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Case TitleAMERICAN CENTER FOR LAW AND JUSTICE v. DEPARTMENT OF JUSTICE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2016cv02188
Date Filed2016-11-02
Date ClosedOpen
JudgeJudge Timothy J. Kelly
PlaintiffAMERICAN CENTER FOR LAW AND JUSTICE
Case DescriptionThe American Center for Law and Justice submitted a FOIA request to the Department of Justice for records concerning the meeting between former President Bill Clinton and Attorney General Loretta Lynch at the Phoenix Airport. ACLJ sent the same request to the FBI. The agency acknowledged both requests, but after hearing nothing further from the agency, ACLJ filed suit.
Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Litigation - Vaughn index, Litigation - Attorney's fees

DefendantDEPARTMENT OF JUSTICE
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Complaint attachment 7
Complaint attachment 8
Complaint attachment 9
Complaint attachment 10
Complaint attachment 11
Complaint attachment 12
Opinion/Order [28]
FOIA Project Annotation: Judge Timothy Kelly has ruled that the American Center for Law and Justice waived its ability to challenge the adequacy of the Justice Department's search for records concerning a June 2016 meeting between Bill Clinton and then Attorney General Loretta Lynch at the Phoenix Airport. Kelly has also provided perhaps the most thorough explanation of why talking points created for senior officials in responding to press inquiries qualify for protection under the deliberative process privilege. Kelly's decision also is a rather graphic illustration of how disjointed the government's approach to FOIA litigation can be since Judge Amit Mehta issued a ruling less than two weeks later involving the same parties on a much narrower set of records concerning the privileged status of talking points prepared for Lynch for the same incident. While Mehta was surprised that neither party had mentioned Kelly's on point decision, the fact that he was not informed by the government shows a typical disregard by the government of any attempt to coordinate its litigation efforts. ACLJ requested records concerning the Clinton-Lynch meeting in July 2016 and brought suit in November 2016 after DOJ failed to respond within the statutory time limit. In July and August 2017, the agency disclosed 413 pages to ACLJ with redactions made under Exemption 5 (privileges), Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records). The parties met and conferred to discuss the remaining issues. DOJ revised its redactions in two documents. ACLJ informed DOJ that it continued to contest DOJ's redactions under the deliberative process privilege and that it disputed the agency's segregability analysis. The parties signed and filed a September 27, 2017 Status Report. In its summary judgment motion, DOJ only addressed redactions to 11 documents, which it understood were the only documents still in dispute. However, ACLJ in its cross-motion sought to broaden the dispute, indicating that its opposition to the redactions in the 11 documents not only challenged the redactions, but also DOJ's alleged failure to actually segregate factual information from the redacted documents. It also challenged the adequacy of DOJ's search, explaining that since the September 27, 2017 status report ACLJ had received a document from another agency it believed should have been produced by DOJ. In its reply, DOJ provided additional information about its search and withholdings. ACLJ argued that the search was inadequate because the agency had used search terms that were too limited and had improperly narrowed the time frame of certain searches. Kelly found that ACLJ had waived its right to challenge the adequacy of the agency's search by indicating in the September 2017 status report that the only remaining issue was the agency's exemption claims. Kelly explained that "where sophisticated parties to a FOIA case have agreed to narrow the issues in a written status report, they generally may be held to their agreement under traditional waiver principles. . .Just as a party may agree to narrow the case during a pretrial conference, a FOIA plaintiff may agree to do so in a written status report. Having voluntarily narrowed the case to a set of agreed-upon issues, the plaintiff may be said to have waived the others." ACLJ claimed its