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Case TitleAMERICAN OVERSIGHT v. U.S. DEPARTMENT OF JUSTICE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2017cv00848
Date Filed2017-05-09
Date ClosedOpen
JudgeJudge Richard J. Leon
PlaintiffAMERICAN OVERSIGHT
Case DescriptionAmerican Oversight submitted a FOIA request to the Department of Justice for records concerning why Acting Solicitor General Noel Francisco, who appeared before the Ninth Circuit Jan. 27 to defend President Trump's travel ban, did not sign the government's brief. Prior to becoming Acting Solicitor General, Francisco had been a partner at the law firm of Jones Day, which submitted an amicus brief before the Ninth Circuit on behalf of a business client whose interests were adverse to those of the government. Although Francisco did not sign the government's brief there has been no indication that he recused himself from the case. American Oversight also requested expedited processing. The agency denied the request for expedited processing, but told American Oversight that it would not be able to respond within 20 days. American Oversight then filed suit.
Complaint issues: Expedited processing, Adequacy - Search, Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantU.S. DEPARTMENT 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
Opinion/Order [24]
FOIA Project Annotation: Judge Richard Leon has ruled that American Oversight has not shown that it is entitled to expedited processing for its request to the Department of Justice concerning the ethical implications of the Trump administration's appointment of Noel Francisco as Solicitor General because while American Oversight met DOJ's requirement that the subject of the request be "a matter of widespread and exceptional media interest," it failed to show that Francisco's appointment was a matter "in which there exist possible questions about the government's integrity [that] affect public confidence." Francisco was nominated to be Solicitor General after having served for several months as Acting Solicitor General. While he was Acting Solicitor General, Francisco noticed his appearance in a Ninth Circuit challenge to the Trump administration's travel ban. Two days later, Jones Day, his former firm, filed an amicus brief in the case opposing the government's position. Francisco did not sign the government's brief, but he also did not withdraw from the case. American Oversight then submitted a FOIA request to DOJ for records concerning Francisco's role in the travel ban litigation and ethics issues relating to Francisco's service in the Office of the Solicitor General. American Oversight also requested expedited processing. American Oversight's request for expedited processing was denied because it had not shown that the issues affected public confidence in the government. American Oversight then filed suit. Two weeks later, DOJ disclosed four emails granting Francisco ethics waivers " three of which pertained to the travel ban litigation. American Oversight argued that deference was not due to DOJ's interpretation of its expedited processing regulation. Leon disagreed, noting that "although the [agency's declaration] does not chart the origin of DOJ's interpretation, the Department has advanced a similar interpretation of subsection (iv) in several past cases. And in both cases, this District Court accepted and applied the DOJ's interpretation of subsection (iv) to the record before the DOJ at the time of its decision as to the expedited processing request. As such, this is hardly a case in which the Department's 'interpretation was unannounced and would have a negative impact on the rights of affected parties who has no notice of the interpretation.'" Leon added that "the regulation does not ask whether possible questions exist that might or could " should they become known " affect public confidence in the government's integrity. It asks whether there are possible questions as to the Government's integrity 'that affect public confidence,' full stop. The primary way to determine whether such possible questions exist is by examining the state of public coverage of the matter at issue, and whether that coverage surfaces possible ethics issues so potentially significant as to reduce public confidence in governmental institutions." Leon observed that "in the final analysis, [the agency] correctly concluded that plaintiff had met its burden of showing that there was the necessary media interest concerning [Solicitor] General Francisco's nomination, but that none of the articles raised any ethical issues concerning his nomination, or his work in the Solicitor General's Office, or for Jones Day."
