Architects & Engineers for 9/11 Truth v. Raimondo ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ARCHITECTS & ENGINEERS FOR 9/11
TRUTH, et al.,
Plaintiffs,
Case No. 1:21-cv-02365 (TNM)
v.
GINA M. RAIMONDO, in her official
capacity as Secretary of Commerce, et al.,
Defendants.
MEMORANDUM OPINION
Eighteen individuals and one organization claim that a government agency has
incorrectly reported why a World Trade Center (WTC) building collapsed on 9/11. These claims
echo their similar allegations that this Court dismissed two years ago for lack of standing. And
one year ago, the Southern District of New York likewise dismissed similar claims from some of
these Plaintiffs for lack of standing.
Not much changes here. Although Plaintiffs’ claims look different, they suffer from the
same infirmities as before. The Court will dismiss their claims for lack of standing.
I.
Everyone knows that the Twin Towers collapsed on September 11, 2001. Less known is
that a nearby 47-story building, known as WTC 7, collapsed later that day “without having been
struck by an aircraft.” Am. Compl. (Compl.) ¶ 93, ECF No. 14. In November 2008, an agency
in the Department of Commerce (the Department) called the National Institutes of Standards and
Technology (NIST) released three reports about the collapse of WTC 7 (collectively, the WTC 7
Report or the Report). 1 NIST concluded that debris from the collapse of one Tower ignited fires
in WTC 7, generating so much heat that a structural support inside the building collapsed. See
Compl. ¶ 126. Plaintiffs disagree. They believe that WTC 7 collapsed not from fire but from a
“controlled demolition[,]” id. ¶ 94, involving “pre-placed explosives and/or incendiaries” in the
building, id. ¶ 12.
One Plaintiff is Architects & Engineers for 9/11 Truth (Architects), a California nonprofit
whose mission is “to establish the full truth surrounding the events of [9/11].” Id. ¶ 10.
Architects seeks to educate the public about the causes of the collapse and “has made hundreds
of public presentations” to show that “pre-placed explosives and/or incendiaries” destroyed the
WTC buildings. Id. ¶ 12. Eight Plaintiffs are relatives of those who died on 9/11, see id. ¶ 27–
52, though the collapse of WTC 7 “is not known to have directly caused the death of any”
Plaintiff’s family member, id. ¶ 123. The other ten Plaintiffs are engineers and architects who
have studied the 9/11 collapses. See id. ¶¶ 54–67.
The legal background for this dispute begins with the Information Quality Act (IQA), see
44 U.S.C. § 3516 note, and then trickles downward into several agency regulations. Passed in
2001, the IQA directed the Office of Management and Budget (OMB) to issue guidelines to
federal agencies “for ensuring and maximizing the quality, objectivity, utility, and integrity of
information” published by each agency. Id. Congress imposed some requirements for these
guidelines. As relevant here, OMB must require each agency to issue its own guidelines about
information it publishes. See id. Each agency must also “establish administrative mechanisms
1
Links to these reports are available at https://www.nist.gov/world-trade-center-
investigation/study-faqs/wtc-7-investigation.
2
allowing affected persons to seek and obtain correction” of any agency-published information
that did not comply with the agency’s own guidelines. Id.OMB dutifully promulgated its guidelines in 2002. See Guidelines, 67 Fed. Reg. 8452(Feb. 22, 2002). The Department followed suit later that year and delegated to its agencies the
establishment of administrative mechanisms for IQA corrections. See Guidelines, 67 Fed. Reg.
62,685, 62,687 (Oct. 8, 2002).
