From: Lee Tien Subject: NSA suit, update Date: Sun, 18 Jul 1993 18:48:43 -0700 Here is the major memo I'm filing tomorrow in the suit. It is set for hearing Monday, Aug. 2, at 10 a.m., 19th floor. PRELIMINARY STATEMENT Defendant has moved to dismiss or for summary judgment1 asking the Court to relinquish jurisdiction over plaintiff's claim that the National Security Agency's ("NSA") practices are unlawful under the Freedom of Information Act ("FOIA"). 5 U.S.C. $ 552. Plaintiff opposes this motion because this Court has jurisdiction Although plaintiff no longer has a claim to the records he originally sought in this case, plaintiff still asserts a pattern-and- practice claim as to the legality of defendant's FOIA response procedures. The law is clear that such claims are not mooted by the satisfaction of underlying requests. Plaintiff earlier informed the Court of four FOIA requests in addition to that originally sued upon for which processing had been late. One of these requests has still not been responded to. Another of these requests has been responded to after approximately a year, and will be appealed. Declaration of Lee Tien ("Tien Decl."), & 2. Moreover, since plaintiff's last opportunity to be heard, he has filed additional FOIA requests to defendant, and these have not been answered. Tien Decl., & 3-5; 11. Plaintiff has also filed a set of FOIA requests with the National Institute for Standards and Technology ("NIST") which have been referred to NSA because those records, while originating with NIST, contain NSA information. That request is pending. Tien Decl., & 8-9. Plaintiff also filed a set of requests with the Department of Defense which have also been referred to NSA and are pending. Tien Decl., & 10. Plaintiff has attached with this opposition additional evidence showing that NSA's pattern-and-practice of tardy responses to FOIA requests affects another requester. Declaration of David Sobel ("Sobel Decl."). Plaintiff expects to produce similar evidence with respect to a third requester, but those facts are not yet available. Plaintiff has supported his claim that NSA routinely fails to meet the statutory deadlines with specific facts, and jurisdiction exists. BACKGROUND On June 27, 1992, plaintiff made a FOIA request for parts of two treatises on cryptanalysis in possession of NSA. On September 4, 1992, before NSA formally denied plaintiff's request, plaintiff filed a complaint to order NSA to produce the requested records and to declare NSA's FOIA response procedures unlawful and enjoin NSA from continuing those practices. NSA denied plaintiff's request in a letter dated October 2, 1992, which said that the responsive records were classified and thus exempt from disclosure. On November 12, 1992, defendant filed a motion for summary judgment. At about the same time, plaintiff filed with the Court a copy of some of the requested records, which he had found and copied at public libraries. NSA officials then discovered that the records filed by plaintiff had been released in the 1940s and 1950s, and NSA officials had decided not to retrieve the missing texts. After learning this history, NSA officials decided to declassify those documents found by plaintiff, as well as portions of the third document. In light of this declassification, defendant filed an amended motion for summary judgment as to both plaintiff's FOIA request and his claim regarding the timeliness of NSA's responses to FOIA requests. Plaintiff submitted evidence that NSA was tardy in responding to the request at issue and to other FOIA requests of which plaintiff was then aware. Plaintiff filed a motion requesting leave to amend his complaint to add the U.S. Attorney General as a defendant and to challenge the constitutionality of 18 U.S.C. $ 798, a statute which allows for criminal prosecution of persons who knowingly disseminate classified information. Defendant also filed a motion for a protective order staying discovery until its summary judgment motion was decided. The Court granted defendant's motion for summary judgment as to plaintiff's FOIA request and denied plaintiff's motion for leave to amend his complaint. However, the Court denied defendant's motion as to plaintiff's timeliness claims, holding that "genuine issues of material fact remain to be resolved concerning whether NSA has been faced with 'exceptional circumstances' sufficient to remove it from the deadlines established under [the FOIA]." Order of May 3, 1993, at 28. The Court also dismissed defendant's motion for a protective order staying discovery as moot, and stated that plaintiff may pursue discovery as to his claim concerning defendant's FOIA processing procedures. The parties agreed that NSA should respond by June 25, 1993. NSA sought and received an order from this Court permitting it to respond by July 2, 1993. Order of June 28, 1993. ARGUMENT NSA has the statutory duty to respond to FOIA requests according to deadlines. These deadlines were imposed on agencies by Congress in order to meet the goal of prompt and efficient disclosure of information to the public. The fundamental goal of the 1974 amendments to the FOIA, which imposed the time limits at issue here, was "the goal of more efficient, prompt, and full disclosure of information[.]" H.REP. NO. 93-876, 93d Cong., 2d Sess. (1974), U.S. Code Cong. & Ad. News, p. 6271. To achieve this goal, Congress expressly gave FOIA requesters the right to sue in federal court if an agency failed to meet its deadlines. No government official enforces the FOIA; FOIA requesters operate as "private attorneys general." The courts may exercise all inherent equitable powers consistent with the FOIA. Plaintiff has made, continues to make, and will continue to make, FOIA requests to NSA. On numerous occasions, NSA failed to meet its deadlines with respect to plaintiff's requests; moreover, NSA has admitted that it is generally unable to meet these deadlines. This case therefore presents no significant justiciability issues. NSA's arguments depend on two questionable characterizations. First, defendant basically ignores plaintiff's pattern-and-practice challenge to NSA's procedures. Defendant disaggregates plaintiff's claim into discrete, independent claims of missed deadlines on individual requests. This approach diverts attention from NSA's procedures. The