1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) BARBARA FEINMAN and ) GARRETT M. GRAFF, ) ) Plaintiffs, ) ) v. ) Civil Action No. 09-2047 (ESH) ) FEDERAL BUREAU OF ) INVESTIGATION, et al. , ) ) Defendants. ) __________________________________________) MEMORANDUM OPINION AND ORDER Plaintiff Garrett M. Graff has filed a class action complaint against the Federal Bureau of Investigation (“FBI”), the Executive Office for United States Attorneys (“EOUSA”), and the U.S. Department of Justice (“DOJ”), alleging th at defendants have viol ated the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. This matter is before the Court on plaintiff’s motion to certify the class, as well as his motion for leave to amend the complaint. For the reasons discussed herein, the Court will deny the class certification motion but w ill grant the motion for leave to amend. BACKGROUND Since this is the third motion that has been befo re the Court, it is notnecessary to repeat the facts and procedural hi story which are set forth inFeinman v. F.B.I. , 680 F. Supp. 2d 169 (D.D.C. 2010) (dismissing plaintiff Barbara Fe inman and Count One for lack of standing), mot. to certify for interlocutory appeal denied , No. 09-CV-2047, 2010 WL 962188 (D.D.C. Mar 15, 2010), and Feinman v. F.B.I. (“ Feinman II ”), No. 09-CV-2047, 2010 WL 2102326 (D.D.C. May 26, 2010) (dismissing Count Six for lack of subjec t matter jurisdiction). Instead, the Court will2 limit its discussion to those facts that relate to the two pending motions. I. THE FOIA REQUESTS Plaintiff Graff currently serves as the editor for The Washingtonian Magazine and is a “representative of the news media,” as that te rm is defined by 5 U.S.C. § 552(a)(4)(A)(ii), for purposes of determining administrative fees. (C ompl. ¶ 4.) In January 2009, he submitted a FOIA request to the EOUSA for information regarding “the invest igation, capture, and prosecution” of former Panamanian general Manual Noriega. ( Id. ¶ 22; see also Pl.’s Mot. for Partial Summ. J. (“Pl.’s SJ Mot.”), Ex. 1 at 1.) The request stated that disclosure of this information would be in the public interest “becau se it is likely to cont ribute significantly to public understanding of the operations or activities of the government . . . .” (Pl.’s SJ Mot., Ex. 1 at 1.) The EOUSA denied Graff’s request on the grounds that he had provided neither (1) “express authorization and c onsent of the third party,” i.e. , Noriega, (2) “proof that the subject of [the] request is deceased,” nor (3) “a clear demonstration that th e public interest in disclosure outweighs the personal privacy inte rest and that significant public benefit would result from the disclosure of the re quested records.” ( Id. , Ex. 2 at 1.) The denial le tter stated that release under those circumstances “would result in an unwarrant ed invasion of personal privacy,” and that the records were “generally exempt from disclosu re” pursuant to FOIA Exemptions 6 and 7(C). ( Id. ) In April 2009, Graff submitted a separate FOIA request to the FBI for information regarding “the FBI’s investigati on into and role in the 1987 rendi tion of Royal Jordanian Flight 402 hijacker and Amal Organization militiaman” Fawaz Younis. (Compl. ¶ 36; see also Pl.’s SJ Mot., Ex. 6 at 1.) This request also stated that disclosure of this information would be in the public interest “because it is likely to contribute significantly to public understanding of the3 operations or activities of the government . . . .” (Pl.’s SJ Mot., Ex. 6 at 1.) The FBI denied Graff’s request solely on the grounds that he had not provided either proof of Younis’s death or a privacy waiver, without addressing the question of public interest justification. ( See Pl.’s SJ Mot., Ex. 7 at 1.) The FBI’s denial stated thatit could not process his request until he provided either proof of death or of cons ent, and that release without such proof would be considered an unwarranted invasion of privacy und er Exemptions 6 and 7(C). ( Id. ) The original complaint, which was filed on October 30, 2009, alleges that defendants denied his requests pursuant to unlawful EOUSA and FBI policies that “requir[e] the submission of privacy waivers or proof of death before agreeing to process re quests seeking records pertaining to foreign nati onals.” (Compl. ¶¶ 6-7; see id. ¶¶ 26, 37.) 