Skip to content

Case Detail

[Subscribe to updates]
Case TitleAMERICAN OVERSIGHT v. U.S. DEPARTMENT OF JUSTICE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2018cv00319
Date Filed2018-02-12
Date Closed2019-07-31
JudgeJudge Christopher R. Cooper
PlaintiffAMERICAN OVERSIGHT
Case DescriptionAmerican Oversight submitted four FOIA requests to the Department of Justice for records concerning a variety of issues arising from a letter to the agency from House Judiciary Committee Chair Bob Goodlatte (R-VA). The agency acknowledged receipt of the requests, but after hearing nothing further from the agency, American Oversight filed suit.
Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Litigation - Vaughn index, Litigation - Attorney's fees

DefendantU.S. DEPARTMENT OF JUSTICE
AppealD.C. Circuit 19-5257
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [31]
FOIA Project Annotation: Although the government bears the burden of showing that it properly processed a FOIA request sent to an agency, that its search was legally sufficient, and that any exemption claims are appropriate, courts frequently require sophisticated FOIA litigants to take into account bureaucratic delays or innocent errors on the part of agencies in considering whether agency conduct constitutes a deliberate attempt to evade or minimize the agency's statutory obligations or rather a good faith attempt to comply with those obligations. A recent example of the tensions that can occur in such clashes involves a FOIA request by American Oversight for written guidance given to U.S. District Attorney for the District of Utah John Huber by Department of Justice officials as part of former Attorney General Jeff Sessions' instructions that Huber conduct an investigation of certain issues related to the 2016 presidential election. Before searching for such records, the Office of Information Policy contacted the Office of the Attorney General, the Office of the Deputy Attorney General, and eventually Huber himself, to inquire about the existence of written guidance. Initially, the consensus of the officials was that no written guidance existed because it had been conveyed orally. But when Huber was shown the reply brief DOJ intended to file in the case, he readily located a responsive email attachment. DOJ conducted a supplemental email search but found no other records. The agency then moved for summary judgment. For its part, however, American Oversight argued that the initial person-to-person search was conducted in bad faith and asked for limited discovery. Huber's investigation was prompted by a 2017 request from 20 Republican members of the House Judiciary Committee, including then chair Rep. Bob Goodlatte (R-VA), that DOJ appoint a second special counsel to investigate the behavior of Hillary Clinton, Loretta Lynch, and James Comey during the 2016 presidential election campaign. The agency responded to Goodlatte's letter by indicating that it would make recommendations as to whether such an inquiry should be opened. A year later, American Oversight submitted four FOIA requests related to Goodlatte's request. Three of the requests were subsequently resolved " one request asked for records pertaining to the drafting of DOJ's response to Goodlatte, a second request asked for the identities of federal prosecutors tasked with evaluating the issues raised by Goodlatte, and a third related to any recusal issues brought up by Sessions' participation in the matter. By the time Judge Christopher Cooper ruled in the case, the only remaining request was for any guidance provided to federal prosecutors tasked with evaluating the issues in Goodlatte's letter as indicated in the agency's response letter. When Huber finally saw the agency's reply brief, he explained that Matthew Whitaker, then serving as Sessions' chief of staff, had emailed him guidance. Once OIP learned of the email, it conducted a supplementary search, but found no other responsive records. American Oversight argued that overlooking an obviously responsive email was a matter of bad faith on the part of the agency and that American Oversight should be granted limited discovery. Cooper first addressed the issue of whether DOJ had acted in bad faith in initially indicating that any guidance had been communicated orally and not in writing and then admitted that written guidance existed that had been sent to Huber by Whitaker. American Oversight also emphasized that the agency had conveniently failed to provide the email until four days after Whitaker stepped down as acting Attorney General. Cooper found it difficult to conclude that the government had acted in bad faith. He pointed out that "rare is the case that compels a court to cast a skeptical eye on an agency's FOIA declarations " and this is not one of them. DOJ did an about face, to be sure. But the fact that an agency discovers an error in its earlier representations, and thereafter changes course, does not alone displace the good-faith presumption courts accord its declarations." Cooper cited Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981), in which the D.C. Circuit found that an agency's admission that it subsequently found more responsive records spoke to an agency's fallibility rather than its mendacity, and a host of cases reaching the same conclusion, as supporting his ruling here. He explained that "the Court concludes that DOJ remains entitled to the presumption of good faith. At bottom, American Oversight has predicated its bad-faith argument on a single error in the first [OIP] declaration. The error was no doubt significant. And it may even raise some doubts about the sincerity of Mr. Whitaker's apparent belief that no guidance or directives had been reduced to record form, especially because Whitaker himself sent the email attaching the responsive document." He noted that "although the agency made a mistake, it has been forthright in acknowledging and correcting it, and other considerations undermine the suggestion that it has proceeded in bad faith." American Oversight