UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TONY J. REID et al., :
:
Plaintiffs, : Civil Action No.: 24-2186 (RC)
:
v. : Re Document Nos.: 35, 39, 44
:
MARKWAYNE MULLIN, :
in his official capacity as Secretary of :
Homeland Security, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING DEFENDANTS’ MOTION TO DISMISS
I. INTRODUCTION
There are three motions before the Court. First, Plaintiffs Tony J. Reid, Brandon A.
Phillips, and Charlie Boagni, Jr. move for attorneys’ fees and costs under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552. In response, Defendants Markwayne Mullin and
Kevin E. Lunday, acting in their official capacities, move to dismiss for lack of subject-matter
jurisdiction because Plaintiffs’ attorney, rather than Plaintiffs themselves, submitted the
underlying FOIA request. Finally, Defendants also move to amend their answer to assert their
jurisdictional defense and recant an admission pertaining to that defense. Taken in reversechronological order, the Court grants Defendants leave to amend their answer, grants
Defendants’ motion to dismiss for lack of subject-matter jurisdiction, and denies as moot
Plaintiffs’ motion for attorneys’ fees and costs. 1
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Plaintiffs initially sued then Secretary of Homeland Security Alejandro Mayorkas in his official capacity and then Admiral Linda L. Fagan in her official capacity as Commandant of the Coast Guard. See Compl. for Declaratory & Inj. Relief, ECF No. 1. Because they were sued in
II. FACTUAL BACKGROUND
The Court references only the facts relevant to this decision. A more thorough
description of the facts can be found in the Court’s preliminary-injunction decision. See Reid v.
Mayorkas, 759 F. Supp. 3d 15, 19–21 (D.D.C. 2024).
Plaintiffs are merchant mariners, meaning they are, or were, qualified “to work aboard a
United States merchant marine vessel.” Seafarers Int’l Union of N. Am. v. U.S. Coast Guard, 81
F.3d 179, 181 (D.C. Cir. 1996); Decl. of Tony J. Reid (“Reid Decl.”) ¶ 7, ECF No. 12; Decl. of
Brandon A. Phillips (“Phillips Decl.”) ¶ 6, ECF No. 12; Decl. of Charlie Boagni, Jr. (“Boagni
Decl.”) ¶ 6, ECF No. 12. That job requires a Merchant Mariner Credentials (“MMC”), a license
provided by the United States Coast Guard. See Clifford v. U.S. Coast Guard, 915 F. Supp. 2d
299, 303 (E.D.N.Y. 2013) (citing 46 C.F.R. §§ 10.209, 10.225), aff’d, 548 F. App’x 23 (2d Cir.
2013). Plaintiffs applied to renew their MMCs but were denied because of prior sexual-assault
convictions pertaining to conduct committed before they received their initial MMCs and, for
two of them, when they were minors. See Reid Decl. ¶¶ 8–11; Phillips Decl. ¶¶ 7–10; Boagni
Decl. ¶¶ 7–10.
On July 11, 2024, Brett John O’Brien—counsel for Plaintiffs in this case—submitted a
request under the FOIA to the United States Coast Guard asking for copies “of all MMC
renewals that were denied under 46 USC 7511(a)” and 7511(b) in 2023 and 2024—among other
things. See Second Am. Compl. for Declaratory & Inj. Relief (“SAC”), Ex. A, ECF No. 26-1.
Mr. O’Brien made the request using his law firm’s letterhead, and he signed it on his own behalf.
Id. He stated that “[his] office agrees to pay all applicable fees” and asked that the records be
their official capacities, the Court has substituted them for the current office holders, Secretary of Homeland Security Markwayne Mullin and Admiral Kevin E. Lunday, respectively.
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delivered to his office. Id. Mr. O’Brien never mentioned Plaintiffs, did not seek records only
pertaining to Plaintiffs, and did not otherwise indicate that he was acting in a representative
capacity. See id.
