(b)(1), a court has “an affirmative obligation to consider whether the constitutional and 

statutory authority exist” for it to hear the case. James Madison Ltd. v. Ludwig, 82 F.3d 1085, 

1092 (D.C. Cir. 1996) (internal quotation marks omitted). For this reason, “the [p]laintiff’s

factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion

than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge of Fraternal 

Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001) (internal quotation marks 

omitted). When the purported lack of jurisdiction stems from a lack of standing, however, the 

court “must assume that [the plaintiff] states a valid legal claim.” Info. Handling Servs., Inc. v. 

Def. Automated Printing Servs., 338 F.3d 1024, 1029 (D.C. Cir. 2003). The proponent of 

jurisdiction bears the burden of proving that jurisdiction exists, Khadr v. United States, 529 F.3d 

1112, 1115 (D.C. Cir. 2008), and while “the district court may consider materials outside the 

pleadings,” it must “still accept all of the factual allegations in the complaint as true.” Jerome 

Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citations and internal 

quotation marks omitted).

B. Failure to State a Claim

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff need only plead “enough 

facts to state a claim to relief that is plausible on its face” and to “nudge[] [his or her] claims 

across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007); see also FED. R. CIV. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked 

assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 
13

(2009) (quoting Twombly, 550 U.S. at 557). Instead, the complaint must plead facts that are 

more than “‘merely consistent with’ a defendant’s liability.” Id. (quoting Twombly, 550 U.S. at 

557). Rather, “the plaintiff [must] plead[ ] factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Id.; accord Rudder 

v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). The Court “must assume all the allegations in 

the complaint are true (even if doubtful in fact) . . . [and] must give the plaintiff the benefit of all 

reasonable inferences derived from the facts alleged.” Aktieselskabet AF 21. November 2001 v. 

Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (citations and internal quotation marks 

omitted).

C. FOIA

Congress enacted the FOIA to promote transparency across the government. See 5 

U.S.C. § 552; Quick v. U.S. Dep’t of Commerce, Nat’l Inst. of Standards & Tech., 775 F. Supp.

2d 174, 179 (D.D.C. 2011). The Supreme Court has explained that the FOIA is “a means for 

citizens to know ‘what their Government is up to.’ This phrase should not be dismissed as a 

convenient formalism. It defines a structural necessity in a real democracy.” Nat’l Archives & 

Records Admin. v. Favish, 541 U.S. 157, 171–172 (2004) (citation and internal quotation marks 

omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning 

of a democratic society, needed to check against corruption and to hold the governors 

accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). 

As a result, the FOIA requires federal agencies to release all records responsive to a request for 

production. See 5 U.S.C. § 552(a)(3)(A). Federal courts are authorized under the FOIA “to 

enjoin the agency from withholding agency records and to order the production of any agency 

records improperly withheld from the complainant.” Id. § 552(a)(4)(B).
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This strong interest in transparency must be tempered, however, by the “legitimate 

governmental and private interests [that] could be harmed by release of certain types of 

information.” United Techs. Corp. v. U.S. Dep’t of Def., 601 F.3d 557, 559 (D.C. Cir. 2010)

(internal quotation marks omitted); see also Critical Mass Energy Project v. Nuclear Regulatory 

Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc). Accordingly, Congress included nine 

exemptions permitting agencies to withhold information from FOIA disclosure. See 5 U.S.C. 

§ 552(b). “These exemptions are explicitly made exclusive, and must be narrowly construed.” 

Milner v. Dep’t of the Navy, 131 S. Ct. 1259, 1262 (2011) (citations and internal quotation marks 

omitted); see also Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir. 

2010) (“FOIA allows agencies to withhold only those documents that fall under one of nine 

specific exemptions, which are construed narrowly in keeping with FOIA’s presumption in favor 

of disclosure.” (citations omitted)). When a FOIA requester properly exhausts its administrative 

remedies, it may file a civil action challenging an agency’s response to its request. See 5 U.S.C. 

§ 552(a)(4)(B); Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (per curiam). Once such an 

action is filed, the agency generally has the burden of demonstrating that its response to the 

plaintiff’s FOIA request was appropriate.

The D.C. Circuit has also recognized that, separate from claims seeking relief for specific 

requests made under the FOIA, requesting parties may also assert a “claim that an agency policy 

or practice will impair the party’s lawful access to information in the future.” Payne Enters., 

Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988) (emphasis in original); accord Newport 

Aeronautical Sales v. Dep’t of the Air Force, 684 F.3d 160, 164 (D.C. Cir. 2012). The Court in 

Payne held that a policy-or-practice claim is viable “[s]o long as an agency’s refusal to supply 

information evidences a policy or practice of delayed disclosure or some other failure to abide by 
15

the terms of the FOIA, and not merely isolated mistakes by agency officials.” Payne, 837 F.2d 

at 491. To state a claim for relief under the doctrine articulated in Payne, a plaintiff must 

plausibly demonstrate that the agency in question has adopted, endorsed, or implemented a 

policy or practice that constitutes an ongoing “failure to abide by the terms of the FOIA.” See id.

III. DISCUSSION

The defendants raise two grounds in support of their partial motion to dismiss.7 First, 

they contend that the plaintiffs lack Article III standing to sue regarding each of the plaintiffs’ 

four policy-or-practice claims (Counts Five, Six, Fifteen, and Twenty-Five). Second, the 

defendants argue that three of the plaintiffs’ claims (Counts Five, Nineteen, and Twenty-Six (in 

part)) must be dismissed for failure to exhaust administrative remedies. Finally, the defendants 

contend that seven of the plaintiffs’ claims (Counts One, Five, Six, Fifteen, Twenty-One, 

Twenty-Two, and Twenty-Five) must be dismissed for failure to state a claim upon which relief 

may be granted. When a federal court is faced with both a challenge to its Article III jurisdiction 

to hear certain claim as well as a challenge to the merits of those claims, the court must address 

the jurisdictional question before addressing any question of the merits. See Steel Co. v. Citizens 

for a Better Env’t, 523 U.S. 83, 101 (1998); accord Pub. Citizen v. U.S. Dist. Ct. for the Dist. of 

Columbia, 486 F.3d 1342, 1346 (D.C. Cir. 2007) (“‘Article III jurisdiction is always an 

antecedent question’ to be answered prior to any merits inquiry.” (quoting Steel Co., 523 U.S. at 

101)). Therefore, the Court will begin by discussing the defendants’ standing arguments before 

 7 Although the pending partial motion to dismiss was filed by both defendants, the remaining claims challenged in 

that motion are limited to causes of action pled against the CIA. The defendants’ motion originally moved for 

dismissal of Count Twenty-Three of the First Amended Complaint, which is the only claim pled against the ODNI,

for insufficient service of process. See Defs.’ Partial Mot. to Dismiss at 1, ECF No. 14. The plaintiffs later 

effectuated service on ODNI, see Pls.’ Opp’n to Defs.’ Partial Mot. to Dismiss (“Pls.’ Opp’n”) at 2. n.2, ECF No. 

18, which all parties agree renders the defendants’ challenge to Count Twenty-Three moot, see id.; Defs.’ Reply in 

Supp. of Partial Mot. to Dismiss (“Defs.’ Reply”) at 1 n.1, ECF No. 23.
16

discussing administrative exhaustion and the defendants’ other argument for dismissal pursuant 

to Rule 12(b)(6).

A. Standing

Article III of the United States Constitution limits the federal judicial power to the 

resolution of “Cases” and “Controversies.” U.S. CONST. art. III, § 2. “In limiting the judicial 

power to ‘Cases’ and ‘Controversies,’ Article III of the Constitution restricts it to the traditional 

role of Anglo-American courts, which is to redress or prevent actual or imminently threatened 

injury to persons caused by private or official violation of law.” Summers v. Earth Island Inst., 

555 U.S. 488, 492 (2009). In other words, “[t]he case-or controversy doctrines state fundamental 

limits on federal judicial power in our system of government.” Allen v. Wright, 468 U.S. 737, 

750 (1984). “The Art[icle] III doctrine that requires a litigant to have ‘standing’ to invoke the 

power of a federal court is perhaps the most important of these doctrines.” Id.

As the Supreme Court has explained, “the irreducible constitutional minimum of standing 

contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, the 

plaintiff must have suffered an “injury in fact,” i.e., “an invasion of a legally protected interest 

which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or 

hypothetical.” Id. (citations and internal quotation marks omitted). Second, there must be “a 

causal connection between the injury and the conduct complained of,” i.e., the injury alleged 

must be fairly traceable to the challenged action of the defendant. Id. Finally, it must be likely 

that the injury will be redressed by a favorable decision. Id. at 561.

Moreover, when a plaintiff seeks prospective declaratory or injunctive relief, allegations 

of past harms are insufficient. See, e.g., Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir. 2011). 

Rather, when declaratory or injunctive relief is sought, a plaintiff “must show he is suffering an 
17

ongoing injury or faces an immediate threat of [future] injury.” Id. (citing City of Los Angeles v. 

Lyons, 461 U.S. 95, 105 (1983)). When a plaintiff seeks injunctive or declaratory relief 

specifically for the purpose of challenging an alleged policy or practice of a government agency, 

it must also demonstrate that it is “‘realistically threatened by a repetition of [its] experience.’” 

Haase v. Sessions, 835 F.2d 902, 910–11 (D.C. Cir. 1987) (quoting Lyons, 461 U.S. at 109). To 

plead a “threat of repetition,” a plaintiff must make “more than a nebulous assertion of the 

existence of a ‘policy,’” and that it is “likely to be subjected to the policy again.” Id. at 911. 

This threat must be “real and immediate,” or, alternatively, “realistic[]” in nature. See Lyons, 

461 U.S. at 102; Golden v. Zwickler, 394 U.S. 103, 109 (1969); see also Fair Emp’t Council of 

Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1274 (D.C. Cir. 1994) (collecting cases 

and observing that the standard for judging likelihood of future injury has been formulated as 

“likely,” “fairly probable,” and “certainly impending”).

