Opinion
23 Civ. 3983 (AT) (GS)
02-23-2024
SHENG-WEN CHENG, Plaintiff, v. DEPARTMENT OF JUSTICE and FEDERAL BUREAU OF INVESTIGATION, Defendants.
REPORT AND RECOMMENDATION
GARY STEIN, UNITED STATES MAGISTRATE JUDGE.
The Government moves to dismiss this Freedom of Information Act (“FOIA”) case as moot. For the reasons set forth below, the undersigned respectfully recommends that the motion be DENIED.
BACKGROUND
A. Cheng's FOIA Request
On November 3, 2022, Plaintiff Sheng-Wen Cheng (“Plaintiff” or “Cheng”) submitted a FOIA request to the Federal Bureau of Investigation (“FBI”). (Dkt. No. 1 (“Complaint” or “Compl.”) ¶ 14). Cheng's request sought all unclassified documents that former President Donald J. Trump took to his Mar-a-Lago residence from the White House. (Id.). Cheng is a federal prisoner currently incarcerated in Minnesota who allegedly retains domicile in New York. (Id. ¶ 10).
Cheng, a self-described “advocate of U.S. civil and Constitutional rights,” asserts it is “in the public's best interests to know the extent of damages that Trump had caused by showing those documents that Trump unlawfully took to the public.” (Id.; Dkt. No. 29 at 2).
Cheng's FOIA request followed the FBI's execution of a search warrant at Mar-a-Lago on August 8, 2022. (Id. ¶¶ 13-14). Pursuant to the search warrant, the FBI seized dozens of boxes containing documents with and without classification markings, along with other miscellaneous materials. (Id. ¶ 13). The search warrant related to a criminal investigation involving classified documents and other presidential records. On November 18, 2022, U.S. Attorney General Merrick Garland appointed Jack Smith as Special Counsel to oversee the investigation. See U.S. Dep't of Justice, Press Release, Appointment of a Special Counsel (Nov. 18, 2022), available at www.justice.gov/opa/pr/appointment-special-counsel-0.
By letter dated January 9, 2023, the FBI informed Cheng that it had completed its search for records responsive to his request and that, in its view, the records he requested are exempt from disclosure under FOIA Exemption 7(A), 5 U.S.C. § 552(b)(7)(A).(Compl. ¶ 16 & Exh. B). The FBI's letter explained this is because the requested records “are law enforcement records; there is a pending or prospective law enforcement proceeding relevant to these responsive records; and release of the information could reasonably be expected to interfere with enforcement proceedings.” (Id. Exh. B).
Exemption 7(A) applies to “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A).
On February 3, 2023, Cheng filed an administrative appeal with the Office of Information Policy (“OIP”) of the U.S. Department of Justice. (Id. ¶¶ 17-18 & Exh. C). Three months later, OIP had not ruled on Cheng's appeal, and Cheng, claiming he had exhausted his administrative remedies, filed the instant action pro se on May 12, 2023. (Id. ¶¶ 19-20).
The Complaint contains three causes of action. First, Cheng claims that the requested records are not exempt from disclosure and that Defendants therefore violated FOIA by improperly withholding the records. (Id. ¶¶ 21-25). Second, Cheng claims that the FBI's search for records in response to his request was unreasonable and inadequate, in violation of FOIA, because at least some of the 11,000 documents and 1,800 items taken from Mar-a-Lago must be releasable to him. (Id. ¶¶ 26-29). Third, Cheng claims that Defendants' failure to produce responsive records or conduct a reasonable and adequate search for records violates the Administrative Procedure Act. (Id. ¶¶ 30-35).
B. Procedural History
Defendants answered the Complaint on August 4, 2023. (Dkt. No. 14). By that time, Special Counsel Smith had obtained an indictment in the Southern District of Florida charging Trump and another defendant with various crimes related to the handling of classified documents and obstruction of justice. See Indictment, United States v. Trump, No. 23 Cr. 80101, Dkt. No. 3 (S.D. Fla. June 8, 2023) (the “Criminal Case”). On August 7, 2023, Magistrate Judge Gorenstein, to whom this matter was then referred for general pretrial supervision, issued an Order inviting summary judgment motions from the parties. (Dkt. No. 17).
In a letter to Judge Gorenstein on September 6, 2023, the Government stated that it had concluded that the records requested by Cheng “are all part of the evidence retrieved pursuant to a search warrant in [the Trump] criminal case” and that “the records are categorically exempt from compelled public disclosure under FOIA.” (Dkt. No. 22 at 1). The letter stated that “the Government is ready to proceed with summary judgment briefing on Exemption 7(A),” while reserving other exemptions. (Id.). Cheng consented to this bifurcated approach. (Id.). The next day, Judge Gorenstein approved the Government's approach and directed that the summary judgment motion be filed by October 23, 2023. (Dkt. No. 23).
