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Prisology, Inc. v. Federal Bureau of Prisons

United States Court of Appeals, District of Columbia Circuit

April 4, 2017

Prisology, Inc. Appellant
v.
Federal Bureau of Prisons, Appellee

          Argued December 6, 2016

         Appeal from the United States District Court for the District of Columbia (No. 1:14-cv-00969)

          Zachary Lee Newland argued the cause for appellant. On the briefs were Jeremy B. Gordon and Joseph Fierros, Student Counsel.

          Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the cause for appellee. On the brief were R. Craig Lawrence, Assistant U.S. Attorney, and Peter R. Maier, Special Assistant U.S. Attorney. Eric J. Young, Special Assistant U.S. Attorney, entered an appearance.

          Before: Millett, Circuit Judge, and Sentelle and Randolph, Senior Circuit Judges.

          OPINION

          Randolph, Senior Circuit Judge

         Prisology, Inc., a nonprofit organization devoted to criminal justice reform brought an action claiming that the Federal Bureau of Prisons had not complied with 5 U.S.C. § 552(a)(2) of the Freedom of Information Act (FOIA). The district court dismissed the complaint on the ground that Prisology lacked standing.

         Section 552(a)(2) requires federal agencies to make the following types of records electronically available to the public:

(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register;
(C)administrative staff manuals and instructions to staff that affect a member of the public.

         * * *

         Prisology's two and one-half page complaint began with a brief description of § 552 and of the Bureau of Prisons' alleged non-compliance with the statute. Complaint ¶ 1, Prisology v. Federal Bureau of Prisons, 74 F.Supp.3d 88 (D.D.C. 2014) (No. 14-0969 (ABJ)). Paragraphs 2 through 5 of the complaint then identified the parties, invoked jurisdiction under 28 U.S.C. §§ 1331 and 1346(a)(2), and quoted FOIA § 552(a)(2). Paragraph 6 of the complaint repeated the general charge that the Bureau of Prisons had not complied with § 552(a)(2) and paragraph 7 gave as examples the Bureau's failure to make available electronically: "(1) responses to administrative remedy requests and appeals from each BOP institution, Regional Office, and the BOP's Central Office; (2) private settlements outside of litigation between the BOP and its employees, inmates, and other persons; (3) grants and denials of requests for compassionate release; (4) all settlements, compromises, and rejections of claims made pursuant to the Federal Tort Claims Act and Inmate Accident Compensation Program; and (5) Disciplinary Hearing Officer reports reflecting agency adjudication of serious prison disciplinary charges." The complaint ended with a prayer for relief in the form of a declaratory judgment and an injunction under the Administrative Procedure Act, 5 U.S.C. § 706, "requiring the BOP to make the paragraph 7 records that were created on or after November 1, 1996, available via computer telecommunications means." Complaint ¶ 8.

         The government, taking note of Prisology's failure to allege any injury to itself, filed a Rule 12(b)(1) motion to dismiss the complaint for lack of jurisdiction. The district court relied on several Supreme Court opinions, including Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), to hold that Prisology did not have Article III standing because it had "failed to point to any injuries sustained, by the ...


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