NIST complied and issued guidelines of its own. See Mot. to Dismiss (MTD), Ex. A,
ECF No. 17-2. These guidelines set forth an internal procedure for the review of NIST-
published information, including peer reviews and stricter quality controls for information
considered “influential.” Id. at 13. 2 The guidelines also included a process for corrections to
published information. An affected person “may request, where appropriate, timely correction of
disseminated information that does not comply” with NIST’s guidelines. Id. at 15. The
requester bears the burden to show “the necessity and type of correction sought,” id., and to
overcome a presumption that “influential” information is correct, see id. Properly submitted
requests go to the Chief of the NIST unit responsible for the information. See id. at 16. The
Chief will investigate and respond within 120 days. See id. at 18. A dissatisfied requester may
appeal that ruling to NIST’s Associate Director for Laboratory Programs, who decides whether
to correct the information at issue. See id. at 19. His decision is final. See id.Plaintiffs invoked this procedure. In April 2020, they filed a request for correction of
NIST’s WTC 7 Report and some FAQs about the investigation that NIST had published on its
website. See Compl. ¶ 111. They challenged NIST’s conclusion that fires caused the collapse
and argued that “dispositive evidence” showed “the use of explosives and incendiaries” in the
2
All page numbers refer to the pagination generated by the Court’s CM/ECF filing system.
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building. Id. ¶ 113. The relevant NIST Chief denied the request, see id. ¶ 114, as did the
Associate Director on appeal, see id. ¶ 117.
Plaintiffs then sued NIST, its Director, and the Secretary of Commerce (collectively, the
Secretary), arguing that NIST violated the Administrative Procedure Act and other federal laws
when it denied the request for correction. See generally Compl. Across ten claims, Plaintiffs
mainly assert that NIST failed in the Report to consider certain evidence or to make correct
scientific and methodological judgments. See generally id. Plaintiffs also allege that these
deficiencies violated the “spirit and purpose” of another federal law, id. ¶ 355, and that NIST
failed to conform to its own procedural regulations, see id. ¶¶ 362–70.
The Secretary moves to dismiss the Complaint on various grounds, including under Rule
12(b)(1) for lack of standing. See MTD, ECF No. 17-1. That motion is now ripe for decision.
II.
“[T]here is no justiciable case or controversy unless the plaintiff has standing.” West v.
Lynch, 845 F.3d 1228, 1230 (D.C. Cir. 2017). As the parties seeking federal jurisdiction,
Plaintiffs bear the burden to show standing. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992). They “must show (1) [they have] suffered a concrete and particularized injury (2) that is
fairly traceable to the challenged action of the defendant[s] and (3) that is likely” redressable by
a favorable decision from the Court. EPIC v. Pres. Advisory Comm’n on Election Integrity, 878
F.3d 371, 377 (D.C. Cir. 2017) (cleaned up).
When ruling on a motion to dismiss under Rule 12(b)(1), the Court “assume[s] the truth
of all material factual allegations in the complaint and construe[s] the complaint liberally,
granting [the] plaintiff the benefit of all inferences that can be derived from the facts alleged.”
Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (cleaned up). The Court “may
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consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack
of jurisdiction.” Cal. Cattlemen’s Ass’n v. U.S. Fish and Wildlife Serv., 315 F. Supp. 3d 282,
285 (D.D.C. 2018) (cleaned up). And the Court treats any documents attached to the
Complaint—like Plaintiffs’ three declarations attached to this Complaint—“as if they are part of
the complaint.” In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005).
III.
Plaintiffs allege that they have informational standing. See Opp’n to MTD at 16, ECF
No. 19 (Opp’n). To have informational standing, Plaintiffs must suffer an informational injury.
For that, they must allege (1) that they “[have] been deprived of information” that a statute
requires NIST to disclose; and (2) that they suffer, “by being denied access to that information,
the type of harm Congress sought to prevent by requiring disclosure.” Friends of Animals v.
Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016). Any informational injury still must meet the
traceability and redressability prongs of the traditional standing analysis. See FEC v. Akins, 524
U.S. 11, 25 (1998).
Architects also alleges that it has organizational standing. Organizations must meet the
same three requirements as individuals—injury, traceability, and redressability. See ASPCA v.
Feld Ent’mt, 659 F.3d 13, 24 (D.C. Cir. 2011).
A.
Before applying those principles, however, consider the caselaw previewed above.
Suffice it to say, Plaintiffs are familiar with dismissals for lack of standing.
