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Case TitleAMERICAN CENTER FOR LAW AND JUSTICE v. UNITED STATES DEPARTMENT OF STATE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2016cv02516
Date Filed2016-12-26
Date ClosedOpen
JudgeJudge James E. Boasberg
PlaintiffAMERICAN CENTER FOR LAW AND JUSTICE
Case DescriptionThe American Center for Law and Justice submitted a FOIA request to the Department of State for records concerning any grants of funds to OneVoice Israel and OneVoice Palestine for use in campaigning against Benjamin Netanyahu in the 2015 Israeli elections. ACLJ requested communications involving a large number of named individuals. The agency acknowledged receipt of the request, denied ACLJ's request for expedited processing and granted its request for a fee waiver. 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

DefendantUNITED STATES DEPARTMENT OF STATE
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Opinion/Order [21]
FOIA Project Annotation: Judge James Boasberg has ruled that although the Department of State routinely misses the statutory deadline for responding to FOIA requests, its failure to respond on time does not constitute a pattern or practice that can be remedied under FOIA. The American Center for Law and Justice filed a FOIA request for records of any grants provided to OneVoice Israel and OneVoice Palestine, which the ACLJ alleged was primarily focused on defeating Benjamin Netanyahu. The agency acknowledged receipt of the request, but after the agency failed to respond within five months, ACLJ filed suit, claiming the agency "has a reputation for flaunting and disregarding its public accountability and FOIA obligations." ACLJ indicated that it had been forced to file four lawsuits against the Department in six months. Boasberg explained that "in a nutshell, ACLJ posits that transparency repeatedly delayed has become a practice of transparency denied." But he noted that "in theory, that might be so. But the pleadings here do not give rise to a reasonable inference that the State Department subscribes to any policy or practice of dragging its feet on FOIA requests." Boasberg pointed out that "to state a policy-or-practice claim, a plaintiff must plausibly allege 'that the agency has adopted, endorsed, or implemented some policy or practice that constitutes an ongoing failure to abide by the terms of the FOIA.'" Boasberg rejected ACLJ's implication that State's failure to routinely respond to requests within the statutory deadline was sufficient to establish a pattern or practice violation. Instead, he noted that "while tardiness would violate FOIA, it only become actionable when 'some policy or practice' also undergirds it." He observed that "to the extent that ACLJ seeks to invoke some formal or informal agency decision that FOIA's twenty-day limit simply will not apply, its Complaint does not adequately capture that theory. Nowhere does Plaintiff actually articulate some agency-wide 'intent' to delay, some 'determination' that State would pass over the Act's time limits, or even that Defendant has taken some informal stance that across-the-board delay is the new operating procedure." He observed that "to set forth a plausible case, the organization must at the very least string together a coherent narrative and not merely speculate that the government may have unlawful internal workings." Boasberg suggested that ACLJ was contending that State's letter acknowledging receipt of a request and assigning a case number was deliberately misleading. He indicated that "ACLJ does not assert that these letters were somehow shams and that State is instead buying time. . .Plaintiff's only objection seems to be that this mere acknowledgment letter is not the punctual substantive response that it seeks. This is true. But unless ACLJ can show that sending out receipt letters that comply with FOIA is somehow tantamount to violating the Act�"whether it be by causing delay or something else�"its attack on this aspect of the agency-disclosure process falls flat." ACLJ also faulted State for forcing requesters to sue. But Boasberg explained that "although individuals may choose to sue following agency inaction, once again, Plaintiff does express in its Complaint that State's policy or practice is to force lawsuits." He added that "a plausible complaint would need to articulate, beyond the fact that requestors choose to sue when faced with (admittedly) frustrating delays, that the State Department itself has a policy or practice of forcing lawsuits."
