Consumers' Research v. Consumer Product Safety CommissionConsumers' Research v. Consumer Product Safety Commission
The Constitution vests all power—and responsibility—to execute the law in a single President. Because this monumental responsibility is too great for any one person, the President must delegate power to subordinate officers. For a century, the Supreme Court has recognized that this ability to delegate executive power implies a right to remove subordinates for any reason to ensure that “the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community.” Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 498 (2010) (quoting 1 Annals of Cong. 499 (1789) (J. Madison)).
Here, Plaintiffs challenge a restriction on the President’s power to remove members of the Consumer Product Safety Commission. Plaintiffs argue that the restriction is unconstitutional because the Commission exercises substantial
I.
A.
Plaintiffs are two educational organizations focused on product safety issues. Consumers’ Research is a 501(c)(3) nonprofit organization that researches and publishes reports on policies, products, and services relevant to consumers. Docket No. 1 ¶ 10. Plaintiff By Two LP (“By Two”) is a limited partnership that also researches consumer products. Docket No. 1 ¶ 11. The limited partnership is comprised of parents of young children who research children’s products regulated by the Commission. Id.
B.
Defendant, the Consumer Product Safety Commission (“the Commission” or “CPSC”), is a federal agency charged with “protect[ing] the public against unreasonable risks of injury associated with consumer products.”
Congress gave the Commission broad executive powers to regulate consumer products. The Commission may promulgate binding regulations, initiate civil enforcement actions in district court, and conduct administrative adjudications.
C.
Both Plaintiffs frequently request information relevant to their research and work from the Commission under the Freedom of Information Act (“FOIA”). Docket No. 1 ¶ 10–11.
“[T]he basic purpose of the Freedom of Information Act [is] ‘to open agency action to the light of public scrutiny.’” Dep’t of Air Force v. Rose, 425 U.S. 352, 372 (1976). The Act mandates that every federal agency “shall make [requested] records promptly available to any person” who makes a proper request. See
FOIA requests filed with the Commission are initially reviewed by FOIA officers, and denials are reviewed on administrative appeal by the Commission’s General Counsel.
Pursuant to FOIA, the Commission adopted a rule (“the Final Rule”) updating the fee schedule for CPSC FOIA requests in January 2021. See Fees for Production of Records, 86 Fed. Reg. 7499-01, 7499 (Jan. 29, 2021) (to be codified at 16 C.F.R. pt. 1015). The Final Rule increased the fees the Commission charges to duplicate, search for, and review requested documents. See id. at 7500–01. The Final Rule took effect on March 1, 2021. Id. at 7499.
D.
This case challenges the Commission’s structure when it promulgated the Final Rule and as it processes Plaintiffs’ FOIA requests. Plaintiffs’ claims are based on a series of FOIA requests they each filed with the Commission after the adoption of the Final Rule, as well as additional requests Plaintiffs expect to file in the future.
Request 324. On March 22, 2021, By Two filed a FOIA request for several documents regarding American Society for Testing and Materials (“ASTM”) voluntary safety standards and requested a public interest fee waiver. Docket No. 14-1, Ex. K. In response, the Commission did not provide any documents, but directed By Two to ASTM’s website as a possible source of the requested documents. Id., Ex. L. On administrative appeal, the Commission’s General Counsel determined that the request was partially moot because the ASTM records could be obtained through third-party sources, but also partially remanded the request to determine whether the Commission possessed any records not otherwise publicly available and if “responsive records may be released.” Id., Ex. N at 3. In a December 2, 2021 letter,
Request 330. On March 23, 2021, Plaintiff Consumers’ Research filed a FOIA request for several ASTM documents and requested a public interest fee waiver. Docket No. 14-1, Ex. A. As with By Two’s Request 324, the Commission provided no documents, but directed Consumers’ Research to ASTM’s website. Id., Ex. B. On administrative appeal, the Commission’s General Counsel remanded the request to the FOIA officers with instructions to search for the documents and “determine whether these records may be released.” Id., Ex. D at 7–8. The Commission sent Consumers’ Research a letter on December 2 stating that it could not locate any responsive records. Docket No. 35-1, Ex. 1.