Shortly thereafter, Plaintiffs sued Defendants in connection with the denial of their MMC
renewals. See generally ECF No. 1. Plaintiffs then amended their complaint for the first time
and moved for a temporary restraining order and preliminary injunction regarding their MMC
renewal applications. See Reid, 759 F. Supp. at 21. The Court denied Plaintiffs’ motion because
it found that they were unlikely to succeed on the merits and neither the equities nor the public
interest weighed in their favor. Id. at 29.
Following on the heels of that decision, Defendants moved to dismiss Plaintiffs’
Amended Complaint, and Plaintiffs responded by again amending their complaint. See ECF
Nos. 22, 26. This Second Amended Complaint added a claim under the FOIA. Defendants
again moved to dismiss—this time with respect to all counts except the FOIA count. ECF
No. 28 at 1. And Plaintiffs responded by voluntarily agreeing to dismiss all the counts that
Defendants challenged. See ECF No. 30. That left only the FOIA claim.
Defendants then filed an answer to the Second Amended Complaint. See Answer, ECF
No. 32. In that answer, “Defendants’ admit[ted] that Plaintiffs submitted FOIA requests on July
11, 2024.” Id. ¶ 168 (emphasis added). This admission responded to Plaintiffs’ allegation that
“[o]n July 11, 2024, Plaintiffs through Counsel, submitted an expedited FOIA request to the
Coast Guard via email for all MMC renewals that were denied under 46 U.S.C. § 7511(a),”
among other requests. SAC ¶ 168.
Plaintiffs have apparently received all the documents they seek and now move for
attorneys’ fees and costs. See Pls.’ Memo. of Law in Supp. of Mot. for Att’ys’ Fees & Costs
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(“Pls.’ Mot.”) at 1, ECF No. 35-1. Plaintiffs ask for $13,201 in fees and costs. Id. at 8.
Defendants oppose that request and also simultaneously move to dismiss for lack of subjectmatter jurisdiction. See Defs.’ Combined Mot. to Dismiss for Lack of Jurisdiction & Opp’n to
Pls.’ Mot. for Att’ys’ Fees & Costs (“Defs.’ Mot. Dismiss”) at 1, ECF No. 38. A few weeks
after filing their reply brief in support of their motion to dismiss, Defendants moved to amend
their answer to rescind their admission that Plaintiffs submitted the FOIA requests and to raise
their challenge to Plaintiffs’ standing. Mot. for Leave to Amend Answer (“Defs.’ Mot. Amend”)
at 1, ECF No. 44.
The Court first addresses Defendants’ motion to dismiss because jurisdictional questions
are antecedent to merits determinations, and in doing so it addresses Defendants’ motion to
amend their answer. Because the Court grants Defendants’ motion to dismiss, it does not reach
the merits of Plaintiffs motion for attorneys’ fees and costs, which it denies as moot.
III. LEGAL STANDARD
Defendants move to dismiss under Fed. R. Civ. P. 12(h)(3), which provides that “[i]f the
court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the
action.” “A motion styled as one under Rule 12(h)(3) is treated in the same way as a motion to
dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).”
Ams. for Fair Treatment v. U.S. Postal Serv., 663 F. Supp. 3d 39, 49 (D.D.C. 2023). Rule
12(b)(1) allows a party to assert the defense of “lack of subject-matter jurisdiction” by motion.
In reviewing a Rule 12(b)(1) motion, “the court may consider the complaint
supplemented by undisputed facts evidenced in the record, or the complaint supplemented by
undisputed facts plus the court’s resolution of disputed facts.” Coal. for Underground
Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (quoting Herbert v. Nat’l Acad. of
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Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)). Moreover, the Supreme Court has explained that a
plaintiff’s standing—which is what Defendants challenge here—“must be supported in the same
way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner
and degree of evidence required at the successive stages of the litigation.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992). In this case, Defendants challenge Plaintiffs’ standing after
an answer and—although neither party moved for summary judgment nor has there been a
trial—at the final stage of this case in the district court. Accordingly, the Court cannot simply
accept the allegations in the complaint as true but must instead look to the evidence before it.