agreement was void because of the document it had since received from another agency that DOJ had not produced. Kelly dismissed the claim, noting that "adequacy of the government's search is a potential issue in every FOIA case. ACLJ had every opportunity to discuss DOJ's search methodology with DOJ during the meet-and-confer process. And after meeting and conferring, ACLJ represented that it was not challenging DOJ's search." ACLJ's argument that talking points prepared for and used by Lynch to respond to press inquiries constituted the agency's final position was met with a lengthy explanation by Kelly of the role of talking points in agency decision-making. He pointed out that "this argument fails to appreciate the nature of talking points generally and the particular context surrounding the June 28 talking points. Talking points are typically documents 'prepared by [government] employees for the consideration of [government] decision-makers.' There may be some circumstances where 'talking points' are intended by agency decisionmakers to be followed literally such that they, in and of themselves, represent the agency's decision about what to say. But the 'final' version of talking points prepared by more junior staffers for a more senior official is rarely the final decision about what the senior official will say. Rather, a senior official " especially one as high-ranking as the Attorney General " may elect to use all, some, or none of the talking points prepared for her. Perhaps to the chagrin of their junior staffers, senior officials have a tendency to improvise. And even when senior officials do follow their talking points, they often do not recite them word-for-word. The particular factual context surrounding the June 28 talking points, which were written for Attorney General Lynch but concerned events she had personally witnessed, strongly suggests that the talking points were no more than advice from subordinates. The final decision was what Attorney General Lynch actually said to the media, which is, of course, already a matter of public record." Kelly further explained that "the talking points remain protected even though Attorney General Lynch followed them and even though they were repurposed for other press inquiries. A government employee drafting talking points to advise a senior official needs to know that her advice will remain privileged regardless of whether the official ultimately sticks to the script or decides to extemporize. It is accordingly of no moment that Attorney General Lynch ultimately 'stuck to the talking points' " the point is that she might not have. And given that talking points are typically used on the fly, it would rarely be the case that an official formally 'adopts' talking points simply by relying on them. . ." Kelly found that DOJ had not sufficiently explained why the privilege applied to two emails but agreed that factual information contained in the talking points could not be segregated because they were inextricably intertwined with deliberative materials.
Issues: Litigation - Jurisdiction - Failure to State a Claim, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2016-11-021COMPLAINT against DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-4729919) filed by AMERICAN CENTER FOR LAW AND JUSTICE. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Civil Cover Sheet, # 10 Summons, # 11 Summons, # 12 Summons)(Sekulow, Jay) (Entered: 11/02/2016)
2016-11-022NOTICE of Appearance by Jay Alan Sekulow on behalf of AMERICAN CENTER FOR LAW AND JUSTICE (Sekulow, Jay) (Entered: 11/02/2016)
2016-11-023LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by AMERICAN CENTER FOR LAW AND JUSTICE (Sekulow, Jay) (Entered: 11/02/2016)
2016-11-024NOTICE of Appearance by Stuart J. Roth on behalf of AMERICAN CENTER FOR LAW AND JUSTICE (Roth, Stuart) (Entered: 11/02/2016)
2016-11-025NOTICE of Appearance by Colby Mims May on behalf of AMERICAN CENTER FOR LAW AND JUSTICE (May, Colby) (Entered: 11/02/2016)
2016-11-026MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Craig L. Parshall, :Firm- American Center for Law and Justice, :Address- 201 Maryland Avenue, NE, Washington, DC 20002. Phone No. - 202-546-8890. Fax No. - 202-546-9309 Filing fee $ 100, receipt number 0090-4730078. Fee Status: Fee Paid. by AMERICAN CENTER FOR LAW AND JUSTICE (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Roth, Stuart) (Entered: 11/02/2016)