lateness of NSA's responses to plaintiff's requests are not discrete events, random and disconnected. The lateness is systematically linked to NSA's backlog and procedures. This Court has recognized that plaintiff has a valid pattern-and-practice claim against NSA's procedures which is not moot. Second, defendant interprets justiciability, and in particular mootness, in an unduly formalistic way. Defendant appreciates neither "the flexible character of the Article III mootness doctrine" nor the "uncertain and shifting contours" of justiciability. U.S. Parole Commission v. Geraghty, 445 U.S. 388, 400 (1980). To the extent that any justiciability problems exist, they are not of constitutional dimension. It should be made clear what this case is and is not about. This Court is not being asked to substitute its judgment for that of a coordinate branch of government. Instead, plaintiff merely seeks to enforce the validly expressed will of Congress against an agency which has violated that will. Through the FOIA, Congress required that agencies respond promptly to requests and made sure that requesters could sue in the federal courts to obtain prompt responses. The courts are "the enforcement arm" of the FOIA. Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 19 (1974); Long v. I.R.S, 693 F.2d 907, 909 (9th Cir. 1982). No restraint is needed; the Court fulfills its role in the separation of powers by asserting jurisdiction to the extent permitted by Article III. In support of his pattern-and-practice claim, plaintiff initially showed that five of his FOIA requests to defendant were not responded to in time. Defendant admitted its general inability to meet deadlines. Plaintiff has filed with this opposition additional facts about NSA's responses to FOIA requests and specific facts showing that NSA has also been tardy in responding to another requester. Defendant argues that plaintiff's claim is moot, but that runs counter to authority. Defendant next argues that plaintiff lacks standing insofar as his claims are based on his intention to file FOIA requests in the future, because any harm would be speculative. This argument ignores the nature of plaintiff's pattern-and-practice claim, as well as plaintiff's outstanding FOIA requests. Regardless, on these facts plaintiff has demonstrated that he meets the requirements of Article III. Each of the arguments is flawed. Equally important, even if, taken individually, they were meritorious, their combined effect would be to immunize all but the most egregious agency violations of the FOIA's time limit provisions from judicial review. "[C]ourts must strive to avoid the danger of immunization of agency action while at the same time ensuring that each litigant possesses a sufficient stake in the controversy to justify judicial intervention." N.R.D.C. v. Hodel, 618 F.Supp 848, 853 (E.D. Cal. 1985) (environmental law case). This militates against a finding of mootness. Finally, defendant argues that even if plaintiff's outstanding FOIA requests give him standing to sue, they do not give him standing to seek an injunction aimed at overhauling NSA's FOIA processing procedures. This argument is premised on a crabbed interpretation of the Court's power, justiciability's requirements, and plaintiff's claim. "Congress did not intend to limit the court's exercise of its inherent equitable powers where consistent with the FOIA." Bannercraft Clothing, at 19; Long, at 909. Under the law of remedial standing, there is little doubt that plaintiff has the right to seek an injunction against NSA's procedures. Plaintiff has asserted a pattern-and-practice claim. Whether plaintiff is entitled to an injunction is a question on the merits. To the extent that the question of jurisdiction is entwined with the question on the merits, the Court has power to reach the merits. The appropriate analysis begins with the understanding that plaintiff has alleged and supported by specific facts the existence of a continuing injury caused by NSA's procedures. On such an analysis it is clear that plaintiff continues to be injured by NSA's procedures and that enjoining those procedures would constitute meaningful relief. I. THIS CASE PRESENTS A JUSTICIABLE CONTROVERSY. Plaintiff has the burden to show that Article III jurisdiction exists by specific facts. The Court implicitly found such jurisdiction when it denied NSA's earlier motion for summary judgment on the timeliness claim, finding as a matter of law that defendant has not negated the existence of genuine issues of fact as to its defense to plaintiff's claim. Order of May 3, 1993, at 28. It recognized that plaintiff asserted a pattern-and-practice claim against defendant's procedures. Id, at 24. "Justiciability is itself a concept of uncertain meaning and scope." Flast v. Cohen, 392 U.S. 83, 97 (1968). Article III has been held to limit the power of the federal courts "to questions presented in an adversary context," and to assure that "the federal courts will not intrude into areas committed to the other branches of government." Flast, at 94-95. The Supreme Court has asked whether a plaintiff "alleged such a personal stake in the outcome of the controversy so as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends[.]" Baker v. Carr, 369 U.S. 186, 204 (1962). The Court's jurisdiction over this case violates neither of these basic principles. Concrete adverseness exists. Plaintiff has a personal stake inasmuch as he has made and continues to make personal FOIA requests. When the plaintiff "is himself the object of the action (or forgone action) at issue .... there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it." Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2137 (1992). Plaintiff continues to suffer injury for defendant's delays on each of his FOIA requests. Equally important, this case does not involve judicial "intrusion" of any kind. The jurisdiction of the federal courts over FOIA lawsuits extends to requiring that agencies respond in a timely manner. "It must be remembered that the 1974 Amendments [to the FOIA] were deliberately drafted to force increased expedition in the handling of FOIA requests: '[E]xcessive delay by the agency in its response is often tantamount to denial. It is the intent of this bill that the affected agencies be required to respond to inquiries and administrative appeals within specific time limits.'" Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 617 (D.C. Cir. 1976) (Leventhal, J., concurring), quoting H.REP. NO. 93-876, 93d Cong., 2d Sess. (1974), U.S. Code Cong. & Ad. News, p. 6271. II. PLAINTIFF HAS STANDING. Plaintiff has a legal right created by Congress to judicial enforcement of an agency's procedural duty under the FOIA to respond within deadlines. "[S]tanding is gauged by the specific common law, statutory or constitutional claims that a party presents," and "should be seen as a question of substantive law, answerable by reference to the statutory or constitutional provision whose protection is invoked." International Primate Protection League v. Administrators of Tulane Educ. Fund, 111 S.Ct. 1700, 1704 (1991) (citing Fletcher, The Structure of Standing, 98 YALE L.J. 221, 229 (1988)); see Idaho Conservation League v. Mumma, 956 F.2d 1508, 1513-14 (9th Cir. 1992). A. CONGRESS CONFERRED STANDING ON PLAINTIFF. In creating the FOIA, Congress imposed a variety of statutory duties upon agencies, created a statutory right to information, and gave requesters the right to sue in federal court. Importantly, that right to sue is triggered by an agency's failure to meet statutory deadlines. 5 U.S.C. $ 552(a)(6). In a suit under the FOIA, the federal courts are empowered to the full extent of their equitable powers. Bannercraft, at 19. FOIA law as we know it is the product of FOIA requesters bringing suit against agencies in their role as "private attorneys general." Congress can "create" standing. Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982); Warth v. Seldin, 422 U.S. 490, 500-501 (1975) ('[t]he actual or threatened injury required by Art. III may exist solely by virtue of 'statutes creating legal rights, the invasion of which creates standing'"); Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3 (1973) ("Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute"). In so doing, Congress may not abrogate the Article III minima and confer standing on a party who has not been personally injured. Lujan, at 2144. When the plaintiff "is himself the object of the action (or forgone action) at issue .... there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it." Id., at 2137. Plaintiff has suffered an injury in fact. The FOIA creates a statutory right that a FOIA requester receive a response within certain time limits, and authorizes suit when such time limits are violated. Plaintiff suffered injury through defendant's delay on the FOIA request originally at issue in this case, and continues to suffer injury for defendant's delays on each of his FOIA requests. Plaintiff meets the Article III requirement of particularity. The injury to plaintiff is "imminent." Imminence "is concededly an elastic concept." Lujan, at 2138 n.2. It is intended "to reduce the possibility of deciding a case in which no injury would have occurred at all." Id. Whatever its bounds, plaintiff has stayed within them. Defendant has admitted that it does not always respond in time. Plaintiff's own FOIA requests have been affected. Plaintiff has continued to file FOIA requests with defendant. Even if a "high degree of immediacy" were required, plaintiff satisfies this test. On a proper understanding of "imminence," even if defendant has produced all releasable records, an Article III injury in fact would exist because it is likely that plaintiff will be injured in the future. The other Article III minima are largely irrelevant in a case like this, as the Supreme Court recognized in Lujan. Id., at 2137. Defendant alone is responsible for the delays which are the basis of this claim. By ordering NSA to comply with the FOIA, this Court could redress plaintiff's injury. Defendant repeatedly argues that the Court cannot grant meaningful relief, but this misses the point of a pattern-and-practice claim. Defendant's attack is at the wrong level of generality. Plaintiff already possesses a continuing personal stake. At this point redressability becomes a function of the statute which confers jurisdiction; it is not whether plaintiff's particular request will be expedited, but whether Congress intended for FOIA requesters whose requests have been tardily processed to be relied upon to challenge agency tardiness.2 Congress did so intend. B. PLAINTIFF HAS "PROCEDURAL RIGHTS" STANDING. Plaintiff has standing in that he has suffered a "procedural injury." The FOIA imposes procedural duties upon agencies in responding to requests, including the duty to respond in timely fashion. A person "assuredly can" enforce procedural rights "so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing." Lujan, at 2143 n. 8; see Idaho Conservation, at 1514- 1515. Procedural rights "are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy." Lujan, at 2142 n. 7. Plaintiff has a concrete interest in disclosure of requested records and a procedural right to have requests processed in a timely manner. His standing is grounded in NSA's failure to meet deadlines, which Congress expressly made a sufficient ground for suit. The procedural requirement is designed to prevent agencies from undue delay. The legislative history makes clear, and the courts have recognized, that timeliness is integral to the FOIA. Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988); Long v. I.R.S., 693 F.2d 907 (9th Cir. 1982). In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), it was argued that Bakke lacked standing to challenge the UC-Davis medical school admissions program because he could not show that but for the affirmative action program, he would have been admitted. The Court said that Bakke's injury lay not in his failure to be admitted, but "in the University's decision not to permit Bakke to compete for all 100 places in the class, simply because of his race." Id., at 280-1 n.14. Whether Bakke would have been admitted was irrelevant; what mattered was that the University engaged in a practice which deprived him of treatment in a manner to which he was entitled by the Constitution. In analogous fashion, plaintiff's standing lies in NSA's engaging in a practice which deprives him of treatment to which he is statutorily entitled. Thus, the normal standards for redressability and immediacy are inapplicable, even if