Cause of Action Institute v. Eggleston, 224 F. Supp. 3d 63

Background

Cause of Action Institute filed multiple FOIA requests (starting Aug. 2013; additional requests June 29, 2015) to various executive agencies seeking calendars, travel records, and correspondence; Plaintiff alleges responses were delayed.
Plaintiff contends delays result from agency consultation with the Office of White House Counsel (OWHC) pursuant to a 2009 Craig memorandum that requests consultation on requests implicating undefined “White House equities.”
Plaintiff seeks (1) production/final determinations on its FOIA requests, and (2) injunctive relief barring OWHC consultation to the extent it causes delay; claims asserted under FOIA, the APA, and non‑statutory (ultra vires) review.
Defendants moved to partially dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6); the court considered the complaint and exhibits (including prior OWHC memoranda).
The court granted dismissal in part: dismissed the FOIA “policy or practice” claim under Payne Enterprises for failure to plausibly plead such a practice; dismissed the APA and ultra vires claims for lack of subject‑matter jurisdiction (sovereign immunity / adequate FOIA remedies).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether alleged OWHC‑driven delays constitute a Payne Enterprises “policy or practice” violating FOIA	OWHC consultation under the Craig memo is vague and used to delay politically sensitive requests; thus agencies follow a practice that will impair future access	Consultation is permitted in appropriate circumstances; plaintiff’s allegations are conclusory and show delay, not an ongoing unlawful policy	Dismissed without prejudice: plaintiff failed to plausibly plead an unlawful policy or practice beyond delay
Whether the APA waives sovereign immunity such that APA relief is available	APA review is appropriate to enjoin OWHC consultation practice causing delay and violation of FOIA‑related regulations	FOIA provides adequate alternative remedies; APA review is barred when the statute provides judicial relief	Dismissed for lack of jurisdiction: FOIA provides an adequate alternative remedy, so APA waiver unavailable
Whether non‑statutory (ultra vires) review is available to challenge OWHC conduct	Ultra vires review is appropriate because OWHC allegedly requires agencies to delay beyond statutory FOIA deadlines	Non‑statutory review is narrow; plaintiff has not alleged conduct wholly without authority and FOIA provides an adequate remedy	Dismissed for lack of jurisdiction: plaintiff failed to allege action "without any authority" and FOIA affords adequate relief
Whether delay alone suffices to state an actionable FOIA claim	Delay is evidence of improper consultation and can show an ongoing practice warranting injunctive relief	Delay alone is not the sort of intentional, inapposite invocation of exemptions that Payne addresses	Court: delay alone (even repeated) is insufficient; plaintiff must plead more than missed deadlines

Key Cases Cited

Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988) (recognizes a "policy or practice" exception allowing injunctive relief where agencies have an ongoing practice impeding FOIA access)
Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108 (D.C. Cir. 2004) (discusses presidential communications privilege and relevance to Exemption 5)
Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n, 711 F.3d 180 (D.C. Cir. 2013) (delay remedies and limitations on agency timeline enforcement)
El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265 (D.C. Cir. 2005) (APA review precluded where adequate statutory alternative exists)
Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949) (ultra vires principle: suit lies only where officer acts without any authority)
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984) (limits on non‑statutory claims; ultra vires requires lack of delegated power)
Bd. of Governors v. MCorp Fin. Inc., 502 U.S. 32 (1991) (availability of meaningful judicial review negates need for non‑statutory relief)