DEROUNIAN v. UNITED STATES DEPARTMENT OF JUSTICE (2026)

MEMORANDUM & ORDER

Pro se Plaintiff John Derounian brings this action against Defendants United States Department of Justice (“DOJ”), the Executive Office for United States Attorneys (“EOUSA”), and the Office of Information Policy (“OIP”) (collectively, “the Government”), pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”). In Count V of the Complaint, Plaintiff alleges a “persistent pattern and practice by Defendants of violating [FOIA], and undermining the integrity of the administrative process of FOIA appeals, as demonstrated by [the Government's] handling of Plaintiff's FOIA requests and administrative appeals.” Dkt. No. 1 ¶ 81 (hereinafter referred to as Plaintiff's “policy or practice claim”).¹

Currently before the Court ² is the Government's motion to dismiss Plaintiff's policy or practice claim pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 32. For the reasons set forth below, the Court grants the Government's motion in its entirety.

I. Relevant Background

On June 25, 2018, Plaintiff pled guilty to one count of mail fraud and one count of possession of child pornography in violation of 18 U.S.C. §§ 1341 and 2252(a)(4)(B), (b)(2), respectively. See United States v. Derounian, No. 16-CR-00412 (JMA) (JMW), 2024 WL 3623522, at *3-4, *28 (E.D.N.Y. Aug. 1, 2024) (denying motion to vacate conviction and describing underlying procedural history). Plaintiff served a 121-month federal prison sentence in connection with the federal criminal prosecution. Id. at *1.

Plaintiff filed the present lawsuit on May 5, 2025. See Dkt. No. 1. This action concerns Plaintiff's FOIA request dated August 17, 2024 (assigned agency number EOUSA-2024-003035), directed to the EOUSA, seeking certain communications between the U.S. Attorney's Office for the Eastern District of New York, the U.S. Postal Inspection Service (“USPIS”), and the National Center for Missing and Exploited Children (“NCMEC”) concerning Plaintiff's prior criminal prosecution for possession of child sexual abuse material (“CSAM”), as well as documents related to a report concerning the contents of Plaintiff's devices generated by the USPIS Forensic Examination Laboratory. Dkt. No. 1-2 at 4-8;³ Dkt. No. 1 ¶¶ 8-10. On September 24, 2024, in response to Plaintiff's FOIA request, the EOUSA informed Plaintiff that “[a] search for records located in the United States Attorney's Office(s) for the Eastern District of New York has revealed no responsive records.” Dkt. No. 1-2 at 44. On September 30, 2024, Plaintiff filed his administrative appeal. Id. at 47-72. On March 20, 2025, OIP remanded Plaintiff's FOIA request back to the EOUSA for “a further search for responsive records,” which is ongoing. Id. at 144-46; see also Dkt. No. 1 ¶ 36.

In the Complaint, Plaintiff seeks, inter alia, to compel the disclosure of the same documents sought in his FOIA request relating to his conviction and sentencing for possession of CSAM. Dkt. No. 1 ¶ 89. Plaintiff brings five causes of action against Defendants: (i) violation of the FOIA appeal response deadline; (ii) failure to conduct an adequate search; (iii) improper withholding of agency records; (iv) “bad faith processing” of Plaintiff's FOIA request; and (v) a “pattern and practice” of FOIA administrative appeal delays. Id. ¶¶ 51-87.

The Government moved to dismiss Plaintiff's policy or practice claim on December 22, 2025.⁴ See Dkt. Nos. 32, 33. On December 29, 2025, Plaintiff opposed the Government's motion. See Dkt. No. 37. On March 11, 2026, following an extension request, which was granted, the Government filed its reply in further support of its motion. Dkt. No. 47. On March 16, 2026, Plaintiff filed a motion for leave to file a sur-reply, as well as the proposed sur-reply and a declaration. Dkt. Nos. 49, 50, 51. The Court subsequently granted Plaintiff's request to file a sur-reply and deemed Dkt. No. 50 as the sur-reply. Text Order, dated July 26, 2026.

