UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________ )

MARY ANNE CAMPO and JOHN CAMPO

, )

)

Plaintiffs, )

)

v. ) Case No. 21

- cv

- 00871 (APM)

)

UNI TED STATES NATIONAL ARCHIVES )

AND RECORDS ADMINISTRATION

, )

)

Defendant. )

_________________________________________ )

ORDER

Defendant U.S. National Archives and Records Administration (“NARA”) moves to

dismiss Plaintiffs Mary Anne Campo and John Campo’s Complaint for failure to state a claim.

See Def.’s Rule 12(b)(6) Mot. to Dismiss Pl s .’ Compl., ECF No. 5 [hereinafter Def.’s Mot.]. For

the reasons stated below , Defendant’s Motion is denied.

A Freedom of Information Act (“FOIA”) “plaintiff states a claim where it properly alleges

that an agency has (1) improperly (2) withheld (3) agency records.” Campaign for Accountability

v . U.S. Dep’t of Just. , 486 F. Supp. 3d 424, 430 (D.D.C. 2020). NARA contends that the Campos’

Complaint fails to state a claim because NARA “does not have legal custody of any records that

may be responsive to Plaintiffs’ request.” Def.’s Mot., Def.’s Mem. of Points and Auths.,

ECF No. 5

- 1 [hereinafter Def.’s M em.]

, at 6 (including no legal custody of the Deepwater Horizon

records). In other words, NARA maintains that Plaintiff fails to allege non disclosure of “agency

records.”

The pr oblem with NARA’s argument is that it rests on a factual assertion that the court

cannot consider at th i s stage

. In ruling on a motion to dismiss, the court “may consider only thefacts alleged in the complaint, [and] any documents either attached to or incorporated in the

complaint.” EEOC v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624 (D.C. Cir. 1997).

It also may consider “matters of which . . . judicial notice” may be taken, id.

, such as public records,

Kaempe v. Myers , 367 F.3d 958, 965 (D.C. Cir. 2004) ; s ee also Khodorkovskaya v. Gay , 5 F.4th

80, 84 (D.C. Cir. 2021) (“[A] court can consider the allegations in the complaint together with any

materials properly brought before the court as attachments.”). According to NARA, “ [l] egal

custody of records passes from the [originating] agency to NARA when the appropriate NARA

official signs [a form] SF 258 acknowledging receipt of the records

, ” but no NARA official signed

an SF 258 acknowledging receipt of records responsive to the Campos’ FOIA request. Def.’s

Mem. at 6 (quoting 36 C.F.R. § 1235 .22 ). But the absence of an SF 258 signature is a n a ssertion

of fact that is not contained in the Complaint o r any document referenced or attached to the

Complaint ; nor is it a judicially noticeable fa ct

. The court therefore cannot consider it on a motion

to dismiss.

In evaluating a Rule 12(b)(6) motion, the court must accept a plaintiff’s factual allegations

as true and “construe the complaint ‘in favor of the plaintiff, who must be granted the benefit o f

all inferences that can be derived from the facts alleged.’” Hettinga v. United States , 677 F.3d

471, 476 (D.C. Cir. 2012) (quoting Schuler v. United States , 617 F.2d 605, 608 (D.C. Cir. 1979)).

The Campos’ Complaint alleges that NARA failed to produce “all non

- exempt records responsive

to [the Campos’] FOIA requests.” Pl s .’ Compl.

, ECF No. 1, ¶ 1. Specifically, the Campos allege

that NARA received “28 terabytes of imaged records from the Deepwater Horizon oil spill and

response” that would be responsive to their FOIA request

. Pl.’s O pp’n to Def.’s Mot. to Dismiss,

ECF No. 6, Decl. of Kalyn J. Doss, ECF No. 6

- 2, ¶ 16. Viewing these allegations in the light most

favorable to them, the Campos have alleged they were d enied agency records held by NARA.For the foregoing reasons, Defendant ’ s Motion to Dismiss is denied

. The parties shall

appear for a remote status conference on September 30, 2021, at 9:30 a.m.

_ _____________________ Dated: September 24 , 2021 Amit P. Mehta

United States District Judge