1 He also alleges that these claims are representative of a class of similarly situated FOIA requesters ( see id. ¶ 10), and that common questions of law and fact relating to each class member include “whether the defendants’ policy to refuse to process FOIA re quests for records without submission of proof of death or a privacy waiver is unlawful . . . .” ( Id. ¶ 12.) He seeks equitable relief, including a declaration that the EOUSA and FBI policies are unlawful, an order enjoining defendants from

1 Based on the previously f iled cross-motions for partial summary judgment, it is undisputed that from the time of Graff’s Norieg a request through the pres ent, it has been the EOUSA’s practice, upon receiving a request for information about a third party, not to search for responsive records unless the requ ester provides proof of death, a privacy waiver, or sufficient public interest ju stification. ( See Defs.’ Cross-Mot. for Partial Summ. J. (“Defs.’ SJ Mot.”), Statement of Material Facts as to Which There Is No Genuine Issue (“SMF” ) ¶ 1.) It is also undisputed that at the time of Graff’s Younis request, it was the FBI’s practice to require a requester seeking information about a third party “to provid e either a privacy waiver or proof of death in order for the FBI to process the request.” ( Id. ¶ 2.) Despite a policy modification after this lawsuit was filed, it remains the FBI’s genera l policy not to search fo r records responsive to a request regarding a third party unless the request er provides a privacy waiver, proof of death, or sufficient public inte rest justification. ( Id. ¶ 3.) If the requester demonstrates that the third party “is a public figure . . . who has attained current notoriety,” the FBI will search for responsive records but will withhold all non-public source information under Exemptions 6 and 7(C). ( Id. )4 giving effect to such a policy, and an orde r requiring defendants “to contact every FOIA requestor who is part of the class and offer th e opportunity to reinstate their respective requests and then process [those requests] accordingly[.]” ( Id. at 13 ¶¶ (3)-(4) & (6).) II. THE CLASS CERTIFICATION MOTION On January 28, 2010, Graff moved for certificat ion pursuant to Federal Rule of Civil Procedure 23(b)(2), in order to secure injunctiv e and declaratory relief for a class defined as follows: All persons who submitted at any time, from October 30, 2003 through the date of certification, a Freedom of Information Act (“FOIA”) request to the Federal Bureau of Investigation (“FBI”) and/or Executive Office for United States Attorneys (“EOUSA”) for records pertaini ng to third party foreign nationals and subsequently: (1) were informed that pr ocessing of their resp ective requests could not begin until they had provided a signed privacy waiver or proof of death; and/or (2) were not provided with notice of their right to admi nistratively appeal the response. (Pl.’s Mem. in Supp. of Mot. for Cla ss Cert. (“Pl.’s Cert. Mot.”) at 5; see also Compl. ¶ 10 (alleging class definition).) After the certification motion was filed, defe ndants moved to dismiss Count Six of the original complaint, which had alleged that de fendants’ policies of cat egorically refusing to search for documents violated the Administrativ e Procedure Act (“APA”), 5 U.S.C. §§ 701-706. ( See Compl. ¶¶ 41-50.) The Court c oncluded that the equitable relief sought under the APA was “of the ‘same genre’” as the relief av ailable under Graff’s FOIA claims. Feinman II, 2010 WL 2102326, at *7 (quoting Garcia v. Vilsack , 563 F.3d 519, 522 (D.C. Cir. 2009)). Accordingly, the Court held that APA review was precluded because there was another “adequate remedy in court,” 5 U.S.C. § 704, and so it dismissed Count Six for lack of subject matter jurisdiction. 