II. Legal Standards

A. Rule 12(b)(1) of the Federal Rules of Civil Procedure

“The federal district courts, as courts of limited jurisdiction, possess only such authority as is conferred by an act of Congress.” Elliott v. Jaquez, 777 F. Supp. 3d 136, 146 (E.D.N.Y. 2025) (adopting report and recommendation, and quoting Portillo v. Bharara, 527 F. App'x 48, 49 (2d Cir. 2013)). “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed. R. Civ. P. 12(b)(1)). In resolving a Rule 12(b)(1) motion, the court “may refer to evidence outside the pleadings.” Id. (citing Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)). “[E]videntiary matter may be presented by affidavit or otherwise.” Brown v. Allstate Corp., 821 F. Supp. 3d 417, 436 (E.D.N.Y. 2026) (adopting report and recommendation, and quoting Kamen, 791 F.2d at 1011). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Makarova, 201 F.3d at 113 (citation omitted).

“ ‘A Rule 12(b)(1) motion challenging subject matter jurisdiction may be either facial,’ i.e., based solely on the allegation of the complaint and exhibits attached to it, ‘or fact-based,’ i.e., based on evidence beyond the pleadings.” Blecher v. Holy See, 631 F. Supp. 3d 163, 167 (S.D.N.Y. 2022) (quoting Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016)), aff'd, 146 F.4th 206 (2d Cir. 2025). In resolving a facial motion to dismiss under Rule 12(b)(1), “the district court must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (citation omitted); see also Brown, 821 F. Supp. 3d at 436 (“In considering a motion to dismiss under Rule 12(b)(1), the ‘[C]ourt must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of [the] plaintiff.’ ” (quoting Makarova, 201 F.3d at 113)). “[W]here a Rule 12(b)(1) motion is fact-based and a defendant proffers evidence outside the pleadings, a plaintiff must either come forward with controverting evidence or rest on the pleadings if the evidence offered by the defendant is immaterial.” Marvin v. Allen, No. 23-CV-5947 (KMK), 2024 WL 4290722, at *3 (S.D.N.Y. Sep. 24, 2024) (citing Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 119 (2d Cir. 2017)), reconsideration denied, 2025 WL 1911558 (S.D.N.Y. July 11, 2025).

B. Rule 12(b)(6) of the Federal Rules of Civil Procedure

To survive a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). While “detailed factual allegations” are not required, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ ” Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Plaintiff's factual allegations must also be sufficient to give the defendant “fair notice of what the ․ claim is and the grounds upon which it rests,” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted), and must show that the court has subject matter jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999); Fed. R. Civ. P. 12(h)(3).

“[T]he court's task is to assess the legal feasibility of the complaint; it is not to assess the weight of the evidence that might be offered on either side.” Lynch v. City of New York, 952 F.3d 67, 75 (2d Cir. 2020). Determining whether a complaint states a claim is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (citation omitted). The Court must accept the well-pleaded factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff, but it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Id. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).

C. Pro Se Litigants

“It is well established that a court is ordinarily obligated to afford a special solicitude to pro se litigants.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (collecting cases). “The solicitude afforded to pro se litigants takes a variety of forms,” including, for example, the “liberal construction of pleadings, motion papers, and appellate briefs,” “relaxation of the limitations on the amendment of pleadings,” “leniency in the enforcement of other procedural rules,” and “deliberate, continuing efforts to ensure that a pro se litigant understands what is required of him.” Id. (citations omitted).

“A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal quotation marks and citations omitted); see also McCray v. Lee, 963 F.3d 110, 116-17 (2d Cir. 2020) (affirming that “[a] complaint filed by a plaintiff pro se is to be construed ‘liberally to raise the strongest arguments [it] suggest[s].’ ” (quoting Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013))); Cooke v. Frank Brunckhorst Co., LLC, 788 F. Supp. 3d 390, 395 (E.D.N.Y. 2025) (“[T]he Court is mindful that the plaintiff is proceeding pro se and that the complaint must be ‘liberally construed’ in favor of the plaintiff.” (quoting Coffey v. United States, 939 F. Supp. 185, 189-90 (E.D.N.Y. 1996))); Maynard v. Comm'r, No. 15-CV-586 (CBA) (LB), 2015 WL 4069356, at *1 (E.D.N.Y. July 1, 2015) (“[P]leadings submitted pro se ․ are held to a less stringent standard and must be liberally construed.” (citation omitted)). “District courts must interpret a pro se complaint to raise the strongest claims that it suggests.” Burton v. Wells Fargo Bank, N.A., 738 F. Supp. 3d 272, 287 (E.D.N.Y. 2024) (adopting report and recommendation, and quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)).

