Citizens for Responsibility and Ethics in Washington v. U.S. Department of Justice ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
CITIZENS FOR RESPONSIBILITY )
AND ETHICS IN WASHINGTON, )
)
Plaintiff, )
) Civil Action No. 19-1552 (ABJ)
v. )
)
U.S. DEPARTMENT OF JUSTICE, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”) has brought this
action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against the United States
Department of Justice (“DOJ”), seeking the production of documents that Attorney General
William Barr may have reviewed in advance of his public announcement concerning the report
transmitted to him by Special Counsel Robert Mueller. Compl. [Dkt. # 1] ¶¶ 1–2. The complaint
contains two counts: the first alleges wrongful withholding of non-exempt records, and the second
requests a declaration from the Court, pursuant to 28 U.S.C. §§ 2201 and 2202, that DOJ violated
FOIA by refusing to grant expedited processing of its request. Id. at ¶¶ 23, 20.
Pending before the Court is defendant’s partial motion to dismiss. Def.’s Partial Mot. to
Dismiss [Dkt. # 5] (“Def.’s Mot.”); Mem. in Supp. of Def.’s Partial Mot. to Dismiss [Dkt. # 5-1]
(“Def.’s Mem.”). DOJ argues that Count II should be dismissed because CREW failed to exhaust
administrative remedies before filing the claim concerning expedition, and because the claim fails
on the merits. Def.’s Mem. at 1–2. Plaintiff filed an opposition, Pl.’s Mem. in Opp. to Def.’s
Partial Mot. to Dismiss [Dkt. # 6] (“Pl.’s Opp.”), and defendant replied. Def.’s Reply Mem. in
Support of Def.’s Partial Mot. to Dismiss [Dkt. # 8] (“Def.’s Reply”). The Court finds that
administrative exhaustion was not required, so the claim should not be dismissed. And based on
a review of the pleadings, the expedited processing request, and DOJ’s denial, 1 it finds that DOJ’s
denial was not the product of reasoned decision making. Therefore, defendant’s partial motion to
dismiss will be denied.
BACKGROUND
CREW is a “non-profit, non-partisan organization . . . committed to protecting the rights
of citizens to be informed about the activities of government officials and agencies.” Compl. ¶ 4.
It alleges that on April 18, 2019, Attorney General Barr held a press conference in advance of the
public release of the Report (the “Report”) prepared by Special Counsel Mueller on the
investigation into Russian interference in the 2016 election. Id. ¶ 13. During that conference,
Attorney General Barr “stated ‘that the evidence developed by the Special Counsel is not sufficient
to establish that the President committed an obstruction-of-justice offense.’” Id. at 4, quoting
Attorney General Barr’s remarks.
Later that day, CREW submitted a FOIA request to DOJ’s Office of Legal Counsel
(“OLC”) seeking “all documents pertaining to the views OLC provided Attorney General Barr on
whether the evidence developed by Special Counsel Mueller is sufficient to establish that the
President committed an obstruction-of-justice offense.” Compl. ¶ 14. CREW also sent a request
for expedited processing to DOJ’s Office of Public Affairs (“OPA”). Id. ¶ 17. On April 26, 2019,
1 A document outside the complaint may be considered on a motion to dismiss if it is
“referred to in the complaint and integral to” the plaintiff’s claim. Kaempe v. Myers, 367 F.3d
958, 965 (D.C. Cir. 2004). All documents referred to by exhibit number in this opinion were
attached to defendant’s partial motion to dismiss, and specifically referenced in the complaint.
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DOJ informed CREW that OPA had denied the request for expedited processing by stating that
“CREW’s FOIA request is not a matter in which there exist possible questions about the
government’s integrity that affect public confidence.” Id. DOJ also notified CREW that it would
be unable to comply with the 20-day deadline to respond to the FOIA request and would respond
“as soon as practicable.” Id. ¶ 18.
CREW filed the instant complaint on May 28, 2019.