Recent Requests. Both Plaintiffs plead that they are frequent FOIA requesters and will “submit additional FOIA requests and requests for fee waivers to the Commission in the future.” Docket No. 1 ¶¶ 10–11. Between the filing of this lawsuit and Plaintiffs’ motion for summary judgment, each Plaintiff has filed three additional FOIA requests. See Docket No. 14-1, Exs. R–T, O–Q. In response to the Government’s motion to dismiss, Plaintiffs supplemented the record with seventeen pending requests filed between March 1, 2021, and October 18, 2021. See Docket No. 29-1, Exs. OO–EEE.
E.
Having exhausted their administrative appeals, Plaintiffs filed this suit on July 2, 2021. Docket No. 1. Plaintiffs allege informational injury and imminent financial injury due to the increased fee schedule to obtain documents responsive to
Specifically, Plaintiffs plead three claims for relief. Under Count I, Plaintiffs seek to have the Court declare that the Commission’s structure violates Article II and the separation of powers by insulating the commissioners from presidential removal. Id. ¶ 57–63. Under Count II, Plaintiffs ask the Court to set aside the Final Rule as contrary to a constitutional right under the Administrative Procedure Act. Id. ¶ 64–67. Finally, under Count III, Plaintiffs ask the Court to enjoin the Commission from enforcing the Final Rule or withholding documents pursuant to
Plaintiffs now move for partial summary judgment as to Count I. Docket No. 14. Plaintiffs argue that whether Article II prevents the removal restriction on the commissioners is a purely legal question fit for review without further factual development and is a prerequisite finding to the claims in Counts II and III. Id. at 28–29. The Government filed a combined response and motion to dismiss. Docket No. 24. The Government does not argue that any material fact dispute precludes partial summary judgment, but instead contends that Plaintiffs are wrong on the law. The Government also moves to dismiss all three Counts for lack of subject matter
Under
II.
The Government argues that Plaintiffs lack standing because they “have not suffered any concrete injury.” Docket No. 24 at 10. The Government also contends that Plaintiffs’ claims are moot because the Commission has produced some of the requested records. Docket No. 35 at 2. As explained below, the Court concludes that Plaintiffs have alleged several distinct injuries and that Plaintiffs’ claims are not moot.
A.
“[A]n essential and unchanging part of the case-or-controversy requirement of Article III” is that the plaintiff has standing. Lujan v. Defs. Of Wildlife, 504 U.S. 555, 560 (1992). Article III standing requires a plaintiff to show that: (1) he “has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent,
Here, Plaintiffs allege several distinct injuries, each of which satisfies Article III standing.
First, Plaintiffs allege informational injuries resulting from the Commission’s withholding of documents to which Plaintiffs claim entitlement under FOIA. Docket No. 1 ¶ 51. As the Government concedes, Plaintiffs had standing when they filed the complaint to challenge the initial decision to deny their ASTM requests. See Docket No. 24 at 17 n.7. Further, although the Commission has since produced some of those records, the Government concedes that it has yet to release documents responsive to Requests 277 and 278. See Docket No. 37 at 2. “The agency’s failure to provide information to which the Requesters are statutorily entitled is a quintessential form of concrete and particularized injury within the meaning of Article III.” Maloney v. Murphy, 984 F.3d 50, 59 (D.C. Cir. 2020); see also Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 429 (5th Cir. 2013) (“This is the kind of concrete informational injury that the statute was designed to redress.”).
Second, Plaintiffs allege the increased fees under the Final Rule cause financial injury. Docket No. 1 ¶ 52. The Final Rule raised the fee for print duplications from $0.10 per page to $0.15 per page. Fees for Production of Records, 86 Fed. Reg. 7499-01, 7500 (Jan. 29, 2021) (to be codified at 16 C.F.R. pt. 1015); see also
The Government also argues that Plaintiffs have not “been assessed increased fees under the Final Rule.” Docket No. 24 at 11. But it is undisputed that at the time of filing, the Commission’s FOIA officer had denied By Two’s request for fee waivers
Plaintiffs also repeatedly allege they suffer an ongoing injury by facing future liability for the increased FOIA fees. The complaint is replete with details alleging that Plaintiffs have an established history of filing FOIA requests with the Commission and have specific plans to do so again in the future. See, e.g., Docket No. 1 ¶¶ 10–11, 52 (alleging “imminent financial injury” from the increased cost “to obtain the documents they will request in the future”). Indeed, as the summary judgment record indicates, Plaintiffs have filed additional FOIA requests with the
Third, Plaintiffs allege an ongoing constitutional injury by pleading that they remain subject to regulations promulgated by an unconstitutionally structured agency. Docket No. 29 at 7–8; Docket No. 1 ¶¶ 1–3, 10–12, 26–34. The Supreme Court has held that parties alleging such injury have standing to challenge removal restrictions “because when such a provision violates the separation of powers it inflicts a ‘here-and-now’ injury on affected third parties that can be remedied by a court.” Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2196 (2020) (quoting Bowsher v. Synar, 478 U.S. 714, 727 n.5 (1986)).