In the instant action, the CIA argues that the plaintiffs lack standing to pursue their Payne

policy-or-practice claims because “[n]one of the plaintiffs allege any specific plans to file FOIA 

requests in the future that would implicate the alleged policies and practices they seek to 

challenge.” Mem. in Supp. of Defs.’ Partial Mot. to Dismiss (“Defs.’ Mem.”) at 7–8 (emphasis 

omitted), ECF No. 14. Instead, the CIA contends, the plaintiffs’ “claims of future injury rest 

entirely on the bare allegation that they are frequent FOIA requesters.” Id. at 8. According to 

the CIA, “[p]laintiffs’ status as frequent FOIA requesters cannot transform speculation and 

conjecture into cases or controversies,” and thus this Court lacks jurisdiction to entertain the 

plaintiffs’ policy-or-practice claims. See id. at 10. The plaintiffs’ response to these arguments is 

quite cursory. In addition to spending several pages attempting to distinguish various precedents 

from this Circuit cited by the CIA, which the Court discusses further below, the plaintiffs simply 
18

state, without further elaboration or support, that they “have made the same assertions that Judge 

Kennedy found sufficient in” Citizens for Responsibility & Ethics in Washington v. Executive 

Office of the President (“CREW/EOP”), 587 F. Supp. 2d 48 (D.D.C. 2008) (Kennedy, J.). See

Pls.’ Opp’n to Defs.’ Partial Mot. to Dismiss (“Pls.’ Opp’n”) at 19, ECF No. 18.

To put the parties’ arguments in context, the Court will briefly discuss the handful of 

cases from this Circuit that the parties discuss in their briefing, both for and against standing. In 

addition to CREW/EOP, the parties focus their attention on three cases: Quick v. U.S. 

Department of Commerce, National Institute of Standards & Technology, 775 F. Supp. 2d 174 

(D.D.C. 2011); Citizens for Responsibility & Ethics in Washington v. U.S. Department of 

Homeland Security (“CREW/DHS”), 527 F. Supp. 2d 101 (D.D.C. 2007); and American 

Historical Association v. National Archives & Records Administration, 310 F. Supp. 2d 216 

(D.D.C. 2004). See Defs.’ Mem. at 8–10; Pls.’ Opp’n at 16–19. Although none of these cases is 

on all fours with the instant action, the cases are helpful in elucidating certain principles that 

govern standing in the context of FOIA policy-or-practice claims.

First, the Quick case stands for the uncontroversial proposition that, even assuming that 

an alleged policy or practice exists and some FOIA requesters may have been subject to that 

policy, FOIA plaintiffs must establish that they have personally been subject to the alleged 

policy to have standing to challenge it. See Quick, 775 F. Supp. 2d at 187 (observing that the 

record was “clear” that “even assuming that individuals other than [the plaintiff] may have been 

subject to the alleged ‘pattern or practice,’” the plaintiff had not been subject to it and thereby 

lacked standing). Additionally, Quick, CREW/DHS, and American Historical Association

establish that plaintiffs do not have standing to pursue policy-or-practice claims if they cannot 

demonstrate that they have any outstanding FOIA requests (other than the requests challenged in 
19

the litigation) that are likely to implicate the alleged policies and lead to future injury. See id. at 

187 (finding no standing where plaintiff stated that he “plan[ned] to file additional FOIA 

requests to the [defendant] in the future,” though none had actually been filed); CREW/DHS, 527 

F. Supp. 2d at 106 (finding no standing where plaintiff “[did] not allege anywhere in its 

complaint or opposition brief that it has a FOIA request pending with the DHS”); American 

Historical Association, 310 F. Supp. 2d at 228 (finding no standing where “Plaintiffs have no 

outstanding requests for presidential records”). Other cases, including CREW/EOP, have 

clarified that, where FOIA requesters challenge an alleged ongoing policy or practice and can 

demonstrate that they have pending FOIA requests that are likely to implicate that policy or 

practice, future injury is satisfied. See Citizens for Responsibility & Ethics in Wash. v. U.S. Sec. 

& Exch. Comm’n (“CREW/SEC”), 858 F. Supp. 2d 51, 60 (D.D.C. 2012) (holding that 

“outstanding FOIA requests that involve documents that likely will be unavailable due to the 

challenged policy” are sufficient to allege future injury); CREW/EOP, 587 F. Supp. 2d at 60–61 

(holding that, because plaintiffs “each allege that they have FOIA requests for e-mails currently 

pending with the [defendant agencies] and intend to file future requests,” their allegations of 

future injury were “real and immediate” (quoting Pub. Citizen v. Carlin, 2 F. Supp. 2d 1, 6 

(D.D.C. 1997))); see also Nat’l Sec. Counselors v. CIA, Nos. 11-443, 11-444, 11-445, 2012 WL 

4903377, at *18–20 (D.D.C. Oct. 17, 2012) (holding that plaintiff had standing to pursue policyor-practice claims when “it had already submitted fifteen FOIA requests to the CIA since filing 

the Complaints” which were “likely to implicate the claimed policies and practices at issue 

because the pending and future requests appear to be of the same character as the specific 

requests that form the basis of the plaintiff’s current claims”).
20

The plaintiffs’ contention that they “have made the same assertions that Judge Kennedy 

found sufficient in CREW v. EOP,” see Pls.’ Opp’n at 19, however, is unsupported by the 

allegations in the First Amended Complaint or any other materials submitted by the plaintiffs. 

Unlike the plaintiff in CREW/EOP, the plaintiffs in the instant action have not alleged or 

demonstrated that “they have FOIA requests for [records likely to implicate the challenged 

policies] currently pending with the [allegedly offending agency].” See CREW/EOP, 587 F. 

Supp. 2d at 60–61. Indeed, the instant action is also readily distinguishable from the related 

cases analyzed by this Court in National Security Counselors v. CIA, 2012 WL 4903377. In 

those related actions, NSC similarly challenged a number of allegedly unlawful policies or 

practices of the CIA pursuant to the FOIA. See 2012 WL 4903377, at *2–9 (summarizing twelve 

policies or practices alleged). NSC stated, in contrast with the instant action, that “it had already 

submitted fifteen FOIA requests to the CIA since filing the Complaints in these actions,” which 

this Court found were “likely to implicate the claimed policies and practices at issue because the 

pending and future requests appear to be of the same character as the specific requests that form 

the basis of the plaintiff’s current claims.” See id. at *19. In NSC v. CIA, this Court also 

observed that NSC had “displayed a clear intent to continue filing FOIA requests with the CIA, 

supported by its consistent habit of filing such requests both before and after the commencement 

of this litigation and its stated mission ‘to obtain records about national security issues.’” Id.

(emphasis added). Although in NSC v. CIA this Court cited NSC’s “clear intent to continue 

filing FOIA requests with the CIA” as a basis to conclude that NSC had standing to pursue its 

policy-or-practice claims, that “clear intent” was only concretely apparent because of the 

outstanding FOIA requests that NSC was still pursuing with the CIA, which were themselves 

likely to implicate the challenged policies in the future. See id.
21

By contrast, in this case, the plaintiffs have merely alleged that they “stand to continue to 

be harmed” because “they regularly file FOIA requests with CIA and will continue to do so in 

the future.” FAC ¶ 137; see also id. ¶ 76 (“As a frequent FOIA requester to CIA, NSC stands to 

continue to be harmed by this ongoing practice in the future.”); id. ¶ 83 (“NSC stands to continue 

to be harmed by this ongoing policy in the future, as it regularly files FOIA requests with CIA 

and will continue to do so in the future.”); id. ¶ 218 (“Plaintiffs stand to continue to be harmed 

by this ongoing policy in the future, as they regularly file FOIA requests with CIA (many of 

which CIA denies citing this ‘intelligence sources and methods’ language) and will continue to 

do so in the future.”). These general statements about a “regular” course of conduct and an

expressed intention to “continue to do so in the future” do not establish the same concrete 

likelihood of injury that emanates from allegations of specific, pending FOIA requests that are 

likely to be subject to an agency’s challenged policies. This concrete likelihood of future injury 

was extant in the cases discussed above where standing was found, see Nat’l Sec. Counselors, 

2012 WL 4903377, at *18–20; CREW/SEC, 858 F. Supp. 2d at 60; CREW/EOP, 587 F. Supp. 2d 

at 60–61, and the generalized statements offered by the plaintiffs in the instant case are not 

sufficiently concrete for the Court to conclude that the plaintiffs are likely to be subjected to 

these alleged policies or practices in the future.8 See, e.g., Summers, 555 U.S. at 496 (holding 

that plaintiff’s “vague desire to return is insufficient to satisfy the requirement of imminent 

injury”); Lujan, 504 U.S. at 564 (holding that “the affiants’ profession of an ‘intent’ to return to 

 8 The Court does not doubt that, as allegedly prolific FOIA requesters, the plaintiffs may very well have concrete 

plans to file future FOIA requests, or may have FOIA requests currently pending with the CIA, which are likely to 

implicate the policies or practices claimed in this action. Nevertheless, the burden of establishing jurisdiction lies 

with the party who contends that jurisdiction exists, Khadr, 529 F.3d at 1115, and therefore it is the plaintiffs’ 

burden to come forth with evidence or allegations that establish jurisdiction. It is not for the Court to make 

assumptions about the plaintiffs’ FOIA activities based solely on their status as “frequent” or “regular[]” FOIA 

requesters. See FAC ¶¶ 76, 83, 137, 218. Indeed, the Supreme Court in Summers rejected a similar approach in the 

context of organizational standing. See Summers, 555 U.S. at 497 (rejecting the “hitherto unheard of test for 

organizational standing” whereby standing exists by virtue of “a statistical probability that some of [an 

organization’s] members are threatened with concrete injury”).
22

the places they had visited before . . . is simply not enough” because “[s]uch ‘some day’ 

intentions—without any description of concrete plans, or indeed any specification of when the 

some day will be—do not support a finding of the ‘actual or imminent’ injury that our cases 

require” (emphasis in original)); Haase, 835 F.2d at 911 (“[I]t will not do for [the plaintiff] to 

assert generally that he might one day return to Nicaragua. More immediate and concrete plans 

are necessary.”). The Court thus concludes that the plaintiffs have failed to establish that they 

have Article III standing to bring their policy-or-practice claims, and the Court must therefore 

dismiss those claims, pleaded in Counts Five, Six, Fifteen, and Twenty-Five of the First 

Amended Complaint, for lack of subject-matter jurisdiction.9

B. Exhaustion of Administrative Remedies

“‘Exhaustion of administrative remedies is generally required before filing in federal 

court so that the agency has an opportunity to exercise its discretion and expertise on the matter 

and to make a factual record to support its decision.’” Hidalgo v. FBI, 344 F.3d 1256, 1258 

(D.C. Cir. 2003) (quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 61 (D.C. Cir. 1990)). 