LEGAL STANDARD
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal,
the Supreme Court reiterated the two principles underlying its decision in Twombly: “First, the
tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable
to legal conclusions.” Iqbal, 556 U.S. at 678. And “[s]econd, only a complaint that states a
plausible claim for relief survives a motion to dismiss.” Id. at 679, citing Twombly, 550 U.S.
at 556.
A claim is facially plausible when the pleaded factual content “allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Id. A pleading must offer more than
“labels and conclusions” or a “formulaic recitation of the elements of a cause of action,” id.,
quoting Twombly, 550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
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In evaluating a motion to dismiss under Rule 12(b)(6), a court must “treat the complaint’s
factual allegations as true and must grant plaintiff ‘the benefit of all inferences that can be derived
from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)
(internal citation omitted), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979);
see also Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011), quoting Thomas v.
Principi, 394 F.3d 970, 972 (D.C. Cir. 2005). Therefore, when considering a motion to dismiss, a
court must construe a complaint liberally in the plaintiff’s favor. Kowal v. MCI Commc’ns Corp.,
16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the court need not accept inferences drawn by
the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the
court accept plaintiff’s legal conclusions. Id.; see also Browning v. Clinton, 292 F.3d 235, 242
(D.C. Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may
ordinarily consider only “the facts alleged in the complaint, documents attached as exhibits or
incorporated by reference in the complaint, and matters about which the Court may take judicial
notice.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), citing EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997).
ANALYSIS
I. Expedited Processing
The Freedom of Information Act, 5 U.S.C. § 552, requires agencies to make requested
records available to the public unless one or more specific statutory exemptions applies, and
charges agencies to “determine within 20 days . . . whether to comply with such request.” Id.
§ 552(a)(6)(A)(i). The statute also requires that “each agency shall promulgate regulations . . .
providing for expedited processing of requests for records – (I) in cases in which the person
requesting the records demonstrates a compelling need; and (II) in other cases determined by the
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agency.” Id. § 552(a)(6)(E)(i). The statute specifies that “compelling need” means, “with respect
to a request made by a person primarily engaged in disseminating information, urgency to inform
the public concerning actual or alleged Federal Government activity.” Id. § 552(a)(6)(E)(v)(II).
Agencies must respond to expedited requests within 10 days. Id. § 552(a)(6)(E)(ii)(I).
In accordance with this provision, DOJ promulgated rules setting forth the circumstances
that would warrant the expedited processing of FOIA requests, including “whenever it is
determined that they involve . . . (iv) [a] matter of widespread and exceptional media interest in
which there exist possible questions about the government’s integrity that affect public
confidence.” 28 C.F.R. § 16.5(e)(1).
II. Administrative exhaustion was not required to bring Count II.
FOIA establishes a procedure through which a requestor may appeal an adverse decision
made by an agency regarding a FOIA request, and a plaintiff must exhaust those administrative
remedies before it can bring an action to enforce its rights under FOIA in federal court. See 5
U.S.C. § 552(a)(6)(C)(i); Citizens for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180, 182
(D.C. Cir. 2013) (“[A] FOIA requestor must exhaust administrative appeal remedies before
seeking judicial redress.”); Hidalgo v. FBI, 344 F.3d 1256, 1258–59 (D.C. Cir. 2003) (holding that
each FOIA requestor must exhaust administrative remedies before filing suit); Oglesby v. United
States Dept. of the Army, 920 F.2d 57, 65 (D.C. Cir. 1990) (“[F]oregoing an administrative appeal
will preclude the requester from ever bringing suit on that request because the individual will not
have exhausted his administrative remedies[.]”).
However, FOIA uses different language in the provision relating to denials of requests for
expedited processing: “[a]gency action to deny or affirm denial of a request for expedited
processing . . . shall be subject to judicial review.” 5 U.S.C. § 552(a)(6)(E)(iii) (emphasis added).