Before the Government filed its motion, however, Cheng had a change of heart. On September 21, 2023, Cheng filed a motion to stay this case pending resolution of the Criminal Case. (Dkt. Nos. 28-29). In his brief in support of his stay motion, Cheng argued, among other things, that Exemption 7(A), as well as a Protective Order entered in the Criminal Case, “will no longer be applicable once Trump's criminal case is resolved.” (Dkt. No. 29 at 5). Cheng asked that the briefing schedule for the Government's proposed summary judgment motion be suspended until after his motion for a stay had been decided. (Dkt. No. 30).
Among other things, the Protective Order, entered on June 19, 2023, provides that “Discovery Materials,” defined as “[a]ll non-classified discovery produced by the United States to the Defendants in preparation for, or in connection with, any stage of this case,” shall not be disclosed to the public or the news media without the consent of the United States or approval of the court. See Rule 16 Protective Order, United States v. Trump, No. 23 Cr. 80101, Dkt. No. 27 (S.D. Fla. June 19, 2023) (attached as Exhibit C to Cheng's Memorandum of Law in Opposition to the Defendants' CrossMotion to Dismiss (Dkt. No. 38)).
Cheng's stay motion caused the Government to reevaluate its plan to move for summary judgment. In a September 27, 2023 letter, the Government, while disagreeing that a stay was warranted, agreed that the briefing schedule for its summary judgment motion should be held in abeyance pending resolution of Cheng's stay motion. (Dkt. No. 31). Claiming that “Plaintiff can accomplish the result he is seeking [through the stay motion] by dismissing this case without prejudice and filing a new FOIA request after the criminal case is closed,” the Government said that it would confer with Cheng about a possible stipulated dismissal that would avoid the need for further motion practice. (Id. at 2).
No stipulated dismissal was forthcoming. On October 9, 2023, the Government not only opposed Cheng's motion for a stay, but also filed its own cross-motion to dismiss the Complaint for lack of subject-matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1). (Dkt. Nos. 33-34). The Government's brief asserts that because Cheng, in his motion to stay, “appears to concede” that the records he requests are currently exempt from disclosure under Exemption 7(A), “there is currently no live case or controversy between the parties, and the case is moot.” (Dkt. No. 34 (“Gov't Br.”) at 1-2).
In response, Cheng switched gears again. Following the Government's crossmotion to dismiss, Cheng announced that he is “withdrawing [his] motion to stay.” (Dkt. No. 39). As justification, Cheng explained that after receiving the attachments to the Government's brief in opposition to his stay motion, he has a “better understanding” of the Criminal Case and its relevance to his FOIA request. (Id.). Cheng asked that the Court reset a briefing schedule for the Government's summary judgment motion. (Id.).
In his opposition brief to the Government's cross-motion, Cheng argues that the case is not moot because (1) he has “withdraw[n] his motion to stay, after he learned more facts,” and (2) “non-classified documents are not part of Trump's criminal prosecution” and hence Exemption 7(A) is “improperly invoked.” (Dkt. No. 38 (“Cheng Br.”) at 1). Cheng also argues that the Government's motion is untimely because it was filed after the Government answered the Complaint. (Id. at 2).
In response, the Government declined Cheng's invitation to engage in summary judgment briefing on the merits, and instead took the position that the action remains moot despite Cheng's withdrawal of his stay motion. (Dkt. No. 40). In its reply brief, the Government contends that Plaintiff's statements in his motion to stay are “binding judicial admissions” and that Cheng has given no plausible explanation as to why the Court should “relieve him of the consequences of those admissions.” (Dkt. No. 41 (“Reply Br.”) at 1).
To summarize the current state of play: (1) no summary judgment motion on the merits has been filed at this point; (2) Cheng's motion for a stay has been withdrawn (Dkt. Nos. 39, 43); and (3) the only pending motion before the Court is the Government's motion to dismiss the case as moot, which was referred to the undersigned for report and recommendation by Judge Torres. (Dkt. No. 37).
