AND ORDER ON DEFENDANTS' MOTION TO DISMISS NON-DEPARTMENT LEVEL AGENCIES AND SETTING TIME LIMIT FOR FILING OF THIRD DISPOSITIVE MOTION Doc. #'s 89 and 108
In this action under the Freedom of Information Act, defendant United States Department of Justice ("Department") has filed a motion to dismiss agency defendants Federal Bureau of Investigation ("FBI"), Drug Enforcement Administration ("DEA"), and United States Marshals Service ("USMS") on the ground Department is the proper party defendant where individual "components" within the Department are sued. Department has voluntarily dismissed its pending motion for summary judgment and requested additional time to determine its position following the decision of the Ninth Circuit Court of Appeals in Pickard v. Dep't of Justice, 653 F.3d 782 (9th Cir. 2011). In response, plaintiff Michael Schulze ("Plaintiff") requests the court impose a deadline for any filing of further dispositive motions by Department.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
The factual background of this action was throughly set forth in the court's memorandum opinion and order granting in part and denying in part Defendant's motion for summary judgment, filed on July 22, 2010, (hereinafter, the July 22 Order"). Doc. # 86. Briefly, the currently operative First Amended Complaint ("FAC") was filed on August 12, 2005. The FAC alleges three claims for relief. Plaintiff's first claim for relief alleges violation of the Privacy Act, 5 U.S.C. § 522a as to all Defendants and requests statutory damages from all Defendants in the sum of $950,000. Plaintiff's second claim for relief is alleged pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 and requests injunctive relief against FBI and DEA for the production of records pertaining to confidential informant Stephen P. Olaes. Plaintiff's third claim for relief is alleged against DEA and FBI and requests injunctive relief to compel production of records pertaining to confidential informant Shane K. Ahlo. The July 22 Order granted Defendants motion for summary judgment as to Plaintiff's first claim for relief under the Privacy Act. The July 22 Order denied Defendants' motions for summary judgment as to Plaintiffs second and third claims for relief under FOIA without prejudice.
On September 13, 2010, Department filed a motion to dismiss FBI, DEA and USMS on the ground Department is the proper party defendant where the entities being sued are agency subdivisions of the Department. In the same filing, Department moved for summary judgment on Plaintiff's two remaining claims for relief under FOIA on the ground that Defendants' "Glomar"*fn1 response with regard to requests for documents pertaining to Oales and Ahlo was appropriate. After several continuances Plaintiff filed his opposition to Departments motion for summary judgment on September 18, 2011. In his opposition, Plaintiff substantially relied upon a recent order by the Ninth Circuit Court of Appeals in Pickard v. Dep't of Justice, 653 F.3d 782 (9th Cir. 2011), a case that appears to support Plaintiff's claim that the "Glomar" response is not appropriate where the identity of a paid informant who is the subject of the FOIA request is made public. On December 9, 2011, Department filed its reply brief which set forth its counter-arguments with regard to dismissal of the "component" sub-divisions within Department and voluntarily withdrew its motion for summary judgment without prejudice pending review of the impact of Pickard on their response to Plaintiff's FOIA requests. Department's reply brief did not specify a time by which it would make a decision as to how it would proceed. On March 19, 2012, Plaintiff moved for the establishment of a deadline by which Department would be required to either file a dispositive motion or indicate its intentions with regard to Plaintiff's FOIA requests as to Ahlo and Oales.
The court will consider first Department's motion to dismiss and then will address Plaintiff's request for a time certain for Department's further response.
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set forth factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Twombly"). While a court considering a motion to dismiss must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and must construe the pleading in the light most favorable to the party opposing the motion, and resolve factual disputes in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969), the allegations must be factual in nature. See Twombly, 550 U.S. at 555 ("a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do"). The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("Iqbal").
The Ninth Circuit follows the methodological approach set forth in Iqbal for the assessment of a plaintiff's complaint:
"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."
Moss v. U.S. Secret Service, 572 F.3d 962, 970 (9th Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1950).
I. Motion to Dismiss FBI, DEA and USMS
Federal agencies may not be sued in their own name except to the extent Congress may specifically allow such suits. Blackmar v. Guerre, 342 U.S. 512, 514 (1952). Federal departments and agencies are proper party defendants in FOIA litigation. This rule is derived from the plain language of the Act, which vests the district courts with jurisdiction to enjoin "the agency" from withholding records. 5 U.S.C. § 552(a)(4)(B). Department contends that FBI, DEA and USMS are "components" within Department and are not properly considered "agencies" for purposes of FOIA actions. ...