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While the D.C. Circuit has not spoken on the matter, courts in this district have interpreted that
language to relieve plaintiffs of the exhaustion requirement when appealing a denial of expedited
processing. See, e.g., ACLU v. U.S. Dep’t of Justice, 321 F. Supp. 2d 24, 28 (D.D.C. 2004) (“FOIA
. . . specifically authorizes judicial review for challenges to ‘[a]gency action to deny or affirm
denial of a request for expedited processing’”), quoting 5 U.S.C. § 552(a)(6)(E)(iii); Elec. Privacy
Info. Ctr. v. Dep’t of Defense, 355 F. Supp. 2d 98, 100 n.1 (D.D.C. 2004) (“Plaintiff is not required
to pursue an administrative appeal before seeking judicial review of its request for expedited
processing of a FOIA request.”); Al-Fayed v. CIA, No. 00-2092, U.S. Dist. LEXIS 21476, at *7
(D.D.C. Sept. 20, 2000) (holding that FOIA language “clearly indicates that judicial review is
appropriate at either of two moments: when the agency has denied a request for expedited
processing, or when the agency has, upon administrative appeal, affirmed the denial of such a
request”).
The Court finds these opinions to be persuasive. Their reading of the statute is consistent
with the purpose underlying the provision that makes expedited review available, and the express
Congressional acknowledgment that time may be of the essence for certain requests. “Compelling
need,” for example, includes situations when “failure to obtain requested records on an expedited
basis . . . could reasonably be expected to pose an imminent threat to life or physical safety of an
individual[,]” and it should also be found when a requestor “is primarily engaged in disseminating
information, urgency to inform the public concern actual or alleged Federal Government activity.”
5 U.S.C. § 552(a)(6)(E)(v). To require a requestor who has been denied expedited processing to
exhaust administrative remedies before seeking judicial review would defeat the section’s aim of
accelerating response time.
For these reasons, the Court will deny the motion to dismiss on exhaustion grounds.
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III. DOJ’s denial of CREW’s expedited request was not reasonable.
Turning to the question of whether DOJ properly denied CREW’s request for expedition,
the Court finds that OPA’s mere recitation of the language in the DOJ provision on expedited
review does not suffice as a reasoned explanation for its denial of CREW’s request.
In accordance with the statutory directive that it do so, see 5 U.S.C. § 552(a)(6)(E)(i), DOJ
promulgated regulations governing requests for expedited processing under FOIA. Using
mandatory language, it requires that “[r]equests . . . shall be processed on an expedited basis
whenever it is determined that they involve” a number of enumerated circumstances. 28 C.F.R.
§ 16.5(e)(1) (emphasis added). One of those circumstances is when the request involves 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 Al Fayed v. CIA, a case involving a British magazine’s request for expediated
processing of records pertaining to the car crash that killed Princess Diana and others, the D.C.
Circuit considered the standard that should be applied when undertaking the review of an agency’s
application of its own regulations implementing FOIA, and it found the review of agency action
under the Administrative Procedure Act to be analogous. 254 F.3d 300, 302, 307 n. 7 (D.C.
Cir. 2001). Citing principles developed in that context, the Court of Appeals held that a decision
based on a regulation promulgated by an agency, as opposed to a statutory provision, “is entitled
to judicial deference . . . as is each agency’s reasonable interpretation of its own such regulations.”
Id. at 307 n.7, citing United States v. Mead Corp., 533 U.S. 218, 226–27 (2001); United States v.
Cleveland Indians Baseball Co., 532 U.S. 200, 219 (2001).
Applying the well-established principles governing APA review, then, the Court
recognizes that deference should be accorded to an agency’s application of its own regulations,
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even when the reasoning is “of less than ideal clarity if the agency’s path may reasonably be
discerned.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29,
43 (1983). But that does not mean that the Court has no say in the matter; as the Supreme Court
has emphasized, “courts retain a role, and an important one, in ensuring that agencies have engaged
in reasoned decisionmaking.” Judulang v. Holder, 565 U.S. 42, 53 (2011). Thus, in this context
as in others, an agency is required to offer an adequate explanation for its actions so that a court is
able to “evaluate the agency’s rationale at the time of the decision.” Pension Benefit Guar. Corp.
v. LTV Corp., 496 U.S. 633, 654 (1990). Put simply, “the agency must explain why it decided to
act as it did.” Butte Cty. v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010). And, pursuant to the FOIA
statute, judicial review of an agency’s decision to grant or deny a request for expedited processing
“shall be based on the record before the agency at the time of the determination.” 5 U.S.C. §
552(a)(6)(E)(iii).