Issues: Litigation - Jurisdiction - Failure to State a Claim
Opinion/Order [27]
FOIA Project Annotation: Judge James Boasberg has resurrected a policy and practice filed by the American Center for Law and Justice against the State Department after finding ACLJ's amended complaint sufficiently articulates a policy " requiring requesters to sue in order to force the agency to respond to their request " to allow its claim to survive the agency's motion to dismiss. ACLJ's first policy and practice claim argued that the agency intentionally failed to respond to requests. Because State routinely acknowledged receipt of requests, Boasberg found ACLJ had not articulated a coherent policy and practice claim. However, he invited ACLJ to amend its complaint after explaining the level of allegations that would need to be made. This time around, Boasberg found ACLJ had adequately refined its claim to survive the agency's motion to dismiss. Based on a 2012 OIG report criticizing the agency's FOIA operations, ACLJ argued State was on notice of its problems in timely responding to FOIA requests, but decided to ignore them instead. ACLJ contended that "State requires lawsuits because it saves the agency the hassle of actively maintaining a FOIA-disclosure regime." State responded that ACLJ's claim could not survive because Boasberg had already found that its acknowledgement letters were consistent with FOIA obligations and it could not be sued for failure to provide sufficient training. But this time, Boasberg pointed out that ACLJ's claim was based on its allegation that State required requesters to sue to get records. He noted that "that policy or practice, if proven, would violate the basic tenets of FOIA, including its requirement that agencies disclose information in the first place." Based on its own experience requesting records from State, ACLJ indicated that no matter how long it waited for a response, the agency did not respond unless ACLJ filed suit. Boasberg observed that "if true, these allegations at least encapsulate an informal modus operandi for the Department's dealing with its requestors " in effect, a wink-wink that it takes a lawsuit for the Government to get going on its FOIA duties." Acknowledging the low bar for allowing a complaint to proceed, Boasberg pointed out that "even if Plaintiff were to ultimately prove its case, moreover, the remedial question would still remain open. . ."
Issues: Litigation - Jurisdiction - Failure to State a Claim
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2016-12-261COMPLAINT against UNITED STATES DEPARTMENT OF STATE ( Filing fee $ 400 receipt number 0090-4788137) filed by AMERICAN CENTER FOR LAW AND JUSTICE. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Civil Cover Sheet, # 4 Summons US Dept. of State, # 5 Summons US Dept. of Justice, # 6 Summons US Attorney for DC)(Sekulow, Jay) (Entered: 12/26/2016)
2016-12-262NOTICE of Appearance by Jay Alan Sekulow on behalf of AMERICAN CENTER FOR LAW AND JUSTICE (Sekulow, Jay) (Entered: 12/26/2016)
2016-12-263LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by AMERICAN CENTER FOR LAW AND JUSTICE (Sekulow, Jay) (Entered: 12/26/2016)
2016-12-264NOTICE of Appearance by Stuart J. Roth on behalf of AMERICAN CENTER FOR LAW AND JUSTICE (Roth, Stuart) (Entered: 12/26/2016)
2016-12-265NOTICE of Appearance by Colby Mims May on behalf of AMERICAN CENTER FOR LAW AND JUSTICE (May, Colby) (Entered: 12/26/2016)
2016-12-266MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Craig L. Parshall, :Firm- American Center for Law and Justice, :Address- 201 Maryland Ave., NE, Washington, DC 20002. Phone No. - 202-546-8890. Fax No. - 202-546-9309 Filing fee $ 100, receipt number 0090-4788142. Fee Status: Fee Paid. by AMERICAN CENTER FOR LAW AND JUSTICE (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Roth, Stuart) (Entered: 12/26/2016)
2016-12-267MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Matthew R. Clark, :Firm- American Center for Law and Justice, :Address- 201 Maryland Ave., NE, Washington, DC 20002. Phone No. - 202-546-8890. Fax No. - 202-546-9309 Filing fee $ 100, receipt number 0090-4788143. Fee Status: Fee Paid. by AMERICAN CENTER FOR LAW AND JUSTICE (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Roth, Stuart) (Entered: 12/26/2016)