Further, “‘there is ordinarily little question’ that a regulated individual or entity has standing to challenge an allegedly illegal statute or rule under which it is regulated.” State Nat. Bank of Big Spring v. Lew, 795 F.3d 48, 53 (D.C. Cir. 2015) (quoting Lujan, 504 U.S. 561–62). “Whether someone is in fact an object of a regulation is a flexible inquiry rooted in common sense.” Contender Farms, L.L.P. v. U.S. Dep’t of Agric., 779 F.3d 258, 265 (5th Cir. 2015). Here, in promulgating the Final Rule, the Commission acted directly on Plaintiffs’ statutory entitlement to obtain information and claim fee waivers now and in the future. See
The Government’s myriad objections to this constitutional injury ignore the fact that Plaintiffs allege they are frequently subject to the Final Rule. A regulated party may object to the existence of a regulation that may otherwise be a generalized grievance. See Contender Farms, 779 F.3d at 264–65 (noting that subjects of regulations generally have standing to challenge the rule or statute). Further, the fact that Plaintiffs choose to subject themselves to FOIA regulations is immaterial because, as explained above, FOIA requests are a common and habitual part of Plaintiffs’ business models. See id. at 266 (“[Plaintiffs] suggest that they could neither earn a living nor compete recreationally without participating in these events.”); cf. Cochran, 20 F.4th at 209–10 (“Cochran challenges the entire legitimacy of her proceedings, not simply the cost and annoyance.”). Accordingly, Plaintiffs have alleged a constitutional injury from the threat of being subject to a regulatory scheme and governmental action lacking Article II oversight. See Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 513 (2010) (recognizing petitioner’s right to be regulated only by “a constitutional agency accountable to the Executive”).
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In sum, the Court finds that Plaintiffs have pleaded a concrete and imminent injury in fact and that the summary judgment record establishes that this injury is
B.
In notices filed post briefing, the Government contends that its release of records responsive to Requests 324 and 330 moots the case. See Docket No. 35.4 Typically, a FOIA request becomes moot once it is resolved. Payne Enterprises, Inc. v. United States, 837 F.2d 486, 490–91 (D.C. Cir. 1988). Here, however, Plaintiffs’ claims are not limited to Requests 324 and 330. Plaintiffs also challenge the Commission’s Final Rule and plead ongoing injuries based on pending and future FOIA requests. See Docket No. 1 ¶¶ 10–11, 52. The release of specific records therefore does not moot the case. See Payne Enterprises, 837 F.2d at 491 (holding
III.
Plaintiffs contend that the removal restriction in
As explained below, the Court holds that the restriction on the President’s power to remove the commissioners violates Article II.
A.
Article II states: “The executive Power shall be vested in a President,” who must “take Care that the Laws be faithfully executed.”
Limiting the President’s removal power insulates executive officers from accountability—both to the President and the governed. If the removal power is restricted, the President “can neither ensure that the laws are faithfully executed, nor be held responsible for [executive officers’] breach of faith.” Free Enter. Fund, 561 U.S. at 496. Such officers “would be immune from Presidential oversight, even as they exercised power in the people’s name.” Id. at 497. They would also be unaccountable to the people, who “do not vote for the ‘Officers of the United States.’” Id. at 497–98 (quoting
This fundamental first principle is as critical today as it was in 1789. The Supreme Court has rejected the argument that “the times demand” limiting the President’s removal power “in the interest of enhancing independence from politics in regulatory bodies.” See Seila Law, 140 S. Ct. at 2206 n.11; id. at 2226 (Kagan, J., dissenting in part and concurring in judgment with respect to severability). “If anything, the growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people.” Id. at 2206 n.11 (majority opinion) (cleaned up) (quoting Free Enter. Fund, 561 U.S. at 499). Thus, the “general rule” is that “the President possesses ‘the authority to remove those who assist him in carrying out his duties.’” Id. at 2198 (quoting Free Enter. Fund, 561 U.S. at 513–14).