III. Discussion

A. The Court Lacks Statutory Subject Matter Jurisdiction Over Plaintiff's Policy or Practice Claim

The Government argues that the Court lacks statutory subject matter jurisdiction over Plaintiff's policy or practice claim because FOIA's jurisdictional grant does not cover policy or practice claims. See Dkt. No. 33 at 11-15. The Court agrees.

The United States Court of Appeals for the Second Circuit has not explicitly determined whether a policy or practice claim under FOIA is cognizable. See, e.g., Reclaim the Recs. v. U.S. Citizenship & Immigr. Servs., No. 23-CV-1997 (PAE), 2025 WL 936924, at *11 (S.D.N.Y. Mar. 27, 2025) (“[T]he Second Circuit has noted that other courts have recognized policy and practice claims, while expressing some skepticism about their viability.”).⁵ “In a 2009 summary order upholding summary judgment in favor of an agency ․ on a claim of ‘an alleged pattern or practice of behavior,’ ” the Second Circuit noted that it “has ‘not yet recognized or articulated the inquiry relevant to a pattern or practice claim in the FOIA context,’ while acknowledging that ‘[o]ther circuits and district courts have ․ concluded that a plaintiff may bring an independent claim alleging a pattern or practice of violating the FOIA.’ ” Id. (quoting Pietrangelo v. U.S. Army, 334 F. App'x 358, 360 (2d Cir. 2009)).

More recently, the Second Circuit “expressed doubt on whether FOIA claims are cognizable where plaintiffs have not sought adjudication of ‘claims over particular documents’ or ‘the disclosure of documents improperly withheld,’ but merely an ‘order [that] the agencies ․ comply with the FOIA.’ ” Id. (quoting Am. Soc'y for the Prevention of Cruelty to Animals v. Animal & Plant Health Inspection Serv., 60 F.4th 16, 22 (2d Cir. 2023)). Indeed, the Second Circuit affirmed the lower court's entry of judgment on a FOIA policy or practice claim in the agencies’ favor without ever affirmatively recognizing the viability of such a claim. See Am. Soc'y for the Prevention of Cruelty to Animals, 60 F.4th at 21 (holding that, “even assuming that a ‘policy or practice’ claim is cognizable, the ASPCA failed to state such a claim against the agencies”).

Significantly, in a concurring opinion in American Society for the Prevention of Cruelty to Animals, Circuit Judge Steven J. Menashi detailed why “a ‘policy or practice’ claim is not cognizable under the FOIA.” 60 F.4th at 23 (Menashi, J., concurring) (emphasis added). As Judge Menashi cogently explained,

Once a complaint is properly filed, the FOIA provides a federal district court with “jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” To decide whether such a remedy is appropriate, the court “may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions” set forth in the FOIA. If the court decides that the records have been improperly withheld, it may “order[ ] the production of any agency records improperly withheld from the complainant and assess[ ] against the United States reasonable attorney fees and other litigation costs” and, if warranted, the court may “additionally issue[ ] a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding.” In such a case, however, the court may not order the agency to alter its FOIA procedures or otherwise change its operations. Instead, the FOIA contemplates that “the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding” and the “Special Counsel, after investigation and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned.” It is then the responsibility of the “administrative authority” to “take the corrective action that the Special Counsel recommends.”

This statutory scheme authorizes a federal district court to provide the narrow remedies of enjoining an agency from improperly withholding records and ordering it to disclose the requested records that were improperly withheld. It does not authorize a court to superintend the policies and practices of that agency.

Those who are “adversely affected or aggrieved by agency action” may instead challenge a policy or practice under the Administrative Procedure Act (“APA”). “The APA ‘sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts.’ ” “It requires agencies to engage in ‘reasoned decisionmaking,’ ” “and directs that agency actions be ‘set aside’ if they are ‘arbitrary’ or ‘capricious.’ ”

Id. at 23-24 (first quoting 5 U.S.C. § 552(a)(4)(B); then quoting id. § 552(a)(4)(F)(i); then quoting id. § 702; and then quoting Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 16, 140 S.Ct. 1891, 207 L.Ed.2d 353 (2020)).