Although the exhaustion requirement under the FOIA is not jurisdictional, “as a jurisprudential 

doctrine, failure to exhaust precludes judicial review if ‘the purposes of exhaustion’ and the 

‘particular administrative scheme’ support such a bar.” Id. at 1258–59 (quoting Oglesby, 920 

F.2d at 61); see also Wilbur, 355 F.3d at 677 (holding that “[e]xhaustion of administrative 

remedies is generally required before seeking judicial review”); Sinito v. U.S. Dep’t of Justice,

176 F.3d 512, 516 (D.C. Cir. 1999) (recognizing that “FOIA requires each requestor to exhaust 

administrative remedies” (citing Oglesby, 920 F.2d at 61)); Dettmann v. U.S. Dep’t of Justice,

 9 Since the Court dismisses Counts Five, Six, Fifteen, and Twenty-Five for lack of standing, the Court need not 

address the CIA’s other arguments for dismissal of those claims. See Defs.’ Mem. at 10–16, 20–32, 37–39 (arguing 

for dismissal of Counts Five, Six, Fifteen, and/or Twenty-Five on grounds of ripeness, availability of adequate 

remedies at law, and failure to state a claim).
23

802 F.2d 1472, 1476 (D.C. Cir. 1986) (“It goes without saying that exhaustion of remedies is 

required in FOIA cases.”).

Under the FOIA, there are two ways for a requester to exhaust administrative remedies: 

actual exhaustion and constructive exhaustion. Actual exhaustion is required when an agency 

responds to a request and determines, within twenty working days, whether and how to comply 

with that request, and in that situation a requester dissatisfied with the agency’s determination 

must administratively appeal it to the head of the agency before filing suit. See 5 U.S.C. 

§ 552(a)(6)(A); see also Oglesby, 920 F.2d at 65 (“[F]oregoing an administrative appeal will 

preclude the [FOIA] requester from ever bringing suit on that request because the individual will 

not have exhausted his administrative remedies . . . .”); Weisberg v. U.S. Dep’t of Justice

(“Weisberg I”), 745 F.2d 1476, 1497 (D.C. Cir. 1984) (holding that appellant “did not exhaust 

his administrative remedies” where he “pretermitted the administrative stage of the processing of 

FOIA requests”). For purposes of actual exhaustion, the D.C. Circuit has held that “[a] response 

is sufficient for purposes of requiring an administrative appeal” if it includes “the agency’s 

determination of whether or not to comply with the request; the reasons for its decision; and 

notice of the right of the requester to appeal to the head of the agency if the initial agency 

decision is adverse.” Oglesby, 920 F.2d at 65. When an agency fails to respond to a request 

within twenty working days, however, a requester “shall be deemed to have exhausted his 

administrative remedies with respect to such request,” 5 U.S.C. § 552(a)(6)(C), and may 

therefore immediately seek judicial review in federal district court. See, e.g., Judicial Watch, 

Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C. Cir. 2003) (“A requester is considered to have 

constructively exhausted administrative remedies and may seek judicial review immediately 

if . . . the agency fails to answer the request within twenty days.”). This kind of “constructive 
24

exhaustion” is “a special provision virtually unique to FOIA.” Spannaus v. U.S Dep’t of Justice, 

824 F.2d 52, 58 (D.C. Cir. 1987).

In the instant case, the CIA argues that NSC failed to exhaust its administrative remedies 

in connection with the FOIA request at issue in Count Nineteen and two of the three FOIA 

requests at issue in Count Twenty-Six of the First Amended Complaint.10 See Defs.’ Mem. at 

16–20. It is apparent from the face of the First Amended Complaint that NSC did not file an 

administrative appeal of these three FOIA requests. See FAC ¶¶ 164–66, 229–31. Instead, NSC

alleges that it constructively exhausted its administrative remedies. See id. ¶¶ 167, 232. 

Specifically, NSC contends that it was not required to file an administrative appeal for these 

three FOIA requests because the CIA’s denial letter “did not meet the procedural requirements of 

5 U.S.C. § 552(a)(6)(F),” see Pls.’ Opp’n at 38, which states:

In denying a request for records, in whole or in part, an agency shall make a 

reasonable effort to estimate the volume of any requested matter the provision of 

which is denied, and shall provide any such estimate to the person making the 

request, unless providing such estimate would harm an interest protected by the 

exemption in subsection (b) pursuant to which the denial is made.

5 U.S.C. § 552(a)(6)(F). Since the CIA’s denial letters did not contain the volume estimate set 

forth in this provision, the plaintiffs allege that those denial letters were “legally insufficient” and 

did not trigger the requirement to file an administrative appeal. See FAC ¶¶ 166, 231; Pls.’ 

Opp’n at 38–40. Thus, the plaintiffs’ contention that NSC constructively exhausted its 

administrative remedies is premised on the allegation that “twenty working days [had] elapsed 

without a substantive determination by CIA which [met] the volume estimate requirement of 

FOIA.” See FAC ¶¶ 167, 232.

 10 The two requests from Count Twenty-Six that the CIA contends were not exhausted are FOIA Request Nos. F2011-1891 and F-2012-318. See FAC ¶¶ 229–32.
25

At first blush, the D.C. Circuit’s holding in Oglesby appears to foreclose the plaintiff’s 

argument out of hand. As discussed above, Oglesby held that:

A response is sufficient for purposes of requiring an administrative appeal if it 

includes: the agency’s determination of whether or not to comply with the 

request; the reasons for its decision; and notice of the right of the requester to 

appeal to the head of the agency if the initial agency decision is adverse.

Oglesby, 920 F.2d at 65. Oglesby, however, was decided in 1990—six years prior to the 1996 

Electronic FOIA Amendments, which added the volume-estimate provision contained in 5 

U.S.C. § 552(a)(6)(F). See Electronic FOIA Amendments, Pub. L. No. 104-231, § 8(c), 110 Stat. 

3048, 3052 (1996). Thus, the Court must decide whether the holding in Oglesby continues to 

comport with the FOIA and whether 5 U.S.C. § 552(a)(6)(F) must be satisfied before an 

agency’s response is sufficient for purposes of requiring an administrative appeal.

At the outset, the Court observes that the narrow question presented is whether an 

agency’s response to a FOIA request which lacks a volume estimate requires actual exhaustion 

or instead permits constructive exhaustion. With that in mind, the Court need only look to the 

plain language of the FOIA, and in particular the FOIA’s requirements for resorting to 

constructive exhaustion, to resolve the issue. The FOIA’s constructive exhaustion provision

states that “[a]ny person making a request to any agency for records under [5 U.S.C. 

§§ 552(a)(1)–(3)] shall be deemed to have exhausted his administrative remedies with respect to 

such request if the agency fails to comply with the applicable time limit provisions of this 

paragraph.” 5 U.S.C. § 552(a)(6)(C)(i). This provision’s reference to “the applicable time limit 

provisions of this paragraph” is clearly a reference to the time limits contained in 5 U.S.C. 

§ 552(a)(6)(A). Indeed, 5 U.S.C. § 552(a)(6)—the “paragraph” referred to in 5 U.S.C. 

§ 552(a)(6)(C)(i)—only contains one set of “time limit provisions,” and those are the time limits 

contained in 5 U.S.C. § 552(a)(6)(A). Therefore, in order to foreclose constructive exhaustion
26

and require a requester to file an administrative appeal, an agency need only satisfy the 

requirements of 5 U.S.C. § 552(a)(6)(A), which is precisely what the D.C. Circuit held in 

Oglesby. See 920 F.2d at 65; see also 5 U.S.C. § 552(a)(6)(A)(i) (requiring agency to 

“determine within 20 days . . . after the receipt of any [FOIA] request whether to comply with 

such request” and “immediately notify the person making such request of such determination and 

the reasons therefor, and of the right of such person to appeal to the head of the agency any 

adverse determination”). Additionally, as the CIA points out, the D.C. Circuit did not 

incorporate into its holding in Oglesby “another longstanding statutory requirement for agency 

decision letters,” see Defs.’ Mem. at 19 n.3, which obligates agencies to “set forth the names and 

titles or positions of each person responsible for the denial of such request,” see 5 U.S.C. 

§ 552(a)(6)(C)(i). The Court finds the fact that the D.C. Circuit excluded this requirement from 

its holding in Oglesby to undercut the plaintiff’s argument regarding the volume-estimate 

requirement in 5 U.S.C. § 552(a)(6)(F).

The plaintiffs resist this conclusion by contending that “Oglesby is itself contradicted by 

binding Supreme Court precedent.” Pls.’ Opp’n at 39. In support of this argument, the plaintiffs 

cite the Supreme Court’s recent decision in Schindler Elevator Corp. v. United States ex rel. 

Kirk, 131 S. Ct. 1885 (2011). See Pls.’ Opp’n at 39. That case dealt with the question of

“whether a federal agency’s written response to a request for records under the [FOIA] 

constitutes a ‘report’ within the meaning of the public disclosure bar” in the False Claims Act

(“FCA”), 31 U.S.C. §§ 3729, et seq. Schindler Elevator, 131 S. Ct. at 1889. The Supreme Court 

held that such a written response did qualify as a “report” under the FCA because it “plainly is 

‘something that gives information,’ a ‘notification,’ and an ‘official or formal statement of 

facts.’” See id. at 1893. In arriving at that holding, the majority observed that “[w]hen an 
27

agency denies a [FOIA] request in whole or in part, it must additionally . . . ‘make a reasonable 

effort to estimate the volume of any denied matter,’ and ‘provide any such estimate to the person 

making the request.’” Id. (quoting 5 U.S.C. § 552(a)(6)(F)).

The Court does not read this statement from Schindler Elevator as a holding that a 

volume estimate of withheld material is required before a FOIA requester’s obligation to file an 

administrative appeal is triggered. It cannot be disputed, and the CIA does not dispute, that an 

agency is required to provide an estimate of the volume of any withheld material “[i]n denying 

any request for records, in whole or in part,” see 5 U.S.C. § 552(a)(6)(F); see also, e.g., Mobley 

v. Dep’t of Justice, 845 F. Supp. 2d 120, 124 (D.D.C 2012), but, importantly, the FOIA does not 

tie that obligation to the statute’s separate provision dealing with constructive exhaustion. 