2010 WL 2102326, at *7. Subsequently, on July 1, 2010, defendants oppos ed class certification on the grounds that5 the Court’s dismissal of Count Six leaves only Graff’s FOIA claims “challenging the nondisclosure of specific records requested pursuant to [his] specific FOIA requests,” and that “[t]here is simply no justification for certifyi ng a class to resolve whether Defendants unlawfully withheld records requested by Graff pursuant to th e FOIA.” (Defs.’ Opp’n to Pl.’s Cert. Mot. (“Defs.’ Cert. Opp’n”) at 1-2.) In the alternative, defendants argue that even if the Court construed the remaining claims as alleging “a so -called pattern and practice claim . . . to challenge [defendants’] policies, ” class certification w ould remain inappropriate because Graff has not satisfied the requir ements of Rule 23(a). ( Id. at 2.) Certificat ion would also be “unnecessary,” they contend, because “[a]ny ruli ng with respect to the agencies’ policies and regulations would inure to the be nefit [of] all FOIA request[or]s, regardless of whether they were part of the alleged class.” ( Id. ) III. THE MOTION FOR LEAVE TO AMEND THE COMPLAINT On July 16, 2010, following the Court’s dismissa l of Count Six’s APA claim, plaintiff moved for leave to file an amended complain t. The proposed amendment would add a new Count Six that expressly allege s that defendants have violated FOIA through their policies of “permitting FOIA personnel to categorically refuse to process searches for responsive records pertaining to third party foreign nationals absent proof of death, a signed privacy waiver or a demonstration that the public interest in disc losure outweighs the privacy interests of the particular foreign national.” (Pl.’s Mem. of P. & A. in Supp. of Mot. for Leave to File First Am. Compl. (“Pl.’s Amend Mot.”) at 5; see id. , Ex. A (“Proposed Am. Compl.”) ¶ 44.) 2 Plaintiff seeks to amend “out of an extreme abundance of caution,” given defendants’ argument in

2 The previously dismissed Counts One and Six would be retained (with Count Six renumbered as Count Seven) to pr eserve the right to appeal thei r dismissal. (Pl.’s Mot. to Amend at 4 n.4; see Proposed Am. Compl. ¶¶ 17-21, 49-58.)6 opposing class certification that Counts Two and Fi ve challenge only the denials of the Noriega and Younis requests and do not challenge defendants’ policies as a whole. (Pl.’s Amend Mot. at 2-3; see Defs.’ Cert. Opp’n at 7 (characterizing Feinman II as dismissing “the sole count in the complaint challenging these policies”).) Defend ants have opposed the motion to amend, arguing that the amendment would be futil e because the facts of this case do not satisfy the standard for granting equitable relief under FOIA. ( See Defs.’ Opp’n to Pl.’s Amend Mot. (“Defs.’ Amend Opp’n”) at 4.) ANALYSIS I. LEGAL STANDARDS A. Class Certification Federal Rule of Civil Procedure 23 “states th at ‘[a] class action ma y be maintained’ if two conditions are met: The suit must satisfy th e criteria set forth in subdivision (a) ( i.e. , numerosity, commonality, typicality , and adequacy of representati on), and it also must fit into one of the three categories described in subdivision (b).” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co. , 130 S. Ct. 1431, 1437 (2010). 3 “[A] class plaintiff has the burden of showing that the requirements of Rule 23(a) are met and th at the class is maintainable pursuant to one of Rule 23(b)’s subdivisions.” Richards v. Delta Air Lines, Inc. , 453 F.3d 525, 530 (D.C. Cir. 2006)

. Rule 23(b)(2), which is the only ground fo r certification that plaintiff has invoked, permits certification where “the party opposing th e class has acted or refused to act on grounds