2016-12-268MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Benjamin P. Sisney, :Firm- American Center for Law and Justice, :Address- 201 Maryland Ave., NE, Washington, DC 20002. Phone No. - 202-546-8890. Fax No. - 202-546-9309 Filing fee $ 100, receipt number 0090-4788144. Fee Status: Fee Paid. by AMERICAN CENTER FOR LAW AND JUSTICE (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Roth, Stuart) (Entered: 12/26/2016)
2016-12-27Case Assigned to Judge James E. Boasberg. (sb) (Entered: 12/27/2016)
2016-12-279SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF STATE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Form)(sb) (Entered: 12/27/2016)
2017-01-03MINUTE ORDER granting 6 Motion for Admission Pro Hac Vice of CRAIG L. PARSHALL. Signed by Judge James E. Boasberg on 1/3/2017. (lcjeb1) (Entered: 01/03/2017)
2017-01-03MINUTE ORDER granting 6 Motion for Admission Pro Hac Vice of MATTHEW R. CLARK. Signed by Judge James E. Boasberg on 1/3/2017. (lcjeb1) (Entered: 01/03/2017)
2017-01-03MINUTE ORDER granting 6 Motion for Admission Pro Hac Vice of BENJAMIN P. SISNEY. Signed by Judge James E. Boasberg on 1/3/2017. (lcjeb1) (Entered: 01/03/2017)
2017-01-0410RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 12/30/2016. Answer due for ALL FEDERAL DEFENDANTS by 1/29/2017. (Sisney, Benjamin) (Entered: 01/04/2017)
2017-01-0411RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF STATE served on 12/30/2016 (Sisney, Benjamin) (Entered: 01/04/2017)
2017-01-0412RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 12/30/2016. (Sisney, Benjamin) (Entered: 01/04/2017)
2017-01-2613Unopposed MOTION for Extension of Time to respond to Complaint by UNITED STATES DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Powers, James) (Entered: 01/26/2017)
2017-01-26MINUTE ORDER granting 13 Motion for Extension of Time to File. The Court ORDERS that Defendant shall file its Response to Plaintiff's Complaint on or before March 1, 2017. Signed by Judge James E. Boasberg on 1/26/2017. (lcjeb1) (Entered: 01/26/2017)
2017-01-26Set/Reset Deadlines: Responses due by 3/1/2017. (nbn) (Entered: 01/27/2017)
2017-02-2814MOTION to Dismiss Count II of the Complaint by UNITED STATES DEPARTMENT OF STATE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Powers, James) (Entered: 02/28/2017)
2017-02-2815ANSWER to Complaint by UNITED STATES DEPARTMENT OF STATE.(Powers, James) (Entered: 02/28/2017)
2017-03-01MINUTE ORDER: The Court ORDERS that the parties shall meet, confer, and jointly propose a briefing schedule by March 15, 2017, concerning Count I of the Complaint. Signed by Judge James E. Boasberg on 3/1/2016. (lcjeb1) (Entered: 03/01/2017)
2017-03-01Set/Reset Deadlines: Joint Briefing Schedule due by 3/15/2017. (nbn) (Entered: 03/01/2017)
2017-03-1316Joint MOTION for Extension of Time to File Proposed Briefing Schedule by UNITED STATES DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Powers, James) (Entered: 03/13/2017)
2017-03-13MINUTE ORDER granting 16 Motion for Extension of Time to File. The Court ORDERS that the parties shall submit a proposed briefing schedule or Joint Status Report concerning Count I of the Complaint by May 15, 2017. Signed by Judge James E. Boasberg on 3/13/2017. (lcjeb1) (Entered: 03/13/2017)
2017-03-13Set/Reset Deadlines: Joint Status Report due by 5/15/2017. (nbn) (Entered: 03/14/2017)
2017-03-1417MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Abigail A. Southerland, :Firm- American Center for Law and Justice, :Address- 625 Bakers Bridge Avenue, Ste. 105-121, Franklin, Tennessee 37067. Phone No. - (615) 599-5572, ext 4006. Fax No. - (615) 599-5189 Filing fee $ 100, receipt number 0090-4874805. Fee Status: Fee Paid. by AMERICAN CENTER FOR LAW AND JUSTICE (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Sisney, Benjamin) (Entered: 03/14/2017)
2017-03-1418Memorandum in opposition to re 14 MOTION to Dismiss Count II of the Complaint filed by AMERICAN CENTER FOR LAW AND JUSTICE. (Attachments: # 1 Text of Proposed Order)(Sekulow, Jay) (Entered: 03/14/2017)
2017-03-15MINUTE ORDER granting 17 Motion for Leave to Appear Pro Hac Vice of ABIGAIL A. SOUTHERLAND. Signed by Judge James E. Boasberg on 3/15/2017. (lcjeb1) (Entered: 03/15/2017)
2017-03-2119REPLY to opposition to motion re 14 MOTION to Dismiss Count II of the Complaint filed by UNITED STATES DEPARTMENT OF STATE. (Powers, James) (Entered: 03/21/2017)
2017-04-1720ORDER granting Defendant's 14 Motion to Dismiss. Signed by Judge James E. Boasberg on 4/17/17. (lcjeb2) (Entered: 04/17/2017)