Constructive exhaustion in the FOIA is a privilege granted only to individuals whose requests for 

records have essentially been ignored by the agency, and it is a privilege reserved for a situation 

in which agency neglect has resulted in a “fail[ure] to comply with the applicable time limit

provisions of” 5 U.S.C. § 552(a)(6).11 See 5 U.S.C. § 552(a)(6)(C)(i); see also, e.g., Citizens for 

Responsibility & Ethics in Wash. v. FEC, 839 F. Supp. 2d 17, 24 (D.D.C. 2011) (“Constructive 

exhaustion is not intended to supplant the agency’s authority under the FOIA with premature 

judicial oversight.”). That is not the case here. The Court is sympathetic to the fact that failing 

to provide an estimate of the volume of material withheld will likely render an agency’s 

administrative appeal process less meaningful because the requester will not know how much 

potentially responsive material is at issue. Yet, that same conclusion applies with equal force to

 11 In fact, cases from this Circuit have held that, even where an agency fails to comply with the time-limit provisions 

of 5 U.S.C. § 552(a)(6), the agency can still require a requester to file an administrative appeal before filing suit if, 

for example, the agency substantively responds to the request before the requester filed suit, see, e.g., Rossotti, 326 

F.3d at 1310; Love v. FBI, 660 F. Supp. 2d 56, 59–60 (D.D.C. 2009), or even where the agency merely notifies the 

requester “that the agency is processing the request and intends to produce responsive documents,” see Citizens for 

Responsibility & Ethics in Wash. v. FEC, 839 F. Supp. 2d 17, 25 (D.D.C. 2011).
28

other facts that are not required to be given prior to an administrative appeal, such as a Vaughn

index listing and describing the withheld documents. See, e.g., Mobley, 845 F. Supp. 2d at 124. 

The Court finds no evidence from the statutory text or case law to suggest that an agency’s

failure to provide an estimate of the volume of material withheld permits a FOIA requester to 

invoke constructive exhaustion and forego an administrative appeal before filing a lawsuit.12 As 

a result, the Court concludes that NSC failed to exhaust its administrative remedies regarding the 

FOIA request at issue in Count Nineteen and two of the three FOIA requests at issue in Count 

Twenty-Six of the First Amended Complaint.

Having concluded that NSC failed to exhaust its administrative remedies, the Court must 

consider whether permitting NSC now to challenge the CIA’s responses to these three FOIA 

requests would undermine either the “particular administrative scheme” or the “purposes of 

exhaustion.” See Hidalgo, 344 F.3d at 1258–59. The Court concludes that permitting NSC’s 

challenge to these three FOIA requests would, at the very least, frustrate the purposes of 

administrative exhaustion, and therefore, the Court will dismiss NSC’s challenges to these 

requests on that basis.

The D.C. Circuit has stated that non-jurisdictional exhaustion serves three primary 

purposes: “giving agencies the opportunity to correct their own errors, affording parties and 

courts the benefits of agencies’ expertise, [and] compiling a record adequate for judicial review.” 

Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004) (internal quotation marks 

omitted); accord Wilbur, 355 F.3d at 677 (holding that the “purposes and policies underlying the 

exhaustion requirement” are “to prevent premature interference with agency processes, to give 

the parties and the courts [the] benefit of the agency’s experience and expertise and to compile 

 12 Indeed, an administrative appeal is the proper place to raise, in the first instance, a challenge to an agency’s failure 

to provide a volume estimate in accordance with 5 U.S.C. § 552(a)(6)(F), for it is through such an administrative 

appeal process that the agency has the opportunity to correct its errors before a federal case is made out of them.
29

an adequate record for review”). “Exhaustion concerns apply with particular force when the 

action under review involves exercise of the agency’s discretionary power or when the agency 

proceedings in question allow the agency to apply its special expertise.” McCarthy v. Madigan, 

503 U.S. 140, 145 (1992), superseded by statute on other grounds, Prison Litigation Reform Act 

of 1995, Pub. L. No. 104-134, 110 Stat. 1321. Administrative exhaustion is designed “to give 

the agency a fair and full opportunity to adjudicate [a party’s] claims,” which “‘means using all 

steps that the agency holds out, and doing so properly (so that the agency addresses the issues on 

the merits).’” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (emphasis in original) (quoting Pozo v. 

McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)).

Two cases from this Circuit—Hidalgo v. FBI and Wilbur v. CIA—elucidate the concerns 

at play in the doctrine of FOIA administrative exhaustion. In Hidalgo, a prisoner filed a FOIA 

request seeking records related to an FBI informant who had helped the government prosecute 

him. Hidalgo, 344 F.3d at 1257. While the plaintiff’s request was still pending within the 

twenty-day statutory response period, he filed an “appeal,” erroneously asserting that the FBI 

had failed to respond to his request within the statutory time limit. Id. Less than two weeks 

later, the FBI sent the plaintiff a response denying his FOIA request. Id. at 1258. The plaintiff 

then filed a civil action challenging the FBI’s denial of his request, and the district court granted 

summary judgment to the government on the ground that FOIA Exemption 6 precluded 

disclosure of the information sought. Id. The D.C. Circuit vacated and remanded, however, 

holding that the plaintiff’s complaint should have been dismissed for failure to exhaust his 

administrative remedies. Id. The Circuit held that although “Hidalgo’s appeal may have been 

timely, in a literal sense, it did not promote the purposes of the exhaustion doctrine” because the 

administrative appeal was filed “before the FBI acted on his request” and thus “the appeal could 
30

not and did not place the substance of the FBI’s response before the [FBI’s Office of Information 

and Privacy, or ‘OIP’].” Id. at 1259. The OIP, in response to his untimely administrative appeal, 

had specifically advised Hidalgo that he could administratively appeal any final action, and 

because Hidalgo “did not heed the OIP’s directive,” to “permit him to ignore the OIP’s directive 

‘would cut off the agency’s power to correct or rethink initial misjudgments or errors,’ and 

frustrate the policies underlying the exhaustion requirement.” Id. at 1259–60 (quoting Oglesby, 

920 F.2d at 64).

By contrast, Wilbur involved a scenario where, although the plaintiff’s filing of his FOIA 

request and the CIA’s denial of that request both occurred in 1994, the plaintiff did not file an 

administrative appeal of the denial until January 1999. See Wilbur, 355 F.3d at 676. 

Nevertheless, the Court held that the appeal to federal district court was appropriate because the 

CIA “received and accepted for consideration” the plaintiff’s administrative appeal, even though 

it was several years tardy, and thus the plaintiff had ultimately exhausted his administrative 

remedies. Id. at 676–77. The Circuit distinguished the scenario presented in Wilbur from that 

presented in Hidalgo because “Wilbur did not bypass the administrative review process but 

pursued it to its end; he was simply late (albeit four years late).” Id. at 677. In other words, 

because the CIA had accepted and processed Wilbur’s administrative appeal and was able to 

review its initial determination, “the policies underlying the exhaustion requirement [were] 

served.” Id.

From Wilbur and Hidalgo, a clear principle emerges: Failure to exhaust administrative 

remedies is not a mere technicality, and a court must decline to decide the merits of an 

unexhausted FOIA claim when the plaintiff fails to comply with procedures for administrative 

review, denying the agency an opportunity to review its initial determination, apply its expertise, 
31

correct any errors, and create an ample record in the process. This principle applies with full 

force to this case. With respect to the three unexhausted FOIA requests in Counts Nineteen and 

Twenty-Six, the CIA has had no opportunity to develop an administrative record regarding the 

aspects of the CIA’s responses that the plaintiffs are challenging, let alone an opportunity to 

correct any errors that may have been the source of the plaintiffs’ grievances. This is why 

administrative exhaustion is particularly important in FOIA cases, since there are a number of 

areas in which a requester can challenge an agency’s response, including the validity of its 

claimed exemptions, the adequacy of its search efforts, and the correctness of its refusal to 

provide a fee-waiver request. Thus, requiring a FOIA requester to exhaust administrative 

remedies crystalizes the scope of the requester’s challenge in a way that puts the agency on 

notice of what aspects of the agency’s response are contested. None of that was able to occur in 

this case due to NSC’s failure to file an administrative appeal, despite being notified of its right 

to do so. Therefore, the Court concludes that NSC’s failure to exhaust its administrative 

remedies undermines the purposes of administrative exhaustion. As a result, the Court will grant 

the CIA’s motion to dismiss the plaintiffs’ challenges regarding the FOIA request at issue in 

Count Nineteen and two of the three FOIA requests at issue in Count Twenty-Six of the First 

Amended Complaint.13

 13 The plaintiffs contend, in a supplemental filing, that the CIA has improperly moved to dismiss for failure to 

exhaust administrative remedies pursuant to Rule 12(b)(1), rather than Rule 12(b)(6). See Pls.’ Supplemental Brief 

Regarding Defs.’ Partial Mot. to Dismiss at 1, ECF No. 37. The plaintiffs are correct that failure to exhaust 

administrative remedies is not a jurisdictional defect, but instead is grounds for dismissal under Rule 12(b)(6). See, 

e.g., Hidalgo, 344 F.3d at 1260. Although the plaintiff is correct that the CIA’s exhaustion arguments are contained 

within Part II of its opening brief, which generally addresses jurisdictional issues, see Defs.’ Mem. at 6–23, the CIA 

did not specifically contend that 12(b)(1) was the basis of its exhaustion argument with regard to Counts Nineteen 

and Twenty-Six, and the Court takes the CIA at its word when it says that it “moves to dismiss Counts . . . 19, . . . 

and 26 (in part) of Plaintiffs’ First Amended Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of 

subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be granted.” See

Defs.’ Partial Mot. to Dismiss at 1, ECF No. 14 (emphasis added). Even if the CIA had not grounded its exhaustion 

arguments in a motion to dismiss under Rule 12(b)(6), the Court would still dismiss the plaintiffs’ challenges 

regarding the three unexhausted FOIA requests sua sponte under Rule 12(b)(6). See Toensing v. U.S. Dep’t of 

Justice, No. 11-1215, 2012 WL 4026099, at *16 (D.D.C. Sept. 13, 2012).
32

C. Failure to State a Claim

Finally, the Court will address the CIA’s arguments for dismissing Counts One, TwentyOne, and Twenty-Two of the First Amended Complaint for failure to state a claim upon which 

relief may be granted. The Court will begin by addressing Counts Twenty-One and Twenty-Two 

before moving to the plaintiffs’ APA challenge contained in Count One.

1. County Twenty-One: Construction Plaintiffs’ FOIA Request

The CIA moves to dismiss County Twenty-One of the First Amended Complaint, which 

challenges the CIA’s response to Request #3 discussed above, which sought “thirty-two 

specified documents currently published in the CIA Records Search Tool (‘CREST’)” and asked 

that “‘[r]ecords which are currently published in CREST in redacted form should be reviewed for 

full release under FOIA.’” See FAC ¶ 177. In response to this request, the CIA “released paper 

copies of the redacted versions of the thirty-two documents which were published in CREST.”