In Lawyers Committee for 9/11 Inquiry v. Wray, a provision in an appropriations bill
directed the FBI to review recommendations proposed by the 9/11 Commission. See 424 F.
Supp. 3d 26, 28 (D.D.C. 2020) (Lawyers’ Comm. I). Represented by the same attorneys as here,
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the plaintiffs there included Architects and one of this case’s individual Plaintiffs. See id. They
alleged that the Bureau broke the law when it failed to report to Congress about evidence that
pre-placed explosives had collapsed the Twin Towers. See id. at 29. The plaintiffs alleged that
they had informational standing from the FBI’s failure to report and that Architects had
organizational standing. See id. at 30.
This Court held that the plaintiffs lacked informational standing because the
appropriations provision did not “mandate the disclosure of any information.” Id. at 31 (cleaned
up). They therefore failed the first requirement for an informational injury. See id. The Court
also found no organizational standing. Architects suggested multiple injuries, including a
financial interest in a State Department award, expenses for studies and presentations to rebut the
Bureau’s report, and expenses to fight defamation of the group by agencies. See id. at 33. The
Court found that these harms stemmed from the deprivation of information, meaning their
viability “depend[ed] on the existence of an informational harm,” which Architects had not
shown. Id. at 34. And their resource expenditures were for litigation and advocacy not
cognizable for organizational standing. See id. at 35. The Court thus dismissed the complaint.
See id.Plaintiffs appealed and the D.C. Circuit affirmed. See Lawyers’ Comm. for 9/11 Inquiry
v. Wray, 848 F. App’x 428, 431 (2021) (per curiam) (Lawyers’ Comm. II). The Circuit held that
the appropriations provision said “nothing about disclosure,” and thus did not confer a right to
information. Id. at 430. The Circuit also affirmed this Court’s holding that the theories of
organizational standing were “part and parcel of the alleged informational injury and thus fail
with it.” Id. at 431 (cleaned up). But in any event, those theories failed the standing analysis.
See id.6
Finally, Architects and two of this case’s individual Plaintiffs sued in Lawyers’
Committee for 9/11 Inquiry v. Barr, No. 19 Civ. 8312, 2021 WL 1143618, at *1 (S.D.N.Y. Mar.
24, 2021), objecting to the U.S. Attorney’s Office’s inaction to a petition they filed about alleged
federal crimes on 9/11. See id. at *1. The plaintiffs asked the court to order the Office to present
the evidence in the petition to a grand jury. See id. at *3. Of relevance here, the court dismissed
three claims because the relevant statute did not grant a private right sufficient for standing nor
did the other asserted injuries—including a reward from the State Department and efforts to
combat alleged defamation—meet the requirements for standing. See id. at *6–*8.
B.
Plaintiffs’ arguments fare no better here and indeed repackage unsuccessful arguments
from those earlier cases.
For starters, they again rely on assertions of informational injury. For instance, the
relatives of 9/11 victims say that they might reach “closure” if they had “a more complete picture
of what happened on 9/11.” Compl. ¶ 46. This case will allow that closure, they say, “[i]f NIST
is required to correct its WTC 7 Report.” Id. ¶ 53. In other words, NIST’s allegedly incorrect
information keeps them from emotional closure. Likewise for the individual architects and
engineers, who “have suffered a special information injury,” Opp’n at 22, because NIST’s
alleged mistakes in the Report have “significantly eroded” their “trust in the research and
publishing institutions involved,” Compl. ¶ 67. That alleged injury stems, as for the 9/11
relatives, from the information published by NIST. Architects is clearest of all Plaintiffs on its
informational injury—the Report “was more harmful to AE’s mission than would have been the
case if NIST [had] issued no report at all.” Compl. ¶ 22; see also Opp’n at 21 (asserting that the
Report “denied [Architects] and the other plaintiffs critically important information affecting
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their individual and organizational interests”). So Plaintiffs come again to this Court with
informational injuries.