Here, Plaintiff alleges that the agency (OIP) had a policy or practice of engaging in protracted and unexplained delays. See Dkt. No. 1 ¶¶ 81-87 (arguing that Plaintiff's allegations “demonstrate[ ] that these delays were not isolated incidents but part of a broader pattern by Defendants of failing to adhere to FOIA's procedural requirements, resulting in the prolonged and unreasonable withholding of non-exempt records,” and “seek[ing] declaratory and injunctive relief to remedy Defendants’ ongoing pattern and practice of FOIA violations”). The nature of such a claim, however, is fundamentally unavailable under FOIA, for the reasons stated in Judge Menashi's concurring opinion in American Society for the Prevention of Cruelty to Animals. See 60 F.4th at 24 (“The FOIA provides no authority for a court to entertain such a challenge to agency action without following the requirements of the APA, and courts should not allow parties to evade APA requirements by using the FOIA in this way. The proper avenue for challenging the policies and practices of agencies is the APA.” (citing 5 U.S.C. § 706)); see also Offor v. Equal Emp. Opportunity Comm'n, No. 15-CV-3175 (ADS) (ARL), 2016 WL 3747593, at *5 (E.D.N.Y. July 11, 2016) (noting that “FOIA limits the Court's jurisdiction to enjoining the agency from withholding the specific records requested by the complainant” (citing 5 U.S.C. § 552(a)(4)(E)(i))), aff'd, 687 F. App'x 13 (2d Cir. 2017).

Plaintiff's purported claim may only be alleged through the framework of the APA. Indeed, under the APA, a “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action ․ is entitled to judicial review thereof.” Sharkey v. Quarantillo, 541 F.3d 75, 83-84 (2d Cir. 2008) (emphasis omitted) (quoting Darby v. Cisneros, 509 U.S. 137, 146, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993)); 5 U.S.C. § 702. “In an APA action, the district court may ‘compel agency action unlawfully withheld or unreasonably delayed[,]’ or ‘hold unlawful and set aside agency action, findings, and conclusions.’ ” Ali v. Pompeo, No. 16-CV-3691 (KAM) (SJB), 2018 WL 2058152, at *4 (E.D.N.Y. May 2, 2018) (quoting 5 U.S.C. § 706). Notwithstanding Plaintiff's pro se status, the Court cannot—and will not—substitute Plaintiff's faulty FOIA claim with an APA claim, which has different exhaustion requirements and legal requirements and requires a final agency action. See Am. Soc'y for the Prevention of Cruelty to Animals, 60 F.4th at 24 (Menashi, J., concurring). In other words, the Court simply does not have the authority “to superintend the policies and practices” of OIP in connection with a FOIA claim. See id. at 23.

Consequently, the Court dismisses Plaintiff's policy or practice claim for lack of subject matter jurisdiction because the purported policy or practice claim is not cognizable under FOIA.⁶

B. Plaintiff's Policy or Practice Claim Also Fails on the Merits

Even if the Court were to find that it has subject matter jurisdiction over Plaintiff's policy or practice claim, Plaintiff does not adequately state a claim upon which relief can be granted.

While some courts have found policy or practice claims brought under FOIA to be justiciable, no court in this Circuit has “ultimately upheld such a claim.” Reclaim the Recs., 2025 WL 936924, at *11 (S.D.N.Y. Mar. 27, 2025) (collecting cases); see also Stroud v. Fed. Bureau of Prisons, No. 22-CV-00799 (KAD), 2023 WL 4405657, at *9 (D. Conn. July 7, 2023) (“Even in the absence of Second Circuit guidance, district courts in this Circuit have entertained FOIA policy and practice claims, although none appear to have granted any relief on such claims.” (citing Am. Soc'y for the Prevention of Cruelty to Animals v. Animal & Plant Health Inspection Serv., No. 19-CV-3112 (NRB), 2021 WL 1163627, at *14 (S.D.N.Y. Mar. 25, 2021), aff'd, 60 F.4th 16 (2d Cir. 2023))). Accordingly, this Court will not be the first to dismiss such a claim.