Id. After plaintiff Sack “[administratively] appealed all redactions in the thirty-two documents,”

as well as the denial of her fee-waiver request, the CIA responded by refusing to accept the 

appeal, stating that “[i]t was not clear you were requesting a re-review of these documents.” Id.

¶¶ 179–80. The CIA argues that this claim should be “dismissed because the CIA’s 

interpretation of plaintiff’s request for previously released documents was reasonable and 

because Ms. Sack was not entitled to a waiver of the assessed duplication costs.” Defs.’ Mem. at 

32. The plaintiffs argue, however, that “CIA’s interpretation was patently unreasonable” 

because Sack’s request “specified that she wanted any redacted records to be reviewed for full 

release and did not want CIA to simply provide documents in the redacted form in which they 

were published in CREST.” Pls.’ Opp’n at 41.

The D.C. Circuit has established that an agency “has a duty to construe a FOIA request 

liberally,” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995), and are 
33

“bound to read it as drafted” not as “agency officials . . . might wish it was drafted,” Miller v. 

Casey, 730 F.2d 773, 777 (D.C. Cir. 1984). In this regard, it is clear that, for example, when a 

FOIA requester “seek[s] all of a certain set of documents” while also “evincing a heightened 

interest in a specific subset thereof,” such a request “is reasonably susceptible to the broader 

reading” of seeking the entire set of documents despite the fact that a specific subset of 

documents is named. See LaCedra v. Exec. Office for U.S. Attorneys, 317 F.3d 345, 348 (D.C. 

Cir. 2003); see also Nation Magazine, 71 F.3d at 890 (holding that FOIA request seeking records 

“‘pertaining to’ [Ross] Perot” and specifically “ask[ing] for records indexed under Perot’s name” 

was “sufficient to alert the agency that appellants sought information about Perot, even if it was 

not indexed under his name”). Even so, “[a]n agency may decide to limit the scope of an 

ambiguous request as long as the narrowed scope is a reasonable interpretation of what the 

request seeks.” Wilson v. U.S. Dep’t of Transp., 730 F. Supp. 2d 140, 154 (D.D.C. 2010) (citing 

Larson v. Dep’t of State, 565 F.3d 857, 869 (D.C. Cir. 2009)), aff’d, No. 10-5295, 2010 WL 

5479580 (D.C. Cir. Dec. 30, 2010). The standard, as with many aspects of the FOIA, is 

reasonableness.

Thus, the CIA’s motion to dismiss Count Twenty-One boils down to whether or not the 

CIA reasonably interpreted the scope of plaintiff Sack’s FOIA request. The Court, however, 

cannot conclude that the CIA’s interpretation of Ms. Sack’s FOIA request was reasonable as a 

matter of law. The CIA focuses its reasonableness argument on the first sentence of the FOIA 

request, which asked for “copies of the attached thirty-two documents in the [CIA] CREST 

system.” See Defs.’ Mem. at 33 (emphasis in original) (quoting Defs.’ Ex. A at 1, ECF No. 14-

1). In light of this one sentence, the CIA contends that “it was faced with a clear request for 

‘copies’ of ‘thirty two documents’ listed in the ‘CREST system.’” Id. The CIA gives short 
34

shrift, however, to the remaining sentences of the opening paragraph of Ms. Sack’s FOIA 

request. In particular, the CIA selectively omits the sentence of the FOIA request, which stated 

that “records which are currently published in CREST in redacted form should be reviewed for 

full release under FOIA.” Defs.’ Ex. A at 1.14 The CIA attempts to minimize this critical 

contextual sentence by arguing that “plaintiff’s request was internally contradictory and 

emphasized the previously released information database,” and therefore “the CIA reasonably 

construed it to be a request for copies of all of the identified documents.” Defs.’ Reply in Supp. 

of Partial Mot. to Dismiss (“Defs.’ Reply”) at 21, ECF No. 23.

The CIA’s arguments, however, are unpersuasive. It is true that Ms. Sack’s FOIA 

request was not a model of clarity. If she were seeking a re-review of the CREST documents at 

issue, she should have ideally stated that she was seeking unredacted copies of those documents, 

rather than only saying she was seeking “copies.” In fact, if all Ms. Sack had said in her FOIA 

request were that she was seeking “copies” of the specified CREST documents, the CIA’s 

construction of her request as one for redacted, previously released versions of the specified

records would have been a reasonable one. Yet, that is not all that Ms. Sack said in her request. 

Rather, she clarified what she meant by “copies” in the very same paragraph, stating that any 

redacted versions of the requested records “should be reviewed for full release.” Defs.’ Ex. A at 

1 (emphasis added).

15 It was unreasonable for the CIA to ignore such clear instructions 

 14 “While a court may not consider ‘matters outside the pleadings’ in evaluating a motion to dismiss under Rule 

12(b)(6) without converting the motion to one for summary judgment under Rule 56, documents that are referenced 

in, or are an integral part of, the complaint are deemed not ‘outside the pleadings.’” Peters v. District of Columbia, 

873 F. Supp. 2d 158, 179 n.20 (D.D.C. 2012) (citation omitted) (citing Mead v. Lindlaw, 839 F. Supp. 2d 66, 70 

(D.D.C. 2012)). Request #3 was explicitly incorporated by reference into the First Amended Complaint, see FAC 

¶¶ 177–78, and thus the Court’s consideration of the text of that request does not convert the defendants’ motion to 

dismiss into a motion for summary judgment.

15 It is for this reason that the CIA is incorrect to assert that Ms. Sack’s request was “internally contradictory.” See

Defs.’ Reply at 21. Seeking “copies” of certain records, while also asking for any redacted copies to be “reviewed 

for full release,” is not internally inconsistent because “copies” and “unredacted copies” are not mutually exclusive. 

The latter is merely a subset of the former.
35

conveying the intended scope of a FOIA request, at least insofar as those instructions were

contained within the four corners of the request itself. See Kowalczyk v. Dep’t of Justice, 73 

F.3d 386, 389 (D.C. Cir. 1996) (holding that agencies must follow “clear and certain” leads for 

responsive records that are contained within “the four corners of the request”). Indeed, cases 

within this Circuit have often disapproved of agencies narrowing the scope of a FOIA request to 

exclude materials reasonably within the description provided by the requester. See, e.g., 

LaCedra, 317 F.3d 345, 348; Nation Magazine, 71 F.3d at 890; Nicholls v. U.S. Office of 

Personnel Mgmt., 863 F. Supp. 2d 4, 10–11 (D.D.C. 2012) (requiring agency to read FOIA 

request for “appeals” to include “records relating to reconsiderations” of appeals); Charles v. 

Office of Armed Forces Med. Exam’r, 730 F. Supp. 2d 205, 215–16 (D.D.C. 2010) (finding 

unreasonable agency’s decision to interpret request for “autopsy reports ‘commenting on, 

discussing or indicating’ fatal bullet wounds” to include only “documents containing explicit 

‘statements’ about these topics”). Accordingly, the Court concludes that the CIA’s construction 

of Request #3 was not reasonable, and therefore the defendants’ motion to dismiss will be denied 

with respect to Count Twenty-One.

2. County Twenty-Two: Producing Duplicative Records

Next, the CIA moves to dismiss Count Twenty-Two of the First Amended Complaint. 

That count, as discussed above, challenges the CIA’s response to Request #5, which sought “the 

first page of the initial response letter for each of the fifteen FOIA requests identified” in a prior 

FOIA request. See FAC ¶ 190. NSC submitted Request #5 because it previously agreed to 

combine two prior FOIA requests, which sought two separate categories of records. The first 

category consisted of fifteen FOIA requests from 2008 that were denied because they did not 

“reasonably describe[]” the records sought, while the second category consisted of 290 FOIA 

requests from 2008 that were deemed improper for other reasons. See Defs.’ Mem. at 36. The 
36

plaintiffs allege that “it is not possible to discern from the records themselves which records are 

responsive to which request,” and after informally seeking clarification from the CIA on this 

issue, NSC filed Request #5 to determine definitively which records were responsive to which 

request. See FAC ¶¶ 189–90. There is no dispute that the records sought in Request #5 are 

duplicative of records already produced by the CIA to NSC, and it appears that the only purpose 

for submitting Request #5 was to “identify which of the hundreds of records responsive to [the 

previous combined FOIA request] were the fifteen requests specifically mentioned in the 2008 

Annual Report.” See id. ¶ 194.

The CIA moves for dismissal of County Twenty-Two, contending that “plaintiff filed a 

deliberately redundant request with the intent of forcing the CIA to answer its question,” and 

“[t]he CIA is not obligated to produce redundant records to the same requester.” Defs.’ Mem. at 

35, 37 (citing Weisberg v. U.S. Dep’t of Justice (“Weisberg II”), 848 F.2d 1265, 1271 (D.C. Cir. 

1988), overruled on other grounds by King v. Palmer, 950 F.2d 771, 785 (D.C. Cir. 1991) (en 

banc)). The CIA also cites the principle that “the FOIA does not oblige the CIA to create new 

records or to answer questions about agency records, so the CIA was not required to explain the 

produced records to plaintiff.” Defs.’ Reply at 21. NSC concedes “that it made an error in 

judgment by initially allowing CIA to combine its initial requests,” but it maintains nonetheless 

that it is not seeking an explanation from the CIA, but rather is seeking “a piece of information

which was lacking from the previous requests—which fifteen requests were denied in Fiscal 

Year 2008 because the information sought was not ‘reasonably described.’” See Pls.’ Opp’n at 

44 (emphasis in original). NSC argues that Request #5 was “the least invasive FOIA request it 

could devise to receive the records that would allow it to divine the information it required,” 
37

even “offer[ing] to withdraw the request if CIA provided a simple list of the requested 

documents.” Id.

The Court agrees with the plaintiffs on this issue. The CIA is correct that the FOIA does 

not obligate agencies to create records, see, e.g., ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 4 n.3 

(D.C. Cir. 2011), or answer questions, see, e.g., Moore v. FBI, 883 F. Supp. 2d 155, 163 (D.D.C 

2012) (citing Hudgins v. IRS, 620 F. Supp. 19, 21 (D.D.C. 1985)). The CIA extends its argument 

too far, however, when it contends that it “is not obligated to produce redundant records to the 

same requester.” See Defs.’ Mem. at 37. In certain limited factual circumstances, this statement 

of law by the CIA could be accurate. For example, where a single requester fails to exhaust his 

administrative remedies with regard to certain withheld records, and then files a duplicative 

FOIA request for the exact same records in order to revive the unexhausted issues for purposes 

of litigation, the agency is not required to re-review the same records to indulge the requester. 