Here, CREW provided the following justification for its request for expedited processing:
CREW seeks expedition because the subject matter of the request is of
widespread and exceptional media interest and the requested information
involves possible questions about the government’s integrity, which clearly
affect public confidence. Today Attorney General Barr took the
unprecedented step of holding a press conference in advance of his release
to Congress and the public of the Mueller Report. During that press
conference the Attorney General discussed his decision that President
Donald Trump had not obstructed the Special Counsel’s investigation,
which he explained was made “[a]fter carefully reviewing the facts and
legal theories outlined in the report.” He further stated that the OLC was
among those he had consulted before reaching his conclusion “that the
evidence developed by the Special Counsel is not sufficient to establish that
the President committed an obstruction-of-justice offense.
The Attorney General’s repeated efforts to spread misinformation about the
Mueller Report and its findings, particularly with respect to the issue of
whether President Trump obstructed justice, raise serious concerns that the
process undertaken by the Special Counsel has been tainted in an effort to
protect the President rather than the American public. The requested
records will shed light on the legality and reasonableness of the Attorney
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General’s conclusions and whether he was acting as a personal counsel for
the President or on behalf of the United States. Because the Attorney
General has so directly and significantly placed his hand on the scales of
justice in making and announcing his declination decision, the public
deserves to know the full basis for that decision.
CREW’s primary purpose is to inform and educate the public about the
activities of government officials and those who influence public officials.
Toward that end, CREW uses statutes like the FOIA to gather information
to hold public officials accountable. The request for which CREW seeks
expedition will further those goals.
Ex. 2 to Def.’s Mot. [Dkt. # 5-3] (“Expedition Request”) at 1–2.
The agency responded with a single sentence: “CREW’s FOIA request is not a matter in
which there exist possible questions about the government’s integrity that affect public
confidence.” 2 Since the agency did nothing more than parrot its own regulatory language, and
offered no reasoning or analysis, its decision, as in the APA context, is entitled to little deference.
See State Farm, 463 U.S. at 303 (explaining that while the scope of judicial review of agency
action is “narrow and a court is not to substitute its judgment for that of the agency[,]
[n]evertheless, the agency must . . . articulate a satisfactory explanation for its action including a
rational connection between the facts found and the choice made”) (internal citation omitted).
Neither FOIA nor the departmental regulations require the requester to prove wrongdoing
by the government in order to obtain documents on an expedited basis. The request must simply
provide grounds to support the contention that the matter is time sensitive, and that it is a “matter
2 In its briefing, DOJ expends considerable effort explaining why CREW’s request failed to
meet DOJ’s “media-related” standard for expedited processing under 28 C.F.R. § 16.5(e)(1).
While it is true that CREW provided nothing more than its own assertion that the matter was of
widespread public interest, DOJ’s belated objections on those grounds are misplaced. Since the
agency did not identify any deficiency in this regard as a basis for its decision, it cannot argue now
that its decision was appropriate based on some newly developed theory that was not stated in the
record before the Court for review.
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of widespread and exceptional media interest in which there exist possible questions about the
government’s integrity that affect public confidence.” 28 C.F.R. § 16.5(e)(1)(iv) (emphasis
added). Here, CREW stated in its request that the Attorney General of the United States had
mischaracterized some of the core conclusions contained in a report of great public significance,
written by the Department’s own duly appointed Special Counsel, in advance of its public release.
CREW’s submission supported an inference that at best, the Attorney General undertook to frame
the public discussion on his own terms while the report itself remained under wraps, and at worst,
that he distorted the truth. For these reasons, the request raised “possible questions” about
government integrity that could affect public confidence. And the disclosure of any material that
either influenced or contradicted those public statements could very well bear upon the resolution
of those questions. Since DOJ provided no explanation for its flat assertion to the contrary, it does
not stand up to judicial review.
CONCLUSION
For the foregoing reasons, the Court will deny defendant’s partial motion to dismiss
Count II. CREW may proceed with Counts I and II. A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: January 31, 2020
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