Issues: Expedited processing
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2017-05-091COMPLAINT against U.S. DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-4944647) filed by AMERICAN OVERSIGHT. (Attachments: # 1 Exhibit A - FOIA, # 2 Exhibit B - OIP Letter, # 3 Exhibit C - OLC Letter, # 4 Exhibit D - Civil Letter, # 5 Civil Cover Sheet, # 6 Summons, # 7 Summons, # 8 Summons)(Cafasso, Cerissa) (Entered: 05/09/2017)
2017-05-092LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by AMERICAN OVERSIGHT (Cafasso, Cerissa) (Entered: 05/09/2017)
2017-05-093WITHDRAWN PURSUANT TO NOTICE FILED 05/30/17.....MOTION for Preliminary Injunction by AMERICAN OVERSIGHT (Attachments: # 1 Memorandum in Support, # 2 Declaration of Cerissa Cafasso, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17)(Cafasso, Cerissa) Modified on 5/30/2017 (jth). (Entered: 05/09/2017)
2017-05-09Case Assigned to Judge Richard J. Leon. (md) (Entered: 05/09/2017)
2017-05-094SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 05/09/2017)
2017-05-115RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/9/2017. Answer due for ALL FEDERAL DEFENDANTS by 6/8/2017. (Attachments: # 1 Certificate of Service)(Cafasso, Cerissa) (Entered: 05/11/2017)
2017-05-116RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF JUSTICE served on 5/9/2017, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 5/9/2017. (See Docket Entry 5 to view document). (znmw) (Entered: 05/12/2017)
2017-05-127NOTICE of Appearance by Aimee Woodward Brown on behalf of All Defendants (Brown, Aimee) (Entered: 05/12/2017)
2017-05-15MINUTE SCHEDULING ORDER: A hearing on the Motion for Preliminary Injunction 3 is set for 05/30/2017 at 11:30 AM in Courtroom 18 before Judge Richard J. Leon. Defendant's opposition to the Motion is due 05/16/2017. See LCvR 65.1(c). Plaintiff's reply, if any, is due 05/19/2017. Signed by Judge Richard J. Leon on 05/15/2017. (lcrjl2) (Entered: 05/15/2017)
2017-05-16Set/Reset Deadlines/Hearings: Response due by 5/16/2017. Reply due by 5/19/2017. Preliminary Injunction Hearing set for 5/30/2017 at 11:30 AM in Courtroom 18 before Judge Richard J. Leon. (tb) (Entered: 05/16/2017)
2017-05-168Memorandum in opposition to re 3 MOTION for Preliminary Injunction filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit JMD Email, # 2 Exhibit OSG Letter, # 3 Exhibit Elec. Frontier Found. v. DOJ, # 4 Exhibit Elec. Privacy Info. Ctr. v. DOJ, # 5 Exhibit Judicial Watch v. DOJ, # 6 Text of Proposed Order)(Brown, Aimee) (Entered: 05/16/2017)
2017-05-179NOTICE of Appearance by Sara Kaiser Creighton on behalf of AMERICAN OVERSIGHT (Creighton, Sara) (Entered: 05/17/2017)
2017-05-1910REPLY to opposition to motion re 3 MOTION for Preliminary Injunction filed by AMERICAN OVERSIGHT. (Attachments: # 1 Declaration of Sara Creighton, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10)(Creighton, Sara) (Entered: 05/19/2017)
2017-05-2511NOTICE of Appearance by Melanie Togman Sloan on behalf of AMERICAN OVERSIGHT. (ztnr) (Entered: 05/25/2017)
2017-05-2612NOTICE of Production by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Exhibit)(Brown, Aimee) (Entered: 05/26/2017)
2017-05-30Minute Entry for proceedings held before Judge Richard J. Leon: Preliminary Injunction Hearing held on 5/30/2017. Plaintiff withdraws their 3 Motion for Preliminary Injuction; A formal withdrawal will be filed today. The parties shall file a joint proposed briefing schedule within 10 days. (Court Reporter: William P. Zaremba.) (kt) (Entered: 05/30/2017)