3 In its entirety, Rule 23(a) provides that “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representa tive parties are typical of the claims or defenses of the class; and (4) the representative parties w ill fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a).7 that apply generally to the class, so that final injunctive relief or corres ponding declaratory relief is appropriate respecting the class as a whole . . . .” Fed. R. Civ. P. 23(b)(2). This provision “permits class actions seeking fi nal injunctions or corresponding d eclaratory relief for the entire class,” and “[u]nlike class actions for monetary relief under Rule 23( b)(3), there are no additional requirements of notice and opt-out rights, and the plaintiff need notestablish that a class action would be superior to individual actions or that common legal and factual questions predominate.” Richards , 453 F.3d at 530 (citation omitted). B. Amending the Complaint After a defendant has filed a responsive pleadi ng, “a plaintiff [must] first seek leave of court or obtain the opposing part y’s written consent before fili ng [an] amended complaint.” Banks v. York , 448 F. Supp. 2d 213, 215 (D.D.C. 2006); Fed. R. Civ. P. 15(a). “The decision to grant leave to amend a complaint is left to the court’s discretion,” Banks , 448 F. Supp. 2d at 215, but the court must “heed Rule 15’ s mandate that leave is to be ‘freely given when justice so requires.’” Amore v. Accor N. Am., Inc. , 529 F. Supp. 2d 85, 92 (D.D.C. 2008) (quoting
Firestone v. Firestone , 76 F.3d 1205, 1208 (D.C. Cir. 1996)). “[ I]t is an abuse of discretion to deny leave to amend unless there is sufficient reas on, such as ‘undue delay, bad faith or dilatory motive . . . [or] futility of amendment.’” Firestone , 76 F.3d at 1208 (quoting Foman v. Davis , 371 U.S. 178, 182 (1962)). In this case, the only issue presented is futility, and defendants may prevail on this ground “if the proposed claim would not survive a motion to dismiss.” James Madison Ltd. v. Ludwig , 82 F.3d 1085, 1099 (D.C. Cir. 1996). III. PLAINTIFF’S MOTION FOR CLASS CERTIFICATION A. Availability of Class Relief under FOIA Although courts have granted class certificati on in “reverse-FOIA” cas es where plaintiffs8 seek judicial review to prevent an agency’s disclosure of information, see, e.g. , Doe v. Veneman , 380 F.3d 807, 812 (5th Cir. 2004) (noting distri ct court’s certification of class); Fla. Med. Ass’n, Inc. v. Dep’t of Health, Educ. & Welfare , 479 F. Supp. 1291, 1295-96 (M.D. Fla. 1979) (noting court’s prior certification of cl ass), Graff has not cited – nor has the Court found – any decision granting certification of a class of FOIA plain tiffs who alleged the improper withholding of information. However, the Court has not located any authority suggesting th at such certification is categorically impermissible, nor do defendants raise such an argument. Indeed, the Supreme Court has explained that Rule 23 “creates a categor ical rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action,” Shady Grove , 130 S. Ct. at 1437, and there is some authority sugges ting that FOIA claims are amen able to class prosecution. See Davis v. Astrue, 250 F.R.D. 476, 483 (N.D. Cal. 2008) (rejecting argument that “FOIA claims are not amenable to class prosecution”); cf. Andrew v. Bowen , 837 F.2d 875, 876 (9th Cir. 1988) (discussing successful APA and FOIA suit that wa s filed as class action, without commenting on propriety of certification or whether certification had even been granted). Thus, the Court will

assume arguendo that plaintiff’s FOIA claims are amenable to class action prosecution, and it will consider his certification motion on the merits. Cf. Davis , 250 F.R.D. at 483-92 (granting leave to amend complaint to add FOIA claims a nd concluding that cla ss certification would not moot request to amend, but denying motion to cer tify without prejudice to introducing additional evidence of numerosity, typicality, and adequacy of representation). B. Plaintiff Has Failed to Show Numerosity Under Rule 23(a), plaintiff must first show that “the class is so nume rous that joinder of all members is impracticable . . . .” Fed. R. Civ. P. 23(a). Plaintiff has fa iled to meet his burden. A class action “may only be certified if the trial court is satisfied, after a rigorous9 analysis, that the prerequisites of Rule 23(a) have been satisfied.” Gen. Tel. Co. of the Southwest v. Falcon , 457 U.S. 147, 161 (1982). “The numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations.” Gen. Tel. Co. of Northwest, Inc.