defendant's argument that the Court could not grant relief in a particular request were accepted. III. PLAINTIFF'S PATTERN-AND-PRACTICE CLAIM IS JUSTICIABLE. Defendant claims that plaintiff's case is moot because no withheld records remain with respect to the request upon which this suit was brought. Plaintiff also specifically challenged the facial validity of NSA's response procedures. Defendant ignores this distinct claim and the cases holding that resolution of a dispute over a particular request does not moot a challenge to an unlawful pattern and practice. Plaintiff also has outstanding FOIA requests which ensure that the Court is deciding a live controversy. A. THE CASES ESTABLISH THAT PATTERN-AND- PRACTICE CASES ARE NOT MOOT This Court recognized that plaintiff has asserted a pattern- and-practice claim that NSA's FOIA response procedures are unlawful. Defendant has admitted its "inability to respond to any given request or referral within the time contemplated by the FOIA." First Decl. of Michael A. Smith, at 14. Genuine issues of material fact remain to be resolved as to whether those practices are lawful. Order of May 3, at 28. The Court correctly did not question its jurisdiction over this claim. Pattern-and-practice challenges to an agency's conduct under the FOIA are not mooted by the release of the records on which suit was brought. Long v. I.R.S., 693 F.2d 907 (9th Cir. 1982); Mayock v. INS, 714 F.Supp. 1558 (N.D. Cal. 1989), reversed and remanded sub nom. Mayock v. Nelson, 938 F.2d 1006 (9th Cir. 1991). In Long, a challenge was made to the lawfulness of an agency practice. In Mayock, plaintiff challenged the timeliness of FOIA responses by the Immigration and Naturalization Service ("INS"). The district court found that plaintiff's pattern-and-practice claims were not moot, and enjoined the INS's practices. 714 F.Supp., at 1560. Although the Ninth Circuit reversed, it found without discussion that it had jurisdiction to do so, specifically referring to the district court's finding of jurisdiction. 938 F.2d, at 1007 fn. 1. The D.C. Circuit has also recognized the justiciability of pattern-and-practice claims. In Better Government Association v. Department of State, 780 F.2d 86 (D.C. Cir. 1986), plaintiffs challenged two agency fee waiver denials and the regulations on which the denials were based. After plaintiffs filed suit, defendants granted the fee waivers and moved for summary judgment, arguing that the belated fee waivers rendered the case moot as to the specific requests and unripe as to the challenge to the facial validity of the regulations. The D.C. Circuit held that there is "no question that the appellants' other arguments concerning the facial validity of the DOJ guidelines are not moot" (emphasis in original). Although the specific fee waiver denial had been mooted, "the additional counts were directed at the legality of the standards utilized by the appellees. The Government incorrectly assumed that the mootness of the former led inexorably to the mootness of the latter. The satisfaction of the claims for reversals of the individual fee waiver denials did not render moot the facial challenges to the guidelines and the regulation." Id., at 91. Appellants were frequent FOIA requesters, and appellees had not suggested that they would discontinue their practices. "[T]he Government clearly intends to apply these purportedly objectionable standards to FOIA fee waiver requests in the future. It is therefore evident that the allegedly impermissible practice ... has continued, that the appellants have alleged a continuing injury due to this practice, and that no relief has been forthcoming. In short, appellants' facial challenges are not moot." Id., at 91-92. In Payne Enterprises, Inc., v. United States, 837 F.2d 486 (D.C. Cir. 1988), a lawsuit challenging an unlawful practice was not mooted when the agency voluntarily ceased the practice with respect to the particular requester. The D.C. Circuit reiterated its holding in Better Government. "[E]ven though a party may have obtained relief as to a specific request under the FOIA, this will not moot a claim that an agency policy or practice will impair the party's lawful access to information in the future." Id., at 491 (emphasis in original). There is no meaningful difference between this case and the other pattern-and-practice cases. See also Public Citizen v. Office of U.S. Trade Representative, 804 F.Supp 385, 387 (1992) (quoting Payne); Ray v. U.S. Dept. of Justice, I.N.S., 770 F.Supp. 1544, 1551 (S.D.Fla. 1990). Plaintiff specifically pleaded an unlawful agency practice of violating the FOIA deadlines. Plaintiff is a frequent FOIA requester, and has demonstrated his alleged intent to continue filing FOIA requests to NSA. Defendant's failure to comply with the time limits of the FOIA constitutes harm in the form of impairment, by delay, of plaintiff's lawful access to information in the future. B. THE "VOLUNTARY CESSATION" EXCEPTION TO MOOTNESS APPLIES Regardless of this line of precedent, the "voluntary cessation" exception to mootness would apply here. The Court need not reach this question, but defendant has raised it by ignoring the pattern-and- practice cases. Defendant argues that once a specific request is answered, no matter how tardily, all claims pertaining to the lateness of defendant's response are moot. Defendant later argues that plaintiff lacks standing to sue on the basis of future FOIA requests. Thus, defendant asks the Court to analyze this case as though there were no such thing as a pattern-and-practice claim. Even on this strange premise, plaintiff's claim that NSA's procedures are unlawful survives mootness because it, like other pattern-and-practice claims, is grounded in well-settled principles. [V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., the case is not moot. A controversy may remain to be settled in such circumstances, e.g., a dispute over the legality of the challenged practices. The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion. For to say that the case has become moot means that the defendant is entitled to a dismissal as a matter of right. The courts have rightly refused to grant defendants such a powerful weapon against public law enforcement. United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953); see