LEGAL STANDARD
Under Article III of the Constitution, there must be a “live case or controversy at all stages of a federal court proceeding to support the court's subject matter jurisdiction . . . [and] [i]f there ceases to be a live case or controversy, the case is rendered moot.” Mizuta v. Carranza, No. 20 Civ. 6014 (AT), 2022 WL 602968, at *1 (S.D.N.Y. Mar. 1, 2022) (citing In re Kurtzman, 94 F.3d 54, 58 (2d Cir. 1999)); see also Chafin v. Chafin, 568 U.S. 165, 172 (2013) (“[I]t is not enough that a dispute was very much alive when suit was filed; the parties must continue to have a personal stake in the ultimate disposition of the lawsuit.”) (cleaned up). “When a case becomes moot, the federal courts lack subject matter jurisdiction over the action.” Fox v. Bd. of Trs. of State Univ. of N.Y., 42 F.3d 135, 140 (2d Cir. 1994) (cleaned up).
No case or controversy exists, and a suit becomes moot, “when the issues presented are no longer ‘live' or the parties lack a legally cognizable interest in the outcome.” Chafin, 568 U.S. at 172 (citation omitted). “‘The hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed.'” Mizuta, 2022 WL 602968, at *1 (quoting Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983)). “A ‘case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.'” MOAC Mall Holdings LLC v. Transform Holdco LLC, 598 U.S. 288, 295 (2023) (quoting Chafin, 568 U.S. at 172). “The case remains live as long as the parties have a concrete interest, however small, in the outcome.” Id. (cleaned up).
DISCUSSION
A. Defendant's Mootness Motion Is Not Untimely
As an initial matter, the Court addresses Plaintiff's argument that Defendants' motion to dismiss is “untimely” and “invalid” because it was brought after Defendants filed an answer. (Pl. Br. at 5). In support of this argument, Cheng cites Federal Rule of Civil Procedure 12(b), which requires that a motion asserting any of the defenses set forth in Rule 12(b) “must be made before pleading if a responsive pleading is allowed.” (Id.).
Cheng has a point, but not one that ultimately helps him on this motion. Cheng is correct that any Rule 12(b) motion, even one for lack of subject-matter jurisdiction under Rule 12(b)(1), is untimely if made after the defendant's answer is filed. See, e.g., Cruz v. AAA Carting & Rubbish Removal, Inc., 116 F.Supp.3d 232, 238 n.3 (S.D.N.Y. 2015); Gold v. Katz, No. 90 Civ. 7726 (RLC), 1991 WL 237807, at *1 (S.D.N.Y. Nov. 4, 1991); 5B Wright & Miller, Federal Practice and Procedure, § 1350, at 138 (3d ed. 2004) (“[i]f the defense of lack of subject matter jurisdiction is advanced by a motion under Rule 12(b)(1), it must be made prior to service of the responsive pleading”). Here, the Government styles its motion as a motion to dismiss pursuant to Rule 12(b)(1). (Dkt. No. 33; Gov't Br. at 1). But it is too late for the Government to move to dismiss under Rule 12(b)(1).
This does not, however, mean that the Government has waived its mootness challenge or that the Court cannot entertain it. To the contrary, “[d]efects in subject matter jurisdiction,” such as mootness, “cannot be waived and may be raised 8 at any time during the proceedings.” Fox, 42 F.3d at 140; see also NYCLU v. Grandeau, 453 F.Supp.2d 800, 805 (S.D.N.Y. 2006) (“The issue of mootness is one of subject matter jurisdiction, which can be raised at any time during a case or proceeding.”). Indeed, Rule 12 specifically mandates: “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). See also Romero v. Jocorena Bakery, Inc., No. 09 Civ. 5402 (SJF) (ETB), 2010 WL 4781110, at *1 n.1 (E.D.N.Y. Nov. 23, 2010) (“pursuant to Rule 12(h), lack of subject matter jurisdiction is not one of the defenses that is deemed waived if not asserted in a motion prior to the filing of an answer”).
Accordingly, where, as here, a defendant files a post-answer motion claiming a lack of subject-matter jurisdiction and mistakenly labels it as a motion to dismiss under Rule 12(b)(1), a court will construe it as a motion under Rule 12(c) for judgment on the pleadings or a motion under Rule 12(h)(3). See, e.g., Cruz, 116 F.Supp.3d at 238 n.3 (“[t]he proper bases for this Motion are Rule 12(c) and Rule 12(h)(3)”); Gold, 1991 WL 237807, at *1 (“the court will treat [defendants'] motion as a ‘suggestion' of lack of subject matter jurisdiction as permitted under Rule 12(h)(3)”); Wright & Miller, supra, § 1350, at 138 (untimely motion for lack of subject-matter jurisdiction filed under Rule 12(b)(1) “simply will be treated as a suggestion that the court lacks jurisdiction”). The Court follows that path here and proceeds to the merits of the Government's mootness challenge.