And yet again, they identify no statute that requires the proposed disclosures. Consider
first the IQA. By its terms, that statute required OMB to issue guidance and then other agencies
to do likewise. See 44 U.S.C. § 3516 note. Nowhere does it require disclosure of information,
so Plaintiffs fail the first prong for informational standing. Other courts agree. See Salt Inst. v.
Leavitt, 440 F.3d 156, 159 (4th Cir. 2006); Single Stick, Inc. v. Johanns, 601 F. Supp. 2d 307,
316 (D.D.C. 2009), aff’d in relevant part on other grounds sub nom. Prime Time Int’l Co. v.
Vilsack, 599 F.3d 678 (D.C. Cir. 2010).
To Plaintiffs’ credit, they do not argue otherwise. They instead point to the National
Construction Safety Act (NCST Act), 15 U.S.C. §§ 7301–7313, arguing that it “supplies the
basis” for their standing “[w]hether or not” the IQA does. Opp’n at 21.
Passed in 2002, the NCST Act authorizes deployment of a NIST team after a building
collapse “that has resulted in substantial loss of life.” 15 U.S.C. § 7301(a). After an
investigation, the team must issue a public report including “an analysis of the likely technical
cause” of the collapse. Id. § 7307(1). The report also must contain the team’s recommendations
for (1) improvements to building standards, (2) changes to evacuation procedures; and (3) areas
of further research. See id. § 7307(2)-(4). Any information submitted or received by the team
“shall be made available to the public on request,” but with some restrictions. Id. § 7306(a). The
Act shields from disclosure any information exempt under FOIA. See id. § 7306(b)(1). More,
the agency may withhold information when the NIST Director finds that disclosure “might
jeopardize public safety.” Id. § 7306(d).
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Plaintiffs’ theory is that NIST violated the NCST Act not because it failed to release a
report, but because the WTC 7 Report was “at best an unscientific sham[ ] and likely fraudulent.”
Opp’n at 21. That is not enough. To assert an informational injury, Plaintiffs must be “deprived
of information” required to be disclosed under the Act. Jewell, 828 F.3d at 992. Under its plain
terms, the NCST Act requires disclosure only of a report on the technical cause of the collapse,
among other things. See 15 U.S.C. § 7307. Plaintiffs admit that NIST complied with that
requirement when it released the WTC 7 Report. See Compl. ¶ 89. That admission means that
regardless of the Report’s accuracy, NIST has disclosed all information required by the statute.
As to the Report itself, then, Plaintiffs fail the first requirement for an informational injury.
So too for any information examined by NIST but not included in the final Report. At
various points, Plaintiffs allege that NIST should “make public all of its WTC 7 computer
modeling(s),” id. ¶ 370(D), and other “withheld evidence” that the team apparently examined,
Opp’n at 25. To be sure, the NCST Act requires this information to be available to the public
“on request.” See 15 U.S.C. § 7306(a). Based on that requirement, Plaintiffs say that the NCST
Act requires disclosure of the computer models and other evidence used by NIST. 3
The problem is that under the Act NIST may disclose only information not otherwise
exempt under FOIA. See id. § 7306(b)(1). Thus, Plaintiffs must use FOIA requests to obtain
any investigation information not in the public Report, including the computer models. The
NCST Act includes no other request procedure. See Cole v. Copan, No. 19-cv-1182, 2020 WL
7042814 (D.D.C. Nov. 30, 2020); see also Cole v. Copan, 485 F. Supp. 3d 243, 253 (D.D.C.
2020) (upholding under FOIA the nondisclosure of WTC investigation information that the NIST
3
Plaintiffs never explicitly make this argument, but the Court infers it from Plaintiffs’ focus on
the NCST Act as “the basis” for their standing, Opp’n at 21, and multiple statements in their
brief objecting to the withholding of NIST’s modelling data.
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Director determined would jeopardize public safety if disclosed). Indeed, at least one Plaintiff
has filed such requests. See Compl. ¶¶ 58–60.
