United States District Court, District of Columbia
MEMORANDUM OPINION [DKT. # 17]
RICHARD J. LEON UNITED STATES DISTRICT JUDGE
American Oversight ("plaintiff) seeks expedited review
of its Freedom of Information Act ("FOIA") request
to the Department of Justice ("DOJ" or "the
Department") for records concerning Noel Francisco,
Solicitor General of the United States ("General
Francisco" or "Francisco"). Before the Court
is Plaintiffs Motion for Partial Summary Judgment [Dkt. #17].
For the reasons that follow, the Court will
DENY the Motion.
March 7, 2017, President Donald J. Trump announced his
intention to nominate Noel J. Francisco as Solicitor General
of the United States. See Part. Mot. for Summ. J.
("MSJ"), Ex. 1, at 1-2 [Dkt. 17-3]. At the time,
Francisco was serving as Acting Solicitor General.
See PL's Statement of Material Facts as to Which
There is No. Dispute ("PL's Statement of Undisputed
Material Facts") ¶ 1 [Dkt. # 17-9]. Prior to
January 20, 2017, Francisco had been a partner at the Jones
Day law firm in Washington, D.C. See Id. ¶ 2.
Acting Solicitor General, Francisco noticed his appearance in
a case filed in the Ninth Circuit challenging an executive
order issued by President Trump regarding the so-called
"travel ban" of certain aliens into the United
States. See Washington v. Trump, No. 17-35105, ECF
No. 4 (9th Cir. Feb. 4, 2017). See Id. ¶ 3. Two
days later, General Francisco's former firm, Jones Day,
entered the case as an amicus opposed to the Government's
position. See Id. ¶ 4. That afternoon, the
Government filed its Reply brief Id.¶S. The
Government's brief stated in a footnote that Francisco
had "refrained from signing the brief, out of an
abundance of caution, in light of a last-minute filing of an
amicus brief by [his] former law firm." Id.
(quoting Reply Supp. Emergency Mot. Stay Pending Appeal,
Washington v. Trump, No. 17-35105, ECF No. 70, at *1
(9th Cir. Feb. 6, 2017)). General Francisco did not, however,
withdraw from the case, and went on to sign subsequent
filings. See Id. ¶ 8. He provided no further
explanation for his decision not to sign the Reply brief
before the Ninth Circuit panel. See Id. ¶¶
April 7, 2017, one month after the President's
announcement of Francisco's nomination as Solicitor
General, plaintiff filed the FOIA request that gives rise to
this case. Id. ¶ 11; see also 5 U.S.C.
§§ 552 et seq.; 28 C.F.R. pt.
Plaintiff seeks records concerning (i) General
Francisco's role in litigation surrounding the Trump
Administration's "travel ban, " and (ii) ethics
issues related to General Francisco's service in the
Office of Solicitor General. FAC, Ex. A, at
Plaintiff addressed its request to several offices within the
Department of Justice, including (i) the Office of
Information Policy ("OIP"); (ii) the Office of
Solicitor General; and (iii) the Civil Division. Id.
at l. The FOIA request runs nine pages in
length, and cites five media articles concerning Mr.
Francisco's nomination. See Id. at 6 & n.
18. By reason of "widespread and exceptional media
interest and . . . possible questions concerning the
government's integrity, which affect public confidence,
" the request seeks expedited processing of any
responsive documents. Id. at 7. In its briefing,
plaintiff explains that it submitted its FOIA request to
ascertain "Mr. Francisco's approach to ensuring his
conduct complied with ethical standards." MSJat 3.
denied plaintiffs request for expedited processing. The
Office of Information Policy, Office of Solicitor General,
and the Civil Division each sent American Oversight a letter
explaining their reasons for denial. [Dkt. ## 17-4, 17-5,
17-6]. In each letter, the responding office
explained that, pursuant to DOJ policy, it had referred the
request for expedited processing to the Director of the
Department's Office of Public Affairs, Sarah Isgur
Flores. Id. While Director Flores agreed that
plaintiffs request involved "a matter of widespread and
exceptional media interest, " id., she
concluded that plaintiffs request did not "pertain to
a matter 'in which there exist possible questions about
the government's integrity [that] affect public
confidence." Id. For this reason, plaintiffs
request for expedited review was denied. Id.
