Welsh v. U.S. Dep't of State, No. 21-1380, 2022 WL 343552 (D.D.C. Feb. 4, 2022) (Kelly, J.)

Welsh v. U.S. Dep't of State, No. 21-1380, 2022 WL 343552 (D.D.C. Feb. 4, 2022) (Kelly, J.)

Re:  Request for records concerning COVID-19 travel restrictions imposed on State Department personnel

Disposition:  Granting in part and denying in part defendant's motion to dismiss

Litigation Considerations, Pleadings:  "[Plaintiff] has not stated a FOIA claim in his complaint and the attachments to it [b]ut the parties have not addressed several issues that could nonetheless save the day for him on this score."  "Generally, a FOIA plaintiff states a claim where [he] properly alleges that 'an agency has (1) improperly (2) withheld (3) agency records.'"  "But here, considering both [plaintiff's] complaint and the attachments to it, all that he has alleged as to his FOIA claim is (1) the date he submitted his FOIA request, (2) some of the records he requested, and (3) that the State Department acknowledged receiving his FOIA request and informed him that 'unusual circumstances' prevented it from responding within the twenty-day statutory timeframe."  "He did not even allege perfunctorily that the agency improperly withheld the requested records."  "Thus, if the Court considered only [plaintiff's] complaint and the attachments to it, it would have no trouble concluding that he has failed to state a claim."  "But in his opposition to the State Department's motion to dismiss, [plaintiff] added that the State Department '[t]o this day . . . refuses to respond' to his FOIA request 'and has improperly withheld agency records.'"  "In its reply, the State Department asks the Court to disregard these assertions pursuant to the 'well settled' principle that 'a plaintiff cannot amend [his] complaint by the briefs in opposition to a motion to dismiss.'"  "'But this is not the ordinary case' because [plaintiff] 'is proceeding pro se.'"  "Thus, the Court must consider the four factors articulated by the D.C. Circuit in Richardson v. United States, 193 F.3d 545 (D.C. Cir. 1999) to decide whether to consider the opposition filing alongside the complaint in determining whether [plaintiff] has stated a FOIA claim."  "And the parties have not addressed the Richardson factors, or whether, if the Court ends up considering the opposition, he has stated a FOIA claim."