v. EEOC , 446 U.S. 318, 330 (1980). “Generally speaki ng, courts have found that a proposed class consisting of at least forty members will satisfy the impracticability requirement. The general rule is that a plaintiff need not provi de the exact number of potential class members in order to satisfy this requirement.” Bynum v. District of Columbia , 214 F.R.D. 27, 32-33 (D.D.C. 2003) (citations omitted). The numerosity requireme nt can be satisfied “[s]o long as there is a reasonable basis for the estimate provided,” Kifafi v. Hilton Hotels Retirement Plan , 189 F.R.D. 174, 176 (D.D.C. 1999) (emphasis added), but “[m]er e conjecture, without more, is insufficient to establish numerosity . . . .” Pigford v. Glickman , 182 F.R.D. 341, 347 (D.D.C. 1998); see also Bynum , 214 F.R.D. at 31 (“[T]he legal standard is whether the evidence presented by plaintiffs establishes a ‘reasonable basis for crediti ng [plaintiffs’] assertion[s].’” (quoting Wagner v. Taylor , 836 F.2d 578, 587 n.57 (D.C. Cir. 1987)). Plaintiff concedes that he is neither aware nor capable of determining “the exact number of individuals who would fall with in the scope of [the] proposed class” (Pl.’s Cert. Mot. at 5), and he contends that “[t]he Defendants alone retain the reco rds which would easily identify exactly how many individuals fall wi thin the proposed class.” ( Id. at 8.) However, “based on the experience of counsel,” he estimates that there are at least “200 potential members” ( id. at 5), given that the FBI alone receives over 10,000 FO IA requests annually an d that it recently invoked Exemption 6 over 2,000 times in a single year. ( Id. at 8-9 (citing agency-generated FOIA statistics).) Thus, he conc ludes, it is reasonable to assume that over the last six years, defendants improperly denied at least 200 individuals’ requests for information about third-party10 foreign nationals. ( See id. at 9.) Plaintiff’s class size estimat e of 200 lacks a reasonable ba sis. Although he cites to agency data regarding the tota l number of FOIA requests made and the total number of requests that were denied under Exemption 6, it does not follo w from these numbers that there are at least 200 potential class members. See generally Marcial v. Coronet Ins. Co. , 880 F.2d 954, 957 (7th Cir. 1989) (concluding that district court did not abuse discretion in finding that plaintiffs failed to prove numerosity, because there was inadequate support for their numerical assumptions). As defendants correctly observe, the total number of Exemption 6 denials says nothing about the number of Exemption 6 denials of requests for records pertaining to third-party foreign nationals . (Defs.’ Cert. Opp’n at 10.) Plaintiff responds that the dataupon which he bases his estimat e need not be “specific to requests pertaining to third party foreign nationals,” and that it is enough for him to cite the “large number” of FOIA requests received a nd occasions on which Exemption 6 was invoked. (Reply to Pl.’s Cert. Mot. (“Pl.’s Cert. Reply”) at 7.) To the contrar y, the numbers of FOIA requests and Exemption 6 denials “offer no basis whatsoever” for plaintiff’s estimate of 200 potential class members. 4 Rodriguez v. U.S. Dep’t of Treasury , 131 F.R.D. 1, 6 (D.D.C. 1990). “For all the Court knows, [that num ber] is absolutely random, as it would have to be given the

4 Plaintiff’s argument also assumes incorre ctly that the total number of FOIA requests (or Exemption 6 denials) necessarily repres ents an equivalent number of FOIA requesters . One person can make multiple requests, just as plai ntiff himself has done (albeit to two different agencies). Plaintiff’s cited cases do not support his argument that the FOIA request statistics are “sufficient to establish numerosity” (Pl.’s Cert . Reply at 7-8), because each of those cases featured person-based statistics. See Bynum v. District of Columbia , 217 F.R.D. 43, 46 (D.D.C. 2003) (finding numerosity where putative cl ass and available data pertained to individuals who were strip-searched); Davis , 250 F.R.D. at 486 (declining to find numerosity, where putative class and available data pertained to number of Social Security beneficiaries ); Taylor v. Dist. of Columbia