IV. ANALYSIS
The parties agree that only the person who made a FOIA request has standing to sue over
the denial of that request. See Defs.’ Mot. Dismiss at 8–9; Pls.’ Combined Resp. to Defs.’ Mot.
to Dismiss & Reply to Defs.’ Opp’n (“Pls.’ Resp.”) at 5, ECF No. 40. Multiple courts have held
as much. See, e.g., McDonnell v. United States, 4 F.3d 1227, 1237 (3d Cir. 1993) (“Accordingly,
a person like [the plaintiff] whose name does not appear on a FOIA request for records may not
sue in district court when the agency refuses to release requested documents because he has not
administratively asserted a right to receive them in the first place.”); Wetzel v. U.S. Dep’t of
Veterans Affs., 949 F. Supp. 2d 198, 202 (D.D.C. 2013) (collecting cases).
The D.C. Circuit has not yet squarely addressed whether courts have jurisdiction over
only FOIA actions brought by plaintiffs who have themselves requested records, nor whether
such a defect should be considered part of a plaintiff’s standing, and this Court need not decide
whether that is the case here because Plaintiffs have conceded it. Plaintiffs make no argument
for a different standard and instead write that “[t]o satisfy standing under the FOIA, a plaintiff
need show only that ‘that they sought and were denied specific agency records.’” Pls.’ Resp. at 5
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(emphases added) (quoting Pub. Citizen v. U.S. Dep’t of Just., 491 U.S. 440, 449 (1989)).
Unlike arguments against a court’s subject-matter jurisdiction, “arguments in favor of subject
matter jurisdiction can be waived.” Bronner ex rel. Am. Stud. Ass’n v. Duggan, 962 F.3d 596,
611 (D.C. Cir. 2020) (emphasis added) (quoting NetworkIP, LLC v. F.C.C., 548 F.3d 116, 120
(D.C. Cir. 2008)). Thus, the only question before the Court is how the standard applies in this
case.
Applying this standard, the Court concludes that Plaintiffs lack standing. In his letter
requesting records, Mr. O’Brien gave no indication that he was requesting records on behalf of
someone else. He never mentioned his clients and instead wrote on behalf of “[o]ur office”—
presumably referring to the National Security Law Firm on the letterhead—and asked that the
recipient grant “our request.” SAC, Ex. A. Although lawyers often write letters on behalf of
their clients, they typically make clear that they are acting in a representative capacity when
doing so. Cf., e.g., Brown v. U.S. EPA, 384 F. Supp. 2d 271, 276 (D.D.C. 2005) (finding
standing where attorney stated in the request that “‘I represent Paula D. Brown,’ and that
‘Ms. Brown has hired me to obtain certain documentation pursuant to [FOIA]’” (alteration in
original)). In the context of FOIA suits, courts have found that an attorney must make clear not
only that they are representing a client but also that they are making the request on behalf of that
client. See Three Forks Ranch Corp. v. Bureau of Land Mgmt., Little Snake Field Off., 358 F.
Supp. 2d 1, 3 (D.D.C. 2005) (finding no standing where the attorneys mentioned their corporate
client by name but failed to state that they were making the request on behalf of the corporation).
This case fits the mold of others where courts have dismissed for lack of subject-matter
jurisdiction. In Wetzel, for example, the plaintiff’s attorneys made a FOIA request in which they
mentioned the plaintiff’s name. 949 F. Supp. 2d at 202. The attorneys stated that “the requester
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law firm represents the veteran in connection with a dispute captioned as Adam Wetzel v. Capital
City Real Estate,” with Adam Wetzel being the plaintiff in the FOIA case. Id. at 203 (cleaned
up). It was, the Court noted, “reasonably evident that Wetzel [was] the veteran” being
referenced. Id. Yet even that was not enough because “the request [did] not make clear that the
attorney-client relationship extend[ed] to the FOIA request itself.” Id. The Court observed that
“there is nothing unusual about counsel submitting his own FOIA request for the purpose of
obtaining records to use in a client’s case.” Id. But just because the attorney “intended to use
the information for Wetzel’s benefit” did “not make Wetzel himself the requester within the
meaning of FOIA.” Id. As a result, the plaintiff’s request (as opposed to his attorneys’ request)
had not been denied, and he lacked standing to sue. Id.
Here, Mr. O’Brien did less to indicate he was acting on behalf of Plaintiffs than the
attorneys in Wetzel and Three Forks Ranch Corp. and far less than the attorney in Brown.