Plaintiffs fail the first prong as to this information if FOIA is their only recourse. FOIA
“does not require the disclosure of any specific information to anyone,” Pub. Citizen Health
Rsch. Grp. v. Pizzella, 513 F. Supp. 3d 10, 20 (D.D.C. 2021), and therefore FOIA alone does not
help Plaintiffs clear the first hurdle for informational standing, see EPIC v. USPS, No. 21-cv-
2156, 2022 WL 888183, at *3 (D.D.C. Mar. 25, 2022). The NCST Act neither references nor
incorporates any other disclosure regime or requirement.
Plaintiffs counter that the Court must “adopt Plaintiffs’ interpretation” of the relevant
statutes. Opp’n at 17. True enough, the Circuit says that a plaintiff must merely allege that “it
has been deprived of information that, on its interpretation, a statute requires the government” to
disclose. Jewell, 828 F.3d at 992 (emphasis added). But Plaintiffs disregard their prior appeal
where the Circuit clarified that a “plaintiff’s reading of a statute for informational standing
purposes must at least be plausible.” Lawyers Comm. II, 848 F. App’x at 430. Plaintiffs cannot
avoid the first step by merely “asserting that a statute creates a cognizable interest in
information.” Id. (cleaned up). And as the Court has described, the text of the NCST Act makes
Plaintiffs’ reading here implausible.
In sum, Plaintiffs have not shown an informational injury. 4 NIST issued the report
required by the NCST Act, and any other disclosure requirement in that Act runs through FOIA,
which does not meet the first step for an informational injury.
4
One claim might not be informational, but it still fails. Count X alleges that NIST’s denial of
the request for correction violated NIST guidelines for those corrections. See Compl. ¶¶ 362–69.
Even so, that procedural error cannot confer standing absent some underlying concrete harm.
See Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009). Plaintiffs identify no injury
beyond the deficient informational one.
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C.
Now for organizational standing. Architects puts forward similar theories of
organizational standing as in Lawyers’ Committee I. First, it claims to have a “financial interest
at stake” because it applied for an award under the State Department’s Rewards for Justice
Program. Opp’n at 32. That program provides rewards to individuals who provide information
that leads to the arrest or conviction of terrorists. See 22 U.S.C. § 2708(a)(3). Architects
believes that its application “would likely be successful” if NIST publishes a corrected report.
Id. Second, Architects asserts that, because of the inaccuracies in the Report, it spent its own
resources on a study about the collapse of WTC 7. See id. at 30–31.
As before, these theories “are part and parcel of the alleged informational injury and thus
fail with it.” Lawyers’ Comm. II, 848 F. App’x at 431 (cleaned up). Each alleged harm stems
from NIST’s failure to disclose the correct information. Indeed, Architects admits that “had
NIST issued a report” with the right information, the engineering study “would have been
unnecessary.” Compl. ¶ 19. And any successful application to the State Department hinges on
“a correction to [NIST’s] WTC 7 Report.” Opp’n at 32. So Architects yet again claims to have
suffered harm “because [NIST] deprived [it] of information[.]” Lawyers Comm. I, 424 F. Supp.
3d at 34. “The viability of these other alleged harms thus depends on the existence of an
informational harm[,]” which Architects has not shown. Id.
In any event, these theories fail even if they do not depend on the informational injury.
The D.C. Circuit has already rejected the argument that the State Department program provides
standing. Such a claim “rests on layers of speculation—that [NIST’s] disclosure of additional
evidence would lead to the prosecution of terrorists, which in turn would cause the State
Department to exercise its discretion to provide [Architects] an award.” Lawyers’ Comm. II, 848
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F. App’x at 431. This theory of standing “fails at the redressability prong.” 5 Lawyers’ Comm. I,
424 F. Supp. 3d at 34.
The engineering study theory is likewise recycled. Architects made the same argument
before this Court in Lawyers’ Comm. I. See id. at 35. The response there holds here. Use of
resources for “advocacy is not sufficient to give rise to an Article III injury.” Food & Water
Watch, Inc. v. Vilsack, 808 F.3d 905, 919 (D.C. Cir. 2015). The point of the study here “seems
to be advocacy—shedding light on what [Architects] believe[s] were the true causes of the
September 11 attacks.” Lawyers’ Comm. I, 424 F. Supp. 3d at 35. Indeed, the CEO of
Architects affirms that the study intended to “publicly critique” NIST’s report, Decl. of Ronald
Angle ¶ 11, ECF No. 14-1, and to “educate the public regarding the errors in NIST’s findings,”
id. ¶ 12. Those are classic descriptions of advocacy activities.