City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) ("[U]nder normal rules of equity, a case does not become moot merely because the complained-of conduct has ceased[.]") This exception logically applies "where it is the defendants' actions which create an issue of mootness," as here. Luckie v. E.P.A., 752 F.2d 454, 458 (9th Cir. 1985). The seeming mootness of plaintiff's claims arises because defendant voluntarily ceases the allegedly unlawful delay during litigation. If plaintiff shows a "mere" probability of recurrence, coupled with "a certainty that the impact will fall on the same objecting litigants," the government has a heavy burden to show "there is no reasonable expectation that the alleged violation will recur." Luckie, at 458-459. Plaintiff has shown that there is a significant probability that NSA will again miss FOIA deadlines. Plaintiff has alleged his intent to file future FOIA requests, and has substantiated that intent through the filing of requests during this lawsuit. Tien Decl. Thus, it is certain that he will continue to be subject to NSA's FOIA request procedures. Defendant cannot meet its heavy burden that there is "no reasonable expectation" of recurrence, because it has admitted that it does not always respond in time. Also, its position in this lawsuit is that its practices are lawful, and it will likely continue them unless enjoined by this Court. Finally, this doctrine preserves the "public interest in having the legality of the practices settled." W.T. Grant Co., 345 U.S. at 632. The goal of the FOIA, and the time limit provisions in particular, is the prompt and efficient disclosure of information to the public. NSA's practices infect its treatment of every FOIA request sent to it by plaintiff, as well as other FOIA requesters. There is no reason to continue to entertain these questions when they can be settled here. C. THE "CAPABLE OF REPETITION, YET EVADING REVIEW" EXCEPTION TO MOOTNESS APPLIES This case also falls within the "capable of repetition, yet evading review" exception to the mootness doctrine. Like "voluntary cessation," a policy behind this doctrine is "the need for guidance of the government in the event the issue arose again." Bator, Mishkin, Meltzer and Shapiro, HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM, 208 (1988). "[T]here must be a 'reasonable expectation' or a 'demonstrated probability' that the same controversy will recur[.]" Murphy v. Hunt, 455 U.S. 478, 482 (1982); see Roe v. Wade, 410 U.S. 113, 124-125 (1973) ("Pregnancy often comes more than once to the same woman[.]"). The Supreme Court has found "controversies capable of repetition based on expectations that, while reasonable, were hardly demonstrably probable." Honig v. Doe, 484 U.S. 305, 318-319 fn. 6 (1988). "Our concern in these cases, as in all others involving potentially moot claims, was whether the controversy was capable of repetition and not [] whether the claimant had demonstrated that a recurrence of the dispute was more probable than not." Id. The likelihood of recurrence needed to defeat mootness is not high. In Honig, the 20-year-old plaintiff Jack Smith had two remaining years of eligibility for the benefits of a federal act. Capability of repetition was found even though eligibility depended on: his being in public school, where Smith's counsel conceded that Smith was not in public school and could not represent that he would return to public school; and that when he was in public school, that his placement would be challenged. Honig, at 336-337 (Scalia, J. dissenting). The likelihood of recurrence here is far greater, and must be constitutionally sufficient. Defendant has admitted that its practices result in delay. Plaintiff has shown that his requests have been delayed, and that pending requests are being delayed. There is a reasonable expectation that the controversy will recur between these two parties. Defendant argues, however, that while this controversy may recur, it does not evade review, because plaintiff can sue again. Here defendant has failed to distinguish the constitutional from the prudential. The "evading review" component is flexible. "If it were indeed Art. III which [] underlies the mootness doctrine, the 'capable of repetition, yet evading review' exception relied on by the Court in this case would be incomprehensible." Honig, at 330 (Rehnquist, C.J., concurring). "[W]hile an unwillingness to decide moot cases may be connected to ... Art. III, it is an attenuated connection that may be overridden where there are strong reasons to override it." Id. Even the dissent in Honig, which argued that capability of repetition is of constitutional significance, conceded that "the 'yet evading review' portion of our 'capable of repetition, yet evading review' test is prudential; whether or not that criterion is met, a justiciable controversy exists." Honig, at 341 (Scalia, J., dissenting). In short, whether the issue of NSA's practices can be litigated in another case does not affect this Court's jurisdiction under Article III. Even if the "evading review" element were important, this claim should not be barred. Certain disputes by their nature are too transitory for one plaintiff to maintain a personal stake throughout the lawsuit; to avoid immunizing them from review, they are heard. Time-limit violations of the FOIA are transitory and evade review in this sense. An agency is obliged to respond in 10 days. It takes many months to litigate, and often a response will issue during the litigation. Defendant suggests that plaintiff is free to bring suit on his other requests, and thus would obtain review of this claim in the second case. But this places the plaintiff and the courts on a treadmill. Each time plaintiff sues, the timeliness claim will be mooted when defendant produces all releasable records. The argument is self-contradictory. A timeliness claim is moot because it can be brought in the next case and thus does not evade review; but in each such case it will likely become moot. Given the duration of litigation, and the fact that defendant is processing requests during litigation, it is likely that "no single challenger will remain subject to [defendant's conduct] for the period necessary to see such a lawsuit to its conclusion." Sosna v. Iowa, 419 U.S. 393, 400 (1974). Unless