2016-11-027MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Matthew R. Clark, :Firm- American Center for Law and Justice, :Address- 201 Maryland Avenue, NE, Washington, DC 20002. Phone No. - 202-546-8890. Fax No. - 202-546-9309 Filing fee $ 100, receipt number 0090-4730125. Fee Status: Fee Paid. by AMERICAN CENTER FOR LAW AND JUSTICE (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Roth, Stuart) (Entered: 11/02/2016)
2016-11-028MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Benjamin P. Sisney, :Firm- American Center for Law and Justice, :Address- 201 Maryland Avenue, NE, Washington, DC 20002. Phone No. - 202-546-8890. Fax No. - 202-546-9309 Filing fee $ 100, receipt number 0090-4730161. Fee Status: Fee Paid. by AMERICAN CENTER FOR LAW AND JUSTICE (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Roth, Stuart) (Entered: 11/02/2016)
2016-11-02Case Assigned to Judge Richard J. Leon. (sb) (Entered: 11/02/2016)
2016-11-029SUMMONS (3) Issued Electronically as to DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Form)(sb) (Entered: 11/02/2016)
2016-11-1010RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 11/2/2016. Answer due for ALL FEDERAL DEFENDANTS by 12/2/2016. (May, Colby) Modified dates on 11/14/2016 (znmw). (Entered: 11/10/2016)
2016-11-1011RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 11/02/2016. (May, Colby) Modified date of service on 11/14/2016 (znmw). (Entered: 11/10/2016)
2016-11-1012RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF JUSTICE served on 11/2/2016 (May, Colby) Modified date of service on 11/14/2016 (znmw). (Entered: 11/10/2016)
2016-11-1313STANDING ORDER. Signed by Judge Richard J. Leon on 11/13/2016. (lcrjl3, ) (Entered: 11/13/2016)
2016-11-1414ORDER: Upon consideration of the plaintiff's 8 Motion for Leave of Benjamin P. Sisney to be admitted Pro Hac Vice; it is hereby ordered that the motion is GRANTED. Signed by Judge Richard J. Leon on 11/12/16. (tb) (Entered: 11/14/2016)
2016-11-1415ORDER: Upon consideration of the plaintiff's 8 Motion for Leave of Craig L. Parshall to be admitted Pro Hac Vice; it is hereby ordered that the motion is GRANTED. Signed by Judge Richard J. Leon on 11/12/16. (tb) (Entered: 11/14/2016)
2016-11-1416ORDER: Upon consideration of the plaintiff's 8 Motion for Leave of Matthew R. Clark to be admitted Pro Hac Vice; it is hereby ordered that the motion is GRANTED. Signed by Judge Richard J. Leon on 11/12/16. (tb) (Entered: 11/14/2016)
2016-11-14Set/Reset Deadlines: Answer due by 12/2/2016, (znmw) (Entered: 11/14/2016)
2016-12-0817Consent MOTION for Extension of Time to File Answer re 1 Complaint, Nunc Pro Tunc by DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Text of Proposed Order)(Feldon, Gary) (Entered: 12/08/2016)
2016-12-0818ANSWER to Complaint by DEPARTMENT OF JUSTICE.(znmw) (Entered: 12/12/2016)
2016-12-10MINUTE ORDER granting 17 Defendant's Consent Motion for an Extension of Time, Nunc Pro Tunc, in Which to Answer Plaintiff's Complaint. It is hereby ORDERED that defendant's answer, filed as an attachment to the motion, shall be considered timely filed as of 12/8/2016. The Clerk of Court is instructed to enter the answer on the docket. Signed by Judge Richard J. Leon on 12/10/2016. (lcrjl3, ) (Entered: 12/10/2016)
2017-04-1219NOTICE of Appearance by Abigail A. Southerland on behalf of AMERICAN CENTER FOR LAW AND JUSTICE (Southerland, Abigail) (Entered: 04/12/2017)
2017-09-18Case directly reassigned to Judge Timothy J. Kelly. Judge Richard J. Leon is no longer assigned to the case. (ztnr) (Entered: 09/18/2017)
2017-09-2720Joint STATUS REPORT by AMERICAN CENTER FOR LAW AND JUSTICE. (Southerland, Abigail) (Entered: 09/27/2017)
2017-10-12MINUTE ORDER: In light of the 20 Joint STATUS REPORT filed by the parties on September 27, 2017, it is hereby ORDERED that Defendant shall move for summary judgment on or before November 3, 2017. Plaintiff shall file its combined opposition to Defendant's motion for summary judgment and any cross-motion for summary judgment on or before December 4, 2017. Plaintiff's combined opposition and cross-motion for summary judgment shall not exceed forty-five (45) pages. Defendant shall file its reply in support of its motion for summary judgment and any opposition to Plaintiff's cross-motion for summary judgment on or before January 12, 2018. Plaintiff shall file its reply in support of any cross-motion for summary judgment on or before January 26, 2018. Signed by Judge Timothy J. Kelly on 10/12/2017. (lctjk2) (Entered: 10/12/2017)