The Court need not rely, however, on its own reasoning. The D.C. Circuit also rejected
this argument on appeal, saying the study expenses “cannot plausibly be said to flow from the
claimed unlawful conduct; they were instead a self-inflicted budgetary choice that cannot qualify
as an injury in fact.” Lawyers’ Comm. II, 848 F. App’x at 431 (cleaned up). So too here.
Architects responds by pointing to PETA v. USDA, 797 F.3d 1087 (D.C. Cir. 2015).
There, the D.C. Circuit held that PETA, an animal-welfare organization, had standing to sue
USDA over its failure to issue guidelines about treatment of birds. See id. at 1091. Under the
applicable statute and regulations, the lack of guidelines meant (1) that PETA could not file
complaints with USDA about bird mistreatment and (2) that USDA “was not creating bird-
5
Architects cites dicta from Sargent v. Dixon, 130 F.3d 1067, 1070 (D.C. Cir. 1997), to suggest
that the possibility of reward gives them standing. See Opp’n at 32–33. The Court rejected this
argument in the earlier case and does so again here for the same reasons. See Lawyers’ Comm. I,
424 F. Supp. 3d at 34–35; see also Barr, 2021 WL 1143618, at *8 (rejecting the same argument).
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related inspection reports that PETA could use to raise public awareness.” Id. The Circuit held
that those two consequences were concrete enough to create an injury in fact. See id. at 1095.
Architects says that this case and PETA are “analogous.” Opp’n at 24. The Court
disagrees. As stated, Architects has not shown that the Secretary’s actions caused a “denial of
access” to information to which Plaintiffs were entitled. PETA, 797 F.3d at 1095. Indeed, NIST
has released all information required by the statutes at issue. And Architects never alleges that
NIST or the Department have closed off an avenue of redress the way that USDA did in PETA.
The two cases are not analogous. See Food & Water Watch, 808 F.3d at 921 (distinguishing
PETA on the same bases).
Architects fares no better when it says that this case, like PETA, involves “withholding
information vital to a non-profit organization’s mission.” Opp’n at 23. Recall that the agency in
PETA did withhold information, unlike the Secretary here. At bottom, then, Architects says only
that it could not pursue its mission thanks to the Secretary’s conduct. That is not enough for
injury in fact. See CREW v. U.S. Off. of Special Counsel, 480 F. Supp. 3d 118, 129 (D.D.C.
2020).
More, the Court sees no conflict or impairment. The mission of Architects is “to
establish the full truth surrounding the events of [9/11],” Compl. ¶ 10, by presenting evidence
that “pre-placed explosives” destroyed the buildings on that day, see id. ¶ 12. Architects has
pursued that mission since its founding in 2006, before the WTC 7 Report. See id. ¶ 9. Any
attempt to re-examine or critique that report—which does not blame explosives—thus falls into
what Architects must do to promote its self-proclaimed mission. Indeed, if education of the
public about 9/11 includes technical evidence that explosives caused the collapses, Architects
would flout that mission if it let the WTC 7 Report pass without critique. So, based on
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Architects’ own admission, its challenge of the Report advances the organization’s mission
rather than hinders it.
IV.
Plaintiffs have shown no reason for this Court to contradict the three decisions that have
come before. As in those cases, Plaintiffs lack standing for their claims. The Court will
therefore grant the Secretary’s motion to dismiss. A separate order will issue.
2022.08.02
07:47:09 -04'00'
Dated: August 2, 2022 TREVOR N. McFADDEN, U.S.D.J.
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