pattern-and-practice claims are permitted, the logical conclusion of defendant's argument is agency immunity from the FOIA deadlines. The same reasons underlie the liberality of mootness for class actions and the "capable of repetition, yet evading review" doctrine: important recurring questions need to be settled, and if the facts present concrete adverseness, and do not intrude into areas committed to other branches of government, a "moot" case can be decided. "[T]he strict, formalistic view of Art. III jurisprudence ... is riddled with exceptions. And, in creating each exception, the Court has looked to practicalities and prudential considerations." Geraghty, 445 U.S. at 406 n.11. D. PLAINTIFF'S OUTSTANDING FOIA REQUESTS DEFEAT MOOTNESS. Plaintiff has pending FOIA requests. Fourth Decl. of Michael A. Smith; Tien Decl. These requests are also late. Even if the original request is moot, these other requests satisfy the Article III requirement that plaintiff have a continuing personal stake in the outcome of the case. Ellis v. Brotherhood of Ry., Airline and S.S. Clerks, 466 U.S. 435, 442 (1984) ("[A]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot."); Yniguez v. State of Arizona, 975 F.2d 646, 647 (9th Cir. 1992) (although plaintiff no longer state employee subject to restriction, right to seek nominal damages on appeal, even where district court had awarded none, defeated mootness). These outstanding requests show that plaintiff has a concrete interest in the legality of NSA's procedures. E. THE PATTERN-AND-PRACTICE CLAIM IS RIPE. A final question raised by defendant is ripeness. Like mootness, ripeness, while ultimately based on Article III considerations, is largely prudential. But where mootness is concerned with cases which may no longer possess concrete adverseness, ripeness is intended "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149 (1967) Under Abbott, the courts must consider both "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Id., at 149. Pattern-and-practice cases are generally ripe for decision. Payne Enterprises, at 492-494; Better Government, at 92-96. "A claim is fit for decision if the issues raised are primarily legal and do not require further factual development and the challenged action is final." Trustees for Alaska v. Hodel, 806 F.2d 1378, 1381 (9th Cir. 1986). This case presents a concrete legal dispute. Plaintiff has shown and defendant has admitted that it regularly misses the FOIA deadlines. Can NSA invoke the "safety- valve" provision? Has NSA has in fact demonstrated "exceptional circumstances" and "due diligence"? The legality of NSA's practices will be resolved by an analysis of the FOIA, its legislative history, and its construction by the courts. Defendant suggests that the case does not present purely legal issues, because each request is different and may implicate different concerns. Defendant's Memorandum, at 11 fn. 4. But that misses the point. Defendant has made no showing that the differences among the requests are relevant to the question of whether NSA can lawfully delay responding to requests beyond the FOIA deadlines. There is even doubt as to whether the "safety-valve" provision was intended by Congress to apply to a pattern and practice of delay. Order, at 25 (citing Mayock, at 1565). No further real-world factual development is necessary to clarify the issues. NSA's procedures and circumstances are the relevant issues. Additional tardy requests will not improve this claim's fitness for decision. The D.C. Circuit found in Payne that it was unnecessary to reach the "hardship" prong of the Abbott Laboratories test, which balances the plaintiff's interests against the agency's institutional interests in the deferral of review, because the agency had no institutional interest in postponing review of its FOIA procedures. Payne, at 493. The courts have an interest in settling such questions because they are responsible for enforcing the FOIA. The same logic should apply here. Plaintiff suffers hardship in any case. Plaintiff has shown that he makes many FOIA requests to NSA, many of which have been delayed. These FOIA requests are integral to plaintiff's examination of the role of cryptographic technology in protecting privacy in modern society. NSA is the primary government agency in the field of cryptographic technology. IV. PLAINTIFF HAS STANDING BASED ON HIS INTENT TO FILE FUTURE FOIA REQUESTS. After dismissing plaintiff's claims as moot, defendant goes on to argue that plaintiff cannot claim standing on the basis of his intent to file future FOIA requests. Again, this argument ignores the nature of plaintiff's pattern-and-practice claim. It also ignores plaintiff's outstanding FOIA requests, which save the case from being moot, so that standing based on intent to file future requests is unnecessary. Regardless, plaintiff's intent to file future requests is sufficient for standing. As plaintiff already has argued, the requirements for standing are relaxed where plaintiff is himself an object of the action or forgone action, and where Congress has created standing for violation of a procedural right. Moreover, even if we were to ignore the special nature of plaintiff's claim, standing law generally requires only an imminent threat of harm, and the record supports such a finding. Article III can be satisfied by the threat of imminent harm. Imminence is required to prevent the courts from deciding cases where no injury may be suffered at all. Lujan, at 2138-39 n. 2. This resembles the mootness inquiry, and just as mootness is "flexible," imminence is "elastic." Id. If a plaintiff has some control of the circumstances of injury, there is concern that he may not expose himself to the challenged conduct. That concern is satisfied here by plaintiff's continuing to make FOIA requests to NSA. Plaintiff does not make these requests idly; he makes them because he and NSA are both very interested in cryptology, which will not change. The other concern is the possibility that defendant will not continue to cause injury. Defendant has admitted its general inability to meet FOIA deadlines and is presently late with respect to plaintiff's outstanding requests. Defendant also contends that its practices of delay are lawful. This concern is satisfied. V. PLAINTIFF HAS STANDING TO SEEK INJUNCTIVE