Indeed, “the President’s removal power is the rule, not the exception.” Id. at 2206. And the exceptions are narrow and limited—with the Supreme Court recognizing only two. Id. at 2199–200. One, stated in Morrison v. Olson, 489 U.S. 654 (1988), allows removal restrictions on “inferior officers with limited duties and no policymaking or administrative authority.” Id. The other, recognized in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), allows removal restrictions on members of “multimember expert agencies that do not wield
The parties agree that the Morrison exception is inapplicable. Here, the commissioners shielded from removal by
This case therefore turns on the Humphrey’s Executor exception.
B.
Plaintiffs argue that Humphrey’s Executor does not apply here because the Commission exercises substantial executive power, unlike the agency in that case. Docket No. 14 at 20. The Government counters that the exception applies to any multimember, nonpartisan structure regardless of function and power. Docket No. 24 at 18–22. Based on nearly a century of precedent, the Court holds that the Humphrey’s Executor exception does not apply to the Commission.
1.
Humphrey’s Executor involved the Federal Trade Commission (“FTC”), a commission of five members appointed by the President with the advice and consent of the Senate. 295 U.S. at 619–20. By statute, no more than three of the commissioners could be members of the same political party. See id. And each
The Supreme Court upheld the removal restriction. The Court reasoned that the FTC “is an administrative body created by Congress to carry into effect legislative policies embodied in the statute . . . and to perform other specified duties as a legislative or as a judicial aid.” Id. at 628. “Such a body cannot in any proper sense be characterized as an arm or an eye of the executive.” Id. In performing its statutory duties, the FTC “acts in part quasi legislatively and quasi judicially.” Id. The commission “acts as a legislative agency” when it investigates and reports to Congress, and “it acts as an agency of the judiciary” when it serves as a master in chancery under court procedures. Id.
The Court also distinguished the FTC from the postmaster at issue in Myers v. United States, 272 U.S. 52 (1926), in which the Court had held that the President’s removal power could not be restricted. See Humphrey’s Executor, 295 at 627–28. The postmaster in Myers was “an executive officer restricted to the performance of executive functions,” “charged with no duty at all related to either the legislative or
Since 1935, the Supreme Court has upheld removal restrictions under the Humphrey’s Executor exception only once—for the almost purely adjudicatory War Claims Commission established after the Second World War. See Wiener v. United States, 357 U.S. 349, 354–55 (1958) (“The Commission was established as an adjudicating body with all the paraphernalia by which legal claims are put to the test of proof.”). Instead, the Court has repeatedly refused to apply the exception to various bodies exercising executive power.
In Free Enterprise Fund, the Court held that Humphrey’s Executor could not save restrictions on removing officers who “determine[] the policy and enforce[] the laws of the United States.” 561 U.S. at 484. Free Enterprise Fund involved the Public Company Accounting Oversight Board, a board of five members appointed to staggered five-year terms by the Securities and Exchange Commission. See id. Congress “created the Board as a private ‘nonprofit corporation,’” empowered it to enforce securities laws, and placed it under the SEC’s oversight. Id. at 484–86. By statute, the SEC could not “remove Board members at will, but only ‘for good cause shown.’” Id. at 486. The Court held that this “arrangement [was] contrary to
A decade later, the Court in Seila Law again refused to extend the Humphrey’s Executor exception—this time to “an independent agency led by a single Director and vested with significant executive power.” 140 S. Ct. at 2201. The agency was the Consumer Financial Protection Bureau, a regulatory agency tasked with implementing and enforcing consumer protection laws, conducting investigations, prosecuting civil actions in federal court, and exercising adjudicatory authority. See id. at 2193. Rather than creating “a traditional independent agency headed by a multimember board or commission,” however, Congress placed the Bureau under the leadership of a single Director. Id. The Director is appointed by the President for a term of five years but may be removed only for “inefficiency, neglect of duty, or malfeasance in office.” Id.
In holding this removal restriction unconstitutional, the Court distinguished the Bureau from the FTC in Humphrey’s Executor. Unlike the FTC, the Bureau “is led by a single Director who cannot be described as a ‘body of experts’ and cannot be
Finally, last year the Court held in Collins v. Yellen, that Humphrey’s Executor did not save a removal restriction on the Director of the Federal Housing Finance Agency (“FHFA”). 141 S. Ct. at 1770. “Seila Law is all but dispositive.” Id. at 1783. Like the Bureau in Seila Law, the FHFA is tasked with “broad investigative and enforcement authority” and may hold hearings, issue subpoenas, remove or suspend corporate officers, issue cease-and-desist orders, and bring civil actions in federal court. Id. at 1772. Also like the Bureau, the FHFA “is an agency led by a single Director,” and the statute “restricts the President’s removal power.” Id. at 1784. The removal restriction was thus unconstitutional, even if the FHFA exercised less
In sum, the Supreme Court has applied the Humphrey’s Executor exception only twice—in Humphrey’s Executor and Wiener, where the multimember commissions did not exercise substantial executive power.
