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American Oversight v. U.S. Department of Justice

United States District Court, District of Columbia

February 20, 2018


          MEMORANDUM OPINION [DKT. # 17]


         Plaintiff 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.


         On 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.

         As 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. ¶¶ 8-9.

         On 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. 16.[1] 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 2-3.[2] 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.[3] 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.

         The DOJ 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].[4] 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.

         As a 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. § 16.5(e)(1)(iv).


         In 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).

         Pursuant to this statutory authority, the DOJ promulgated a regulation specifying four circumstances in which expedited processing would be permissible.[5] 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 "[1] [a] matter of widespread and exceptional media interest [2] in which there exist possible questions about the government's integrity [3] 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. § 16.5(e)(2).[6]


         Agency 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).[7] 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.

         By 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 ...

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