Mr. O’Brien did not state that he was representing Plaintiffs and making the request on behalf of
Plaintiffs, as the attorney did in Brown. See 384 F. Supp. 2d at 276; see also Mahtesian v. U.S.
Off. of Pers. Mgmt., 388 F. Supp. 2d 1047, 1048 (N.D. Cal. 2005) (finding no standing where
attorney made clear they were making the request on behalf of a client but failed to name the
client). Mr. O’Brien did not even mention Plaintiffs, unlike the attorneys in Wetzel and Three
Forks Ranch Corp., cases in which the plaintiffs still lacked standing to bring a FOIA claim.
Wetzel, 949 F. Supp. 2d at 202–03; Three Forks Ranch Corp., 358 F. Supp. 2d at 3.
Plaintiffs raise two counterarguments, but neither convinces the Court that they have
established standing. First, Plaintiffs argue that “the timing of the request . . . indicates that
Plaintiffs’ counsel submitted the request on behalf of Plaintiffs” because Mr. O’Brien “submitted
the request immediately prior to [Plaintiffs] instituting this suit and the subject matter is
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inherently germane to their claim.” Pls.’ Resp. at 6. Timing alone is not enough. As the Court
explained in Wetzel, it could simply be a case of the attorney submitting the request “to use in a
client’s case” without making the request in the name of the client. 949 F. Supp. 2d at 203. 2
And Plaintiffs did not even bring their FOIA claim until their Second Amended Complaint,
which they filed almost half a year later. See generally SAC. Moreover, because the request
preceded the litigation, the receiving agency could not have known that the request was being
made on behalf of Plaintiffs at the time of the request because Plaintiffs had not sued yet.
Plaintiffs cite no authority suggesting that filing suit shortly after the FOIA request is enough to
retroactively indicate that the request had been made on behalf of the suing plaintiffs. See Pls.’
Resp. at 6. Indeed, Plaintiffs cite no authority whatsoever in support of this argument. See id.
Second, Plaintiffs argue that Defendants conceded in their answer that Mr. O’Brien filed
the request on behalf of Plaintiffs and therefore conceded standing. Id. at 5. Plaintiffs alleged in
their Second Amended Complaint that in July 2024, “Plaintiffs through Counsel, submitted an
expedited FOIA request.” SAC ¶ 168; see also id. ¶ 167 (“Defendants are unlawfully
withholding records requested by Plaintiffs through Counsel under 5 U.S.C. § 552.”). In their
answer to the Second Amended Complaint, “Defendants admit[ted] that Plaintiffs submitted
FOIA requests on July 11, 2024.” Answer ¶ 168. As Plaintiffs see it, because Defendants
admitted that Plaintiffs (not their counsel) filed the FOIA requests, Defendants cannot now argue
that this Court lacks jurisdiction because Plaintiffs did not file the FOIA requests themselves.
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Of course, Mr. O’Brien may have made the FOIA request for his firm’s benefit, rather than Plaintiffs’. In their brief, Plaintiffs emphasize that Mr. O’Brien has used the information from the FOIA request for his law firm’s website and argue that “Plaintiffs’ counsel is in an apt position to ensure that the public benefits from [the records’] release” because “Plaintiffs’ counsel is among the few public sources to discuss the law, its implications, and the Coast Guards’ process and practices implementing it.” Pls.’ Resp. at 12 (emphases added). This is consistent with Mr. O’Brien making the request on behalf of himself or his firm.
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Pls.’ Resp. at 5. Plaintiffs emphasize that admissions in an answer “are binding” on the
admitting party. Nat’l Ass’n of Life Underwriters, Inc. v. Comm’r, 30 F.3d 1526, 1530 (D.C. Cir.
1994).
The Court concludes that the concession is not binding in this case because the Court will
grant Defendants leave to amend their answer. As an initial matter, it is not clear to the Court
whether a concession in an answer is binding when the factual matter in dispute—assuming this
is a purely factual question—affects a court’s subject-matter jurisdiction. Contrast Rubin v.