2017-05-3013NOTICE OF WITHDRAWAL OF MOTION re 3 MOTION for Preliminary Injunction by AMERICAN OVERSIGHT (Cafasso, Cerissa) Modified to add link on 5/31/2017 (znmw). (Entered: 05/30/2017)
2017-06-0114PROPOSED BRIEFING SCHEDULE by U.S. Department of Justice and by AMERICAN OVERSIGHT. (Cafasso, Cerissa) (Entered: 06/01/2017)
2017-06-0215SCHEDULING ORDER: Upon consideration of the parties' Joint Proposed Briefing Schedule, it is hereby ORDERED that this case shall proceed with the following deadlines: Plaintiff's Motion for Partial Summary Judgment on the matter of expedited processing due on or before June 9, 2017. Defendant's opposition brief due on or before June 23, 2017. Plaintiff's reply brief due on or before June 30, 2017. SO ORDERED. Signed by Judge Richard J. Leon on 6/2/2017. (jth) (Entered: 06/02/2017)
2017-06-0516AMENDED COMPLAINT against U.S. DEPARTMENT OF JUSTICE filed by AMERICAN OVERSIGHT. (Attachments: # 1 Exhibit A - FOIA, # 2 Exhibit B - OIP Letter, # 3 Exhibit C - Civil Letter, # 4 Exhibit D - OSG Letter)(Cafasso, Cerissa) (Entered: 06/05/2017)
2017-06-0917MOTION for Partial Summary Judgment on the Matter of Expedited Processing by AMERICAN OVERSIGHT (Attachments: # 1 Memorandum in Support, # 2 Declaration of Cerissa Cafasso, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Statement of Facts)(Cafasso, Cerissa) (Entered: 06/09/2017)
2017-06-1918ANSWER to 16 Amended Complaint by U.S. DEPARTMENT OF JUSTICE. Related document: 16 Amended Complaint filed by AMERICAN OVERSIGHT.(Brown, Aimee) (Entered: 06/19/2017)
2017-06-2319Memorandum in opposition to re 17 MOTION for Partial Summary Judgment on the Matter of Expedited Processing filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Exhibit, # 4 Statement of Facts, # 5 Text of Proposed Order)(Brown, Aimee) (Entered: 06/23/2017)
2017-06-3020REPLY to opposition to motion re 17 MOTION for Partial Summary Judgment on the Matter of Expedited Processing filed by AMERICAN OVERSIGHT. (Attachments: # 1 Declaration, # 2 Exhibit 7, # 3 Exhibit 8, # 4 Exhibit 9, # 5 Exhibit 10)(Cafasso, Cerissa) (Entered: 06/30/2017)
2017-07-1421NOTICE OF SUBSTITUTION OF COUNSEL by Adam Anderson Grogg on behalf of U.S. DEPARTMENT OF JUSTICE Substituting for attorney Aimee Woodward Brown (Grogg, Adam) (Entered: 07/14/2017)
2017-08-0722NOTICE by AMERICAN OVERSIGHT (Cafasso, Cerissa) (Entered: 08/07/2017)
2017-08-1523NOTICE OF SUBSTITUTION OF COUNSEL by Danielle Wolfson Young on behalf of U.S. DEPARTMENT OF JUSTICE Substituting for attorney Adam Grogg (Young, Danielle) (Entered: 08/15/2017)
2018-02-2224MEMORANDUM OPINION. Signed by Judge Richard J. Leon on 02/20/2018. (jth) (Entered: 02/22/2018)
2018-02-2225ORDER. for the reasons stated in the accompanying Memorandum Opinion, plaintiff's 17 Motion for Partial Summary Judgment is DENIED. SO ORDERED. Signed by Judge Richard J. Leon on 02/20/2018. (jth) (Entered: 02/22/2018)
2018-02-2326NOTICE of Appearance by Kari E. D'Ottavio on behalf of U.S. DEPARTMENT OF JUSTICE (D'Ottavio, Kari) (Entered: 02/23/2018)
2018-10-0927NOTICE of Change of Address by Kari E. D'Ottavio (D'Ottavio, Kari) (Entered: 10/09/2018)
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by FOIA Project Staff
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