B. This Action Is Not Moot
This dispute remains very much alive. Cheng continues to seek the records sought in his FOIA request, namely, the unclassified documents found in the search of Mar-a-Lago, and nothing has occurred since the filing of his Complaint that would make it “impossible for a court to grant” Cheng the relief he seeks. See MOAC Mall, 598 U.S. at 295. Cheng's now-withdrawn motion to stay does not change that conclusion. The Government's arguments to the contrary rest on a fundamental misapprehension of the law pertaining to binding judicial admissions.
“A judicial admission is a statement made by a party or its counsel which has the effect of withdrawing a fact from contention and which binds the party making it throughout the course of the proceeding.” In re Motors Liquidation Co., 957 F.3d 357, 360 (2d Cir. 2020). “To constitute a judicial admission, the statement must be one of fact-a legal conclusion does not suffice.” Id. Moreover, the statement “must have sufficient formality or conclusiveness to be a judicial admission,” and “must also be intentional, clear, and unambiguous.” Id. at 361 (citation omitted). For several reasons, the Government has failed to show that Cheng made a binding judicial admission in his motion to stay that renders this case moot.
First, the essential premise of the Government's argument is that Cheng admitted that Exemption 7(A) currently applies and precludes his FOIA claim. But Cheng never made such an admission in his motion for a stay-as is demonstrated by the Government's own characterization of Cheng's position. The Government variously asserts that Cheng “appears to concede” that Exemption 7(A) applies 10 (Gov't Br. at 1, 8, 12); that the parties' have an “apparent agreement” with respect to the applicability of Exemption 7(A) (id. at 11); that Cheng “all but states” that Exemption 7(A) applies (id. at 13); and that Cheng “effectively concede[d]” that Exemption 7(A) applies (Reply Br. at 3).
There is a reason for the Government's equivocal phrasing: nowhere in his stay motion does Cheng explicitly state that Exemption 7(A) currently applies and bars his claim. Nor does such an admission inexorably follow from Cheng's statement that Exemption 7(A) “will no longer be applicable” once the Criminal Case is resolved (Dkt. 29 at 6). The statement may just as plausibly be read as a mere acknowledgement by Cheng that the Government could have a winning argument now on Exemption 7(A), and that he would prefer to litigate the issue after the Criminal Case is over, when the Government, in his view, would have no valid argument at all. Cheng's refusal to stipulate to dismissal of his case without prejudice and his expressed willingness to litigate the Government's previously contemplated summary judgment motion now, while the Criminal Case is still pending (Dkt. No. 39), strongly suggest he meant nothing more than that.
Cheng's statement “falls far short of the type of clear, unequivocal, and formal concession that is required of a binding judicial admission.” TufAmerica, Inc. v. Codigo Music LLC, 162 F.Supp.3d 295, 317 & n.26 (S.D.N.Y. 2016); see also In re Motors, 957 F.3d at 361 (judicial admission “must be intentional, clear, and unambiguous”). For this reason alone, the Government's argument fails.
There is a second flaw in the Government's argument: whether Exemption 7(A) applies to a FOIA request is not a fact, but a quintessential legal conclusion. The Government's reply brief acknowledges as much. (See Reply Br. at 3 (arguing that “Plaintiff effectively concede[d] the legal conclusion that Exemption 7(A) applies”) (emphasis added)). As such, Cheng's statement that Exemption 7(A) “will no longer be applicable” after the Criminal Case is over, even if it could be read as an intentional, clear, and unambiguous concession that Exemption 7(A) currently applies, does not constitute a binding judicial admission. See In re Motors, 957 F.3d at 360 (“a legal conclusion does not suffice” as a judicial admission).
Indeed, as one of the cases cited by Defendants notes, “judicial admissions generally pertain to matters that a party is uniquely positioned to know and concede, as opposed to facts uniquely known or controlled by an adverse party.” In re Methyl Tertiary Butyl Ether Prod. Liab. Litig., 379 F.Supp.2d 348, 371 (S.D.N.Y. 2005). None of Cheng's supposed “admissions” pertain to a fact within his personal knowledge, let alone a fact that he is “uniquely positioned” to know.
To be sure, the Government also contends that Cheng's stay motion “admitted the underlying facts” that support this legal conclusion. (Reply Br. at 3; see also Gov't Br. at 12-13). In particular, the Government points to Cheng's statements in his stay motion, in support of his argument that the public interest favored a stay, that “a court should give substantial weigh[t] . . . to the public interest in law enforcement by preventing disclosure of information that is key to the criminal case,” and that “any release of the requested documents in this case might violate[] the Judge's recent restrictions [] imposed on Trump” and “give[] Trump some unfair advantage.” (Dkt. No. 29 at 7). These statements, according to the Government, amount to a concession by Cheng that public disclosure of the requested records “could reasonably be expected to interfere with [] enforcement proceeding[s].” (Gov't Br. at 12-13; Reply Br. at 3).
