United States District Court, District of Columbia
CHRISTOPHER R. COOPER, United States District Judge
April 6, 2017, President Trump ordered Tomahawk cruise
missile strikes against a Syrian-government airbase. The next
day, The Protect Democracy Project, Inc. (“Protect
Democracy”) submitted requests under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, to
the Department of State, the Department of Defense, and three
separate components of the Department of Justice, seeking
documents relating to the President's legal authority to
launch the strikes. The organization also sought expedited
processing. About one month later, with none of the requested
documents and with two of its expedited processing requests
having been denied, Protect Democracy brought suit in this
Court. It then moved for a preliminary injunction, seeking to
compel all three agencies to process its requests on an
expedited basis, and to produce all responsive records by a
date certain. For the reasons that follow, the Court will
grant the former relief but deny the latter.
typically process FOIA requests in the order received, but
FOIA's “expedited processing” provision
recognizes that some requests are urgent enough to warrant a
spot towards the front of the line. 5 U.S.C. §
552(a)(6)(E). As relevant here, the statute directs that
requests should be expedited where the requester shows a
“compelling need” for the records sought,
id. § 552(a)(6)(E)(i)(I)-which is the case
where the requester is “primarily engaged in
disseminating information, ” and there is an
“urgency to inform the public concerning actual or
alleged Federal Government activity, ” id.
§ 552(a)(6)(E)(v). Once expedited, requests must be
“process[ed] as soon as practicable.”
Id. § 552(a)(6)(E)(iii). Agencies have
promulgated regulations implementing these provisions.
See 28 C.F.R. § 16.5(e) (DOJ expedited
processing regulations); 32 C.F.R. § 286.8(e) (DOD
regulations); 22 C.F.R. § 171.11(f) (State regulations).
Despite modest variations among the schemes, they are
materially the same: Each at a minimum implements the
“compelling need” standard. See 28
C.F.R. § 16.5(e)(1)(ii); 32 C.F.R. §
286.8(e)(1)(i); 22 C.F.R. § 171.11(f)(2).
April 7, 2017, the day after the U.S. conducted the
above-referenced military strikes against the Syrian
government, Protect Democracy sent FOIA requests to the
Department of State (“State”), the Department of
Defense (“DOD”), and three components of the
Department of Justice (“DOJ”): the Office of
Information Policy, which processes FOIA requests for the
Offices of the Attorney General and Deputy Attorney General;
the Office of Legal Counsel; and the National Security
Division. See Pl.'s Mem. Supp. Mot. Prelim. Inj.
(“MPI”), Exs. A-E. The identical requests sought:
Any and all records [from April 4, 2017 through the present],
including but not limited to emails and memoranda,
reflecting, discussing, or otherwise relating to the April 6,
2017 military strike on Syria and/or the President's
legal authority to launch such a strike. This request
includes, but is not limited to, internal [agency]
communications, communications between [agency] employees and
the Executive Office of the President, and communications
between [agency] employees and other agencies.
Pl.'s MPI, Ex. A, at 2. Protect Democracy also requested
expedited processing, pointing among other things to the
public's “immediate right to understand the
administration's position with respect to the legality of
the recent strike against Syria, and to assess whether that
position is justified.” Id. at 2-3. Citing its
website and 501(c)(3) status, the organization also noted
that its “request [was] submitted in consort with [its]
mission to gather and disseminate information that is likely
to contribute significantly to the public understanding of
executive branch operations and activities.”
Id. at 3-4.
the next several weeks, each of the DOJ components granted
Protect Democracy's requests for expedited processing.
See Pl.'s MPI, Exs. F & G; Defs.' Mem.
Opp'n Pl.'s MPI (“Defs.' Opp'n”),
Ex. 1. At the same time, the DOJ components had not conducted
even a preliminary search for relevant documents, and they
offered no estimated processing timeline. For example, OIP
indicated that it had “not yet completed a search to
determine whether there are records within the scope of [the]
request, ” and that the “time needed to process
[the] request [would] necessarily depend on the complexity of
our records search and on the volume and complexity of any
records located.” Pl.'s MPI, Ex. F. DOD and State,
on the other hand, denied the expedition requests,
summarizing the relevant regulations but not explaining how
Protect Democracy's request fell short of those
standards. See MPI, Exs. I & J.
8, roughly one month after submitting its requests, Protect
Democracy brought suit in this Court, alleging FOIA
violations. See Pl.'s Compl., ECF No. 1. Two
weeks after that, before Defendants had responded to the
Complaint, Protect Democracy moved for a preliminary
injunction that would “compel all Defendants to process
its FOIA requests on an expedited basis, and produce all
requested records (or acknowledge if there are no such
records)” within a date certain. Pls.' MPI 2.
Defendants opposed the motion, and the Court held a hearing.
[party] seeking a preliminary injunction must establish 
that he is likely to succeed on the merits,  that he is
likely to suffer irreparable harm in the absence of
preliminary relief,  that the balance of equities tips in
his favor, and  that an injunction is in the public
interest.” Aamer v. Obama, 742 F.3d 1023, 1038
(D.C. Cir. 2014) (alteration in original) (quoting
Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir.
2011)). “[I]t is especially important for the movant to
demonstrate a likelihood of success on the merits.”
Nat'l Head Start Ass'n v. U.S. Dep't of
Health & Human Servs., 297 F.Supp.2d 242, 246
(D.D.C. 2004) (citing Davenport v. Int'l Bhd. of
Teamsters, 166 F.3d 356, 360, 366 (D.C. Cir. 1999)). A
preliminary injunction is an “extraordinary”
remedy, and so “should not be granted unless the
movant, by a clear showing, carries the burden of
persuasion.” Mazurek v. Armstrong, 520 U.S.
968, 972 (1997) (per curiam) (emphasis in original) (quoting
11A C. Wright, A. Miller, & M. Kane, Federal Practice and
Procedure § 2948 (2d ed. 1995)).
brought under FOIA, preliminary injunction motions generally
present one of two questions. First, has the relevant agency
appropriately denied a request for expedited processing?
See, e.g., Progress v. Consumer Fin. Prot.
Bureau, No. 17-686, 2017 WL 1750263 (D.D.C. May 4,
2017); Wadelton v. Dep't of State, 941 F.Supp.2d
120 (D.D.C. 2013); Landmark Legal Found. v. EPA, 910
F.Supp.2d 270 (D.D.C. 2012). Second, assuming a request
should be expedited, is the agency processing it as quickly
as “practicable, ” 5 U.S.C. §
552(a)(6)(E)(iii)? See, e.g., Daily Caller v.
U.S. Dep't of State, 152 F.Supp.3d 1 (D.D.C. 2015);
Elec. Privacy Info. Ctr. v. Dep't of Justice,
416 F.Supp.2d 30 (D.D.C. 2006). Protect Democracy's
motion implicates both questions. The Court will evaluate
each in turn, according to the four preliminary injunction
Whether Processing ...