See Toensing, 2012 WL 4026099, at *15 (“[A]fter agency employees have already processed a 

FOIA request and made withholding decisions, requiring the same or yet another agency 

employee to plow the same ground all over again, while a backlog of requesters remain waiting 

for attention, is not an efficient use of agency resources.”). That, however, is not the situation 

here. The CIA also somewhat misleadingly cites to language from the D.C. Circuit’s opinion in 

Weisberg II, which affirmed the district court’s denial of a FOIA requester’s motion to compel 

production of records that had already been produced pursuant to a court order. See 848 F.2d at 

1270–71. The Circuit’s statements in Weisberg II, however, were in the context of whether a 

FOIA requester had “substantially prevailed” for purposes of awarding attorneys’ fees, see id.,

not whether the FOIA obligates agencies to produce duplicative records to the same requester.

16

 16 The cases that the CIA cites from other circuits are similarly inapposite. See Defs.’ Mem. at 37; Defs.’ Reply at 

22. In CareToLive v. FDA, 631 F.3d 336, 343–44 (6th Cir. 2011), the Sixth Circuit held that an agency was not 
38

Unlike the situation presented in Toensing, the CIA is not refusing to produce the records 

sought in Request #5 because it does not want to re-review the records and make new 

withholding determinations. Indeed, the CIA does not indicate that it would need to withhold 

any information from the fifteen specific records sought in Request #5, which appear to consist 

entirely of routine correspondence from the CIA to FOIA requesters. See Defs.’ Mem. at 35–36. 

The FOIA states categorically that, so long as a request for records “reasonably describes such 

records” and complies with agency rules regarding the submission of FOIA requests, the agency 

“shall make the [requested] records promptly available to any person,” see 5 U.S.C. 

§ 552(a)(3)(A), subject of course to the exemptions contained in 5 U.S.C. § 552(b). Thus, absent 

some contention that the production of redundant records to the same requester would run afoul 

of the FOIA by imposing an undue burden upon the CIA or requiring the CIA to create records, 

the Court concludes that the plaintiffs’ claim in County Twenty-Two regarding the CIA’s 

response to Request #5 can go forward. The Court finds nothing in the FOIA that would 

foreclose an individual from seeking the production of records already disclosed to him, 

particularly in a situation like the instant case where an individual seeks redundant documents in 

order to obtain a new piece of information.17 In such a situation, the agency is free to charge the 

 

required to attempt to recover certain deleted electronic files in response to a FOIA request. Thus, its statement that 

“when the data retrieved would only be cumulative of items already produced, attempting to perform this type of 

data retrieval is unnecessary” was in the context of the adequacy of an agency’s search, not an agency’s obligation 

to produce duplicative records that had already been located. See id. In Stewart v. U.S. Department of the Interior, 

554 F.3d 1236, 1243 (10th Cir. 2009), where an agency denied a fee-waiver request at least in part because the 

FOIA request sought the search of backup tapes which potentially contained records already produced, the Tenth 

Circuit stated that the agency did not need “to catalogue the e-mails already produced” in order to support the feewaiver denial. Aside from the fact that this statement from Stewart is pure dicta, it was also written in the 

completely separate context of a fee-waiver denial and thus has no persuasive force regarding an agency’s obligation

to produce redundant records to a single requester.

17 A number of cases from this Circuit have recognized the closely related principle that FOIA requesters may 

submit entirely duplicative requests in order to cure certain defects in their original requests. See, e.g., Spannaus, 

824 F.2d at 61 (observing that requester “can simply refile his FOIA request tomorrow and restart the process” since 

“nothing prevents him from requesting the same withheld documents decade after decade without ever bringing a 

timely suit to compel disclosure”); Abuhouran v. U.S. State Dep’t, 843 F. Supp. 2d 73, 77 n.1 (D.D.C. 2012) (“The 
39

requester for the cost of locating and copying the records in accordance with its regulations, and 

the agency is not necessarily required to reassess any prior withholding determinations regarding 

the redundant records, see Toensing, 2012 WL 4026099, at *15, but the agency cannot flatly 

refuse to process the request on the theory that “the FOIA does not require an agency to indulge 

a requester who repeatedly seeks the same records,” Defs.’ Reply at 22.

3. Count One: Whether Notice-and-Comment Procedures Were Required 

to Change the CIA’s MDR Fee Structure

The final claim at issue in the defendants’ motion to dismiss is Count One, which is 

brought pursuant to the APA and therefore stands apart from the preceding analysis. In Count 

One, the plaintiffs allege that the CIA violated the APA by promulgating a final rule, which 

modified the CIA’s structure for charging fees associated with MDR requests, without first 

making the rule the subject of notice-and comment procedures. See FAC ¶¶ 20–39. The CIA 

moves to dismiss this claim, contending that “[t]he final rule issued by the CIA does not violate 

the APA because it is a ‘rule of agency procedure and interpretation’ not subject to the notice 

and comment requirements.” Defs.’ Mem. at 1. In particular, the CIA argues that the Final Rule 

“is not a ‘legislative rule’ subject to notice and comment,” but is instead a “rule[] of agency 

organization, procedure, or practice.” See id. at 3; see also 5 U.S.C. § 553(b). The plaintiffs 

contend, however, that the CIA’s Final Rule is a “legislative rule” because it (1) takes away their 

“right to receive preferential treatment as non-commercial requesters” and their “right to receive 

public interest fee waivers where appropriate,” and (2) “encoded the substantive value judgment 

that non-commercial requesters were no longer different from commercial requesters, with full 

knowledge that changing CIA’s longstanding practice in this manner would effectively remove 

non-commercial requesters’ ability to file MDR requests.” Pls.’ Opp’n at 9–10.

 

disposition of this case does not preclude plaintiff from resubmitting his request to [the agency] with the proper 

waiver . . . .”).
40

The APA generally requires that all “rule makings” be subject to the procedures outlined 

in 5 U.S.C. § 553, which principally include (1) notice published in the Federal Register; and 

(2) an opportunity for “interested persons” to “participate in the rule making through submission 

of written data, views, or arguments.” See 5 U.S.C. § 553.18 These notice-and-comment 

procedures, however, explicitly do not apply, inter alia, to “rules of agency organization, 

procedure, or practice.” See id. § 553(b). This statutory exception for procedural rules “was 

provided to ensure that agencies retain latitude in organizing their internal operations.” Batterton 

v. Marshall, 648 F.2d 694, 707 (D.C. Cir. 1980).

“Procedure and its opposite, substance,” however, “are not talismanic labels or given 

premises. Rather, they are legal conclusions which depend upon their settings for definition.” 

Neighborhood TV Co. v. FCC, 742 F.2d 629, 637 (D.C. Cir. 1984) (internal quotation marks 

omitted); see also Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 130 S. Ct. 1431, 

1450 (2010) (Stevens, J., concurring) (“The line between procedural and substantive law is hazy, 

and matters of procedure and matters of substance are not mutually exclusive categories with 

easily ascertainable contents.” (citations and internal quotation marks omitted)); Nat’l Motor 

Freight Traffic Ass’n v. United States, 268 F. Supp. 90, 96 (D.D.C. 1967) (three-judge panel) 

(“The characterizations ‘substantive’ and ‘procedural’—no more here than elsewhere in the 

law—do not guide inexorably to the right result, nor do they really advance the inquiry very 

far.”), aff’d, 292 U.S. 18 (1968). Indeed, our Circuit has candidly confessed that it has 

 18 The CIA only relies upon this procedural rule exception and does not rely on the APA’s other exceptions to 

notice-and-comment procedures, such as the exceptions for “interpretative rules” or “general statements of policy.” 

See Defs.’ Reply at 3 (“[T]he question here is simply whether [the Final Rule] falls within the procedural rule 

exception as construed by this Court’s binding precedent.”); see also 5 U.S.C. § 553(b) (listing other exceptions). 

For this reason, the plaintiffs’ arguments based on the D.C. Circuit’s four-factor test in American Mining Congress 

v. Mine Safety & Health Administration, 995 F.2d 1106, 1108–12 (D.C. Cir. 1993), see Pls.’ Opp’n at 5–9, are 

inapposite because American Mining Congress addressed the distinction between legislative rules, on the one hand, 

and “interpretive rules” and “general statements of policy” on the other. Indeed, the D.C. Circuit never referenced 

the APA’s procedural rule exception in American Mining Congress, and therefore that case is neither binding nor 

persuasive authority in deciding the issue raised by the CIA’s motion to dismiss in the instant action.
41

“struggled with the distinction between ‘substantive’ and ‘procedural’ rules,” JEM Broad. Co. v. 

FCC, 22 F.3d 320, 326 (D.C. Cir. 1994),

19 and has held that, in order for a court’s analysis to 

“improve[] upon semantic play,” it must “focus on the underlying purposes of the procedural 

requirements at issue,” Batterton, 648 F.2d at 703. The two primary underlying purposes of the 

APA’s notice-and-comment procedures are “to reintroduce public participation and fairness to 

affected parties after governmental authority has been delegated to unrepresentative agencies, 

and to assure that the agency will have before it the facts and information relevant to a particular 

administrative problem, as well as suggestions for alternative solutions.” Am. Hosp. Ass’n v. 

Bowen, 834 F.2d 1037, 1044 (D.C. Cir. 1987) (citations and internal quotation marks omitted); 

see also Chamber of Commerce of U.S. v. U.S. Dep’t of Labor, 174 F.3d 206, 211 (D.C. Cir. 

1999) (“[W]e apply § 553(b)(3)(A) with an eye toward balancing the need for public 

participation in agency decisionmaking with the agency’s competing interest in retaining latitude 

in organizing its internal operations.” (internal quotation marks omitted)).