2017-04-1721Memorandum Opinion re 20 Order on Motion to Dismiss. Signed by Judge James E. Boasberg on 4/17/17. (lcjeb2) (Entered: 04/17/2017)
2017-04-2422MOTION to Amend/Correct 1 Complaint, by AMERICAN CENTER FOR LAW AND JUSTICE (Attachments: # 1 Amended Complaint, # 2 Exhibit A, # 3 Exhibit B, # 4 Text of Proposed Order)(Southerland, Abigail) (Entered: 04/24/2017)
2017-05-0823Memorandum in opposition to re 22 MOTION to Amend/Correct 1 Complaint, filed by UNITED STATES DEPARTMENT OF STATE. (Powers, James) (Entered: 05/08/2017)
2017-05-1224REPLY to opposition to motion re 22 MOTION to Amend/Correct 1 Complaint, filed by AMERICAN CENTER FOR LAW AND JUSTICE. (Southerland, Abigail) (Entered: 05/12/2017)
2017-05-1525Joint STATUS REPORT by UNITED STATES DEPARTMENT OF STATE. (Powers, James) (Entered: 05/15/2017)
2017-05-16MINUTE ORDER: Per the parties' 25 Joint Status Report, the Court ORDERS that they shall submit a further such Report by June 26, 2017. Signed by Judge James E. Boasberg on 5/16/2017. (lcjeb1) (Entered: 05/16/2017)
2017-05-16Set/Reset Deadlines: Joint Status Report due by 6/26/2017. (nbn) (Entered: 05/16/2017)
2017-06-0826ORDER GRANTING Plaintiff's 22 Motion for Leave to File and Amended Complaint. The Court ORDERS that Defendant shall answer the Amended Complaint on or before June 22, 2017. Signed by Judge James E. Boasberg on 6/8/17. (lcjeb2) (Entered: 06/08/2017)
2017-06-0827MEMORANDUM OPINION re 26 Order on Motion for Leave to File an Amended Complaint. Signed by Judge James E. Boasberg on 6/8/17. (lcjeb2) (Entered: 06/08/2017)
2017-06-08Set/Reset Deadlines: Answer due by 6/22/2017. (nbn) (Entered: 06/09/2017)
2017-06-0828AMENDED COMPLAINT against UNITED STATES DEPARTMENT OF STATE filed by AMERICAN CENTER FOR LAW AND JUSTICE. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(znmw) (Entered: 06/09/2017)
2017-06-1929Unopposed MOTION for Extension of Time to Respond to Amended Complaint by UNITED STATES DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Powers, James) (Entered: 06/19/2017)
2017-06-19MINUTE ORDER GRANTING 29 Motion for Extension of Time to File. The Courts ORDERS that Defendant shall respond to the Amended Complaint on or before July 7, 2017. Signed by Judge James E. Boasberg on 6/19/2017. (lcjeb1) (Entered: 06/19/2017)
2017-06-19Set/Reset Deadlines: Responses due by 7/7/2017. (znbn) (Entered: 06/20/2017)
2017-06-2630Joint STATUS REPORT by AMERICAN CENTER FOR LAW AND JUSTICE. (Southerland, Abigail) (Entered: 06/26/2017)
2017-06-27MINUTE ORDER: In response to the parties' 30 Joint Status Report, the Court ORDERS that State shall process 400 pages of potentially responsive documents per month and shall make its first production by July 28, 2017. Any extension shall require compelling circumstances and leave of Court. Signed by Judge James E. Boasberg on 6/27/17. (lcjeb2) (Entered: 06/27/2017)
2017-06-27Set/Reset Deadlines: State shall process 400 pages of potentially responsive documents per month and shall make its first production by 7/28/2017. (nbn) (Entered: 06/27/2017)
2017-07-0731ANSWER to 28 Amended Complaint by UNITED STATES DEPARTMENT OF STATE. Related document: 28 Amended Complaint filed by AMERICAN CENTER FOR LAW AND JUSTICE. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Powers, James) (Entered: 07/07/2017)
2017-07-07MINUTE ORDER: The Court ORDERS that the parties shall meet, confer, and submit a joint proposed schedule for proceeding on Count II by July 21, 2017. Signed by Judge James E. Boasberg on 7/7/2017. (lcjeb1) (Entered: 07/07/2017)
2017-07-07Set/Reset Deadlines: Meet & Confer Statement due by 7/21/2017. (nbn) (Entered: 07/11/2017)
2017-07-2132PROPOSED BRIEFING SCHEDULE by AMERICAN CENTER FOR LAW AND JUSTICE. (Southerland, Abigail) (Entered: 07/21/2017)
2017-07-24MINUTE ORDER: The Court ORDERS that Defendant shall file any Motion for Partial Summary Judgment on Count II by August 30, 2017, and Plaintiff's Opposition, which may contain a Rule 56(d) affidavit, shall be due by September 29, 2017. Signed by Judge James E. Boasberg on 7/24/2017. (lcjeb1) (Entered: 07/24/2017)
2017-07-24Set/Reset Deadlines: Summary Judgment motions due by 8/30/2017. Response to Motion for Summary Judgment due by 9/29/2017. (nbn) (Entered: 07/24/2017)
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by FOIA Project Staff