2.
Turning to this case, the Court concludes that the Commission exercises substantial executive power and therefore does not fall within the Humphrey’s Executor exception.
Similar to the Bureau in Seila Law, the Commission “may promulgate consumer product safety standards” affecting a wide range of consumer products on the market.
Finally, the Commission holds the “quintessentially executive power not considered in Humphrey’s Executor” to file suit in federal court “to seek daunting monetary penalties against private parties” as a means of enforcement. Seila Law, 140 S. Ct. at 2200; see also
The Government does not dispute that these are executive powers. Rather, the Government argues that the 1935 FTC may have exercised similar powers. See
The Court thus concludes that the Commission exercises substantial executive power, and Humphrey’s Executor does not apply.
3.
The Government argues that the removal restriction in
To be sure, Humphrey’s Executor discussed the multimember structure of the FTC in addressing the removal restriction. 295 U.S. at 624–26. But the Court later
The Government also attempts to distinguish Seila Law and Collins as cases involving agencies “led by a single Director,” not multimember commissions. Docket No. 24 at 22–23 (quoting Collins, 141 S. Ct. at 1784). According to the Government, the Supreme Court in Seila Law indicated that Congress could have imposed the removal restriction in that case simply by “converting the [Bureau] into a multimember agency.” Id. at 21 (emphasis removed) (quoting Seila Law, 140 S. Ct. at 2211). But that is not what the Court said. Rather, in addressing severability, the
Rather, in each of the removal cases discussed above, the Supreme Court relied on first principles.
The Government also argues that the Commission and other “similarly structured agencies . . . . are longstanding and accepted pillars of American
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“The President’s removal power is the rule, not the exception.” Seila Law, 140 S. Ct. at 2206; see also Free Enter. Fund, 561 U.S. at 483; Myers, 272 U.S. at 164. The Court may uphold a restriction on that removal power in only two limited situations. See Seila Law, 140 S. Ct. at 2199–200; see also Morrison, 487 U.S. at 691; Humphrey’s Executor, 295 U.S. at 632. Neither is present here. Accordingly, the Court holds that the restriction on presidential removal established by
IV.
The Court now turns to the remedy. Plaintiffs seek a declaratory judgment that the removal restriction in
A.
Citing Collins v. Yellen, the Government contends that Plaintiffs may not “obtain relief for their alleged injuries” unless they identify a “plausible nexus” between the removal restriction in
In Collins, plaintiff shareholders of Fannie Mae and Freddie Mac sought to rescind a stock purchasing agreement (known as the third amendment) between the Federal Housing Finance Agency (“FHFA”) and the Department of Treasury. 141 S. Ct. at 1772–75. The shareholders argued that recission of the third amendment would also require the disgorgement of dividend payments worth billions of dollars. Id. By the time the case reached the Supreme Court, however, the third amendment had been repealed. Id. at 1779–80. “And because the shareholders no longer ha[d] a live claim for prospective relief, the only remaining remedial question concern[ed] retrospective relief.” Id. at 1787 (citation omitted). The Court held that the shareholders were not entitled to such retrospective relief without demonstrating that the removal restriction “inflict[ed] compensable harm”—by, for example,
Collins does not address requests for prospective relief. Instead, Free Enterprise Fund governs. In that case, the Supreme Court squarely held that plaintiffs challenging removal restrictions could obtain declaratory relief without demonstrating the restrictions inflicted “compensable harm” or identifying a “plausible nexus” between the restrictions and the challenged action. See 561 U.S. at 513; see also id. at 491 n.2. The Court stated: “[Petitioners] are entitled to declaratory relief sufficient to ensure that the reporting requirements and auditing standards to which they are subject will be enforced only by a constitutional agency accountable to the Executive.” Id. at 513. This type of equitable relief “has long been recognized as the proper means for preventing entities from acting unconstitutionally.” Id. at 491 n.2 (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001)).