Cognizant of the statutory purposes underlying notice and comment, the D.C. Circuit has 

held that the procedural rule exception’s “critical feature is that it covers agency actions that do 

not themselves alter the rights or interests of the parties, although it may alter the manner in 

which the parties present themselves or their viewpoints to the agency.” Batterton, 648 F.2d at 

334. This articulation reflects an analysis that “is functional, not formal.” See Chamber of 

Commerce, 174 F.3d at 212. Importantly, this functional analysis requires courts “to identify the 

‘substantive rights and interests’ that may be altered without prior opportunity for notice and 

 19 See also Chamber of Commerce of U.S. v. U.S. Dep’t of Labor, 174 F.3d 206, 211 (D.C. Cir. 1999) (noting that 

“[t]his distinction is often difficult to apply, as even a purely procedural rule can affect the substantive outcome of 

an agency proceeding”); Orengo Caraballo v. Reich, 11 F.3d 186, 194 (D.C. Cir. 1993) (“The distinction between 

rules or statements which are subject to the notice and comment requirements of § 553 and rules or statements which 

are exempt from those procedures is notoriously ‘hazy.’”); Neighborhood TV, 742 F.2d at 637 (“Courts have not had 

an easy time deciding whether particular agency rules were ‘procedural’ or ‘substantive.’”); Batterton, 648 F.2d at 

702–03, 707 (observing that the categories excepted from notice and comment “have ‘fuzzy perimeters’ and 

‘establish no general formula,’” and noting that the procedural rule exception “may be the hardest to define”).
42

comment” because “not every interest so qualifies, since every change in rules will have some 

effect on those regulated.” Neighborhood TV, 742 F.2d at 637. The analysis has also “gradually 

shifted focus from asking whether a given procedure has a ‘substantial impact’ on parties to 

inquiring more broadly whether the agency action also encodes a substantive value judgment or 

puts a stamp of approval or disapproval on a given type of behavior.” Bowen, 834 F.2d at 1047.

From these broader themes, certain, more concrete, principles have emerged to guide the 

application of the APA’s exemption for procedural rules. First, “[i]n determining whether a rule 

is substantive, [a court] must look at [the rule’s] effect on those interests ultimately at stake in the 

agency proceeding.” Neighborhood TV, 742 F.2d at 637. Hence, agency rules that impose 

“derivative,” “incidental,” or “mechanical” burdens upon regulated individuals are considered 

procedural, rather than substantive. See Bowen, 834 F.2d at 1051. More broadly, the D.C. 

Circuit has held that “an otherwise-procedural rule does not become a substantive one, for 

notice-and-comment purposes, simply because it imposes a burden on regulated parties.” James 

V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 281 (D.C. Cir. 2000).

Another principle that has emerged in this Circuit to identify procedural rules is that, 

although a procedural rule generally may not “encode[] a substantive value judgment or put[] a 

stamp of approval or disapproval on a given type of behavior,” see Bowen, 834 F.2d at 1047, 

“the fact that the agency’s decision was based on a value judgment about procedural efficiency 

does not convert the resulting rule into a substantive one,” Glickman, 229 F.3d at 282; see also 

JEM Broadcasting, 22 F.3d at 328 (“[Appellant’s] reasoning threatens to swallow the procedural 

exception to notice and comment, for agency housekeeping rules often embody a judgment about 

what mechanics and processes are most efficient.”). A corollary to this principle is that rules are 

generally considered procedural so long as they do not “change the substantive standards by 
43

which the [agency] evaluates” applications which seek a benefit that the agency has the power to 

provide. See JEM Broadcasting, 22 F.3d at 327 (emphasis in original). For example, in the 

context of the FOIA, the D.C. Circuit has held that an agency’s policy imposing a cut-off date for 

searches was procedural because it “ma[de] no distinctions between requests on the basis of 

subject matter” and hence “clearly encode[d] no ‘substantive value judgment.’” See Pub. Citizen 

v. Dep’t of State, 276 F.3d 634, 641 (D.C. Cir. 2002).

a) Effect on Rights and Interests of MDR Requesters

With these principles in mind, the Court begins by considering whether the Final Rule 

adversely affects “those interests ultimately at stake in the agency proceeding.” See

Neighborhood TV, 742 F.2d at 637. The CIA argues that the Final Rule is procedural because it 

does not affect any of the rights or interests provided to members of the public through the MDR 

program, as promulgated in Executive Order 13,526. See Defs.’ Mem. at 3–4. In particular, the 

CIA contends that “[p]laintiffs’ ability to request the declassification of documents is 

unchanged.” Id. at 4. The CIA further states that “[t]he executive order confers no rights on [the 

plaintiffs] to pay, for example, only a certain rate for duplication of the documents they 

requested,” but “[i]nstead, that rate is a quintessentially procedural matter.” Id. The plaintiff, 

however, argues that “‘[t]he government focuses on the wrong right.’” Pls.’ Opp’n at 9 (quoting 

Benten v. Kessler, 799 F. Supp. 281, 289 (E.D.N.Y. 1992)). In this regard, the plaintiffs contend 

that “CIA’s own promulgation of 32 C.F.R. [§] 1908.13 in 1997 ‘borrowing the FOIA fee 

structure’” conveyed upon them “a right to receive preferential fee treatment as non-commercial 

requesters” and “a right to receive public interest fee waivers where appropriate.” See id. at 9–

10. According to the plaintiffs, “it is those rights which were taken away by the [Final] Rule.” 

Id. at 10.
44

At the outset, the Court is skeptical whether either of the “rights” articulated by the 

plaintiffs are, in fact, benefits that any individual was entitled to under the previous MDR fee 

structure. The “preferential fee treatment” accorded to non-commercial requesters under the 

previous MDR fee structure was dependent upon a requester establishing that, among other 

things, “the information [sought] will be used in a specific scholarly or analytical work, will 

contribute to the advancement of public knowledge, and will be disseminated to the general 

public.” See 32 C.F.R. § 1900.02(h)(2). Additionally, the availability of a fee waiver under the 

previous MDR fee structure was a matter of agency discretion, just as it is in the context of the 

FOIA. See, e.g., Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 35 (D.C. Cir. 1998) (noting an 

agency’s “discretion under [the FOIA’s] fee waiver provision”). Even taking the plaintiffs’ 

“rights” argument at face value, the relevant question for purposes of the APA is not whether the 

Final Rule burdens or even eliminates any rights or interests, but rather whether the Final Rule

adversely affects “those interests ultimately at stake in the agency proceeding.” See

Neighborhood TV, 742 F.2d at 637 (emphasis added). There can be no question that those

interests are the ones focused on by the CIA—namely, the public’s interest in being able to seek 

the declassification of “information that no longer meets the standards for classification.” See

Exec. Order 13,526 § 3.5(c); Defs.’ Mem. at 4; Defs.’ Reply at 4.

The plaintiffs refer to this interest in their opposition brief, stating that the Final Rule 

“effectively remove[s] non-commercial requesters’ ability to file MDR requests” because “[t]he 

sheer magnitude of review fees would be enough to effectively prevent non-commercial 

requesters . . . from filing any but the simplest MDR requests.” Pls.’ Opp’n at 10. Executive 

Order 13,526 provides that, under the MDR program “all information classified under this order 

or predecessor orders shall be subject to a review for declassification” if a request meets certain 
45

conditions, and agencies conducting an MDR “shall declassify information that no longer meets 

the standards for classification.” See Exec. Order. 13,526 § 3.5(a), 3.5(c) (emphasis added). As 

discussed above, these are substantive interests. See, e.g., Nat’l Ass’n of Waterfront Emp’rs v. 

Solis, 665 F. Supp. 2d 10, 17 (D.D.C. 2009) (holding that “informational interests are substantive 

and are entitled to APA protection” (citing Chrysler Corp. v. Brown, 441 U.S. 281, 302–03 

(1979))). Thus, although the Final Rule’s effective foreclosure of the public’s interest in seeking 

the review of classified material for declassification would raise a serious question about the 

procedural nature of the Rule, the plaintiffs simply do not allege such a foreclosure in their First 

Amended Complaint. In fact, the First Amended Complaint is completely silent regarding the 

Final Rules’ infringement of the plaintiffs’ interest in being able to seek the declassification of 

documents through the MDR program or the public’s interest in having access to information 

that no longer meets the standards for classification. Indeed, it is unclear whether the plaintiffs 

would even be capable of alleging the practical effects of the CIA’s new MDR fee structure: the 

First Amended Complaint indicates that the plaintiffs have steadfastly refused to pay the fees 

required by the Final Rule for each of the MDR requests that they have submitted since the Final 

Rule was promulgated, see FAC ¶¶ 29, 31, 34, but nowhere alleges that the plaintiffs would be

unable to pay the fees imposed by the Final Rule or that, if forced to pay such fees, the

magnitude of the fees would affect the scope or volume of their MDR requests. Thus, although 

it is clear that charging search, review, and duplication fees to non-commercial entities imposes a 

burden—perhaps even a heavy burden—on certain MDR requesters, the plaintiffs have failed to 

allege (and thus the Court has no basis to conclude) that that burden has adversely affected 

“those interests ultimately at stake in the agency proceeding.”20 See Neighborhood TV, 742 F.2d 

 20 Although the plaintiff raises the argument regarding the effective preclusion of non-commercial MDR requests in 

its opposition brief, “‘it is axiomatic that a complaint may not be amended by the briefs in opposition to a motion to 
46

at 637; see also Glickman, 229 F.3d at 281 (“[A]n otherwise-procedural rule does not become a 

substantive one, for notice-and-comment purposes, simply because it imposes a burden on 

regulated parties.”); Nat’l Whistleblower Ctr. v. Nuclear Regulatory Comm’n, 208 F.3d 256, 

262–63 (D.C. Cir. 2000) (rule intended to expedite license renewal proceedings “resulted in tight 

schedules” for applicants but was nevertheless procedural because applicants “were not denied 

an effective opportunity to be heard” and the rule “did not foreclose effective opportunity to be 

heard”); Batterton, 648 F.2d at 702 (observing that non-legislative rules do not “foreclose

alternate courses of action or conclusively affect rights of private parties”); Ranger v. FCC, 294 

F.2d 240, 244 (D.C. Cir. 1961) (holding the FCC’s cut-off policy was procedural even though 

“failure to observe it might cause the loss of substantive rights”). Compare Reeder v. FCC, 865 

F.2d 1298, 1305 (D.C. Cir 1989) (holding rule was substantive where it “changed the substantive 

criteria for substitution and permanently foreclosed the petitioners from pursuing their upgrade 

plans”).

b) Substantive Value Judgment

The Court must also consider the related question of whether the CIA’s elimination of the 

commercial/non-commercial distinction (for fee purposes) “encodes a substantive value 

judgment or puts a stamp of approval or disapproval on a given type of behavior.” Bowen, 834 

F.2d at 1047. On this score, the CIA maintains that “its MDR Program regulation does not make 

value judgments or distinguish between relevant members of the public,” but rather “the fee 

schedule distinguishes only on the basis of the costs incurred by the agency for reproduction, 

search, and review to satisfy the request.” See Defs.’ Mem. at 5–6. It argues that the distinctions 

between commercial and non-commercial requesters “are simply not distinctions ‘on the basis of 

 

dismiss.’” See, e.g., Freedom Watch, Inc. v. Obama, 859 F. Supp. 2d 169, 173 (D.D.C. 2012) (quoting Arbitraje 

Casa de Cambio, S.A. de C.V. v. U.S. Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003)).
47

subject matter.’” See Defs.’ Reply at 5 (quoting Public Citizen, 276 F.3d at 640). The plaintiffs 

contend, however, that “it is the very fact that [the Final Rule] does not distinguish between 

relevant members of the public that is the substantive value judgment.” See Pls.’ Opp’n at 10. 