Buckman, 727 F.2d 71, 72 (3d Cir. 1984) (“[S]ubject matter jurisdiction can never be created by
estoppel . . . .”), with Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379, 384 (7th Cir.
2001) (“In many cases uncontested factual stipulations can resolve a jurisdictional question.”).
But the Court need not decide whether such an admission would be binding with respect to
subject-matter jurisdiction because it grants Defendants leave to amend their answer and thereby
withdraw the admission.
An answer is a responsive pleading, and Fed. R. Civ. P. 15(a)(2) instructs that “court[s]
should freely give leave” to amend a pleading “when justice so requires.” “It is an abuse of
discretion” for the court “to deny leave to amend unless there is sufficient reason, such as undue
delay, bad faith or dilatory motive, repeated failure to cure deficiencies by previous amendments
or futility of amendment.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per
curiam) (cleaned up). Plaintiffs noted their opposition to Defendants’ motion to amend their
answer, but Plaintiffs did not file a response, nor did they provide the Court with any reason to
deny the motion. See Defs.’ Mot. Amend at 1. That alone may suffice to grant the motion. Cf.
Althiabat v. Howard Univ., No. CV 13-788 (JMF), 2014 WL 12887640, at *1 n.1 (D.D.C.
Apr. 16, 2014) (granting leave to amend and noting that “despite being afforded an opportunity
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to oppose plaintiff’s motion to amend, the defendant did not make any arguments regarding
futility of the amendment”).
Here the Court discerns no reason to deny the motion to amend, and Plaintiffs have not
offered any. Admittedly, Defendants’ motion to amend arrives near the end of this case and
almost a year after Defendants filed their answer. See Answer at 7 (filed May 13, 2025); Defs.’
Mot. Amend at 8 (filed Apr. 29, 2026). But it appears to the Court that little has transpired in
this case during that period aside from briefing the instant motions. About a week after
Defendants filed their answer, the parties requested a briefing schedule on the currently pending
motion for attorneys’ fees and costs. See Joint Status Report, ECF No. 33; Scheduling Min.
Order (June 23, 2026). And in the intervening months, the parties have proceeded to brief that
attorneys’ fees motion, alongside Defendants’ motion to dismiss for lack of subject-matter
jurisdiction. See ECF Nos. 32–44. There has been no discovery or any other motions that would
have been affected by Defendants’ prior challenge to standing. See id. Plaintiffs would
presumably have still moved for attorneys’ fees and costs, and Defendants would presumably
have still moved to dismiss for lack of subject-matter jurisdiction. And, even if Defendants did
not raise the argument, the Court would have had an “independent obligation to assure [itself] of
jurisdiction” when evaluating Plaintiffs’ motion for attorneys’ fees and costs. See Mendoza v.
Perez, 754 F.3d 1002, 1019 (D.C. Cir. 2014) (quoting Floyd v. District of Columbia, 129 F.3d
152, 155 (D.C. Cir. 1997)). It bears emphasizing that, although this case began almost two years
ago, because Plaintiffs did not initially assert a FOIA claim, this is the Court’s first meaningful
opportunity to consider whether it has jurisdiction over that claim.
Of course, there remain Plaintiffs’ allegation that they submitted the FOIA request, rather
than Mr. O’Brien, SAC ¶ 168, but at this stage the Court is not required to accept that allegation
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as true. As explained above, this is not a pre-answer motion to dismiss. And there is a document
provided by Plaintiffs, whose authenticity neither party disputes, that contradicts that
allegation—namely Mr. O’Brien’s letter making the FOIA request. Based on that unrebutted
documentary evidence, the Court finds that Mr. O’Brien did not indicate that he was making the
FOIA request on Plaintiffs’ behalf, and Plaintiffs therefore lack standing to bring a FOIA claim.
V. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Leave to File an Amended Answer is
granted, Defendants’ Motion to Dismiss for Lack of Jurisdiction is granted, and Plaintiffs’
Motion for Attorneys’ Fees and Costs is denied as moot. An order consistent with this
Memorandum Opinion is separately and contemporaneously issued.
Dated: June 23, 2026 RUDOLPH CONTRERAS
United States District Judge
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