Water & Sewer Auth. , 241 F.R.D. 33, 37 & n.4 (D.D.C. 2007) (finding numerosity where defendant did not challenge existence of class a nd did not directly ch allenge plaintiff’s assertion that 800 employees had been discriminated against).11 lack of evidence to support a more concrete number.” Id. (rejecting plaintiff’s assumption that “some percentage” – and thus, at least one percent – of would-be Secret Service applicants fell within class definition); see also Davis , 250 F.R.D. at 486 (plaintiff failed to show numerosity of putative class of mentally disabl ed Social Security recipients who sought “substantial gainful work activity,” because – despite evidence of ne arly 2 million mentally disabled beneficiaries under Social Security Disability Insurance program – “the cour t has no evidence regarding what percentage of” those 2 million beneficiaries “have attempted or are attempting to work”); Lyon v. United States , 94 F.R.D. 69, 73-74 (W.D. Okla. 1982) (plaintiff failed to show numerosity of putative class of claimants for worker’s comp ensation whose requests under Privacy Act were not given proper consideration, because evidence regarding number of Privacy Act requesters did not specify how many requesters were also worker’s compensation claimants); Campbell v. Minneapolis Pub. Housing Auth. , 175 F.R.D. 531, 538 (D. Minn. 1997) (plaintiff failed to show numerosity of putative class of housing applican ts who were disabled due to drug or alcohol addiction, where he offered statistics showing 141 of 9000 applications were from disabled individuals but “offered [no] i ndication” of how many of them “were disabled due to drug or alcohol addiction”), vac’d on other grounds , 168 F.3d 1069 (8th Cir. 1999); Golden v. City of Columbus , 404 F.3d 950, 966 (6th Cir. 2005) (affirming denial of certification motion where plaintiff failed to show numerosity of putative cla ss of city’s tenants “whose water service was or will be terminated because of the landlord’s or prior tenant’s indebtedness,” because plaintiff relied only upon “unrefined measure” of city’s “total tenant population”). 5

5 Defendants also represent that they cannotreadily determine which past requesters sought information pertaining to foreign nationals . (Defs.’ Cert. Opp’n at 10.) Their FOIA records are not categorized by reference to the na tionality of the subject of a request, and they observe correctly that it is not possible to determine the citizens hip of a FOIA request’s subject solely by his or her name. ( See id. at 10-11; id. , Suppl. Decl. of Dennis Argall ¶¶ 5-6; id. , Decl. of Vinay Jolly ¶ 4.) Plaintiff responds that th ese limitations on defendants’ search capabilities12 In sum, plaintiff has failed to show numerosity, and since “[f]ailure to adequately demonstrate any of the four [prerequisites of Rule 23(a)] is fatal to class certification,” Garcia v. Johanns , 444 F.3d 625, 631 (D.C. Cir. 2006), plaintiff’s motion will be denied. 6
IV. PLAINTIFF’S MOTION FOR LE AVE TO AMEND THE COMPLAINT Defendants argue that the proposed amendment is futile because it does not state a valid claim for equitable relief. ( See Defs.’ Amend Opp’n at 4.) Speci fically, they contend that the facts of this case do not present the justifications for equitable relief upon which the D.C. Circuit
are not directly relevant to the que stion of numerosity. (Pl.’s Cert . Reply at 8.) Even if so, and even assuming that plaintiff had satisfied his burde n (which he has not), th e fact that defendants cannot readily provide discovery on potential cl ass members merely reinforces the Court’s concern that permitting such discovery could amount to little more than a fishing expedition. ( Compare id. at 8 n.4 (plaintiff’s suggestion that “minim al discovery would easily” enable him to support his assertions of numerosity).) 