In others words, the plaintiffs argue that, in the Final Rule, “the CIA encoded the substantive 

value judgment that non-commercial requesters were no longer different from commercial 

requesters” for purposes of charging fees in conjunction with MDR requests. See id. (emphasis 

in original). The plaintiffs’ argument on this count is supported to some degree by the 

allegations in the First Amended Complaint that the plaintiffs are non-commercial requesters 

who have “rel[ied] on CIA’s long practice of not charging MDR fees.” See FAC ¶ 27.

It is certainly possible that the Final Rule’s intent, at a high enough level of generality,

was to “put[] a stamp of . . . disapproval” on the mission of non-commercial requesters, see

Bowen, 834 F.2d at 1047, since it makes it more costly for non-commercial requesters to secure 

the declassification of information than it used to be under the old fee structure. Yet, as our 

Circuit has counseled, “[a]ll decisions, to the extent that they derive from reasons, necessarily 

are based on the value judgment that the chosen option is better, in some relevant way, than its 

alternatives.” See Glickman, 229 F.3d at 282. The Final Rule in the instant action does not make 

it any more costly for non-commercial requesters to secure declassification of information than it 

does for any other members of the public, and requiring all MDR requesters to pay the same fees 

in order for the CIA to recoup the costs of searching, reviewing, and duplicating requested 

material can hardly be called a “substantive value judgment” under our Circuit’s precedents

because the classification of requesters has no connection whatsoever to the substance of a 

request. A simple example demonstrates why this is so: Professor A seeks the declassification 

of a piece of information for the purpose of writing a scholarly article that favors a given 
48

government policy, while Professor B simultaneously seeks declassification of the same piece of 

information for the purpose of writing a scholarly article that disfavors the same government 

policy. Both persons face the exact same costs to pursue their missions, even though their 

missions are, in substance, diametrically opposed to one another, and that conclusion would be 

true regardless of whether the professors made their MDR requests before or after the Final Rule 

went into effect.

Additionally, although the parties do not raise this point, the Court finds instructive a 

parallel body of authority that addresses whether rules requiring the payment of court filing fees 

are procedural or substantive. The Supreme Court has characterized uniform court filing fees to 

initiate legal actions as “reasonable procedural requirements for triggering the right to an 

adjudication.” See Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982). The D.C. Circuit 

has made a similar characterization in the context of the Prison Litigation Reform Act’s 

(“PLRA’s”) “three-strikes provision,” which “specifies that, after having three times filed suits 

or appeals that were dismissed on one of the enumerated grounds, a prisoner must pay” the 

requisite filing fee. See Ibrahim v. District of Columbia, 208 F.3d 1032, 1036 (D.C. Cir. 2000). 

In Ibrahim, the Circuit held that the “three strikes” provision was “a procedural rule” because it 

“neither divests a prisoner of his right to bring a claim nor changes the law in a way that 

adversely affects his prospects for success on the merits of the claim.” See id.; accord Lisenby v. 

Lear, 674 F.3d 259, 263 (4th Cir. 2012); Funtanilla v. Downs, 131 F. App’x 536, 537 (9th Cir. 

2005). Rather, the “three strikes” provision requires an indigent prisoner to “pay his own way 

like any other litigant.” Ibrahim, 208 F.3d at 1036.

It would make little sense to hold that the PLRA’s three-strikes provision is a mere 

procedural rule but also hold that the Final Rule in the instant case is a substantive one. There is 
49

no meaningful practical distinction between an indigent prisoner being required to “pay his own 

way like any other litigant,” see id., and a non-commercial MDR requester being required to pay 

the same search, review, and duplication fees as every other MDR requester. The contexts of the 

two rules are certainly distinguishable—for example, the three-strikes provision was passed by 

Congress, while the Final Rule was promulgated by an unelected agency—but their functional

effects are nearly identical. See Chamber of Commerce, 174 F.3d at 212 (“[T]he question 

whether a rule is substantive or procedural for the purposes of § 553(b) is functional, not 

formal.”). Thus, much like court filing fees addressed in Ibrahim and the cut-off provision in 

Public Citizen, the CIA’s uniform MDR fee structure encodes no substantive value judgments,

despite the fact that it eliminates preferences previously granted to certain groups of MDR 

requesters. See Public Citizen, 276 F.3d at 641(“Because the [State] Department’s cut-off policy 

applies to all FOIA requests, making no distinction between requests on the basis of subject 

matter, it clearly encodes no ‘substantive value judgment.’”); see also Kaspar Wire Works, Inc. 

v. Sec’y of Labor, 268 F.3d 1123, 1131–32 (D.C. Cir. 2001) (holding that OSHA’s imposition of 

penalties on a “per instance” basis was a procedural rule under the APA).

c) The Purposes of Requiring Notice and Comment

Finally, the Court must assess whether the Final Rule affects potential MDR requesters 

“to a degree sufficient to implicate the policy interests animating notice-and-comment 

rulemaking.” See Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec. (“EPIC”), 653 F.3d 1, 

6 (D.C. Cir. 2011). In EPIC, the D.C. Circuit considered whether the Transportation Security 

Administration’s (“TSA’s”) decision “to screen airline passengers by using advanced imaging 

technology [or ‘AIT’] instead of magnetometers” qualified for the APA’s procedural rule 

exception. See id. at 2–3. It was “clear that by producing an image of the unclothed passenger, 
50

an AIT scanner intrudes upon his or her personal privacy in a way a magnetometer does not.” Id.

at 6. Thus, the Circuit held that “regardless whether this is a ‘new substantive burden,’ the 

change substantively affects the [privacy interests of the] public to a degree sufficient to 

implicate the policy interests animating notice-and-comment rulemaking.” Id.

In evaluating whether the Final Rule likewise “has the hallmark of a substantive rule,” 

see id., the “critical question is whether the agency action jeopardizes the rights and interests of 

parties,” Batterton, 648 F.2d at 708. Before exempting a rule from notice-and-comment 

procedures, the Court must assure itself that this is one of the “limited situations where 

substantive rights are not at stake,” otherwise it is imperative that potentially affected parties be 

given a chance to raise concerns and suggest how the agency should craft its rule to protect the 

substantive rights implicated. See Bowen, 834 at 1044–45. In EPIC, the interests implicated by 

the TSA’s rule were the public’s “privacy interests.” See 653 F.3d at 6. Even though the AIT 

scanners imposed no “new substantive burden” on members of the public—since they imposed 

the same “requirement that a passenger pass through a security checkpoint” and “prohibition 

against boarding a plane with a weapon or an explosive” that the magnetometers had—the AIT 

scanners “intrude[d] upon [the public’s] personal privacy in a way a magnetometer does not.” 

Id. Thus, the Court reads EPIC to stand for the proposition that, even where a rule does not 

adversely affect “those interests ultimately at stake in the agency proceeding,” see Neighborhood 

TV, 742 F.2d at 637, it may still be subject to notice and comment if it intrudes upon other, 

important or fundamental rights or interests held by affected parties.

Even so, the Court concludes that, based on the allegations in the First Amended 

Complaint, the principle articulated in EPIC is not applicable to the instant case. As discussed 

above, the plaintiffs have not sufficiently alleged that the CIA’s Final Rule has any adverse
51

effect on “those interests ultimately at stake in the agency proceeding,” see id., and the plaintiffs 

have likewise failed to allege that the Final Rule infringes upon any other important rights or 

interests held by MDR requesters, such as personal privacy, freedom of speech, or the equal 

protection of the law. Therefore, the Court concludes that the situation presented by this case is 

one “where the policies promoted by public participation in rulemaking are outweighed by the 

countervailing considerations of effectiveness, efficiency, expedition and reduction in expense.” 

See Guardian Fed. Sav. & Loan Ass’n v. Fed. Sav. & Loan Ins. Corp., 589 F.2d 658, 662 (D.C. 

Cir. 1978). As such, although this case presents a close question under the D.C. Circuit’s limited 

guidance on this issue, the Court concludes that, based on the allegations in the First Amended 

Complaint, the plaintiffs have not sufficiently alleged that the Final Rule fails to qualify as a 

procedural rule that was exempt from the APA’s notice-and-comment procedures. For that 

reason, the plaintiffs’ claim in Count One of their First Amended Complaint must be dismissed 

for failure to state a claim upon which relief may be granted.

IV. CONCLUSION

As the foregoing discussion establishes, the defendants’ partial motion to dismiss will be 

granted in part and denied in part. The Court will grant the defendants’ motion as to the 

plaintiffs’ FOIA policy-or-practice claims in Counts Five, Six, Fifteen, and Twenty-Five because 

the plaintiffs lack standing to bring those claims, and thus the Court lacks subject-matter 

jurisdiction to hear them. Further, the Court grants the defendants’ motion, pursuant to Rule 

12(b)(6), as to the plaintiffs’ claim in Counts Nineteen and as to two of the three FOIA requests 

challenged in Count Twenty-Six because the plaintiffs failed to exhaust their administrative 

remedies with respect to the three FOIA requests underlying those claims. Finally, the Court 

grants the defendants’ motion as to the plaintiffs’ claim in Count One challenging the CIA’s
52

promulgation of its Final Rule regarding its MDR fee structure without notice and comment 

because the plaintiffs have not sufficiently alleged that the Rule fails to qualify as a procedural 

rule, which is exempt from the notice-and-comment requirement. The Court denies the 

defendants’ motion, however, with respect to the plaintiffs’ claims in Counts Twenty-One and 

Twenty-Two because, in those counts, the plaintiffs have successfully pleaded claims for which 

relief may be granted.

An appropriate Order accompanies this Memorandum Opinion.

Date: March 20, 2013

 /s/ Beryl A. Howell

BERYL A. HOWELL

United States District Judge