Here again, the Government's argument falls short because whether release of requested records “could reasonably be expected to interfere with enforcement proceedings” within the meaning of Exemption 7(A) is also a legal conclusion, not a fact. Further, Cheng's statements that the release of documents “might” violate the Protective Order and give Trump an unfair advantage, and his reference to a general rule about what a court should give “substantial weight” to when deciding whether the public interest favors a stay, are far from an “intentional, clear, and unambiguous” admission, In re Motors, 957 F.3d at 361, that release of the requested records would interfere with the Criminal Case within the meaning of FOIA Exemption 7(A).
There is yet a third defect in the Government's reliance on the judicial admissions doctrine: it is predicated on statements made by Cheng in his motion for a stay, but Cheng has withdrawn that motion. (Dkt. No. 39). When a pleading is withdrawn, any statement made within it “‘ceases to be a conclusive judicial admission,'” Jean-Louis v. Carrington Mortg. Servs., LLC, 849 Fed.Appx. 296, 299 n.1 (2d Cir. 2021) (summary order) (quoting Kunglig Jarnvagsstyrelsen v. Dexter & Carpenter, Inc., 32 F.2d 195, 198 (2d Cir. 1929)), although the statement may remain “competent evidence of the facts stated, though controvertible, like any other extra-judicial admission made by a party,” id.; see also Xie v. JPMorgan Chase 13 Short-Term Disability Plan, No. 15 Civ. 4546 (LGS), 2016 WL 3963113, at *3 (S.D.N.Y. July 20, 2016) (statement in a withdrawn complaint “is no longer a conclusive judicial admission”) (citation omitted).
Therefore, even if Cheng's motion to stay had contained a judicial admission, Cheng is not bound by any such admission now. See, e.g., Estate of George v. Batista, No. 3:08-CV-01023 (VLB), 2013 WL 104552, at *2 (D. Conn. Jan. 8, 2013) (“the statement in the withdrawn Motion to Dismiss cannot constitute a conclusive judicial admission”).
Because, as a matter of law, the statements in Cheng's motion are not binding judicial admissions, it does not matter whether Cheng has provided a “plausible explanation” for withdrawing the motion. (See Reply Br. at 1). The line of cases cited by the Government for the proposition that a party should be relieved from the consequences of a binding judicial admission only where the admission was “the result of fraud or mistake” (Reply Br. at 4 (citation omitted)) has no bearing here, where there is no binding judicial admission in the first instance.
For example, Defendants cite to Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118 (2d Cir. 1990). In that case, the defendant conceded in its amended answer that an endorsement was part of the insurance policy in question and never moved to amend that answer, rendering its concession a “formal judicial admission.” Id. at 122.
A live controversy as to the applicability of Exemption 7(A) plainly exists. Cheng claims that the Indictment in the Criminal Case is about classified documents only, whereas he is only seeking unclassified documents which (according to Cheng) are “not relevant to Trump's criminal prosecution” and the disclosure of which (according to Cheng) would not interfere with the Criminal Case. (Cheng Br. at 4). Thus, Cheng contends that the Government is improperly invoking Exemption 7(A). (Id.) By contrast, the Government claims that Exemption 7(A) justifies the withholding of the requested records to avoid harm to the pending prosecution. (Gov't Br. at 1-2). Contrary to the Government's assertion, it is evident that the parties do not “agree” on this point. (Id. at 1).
If the Government wants to establish that Exemption 7(A) bars Cheng's claims, it will have to do so through a properly supported summary judgment motion on the merits. The Court cannot dismiss the action on this basis under the guise of “mootness.” See Chaflin, 568 U.S. at 174 (rejecting mootness argument that “confuses mootness with the merits”); Chevron Corp. v. Danziger, 833 F.3d 74, 127 (2d Cir. 2016) (same).
CONCLUSION
For the foregoing reasons, the undersigned respectfully recommends that Defendants' motion to dismiss this action as moot be DENIED. The undersigned further recommends that, should this Report and Recommendation be adopted by Judge Torres, the Government submit a letter within seven days of Judge Torres' Order proposing a schedule for the briefing of its summary judgment motion.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. Section 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen days, inclusive of weekends and holidays, from the date of this Report and Recommendation to file written objections thereto. See also Fed. R. Civ. 6(a), (b), and (d). Any such objections shall be filed with the Clerk of Court. Any request for an extension of time to file objections must be directed to Judge Torres. A failure to file timely objections will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner v. Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).