6 Even if plaintiff had met his burden unde r Rule 23(a), the Court remains concerned about the “necessity” of certi fying his proposed class. See Mills v. District of Columbia , 266 F.R.D. 20, 22 (D.D.C. 2010) (“[I]t is not uncomm on for courts, in exercising their discretion, to deny class certification on that basis when the particular facts and circumstances of the case warrant doing so.”); but see Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 239 F.R.D. 9, 23-24 (D.D.C. 2006) (rejecti ng necessity doctrine as unsupported by text of Rule 23); Littlewolf v. Hodel , 681 F. Supp. 929, 937-38 (D.D.C. 1988) (rejecting necessity doctrine and certifying class), judgment aff’d sub nom. Littlewolf v. Lujan , 877 F.2d 1058 (D.C. Cir. 1989). To the extent that the ne cessity doctrine survives the Supreme Court’s analysis of Rule 23 in Shady Grove , 130 S. Ct. at 1437-38, the circum stances of this case would warrant denying certification as unnecessary. Here, most of the equitabl e relief sought by plaintiff w ould, if granted, “benefit all proposed class members” regardless of whether the class were certified. Sargent v. Block , 576 F. Supp. 882, 888 (D.D.C. 1983). ( See Compl. at 12-13 ¶¶ (2)-(5).) Cert ification is only relevant to plaintiff’s request for an order requiring defendants to notify all class members that the policies under which their prior FOIA requests were de nied have now been deemed unlawful. ( See Compl. at 13 ¶ (6); see also Pl.’s Cert. Reply at 13 & n.8.) However, “it would not be feasible” for defendants to comply with such an injunction, because they do not record the nationality of the subject of a FOIA request, and therefore they cannot readily identify requesters who fall within plaintiff’s class definition. (Defs.’ Cert. Opp’n at 13 n.3.) See supra note 5. Plaintiff also concedes that he is incapable of determining the full extent of the class. ( See Pl.’s Cert. Mot. at 5, 8.) It thus appears that “t he burdens of maintaining a (b)( 2) class action” solely for the purpose of retroactive notification would be “substantial . . . due to the discovery problems that will inevitably arise . . . .” Berlin Democratic Club v. Rumsfeld , 410 F. Supp. 144, 164 (D.D.C. 1976).13 relied in Payne Enterprises, Inc. v. United States , 837 F.2d 486 (D.C. Cir. 1988). ( See Defs.’ Amend Opp’n at 5-8.) Based on th e record before the Court, it ca nnot conclude that plaintiff’s proposed amendment would be futile. “FOIA imposes no limits on courts’ equitable powers in enforcing its terms.” Payne , 837 F.2d at 494; see Renegotiation Bd. v. B annercraft Clothing Co., Inc. , 415 U.S. 1, 19-20 (1974). The Court is not yet persuaded that the particular facts of Payne define the only possible circumstances under which equitable relief may be justified in a FOIA cas e. Nonetheless, the Court also notes that Payne deemed declaratory relief to be appropriate where, inter alia , the record demonstrated an agency official’s “inability” to remedy the agency’s persistent “noncompliance” with FOIA. 837 F.2d at 494. Here , Graff’s proposes to allege that the DOJ Office of Information Policy (“OIP”) “is respons ible for encouraging agency compliance with FOIA” and “manages DOJ’s responsibilities, whic h includes the FBI and EOUSA, related to the FOIA.” (Proposed Am. Compl. ¶ 43.) He also proposes to allege th at OIP’s director has publicly stated “that FOIA does not permit a cate gorical requirement that privacy waivers be submitted for foreign nationals in order to process a request for records,” and “that FOIA personnel should not pursue such a policy.” ( Id. ) Plaintiff further proposes to allege that despite this official’s stated position, de fendants have continued to contra dict her and to violate FOIA by maintaining the policies at issue in this case. ( See id. ¶ 44.) The Court must accept the truth of such“well-pleaded factual allegations,” Ashcroft v. Iqbal , 129 S. Ct. 1937, 1950 (2009), given that plai ntiff’s proposed amendment need only survive a motion to dismiss. See James Madison , 82 F.3d at 1099. Moreover, the legal interpretation set forth in the pr oposed allegations finds support in Nation Magazine, Washington