As the United States Court of Appeals for the District of Columbia has held, to establish a FOIA policy or practice claim, “Plaintiff must show that (1) the agency's policy or practice—not a merely an isolated mistake by agency officials—‘will impair [Plaintiff's] lawful access to information in the future,’ and (2) that that Plaintiff ‘will suffer continuing injury due to this practice.’ ”⁷ Stroud, 2023 WL 4405657, at *9 (quoting Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988)); see also id. (“In the absence of controlling Second Circuit law, the Court applies the standards articulated by the D.C. Circuit.” (citation omitted)). “[T]he pattern of delay Plaintiff challenges must be ‘prolonged’ and ‘unreasonable.’ ” Id. (first quoting Jud. Watch, 895 F.3d at 780-81; and then citing Am. Soc'y for the Prevention of Cruelty to Animals, 60 F.4th at 21, 25).

The D.C. Circuit has noted that “not all agency delay or other failure to comply with FOIA's procedural requirements will warrant judicial intervention, much less injunctive relief” prompted by a policy or practice claim. Jud. Watch, 895 F.3d at 782. There have only been three cases where the D.C. Circuit has “upheld claims that an agency had adopted a policy or practice that systematically frustrated FOIA compliance.” Reclaim the Recs., 2025 WL 936924, at *10. Those three cases in the D.C. Circuit “involved, respectively, showings of showings of blanket denials of FOIA requests, egregious misapplication of FOIA exemptions, and unjustified chronic delays.” Id. (first citing Payne, 837 F.2d at 490-91; then citing Newport Aeronautical Sales v. Dep't of Air Force, 684 F.3d 160, 164 (D.C. Cir. 2012); and then citing Jud. Watch, 895 F.3d at 779-80).

Liberally construed, Plaintiff points to alleged delays as to his August 17, 2024 FOIA request (EOUSA-2024-003035) and appears to be arguing that OIP engaged in a policy or practice of “protracted and unexplained delays,” which “were not isolated incidents but part of a broader pattern by Defendants of failing to adhere to FOIA's procedural requirements.” Dkt. No. 1 ¶ 84. But Plaintiff “must allege a pattern of prolonged delay amounting to a persistent failure to adhere to FOIA's requirements and that the pattern of delay will interfere with [his] right under FOIA to promptly obtain non-exempt records from the agency in the future.” Jud. Watch, 895 F.3d at 780. Plaintiff, however, fails to adequately plead such requirements, which renders his policy or practice claim, even if cognizable, without merit. See, e.g., Frost Brown Todd LLC v. Ctrs. for Medicare & Medicaid Servs., No. 21-CV-2784 (TSC), 2024 WL 450056, at *6 (D.D.C. Feb. 5, 2024) (denying motion to dismiss policy or practice claim where plaintiff alleged that “Defendant unreasonably delays disclosing documents not only in this case, but also in cases involving other requestors,” and “Plaintiff's FOIA requests will likely continue to be subject to this practice”); Pub. Emps. for Env't Resp. v. U.S. Dep't of Interior, No. 06-CV-182 (CKK), 2006 WL 3422484, at *9-10 (D.D.C. Nov. 28, 2006) (dismissing case where allegation of agency pattern or practice was predicated on delay in processing single FOIA request). Indeed, as described above, the Government has already responded to the FOIA request (EOUSA-2024-003035) at issue and Plaintiff was consistently informed of the processing timeline (see Dkt. No. 33 at 18); Plaintiff cannot suggest that said request was “ignored or subjected to a prolonged period of unjustified agency non-responsiveness.” Stroud, 2023 WL 4405657, at *10.

And while Plaintiff, in his opposition papers, appears to point to delays related to two of his other FOIA claims (agency number EOUSA-2025-002037, purportedly submitted on January 30, 2025; and agency number EOUSA-2025-003967, purportedly submitted on May 12, 2025), see Dkt. No. 37 at 23, the Court will not address allegations raised for the first time in Plaintiff's opposition papers. See Khan v. Meep N.Y., Inc., No. 24-CV-6929 (RER) (RML), 2026 WL 861170, at *7 (E.D.N.Y. Mar. 30, 2026) (“[N]ew claims not specifically asserted in the complaint may not be considered by courts when deciding a motion to dismiss.” (citations omitted)); Guo v. IBM 401(k) Plus Plan, 95 F. Supp. 3d 512, 526 (S.D.N.Y. 2015) (“[A] complaint cannot be amended merely by raising new facts and theories in [a plaintiff's] opposition papers.” (citation omitted)).