result, plaintiff filed the instant action on May 9, 2017,
[Dkt. #1], moving immediately for a preliminary injunction,
[Dkt. # 3]. Within weeks, on May 26, 2017, the Department
produced to plaintiff four documents responsive to its
request. See Notice of Production [Dkt. #12]. These
documents were emails granting General Francisco ethics
waivers to continue working on specific litigation matters;
three of the four pertained to the executive order litigation
referenced in American Oversight's FOIA request. See
Id. Following this disclosure, plaintiff withdrew its
motion for a preliminary injunction on May 30, 2017. [Dkt.
#13]. In its Partial Motion for Summary Judgment, however,
plaintiff still seeks expedited review of its FOIA request
pursuant to 5 U.S.C. § 552(a)(6)(E)(i)(iv), and that
provision's implementing regulation, 28 C.F.R. §
1996, Congress amended the Freedom of Information Act
("FOIA") to make available a path for expedited
process of certain requests. See Electronic Freedom
of Information Act Amendments of 1996 ("Electronic
FOIA"), Pub. L. No. 104-231, § 8, 110 Stat. 3048
(codified as amended in 5 U.S.C. § 552(a)(6)(E)).
Expedited requests will be "taken out of turn, " a
departure from the ordinary first-in, first-out practice of
processing FOIA petitions. See Revision of Freedom
of Information Act, 63 Fed. Reg. 29, 591, 29, 592 (June 1,
1998). In Electronic FOIA, Congress directed "[e]ach
agency" to "promulgate regulations, pursuant to
notice and receipt of public comment, providing for expedited
processing of requests for records" in two
circumstances: first, in "cases in which the person
requesting the records demonstrates a compelling need, "
id. § 552(a)(6)(E)(i)(I), and, second, in
"other cases determined by the agency, "
id. § 552(a)(6)(E)(i)(II).
to this statutory authority, the DOJ promulgated a regulation
specifying four circumstances in which expedited processing
would be permissible. See 28 C.F.R. §
16.5(e)(1)(i)-(iv). Subsection (iv) is the sole regulatory
provision at issue in this case. That subsection allows for
expedited processing of FOIA requests concerning "
[a] matter of widespread and exceptional media interest 
in which there exist possible questions about the
government's integrity  that affect public
confidence." Id. § 16.5(e)(1)(iv). In
issuing subsection (iv), the DOJ relied on its statutory
authority to "provide for expedited processing of
records ... in other cases to be determined by the agency,
" rather than its power to promulgate regulations in
cases of "compelling need." See Am. Civil
Liberties Union v. U.S. Dep't of Justice, 321
F.Supp.2d 24, 31 n.9 (D.D.C. 2004). The Department has
interpreted subsection (iv) to require that "the same
matter that draws widespread and exceptional media interest
must be the matter in which there exists possible questions
about the government's integrity that affect public
confidence." Decl. of Sarah Isgur Flores ¶ 6
("Flores Decl.") [Dkt. # 19-2]. DOJ regulations
provide that the Director of the Office of Public Affairs
("OPA") process requests relying on subsection
(iv), i.e., those involving "widespread and
exceptional media interest." See 28 C.F.R.
decisions whether to deny or grant a request for expedited
processing are subject to judicial review. See 5
U.S.C. § 552(a)(6)(E)(ii). Judicial review "shall be
based on the record before the agency at the time of the
determination." Id. The standard of judicial
review depends on the basis of the agency decision. See
Al-Fayed, 254 F.3d at 307 n.7. Courts apply de
novo review to regulations issued pursuant to Electronic
FOIA's "compelling need" prong. Id.
contrast, courts grant deference to regulations promulgated
pursuant to the second, discretionary prong, i.e.,
"cases determined by the agency." Id.; see
also 5 U.S.C. § 552(a)(6)(E)(i)(II). This is
because Congress' grant to the DOJ to determine cases in
which expedited processing is appropriate constitutes an
"express delegation of authority, " id.
(quoting United States v. Mead Corp.,533 U.S. 218,
227 (2001)), which, the Supreme Court tells us, renders
"any ensuing regulation ... binding in the courts unless