Indeed, the Fifth Circuit held in Cochran v. SEC that Collins does not apply to plaintiffs seeking prospective relief. See 20 F.4th at 210 n.16 (“Collins does not impact our conclusion in this case because Cochran does not seek to ‘void’ the acts of any SEC official. Rather, she seeks an administrative adjudication untainted by separation-of-powers violations.”).
B.
Next, the Government argues that Plaintiffs are not entitled to a declaratory judgment because they lack a “private cause of action” and because the “requested declaratory relief would not remedy [Plaintiffs’] injuries.” Docket No. 24 at 28–32. The Court disagrees on both points.
1.
The
The Government argues that the right of action recognized in Free Enterprise Fund is available only to plaintiffs facing a civil or criminal enforcement action.7 Docket No. 24 at 29–30. But Free Enterprise Fund is not so limited. Rather, the Court held that the right of action extends generally to those challenging “governmental action under . . . separation-of-powers principles.” 561 U.S. at 491 n.2; see also Collins v. Mnuchin, 938 F.3d 553, 587 & n.227 (5th Cir. 2019 (en banc) (“A
Finally, the type of harm faced by the plaintiffs in Free Enterprise Fund is no different from the type of harm alleged by Plaintiffs here. Both groups of plaintiffs
Accordingly, Plaintiffs have alleged a private right of action entitling them to declaratory relief.
The Government also argues that declaratory relief “would not remedy [Plaintiffs’] injuries” because it would not “vacate the Final Rule” or “undo any decision of the FOIA Office.” Docket No. 24 at 31. But Plaintiffs seek prospective relief from the Commission’s ongoing processing of their FOIA requests without proper presidential oversight. See Docket No. 1 ¶ 54; see also supra Sections II.A, IV.B.1. A declaration stating that the removal restriction in
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The Court therefore holds that Plaintiffs are entitled to a declaratory judgment that the removal restriction in
V.
Plaintiffs request a partial final judgment on the declaratory relief sought in Count I to “tee up the constitutional removal question for immediate appeal.” Docket No. 14 at 26.
The parties do not dispute that Count I is an independent claim and that declaring the removal restriction unconstitutional is an “ultimate disposition” of that claim. Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enters., Inc., 170 F.3d 536, 539 (5th Cir. 1999); Texas v. United States, 352 F. Supp. 3d 665, 671 (N.D. Tex. 2018), aff’d in part, vacated in part on other grounds, remanded, 945 F.3d 355 (5th Cir. 2019), as revised (Dec. 20, 2019), as revised (Jan. 9, 2020), rev’d and remanded sub nom. California v. Texas, 141 S. Ct. 2104 (2021). Indeed, Count I seeks declaratory relief under
There is also no just reason for delay. In making that determination, the Court considers both “judicial administrative interests as well as the equities involved.”
By entering final judgment on Count I, the Court allows the parties to immediately appeal the constitutional question and potentially avoid the time and resources necessary to address Counts II and III. See, e.g., 10 CHARLES ALLEN WRIGHT, ARTHUR R. MILLER, MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2659 (4th ed. 2014) (“[A]n early appeal may avoid the need for further proceedings in the district court or may ease significantly the difficulty and complexity of conducting the trial of the unadjudicated claims, thereby supporting immediate review. This may be true, for example, if the appeal will allow the court to rule on some novel or complex issue that will recur in the trial court.” (footnotes omitted)). In fact, the Government does not dispute this point, arguing instead that Plaintiffs’ claims may be mooted as the Commission processes their FOIA requests. Docket No. 24 at 32–33. But Plaintiffs have demonstrated they are repeat-FOIA requesters
Accordingly, Plaintiffs’ motion for partial final judgment as to Count I is GRANTED.
VI.
In light of the foregoing, the Court resolves the pending motions as follows:
The Government’s Motion to Dismiss (Docket No. 24) is DENIED in part. The motion is denied to the extent it seeks dismissal of the complaint for lack of standing, failure to state a meritorious separation-of-powers claim, and failure to state a claim for relief for Count I under Collins v. Yellen. The Court reserves ruling on whether Plaintiffs have stated a claim for retrospective relief under Collins, which they seek under Counts II and III only. Other than this issue relating to Counts II and III, the Court’s ruling resolves the remainder of the motion.
Plaintiffs’ Motion for Partial Summary Judgment as to Count I and Entry of Partial Final Judgment Under
Finally, the Court sets this matter for a telephonic status conference. Information will be provided in a separate order.
JEREMY D. KERNODLE
UNITED STATES DISTRICT JUDGE