But even if the Court did consider these FOIA requests as part of Plaintiff's policy or practice claim notwithstanding their omission from the Complaint, the Government already denied EOUSA-202-002037 in a timely manner (Dkt. No. 47-1 ¶¶ 7-10) and the Government submits that it is processing EOUSA-2025-003967 (Dkt. No. 33-1 ¶ 9). Plaintiff's conclusory assertions regarding these two FOIA claims are hardly sufficient to show a plausible claim for a policy or practice claim where he has alleged merely agency delay alone and has not connected such delays to plausibly allege a policy or practice of prolonged and unjustified or unexplained delays. See Am. Soc'y for the Prevention of Cruelty to Animals, 60 F.4th at 24-25 (Menashi, J., concurring) (“Given the statutory scheme, a requester cannot establish a violation of the FOIA merely by alleging that the agency has engaged in ‘delay.’ ”); Am. Ctr. for L. & Just., 470 F. Supp. 3d at 8 (granting motion to dismiss policy or practice claim where “there is little, if anything, beyond the delays themselves that ‘could signal the agency has a policy or practice of ignoring FOIA's requirements’ ” (quoting Jud. Watch, 895 F.3d at 780)); Am. Ctr. for L. & Just. v. U.S. Dep't of State, 249 F. Supp. 3d 275, 283 (D.D.C. 2017) (explaining that a “prolonged delay would be a violation of FOIA,” but an agency's “tardiness ․ only becomes actionable when ‘some policy or practice’ also undergirds it” (citations omitted)).

Thus, even if Plaintiff's policy or practice claim under FOIA is cognizable, it remains subject to dismissal.

IV. Conclusion

For the foregoing reasons, the Court grants the Government's motion to dismiss Count V of the Complaint. The remainder of the claims shall be addressed in the parties’ anticipated motions for summary judgment.

SO ORDERED.

FOOTNOTES

1.   The Court uses the term “policy or practice” and “pattern and practice” interchangeably in addressing Plaintiff's instant FOIA claim. See Jud. Watch, Inc. v. U.S. Dep't of Homeland Sec., 895 F.3d 770, 774 (D.C. Cir. 2018) (employing “policy or practice” as the D.C. Circuit's chosen terminology for such claims under FOIA).

2.   The parties consented to the undersigned's jurisdiction on September 15, 2025. Dkt. Nos. 15-16.

3.   Page citations are to ECF-stamped pages.

4.   In addition, on January 12, 2026, the Government filed its Answer to the claims not subject to its partial motion to dismiss. Dkt. No. 40.

5.   Circuit courts have not consistently recognized a policy or practice claim under FOIA. For instance, “[t]he Third Circuit has not endorsed a policy-or-practice claim under FOIA,” while “the D.C. Circuit has found that these claims arise out of a district court's equitable power to enforc[e] [FOIA's] terms.” Manatt v. U.S. Dep't of Homeland Sec., 473 F. Supp. 3d 409, 417 (E.D. Pa. 2020) (internal quotation marks omitted) (quoting Am. Ctr. for L. & Just. v. F.B.I., 470 F. Supp. 3d 1, 4-5 (D.D.C. 2020)); see also Hajro v. U.S. Citizenship & Immigr. Servs., 811 F.3d 1086, 1104-06 (9th Cir. 2016) (recognizing a policy or practice claim under FOIA). The Court examines the D.C. Circuit's views on policy or practice claims under FOIA further in Part III.B, below.

6.   As the Court finds that there is no subject matter jurisdiction over Plaintiff's policy or practice claim under FOIA, the Court need not address the Government's arguments regarding Plaintiff's standing to bring such a claim.

7.   The D.C. Circuit is “the most frequent appellate forum in FOIA cases.” Reclaim the Recs., 2025 WL 936924, at *10. Indeed, the Second Circuit has “recognize[d] the D.C. Circuit as ‘something of a specialist’ in adjudicating FOIA cases, ‘given the nature of much of its caseload.’ ” Whitaker v. Dep't of Com., 970 F.3d 200, 206 n.25 (2d Cir. 2020) (quoting Brennan Ctr. for Just. at N.Y. Univ. Sch. of L. v. U.S. Dep't of Just., 697 F.3d 184, 200 (2d Cir. 2012)).

JOSEPH A. MARUTOLLO, United States Magistrate Judge