RELIEF. Defendant argues that plaintiff's outstanding FOIA requests confer standing, but that such standing does not justify "the broad relief requested -- a nationwide injunction aimed at overhauling NSA's FOIA processing procedures." Def. Memo., at 7. FOIA commands that requests be processed in accordance with statutory time limits. The relief sought by plaintiff asks for that, and no more. Although a nationwide injunction would increase the timeliness of defendant's responses to all requesters, not just to plaintiff, such a result would be consistent with the FOIA; that this remedy would have such side-effects is no reason to find that plaintiff lacks standing to seek it. Defendant raises two issues. It argues that the FOIA is limited to relief with regard to specific requests, and that plaintiff cannot seek an injunction. It also argues that on this record plaintiff has not shown that he is entitled to seek an injunction. A. THE COURT CAN ENFORCE THE FOIA TO THE LIMIT OF ITS EQUITABLE POWER. Defendant raises a question of "remedial standing." Under this doctrine, even if plaintiff has standing to sue, he may not have standing to seek a particular remedy if that remedy is somehow insufficiently connected with the facts which confer standing. Congress has answered this question. Bannercraft Clothing, at 19; Long, at 909 ("Congress did not intend to limit the court's exercise of its inherent equitable powers where consistent with the FOIA"). The pattern-and-practice cases decided as a general rule that FOIA requesters can obtain relief which transcend their individual requests. The Ninth Circuit specifically stated that "[i]n utilizing its equitable powers to enforce the provisions of the FOIA, the district court may consider injunctive relief were appropriate. Moreover, where the district court finds a probability that alleged illegal conduct will recur in the future, an injunction may be framed to bar future violations that are likely to recur." Long, at 909. These same cases show that the specific issue here Q allegedly unlawful delay Q can be heard. Mayock; Payne; Long. The goal of the time limit provisions was prompt and efficient disclosure; Congress created standing to sue when they are violated. Defendant's implicit suggestion that plaintiff may not have been harmed by these delays is irrelevant, because Congress has already decided that delays are sufficient for standing. "[E]xcessive delay by the agency in its response is often tantamount to denial. It is the intent of this bill that the affected agencies be required to respond to inquiries and administrative appeals within specific time limits." H.REP. NO. 93-876, 93d Cong., 2d Sess. (1974), U.S. Code Cong. & Ad. News, p. 6271. In short, Congress and the courts have already decided the remedial standing question in plaintiff's favor. If the record supports it, the Court may grant injunctive relief which goes beyond expediting an individual request. B. THE COURT CAN GRANT THE APPROPRIATE RELIEF. Injunctive relief may extends not only to the parties requesting the relief, but also to all other similarly situated persons subject to the practices to be restrained. See Doe v. Gallinot, 657 F.2d 1017, 1024-25 (9th Cir. 1981). It would be proper for this Court to enjoin NSA to comply with FOIA for all requests made to it. Such a result would be consistent with the FOIA. See Long, at 909. Nothing prevents the Court from enjoining NSA vis-a-vis plaintiff only, but such an order would make no sense given the intent of the FOIA. Defendant complains of the unfairness of a "nationwide" injunction. But if plaintiff's arguments are accepted, he will have shown an agency-wide unlawful practice of delay. Unlike INS, which maintains records in many local offices, and receives FOIA requests at these offices, NSA processes its FOIA requests centrally. Ninth Circuit precedent supports nationwide relief. In Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987), the Ninth Circuit ruled that "[t]he Supreme Court has held that a federal agency is not necessarily entitled to confine any ruling of a court of appeals to its immediate jurisdiction." Id., at 1170. As such, "there is no bar against class-wide, and nationwide relief in federal district or circuit court when it is appropriate." Id. Such relief is appropriate against an agency with national operations and which is party to the action. Id. Moreover, "[c]lass-wide relief may be appropriate even in an individual action," particularly respecting a matter of statutory interpretation and against a national agency which was a party to the lawsuit." Id., at 1170-71. Indeed, "the district court could hardly require enforcement of the ... Act on anything other than a nationwide basis." Id. at 1171. If the Court were to find for plaintiff on the merits, it could grant the requested relief. It makes no sense to argue that plaintiff cannot ask for it. C. ON THIS RECORD, PLAINTIFF CAN ASK FOR INJUNCTIVE RELIEF. The second question is whether, on this record, plaintiff is entitled to seek injunctive relief. Plaintiff's burden is to show by specific facts that he can ask this Court to reach the merits, not to prove his case now. Plaintiff must show "a credible threat of immediate future harm" to entitle him to seek injunctive relief. Nelsen v. King County, 895 F.2d 1248, 1254 (9th Cir. 1990); see also Kolender v. Lawson, 461 U.S. 352, 355 n. 3 (1983) ("credible threat" of being stopped again shown by 15 stops in less than two years); but see Imagineering, Inc. v. Kiewit Pacific Co., 976 F.2d 1303 (1992) ("very significant possibility of future harm"). Showing a solid basis for believing that a future injury will occur will ensure that plaintiff has a sufficient stake in the litigation. O'Shea v. Littleton, 414 U.S. 488 (1974). "[P]ast wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury," O'Shea, at 496, and are very meaningful when "some systematic pattern, repetition or relationship exists." Nelsen, at 1254. Such a relationship is obvious here. Plaintiff has shown that NSA generally does not respond in time. Defendant has admitted that it does not always respond within ten days, and this Court has ruled that there exists a genuine issue of material fact as to the lawfulness of defendant's conduct. Plaintiff's outstanding requests are being delayed. Lyons