Bureau v. U.S. Customs Service , 71 F.3d 885 (D.C. Cir. 1995), which explained that “categorical14 rules” may only be used “when the range of circumstances included in the category characteristically supports an inference that the statutory requirements for exemption are satisfied . . . .” 7 Id. at 893 (internal quotation marks and edits omitted); cf. United States v. Landano , 508 U.S. 165, 176-78 (1993) (rejecting categoric al rule for applying Exemption 7(D)). Thus, there is a serious question whether defendants’ policies can be ju stified under FOIA and D.C. Circuit law. See also Nation Magazine v. U.S Customs Serv. , 937 F. Supp. 39, 44-45 (D.D.C. 1996) (noting, on remand, that “the privac y concerns that drive Exemption 7(C) may not be present with respect to every record in [the agency’s] investig atory files regarding” third-party subject of FOIA request, and approv ing of narrower categorical rule that was tailored to specific contents of records). 8

7 In Nation Magazine , the FOIA request sought documen ts regarding 1992 independent presidential candidate H. Ross Pero t, particularly records “‘pertain[ ing] to offers by Mr. Perot to assist the Customs Service in the interdiction of illegal drugs,’” which Perot had referenced during the presidential campaign. 71 F.3d at 888 & n.1 (quoting request). Unlike the instant agency defendants, the Customs Servi ce did search some of its files, see id. at 891, and thus it “did not simply refuse to take any action on the request.” Id. at 889 n.3. Even so, the agency refused either to confirm or deny whether any responsive investigatory files existed, because “‘disclosure of the mere fact th at an individual is mentioned in an agency’s law enforcement files carries a stigmatizing connotation’ . . . .” Id. at 888 (quoting agen cy response). The D.C. Circuit concluded that the agency’s categorical presumption against disclosure was unsupportable, because “the mere fact that re cords pertain to an individual’s activities does not necessarily qualify them for exemption [on privacy grounds]. Such records may still be cloaked with the public intere st if the information would shed light on agency action,” particularly where a FOIA requestmakes clear that the “significan [ce]” of a third-party subject “is [his] connection to agency conduct.” 71 F.3d at 894-95. See also id. at 896 (finding that SafeCard Services, Inc. v. SEC , 926 F.2d 1197 (D.C. Cir. 1991), did not support “permitting an agency to exempt from disclosure allof the material in an investigatory record solely on the grounds that the record includes some informati on which identifies a private citizen or provides that person’s name and address,” and concluding that “such a blanket exemption” “is not a permissible reading of Exemption 7(C)” because it “would reach far more broadly than is necessary to protect the identitie s of individuals mentioned in la w enforcement files” and thus “would be contrary to FOIA’s overall purpose of disclosure”). 8 Defendants also rely upon this Court’s prior decisions in Fischer v. U.S. Department of Justice , 596 F. Supp. 2d 34 (D.D.C. 2009), and Lewis v. U.S. Dep’t of Justice , 609 F. Supp. 2d 80 (D.D.C. 2009), aff’d , No. 09-5225, 2010 WL 1632835 (D.C. Cir. Apr. 7, 2010). ( See Defs.’15 Plaintiff’s proposed allegations “present[] ‘sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face,’” Iqbal , 129 S. Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)), including a claim for equitable relief. Accordingly, the Court will grant plai ntiff’s motion for leave to amend. CONCLUSION For the foregoing reasons, plaintiff’s class certification motion is DENIED , and his motion for leave to amend the complaint is GRANTED

. The parties shall jointly submit, within two weeks of the date of this Memorandum Op inion, a briefing schedule that provides for sequential summary judgment motions on plaintiff’s remaining claims. SO ORDERED.
/s/ ELLEN SEGAL HUVELLE United States District Judge DATE: August 13, 2010

Amend Opp’n at 7-8.) However, these decision s do not demonstrate that amendment would be futile. The pro se plaintiffs in Fischer and Lewis did not squarely present the Court with an opportunity to consider the agency’s policy of categorically refusing to search for documents. Moreover, in each case, the proffe red public interest ju stification – that the information would help the plaintiff challenge his conviction – was inadequate as a matter of law, thereby mooting the relevance of the agency ’s categorical refusals. See Lewis , 609 F. Supp. 2d at 84-85 (citing cases); see also Fischer , 596 F. Supp. 2d at 47 (same).