2017-10-13Set/Reset Deadlines: Summary Judgment motions due by 11/3/2017. Response to Motion for Summary Judgment and Cross Motions due by 12/4/2017. Reply to Motion for Summary Judgment and Response to Cross Motions due by 1/12/2018. Reply to Cross Motions due by 1/26/2018. (kh) (Entered: 10/13/2017)
2017-11-0321MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Feldon, Gary) (Entered: 11/03/2017)
2017-11-0322ERRATA by DEPARTMENT OF JUSTICE 21 MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration, # 2 Declaration)(Feldon, Gary) (Entered: 11/03/2017)
2017-12-0423Cross MOTION for Summary Judgment and Memorandum in Opposition to Defendant's Motion for Summary Judgment by AMERICAN CENTER FOR LAW AND JUSTICE (Attachments: # 1 Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Statement of Facts, # 6 Text of Proposed Order)(Southerland, Abigail) (Entered: 12/04/2017)
2017-12-0424Memorandum in opposition to re 21 MOTION for Summary Judgment filed by AMERICAN CENTER FOR LAW AND JUSTICE. (See Docket Entry 23 to view document). (znmw) (Entered: 12/05/2017)
2018-01-1225Memorandum in opposition to re 23 Cross MOTION for Summary Judgment and Memorandum in Opposition to Defendant's Motion for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Statement of Facts)(Feldon, Gary) Modified link on 1/16/2018 (znmw). (Entered: 01/12/2018)
2018-01-1226REPLY to opposition to motion re 21 MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (See Docket Entry 25 to view document). (znmw) (Entered: 01/16/2018)
2018-01-2627REPLY to opposition to motion re 23 Cross MOTION for Summary Judgment and Memorandum in Opposition to Defendant's Motion for Summary Judgment filed by AMERICAN CENTER FOR LAW AND JUSTICE. (Attachments: # 1 Declaration Southerland, # 2 Exhibit D)(Southerland, Abigail) (Entered: 01/26/2018)
2018-09-0728MEMORANDUM OPINION AND ORDER granting in part and denying in part Defendant's 21 Motion for Summary Judgment; and denying Plaintiff's 23 Motion for Summary Judgment. Defendant's renewed motion for summary judgment due by 10/9/2018. Plaintiff's response and cross-motion due by 10/23/2018. See Opinion and Order for details. Signed by Judge Timothy J. Kelly on 9/7/2018. (lctjk2) (Entered: 09/07/2018)
2018-09-10Set/Reset Deadlines: Defendant's renewed Summary Judgment motion due by 10/9/2018. Plaintiff's Response to Motion for Summary Judgment and Cross Motion due by 10/23/2018. (kh) (Entered: 09/10/2018)
2018-10-0229NOTICE of Change of Address by Gary Daniel Feldon (Feldon, Gary) (Entered: 10/02/2018)
2018-10-0930Second MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration, # 4 Text of Proposed Order)(Feldon, Gary) (Entered: 10/09/2018)
2018-10-2331Cross MOTION for Summary Judgment and Memorandum in Opposition to Defendant's Renewed Motion for Summary Judgment by AMERICAN CENTER FOR LAW AND JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Southerland, Abigail) (Entered: 10/23/2018)
2018-10-2332Memorandum in opposition to re 30 Second MOTION for Summary Judgment filed by AMERICAN CENTER FOR LAW AND JUSTICE. (See Docket Entry 31 to view document) (tth) (Entered: 10/24/2018)
2018-11-0933MOTION to Stay re 30 Second MOTION for Summary Judgment , 31 Cross MOTION for Summary Judgment and Memorandum in Opposition to Defendant's Renewed Motion for Summary Judgment by AMERICAN CENTER FOR LAW AND JUSTICE (Attachments: # 1 Text of Proposed Order)(Southerland, Abigail) (Entered: 11/09/2018)
2018-11-2034Memorandum in opposition to re 33 MOTION to Stay re 30 Second MOTION for Summary Judgment , 31 Cross MOTION for Summary Judgment and Memorandum in Opposition to Defendant's Renewed Motion for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Feldon, Gary) (Entered: 11/20/2018)
2018-12-06MINUTE ORDER denying Plaintiff's 33 Motion to Stay. Upon review of the parties' submissions (ECF Nos. 33, 34), the Court concludes in its discretion that a stay pending a decision by the D.C. Circuit in American Center for Law and Justice v. U.S. Department of Justice , Case No. 18-5309, is not warranted. Signed by Judge Timothy J. Kelly on 12/6/2018. (lctjk2) (Entered: 12/06/2018)
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