and O'Shea involved contingent threats. See Lyons, at 108 (questioning if Lyons would "not only again be stopped ... but would also be subjected to a chokehold"); O'Shea, at 496-497 (future injury would require assuming plaintiffs will violate law, and will be charged, and then discriminated against). Here, making requests to NSA removes the contingency. Plaintiff originally alleged and has since shown that he frequently makes FOIA requests of defendant. In addition, plaintiff has several pending FOIA requests, none of which has been responded to within the time limits, and intends to file more requests. The harm is credible, real, substantial, and immediate. Moreover, plaintiff has no adequate remedy at law. He cannot get damages for such delays under the FOIA. See Daniels v. St. Louis VA Regional Office, 561 F.Supp. 250 (E.D. Mo. 1983). Plaintiff therefore satisfies the threshold requirements for seeking injunctive relief. Defendant suggests that plaintiff has not shown enough of a pattern and practice to warrant an injunction. There is no reason to think that plaintiff's showing is insufficient to establish the needed threat of harm. In Better Government, the plaintiffs mounted a justiciable challenge on the basis of two fee waiver denials. In Payne, the complained-of practices apparently affected only one requester. Plaintiff has shown delays on numerous FOIA requests, and has now presented specific facts showing delays on several requests by another requester. The real point of defendant's argument appears to be that the Court cannot remedy any particular delay once the request has been answered. Since the request is likely to be answered at some point during the pendency of the litigation, relief would be meaningless. This argument only makes sense if we ignore the pattern-and- practice claim and the exceptions to mootness. Once it is recognized that such a claim exists, it becomes clear that ordering NSA to comply with the FOIA would obviously redress any injuries to be suffered in the future caused by NSA's delays. D. DOUBTS ABOUT PLAINTIFF'S STANDING TO SEEK INJUNCTIVE RELIEF GO TO THE MERITS AND SHOULD NOT DEPRIVE THE COURT OF JURISDICTION. This issue is really one of merits and remedies. If a nationwide injunction is needed, this Court can issue one. If jurisdiction depends on the merits, it can reach them. It has little to do with this Court's jurisdiction under Article III to hear this case. Accepting defendant's argument that plaintiff lacks standing involves resolving in defendant's favor the factual dispute as to whether a pattern-and-practice of delay exists. Plaintiff has countered with additional specific facts. Tien Decl.; Sobel Decl. Any remaining factual lacunae should be filled through discovery, which NSA has resisted. Were the Court to decide it lacked jurisdiction over plaintiff's claim for injunctive relief, it would be deciding a question going to the merits. A court may not resolve genuinely disputed facts where the question of jurisdiction depends on the resolution of factual issues going to the merits. Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). "Normally, the question of jurisdiction and the merits of an action will be considered intertwined where [] a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiff's substantive claim for relief." Sun Valley Gasoline, Inc., v. Ernst Enterprises, 711 F.2d 138, 139 (9th Cir. 1983). Only a limited threshold inquiry aimed at weeding out very weak claims is appropriate. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (dismissal appropriate if beyond doubt that plaintiff can prove no set of facts entitling him to relief); Sun Valley Gasoline, at 140 (no showing that action "clearly immaterial or wholly insubstantial and frivolous"). As already shown, plaintiff's case is not so weak. CONCLUSION Plaintiff had Congressionally conferred standing at the outset of this case to assert his claims as to improper withholding and NSA's procedures. The law is clear that his pattern-and-practice claim as to NSA's procedures survives the mooting of the underlying request. Prudence demands that this recurring question about the legality of routine untimeliness be decided. Justiciability requires only that plaintiff maintain a concrete, personal stake in the outcome of the litigation. Plaintiff has been injured by NSA's practices in the past, continues to be injured through delays on his outstanding FOIA requests, and is likely to be injured in the future. NSA's practices, circumstances, and diligence make these harms and threats of harm a continuing injury which can only be addressed in a systematic way. There can be little doubt that he retains a stake sufficient to support jurisdiction under Article III. 1Defendant has denoted its motion in the alternative. Because defendant has presented extrinsic facts, plaintiff assumes for the purposes of his opposition that this is a motion for summary judgment, and has adduced additional facts. If the Court does treat this as a motion for summary judgment, plaintiff is entitled to a reasonable opportunity to present rebutting evidence. Plaintiff respectfully requests that if the Court does consider extrinsic evidence, that he be allowed 20 days within which to present additional evidence after these opposition papers have been filed. In the event that defendant's motion is granted, plaintiff also requests leave to amend the complaint or, in the alternative, to file a supplemental pleading to cure any defects in jurisdiction, within 20 days of granting defendant's motion. 2An analogy can be drawn to "zone of interests" standing under the Administrative Procedures Act ("APA"), which provides for judicial review if a person is "adversely affected or aggrieved by [agency] action within the meaning of a relevant statute," and could provide a ground for standing here in addition to the FOIA itself. 5 U.S.C. $ 702. Under Clarke v. Securities Industry Association, 107 S.Ct. 750 (1987), whether a plaintiff had standing to sue under the APA and a relevant statute depended on the overall purpose of the relevant statute. The essential inquiry is "whether Congress intended for [a particular] class [of plaintiffs] to be relied upon to challenge agency disregard of the law." Clarke, 107 S.Ct. at 757 (internal quotations omitted). END OF MEMO