tried to distinguish the Military Audit Project decision as pertaining only to circumstances involving complex searches. Cooper rejected that argument, pointing out that "the very reason Military Audit Project held that an initial mistake could not doom an agency's declarations was because the Circuit wanted to encourage agencies to reflect and do better, not retreat into recalcitrance. A myopic focus on the reasonableness of the initial failures, divorced from the agency's remedial efforts to cure them, would erode that principle. . .To the contrary, an agency's declarations will almost always remain entitled to a presumption of good faith so long as the agency acknowledged error and corrects for it " which is what DOJ did in this case." Having found that DOJ acted in good faith, Cooper rejected American Oversight's request for discovery. He then proceeded to address American Oversight's challenges to the adequacy of the agency's search. American Oversight argued that DOJ's search was too limited because it was restricted to those agency officials who would have been most likely to have been in direct communication with Huber, neglecting to search those officials' staff. American Oversight seized on the fact that the agency had searched the emails of two of Sessions' assistants as evidence that the emails of other similar assistants should have been searched as well. Rejecting that claim, Cooper pointed out that the search of Sessions' two assistants "should not be fashioned into ammunition against the agency that requires it to search the records of still more assistants. The only sure consequence of accepting American Oversight's logic here would be to incentivize agencies to err on the side of under-inclusion in their searches. An agency would know that if it includes any one of a category of custodians, then it risks being forced to search all custodians belonging to the same category, regardless whether the agency believes the others possess responsive records." American Oversight attacked the agency's claim that any communications with Huber had been oral and, Cooper pointed out that "the existence of one written record means that the Court should now disregard entirely representations by officials that most of their communications with Huber regarding his investigative focus would have occurred orally. The Court declines to take that leap." He explained that 'that the agency officials' representations that they spoke with Huber rather than issued written directives to him turned out to be definitively incorrect on one occasion does not mean that those representations were entirely inaccurate." Rejecting American Oversight's claim that the agency had interpreted its request too narrow, Cooper emphasized that "American Oversight is one of the more sophisticated FOIA practitioners in this district, and the comparatively broader language it deployed in its Recusal and Drafting requests " using 'reflecting' and 'relating to' respectively " suggests it understands how to use different words to capture different categories of records. Although courts are to construe FOIA requests liberally, they must also give effect to an apparently deliberate decision to use different words for different requests." Speaking in defense of the agencies, Cooper noted that "if courts do not hold FOIA requesters to their word " especially sophisticated ones who have demonstrated an ability to manipulate language to either narrow or broaden a request " agencies will always have to err on the side of the broadest plausible interpretation, forcing them to do more work than even the requesters themselves may have wanted."
Issues: Litigation - Sanctions - Bad faith, Request - Specificity
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2018-02-121COMPLAINT against U.S. DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-5328481) filed by AMERICAN OVERSIGHT. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)(Cafasso, Cerissa) (Entered: 02/12/2018)
2018-02-122LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by AMERICAN OVERSIGHT (Cafasso, Cerissa) (Entered: 02/12/2018)
2018-02-123NOTICE of corrected summonses by AMERICAN OVERSIGHT re 1 Complaint (Attachments: # 1 Summons, # 2 Summons)(Cafasso, Cerissa) (Entered: 02/12/2018)
2018-02-12Case Assigned to Judge Christopher R. Cooper. (zsb) (Entered: 02/12/2018)
2018-02-124SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zsb) (Entered: 02/12/2018)
2018-03-145RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 2/20/2018. ( Answer due for ALL FEDERAL DEFENDANTS by 3/22/2018.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF JUSTICE served on 2/20/2018, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 2/20/2018. (Attachments: # 1 Exhibit A)(Cafasso, Cerissa) (Entered: 03/14/2018)
2018-03-226NOTICE of Appearance by Michael Joseph Gerardi on behalf of U.S. DEPARTMENT OF JUSTICE (Gerardi, Michael) (Entered: 03/22/2018)
2018-03-227ANSWER to 1 Complaint by U.S. DEPARTMENT OF JUSTICE.(Gerardi, Michael) Modified to add link on 3/23/2018 (znmw). (Entered: 03/22/2018)
2018-03-22MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. Since the requirements of LCvR 16.3 and Rule 26(f) of the Federal Rules of Civil Procedure do not apply, it is hereby ORDERED that the parties shall confer and file a joint proposed schedule for briefing or disclosure by April 6, 2018. Signed by Judge Christopher R. Cooper on 3/22/2018. (lccrc2) (Entered: 03/22/2018)
2018-03-23Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 4/6/2018 (lsj) (Entered: 03/23/2018)
2018-04-068Joint STATUS REPORT Regarding Scheduling by U.S. DEPARTMENT OF JUSTICE. (Gerardi, Michael) (Entered: 04/06/2018)
2018-04-09MINUTE ORDER: In light of 8 the parties' joint status report, the parties shall file a further joint status report by May 7, 2018 apprising the Court on the progress of Defendant's search for records and, if applicable, proposing a further schedule for production. Signed by Judge Christopher R. Cooper on 4/9/2018. (lccrc2) (Entered: 04/09/2018)
2018-04-10Set/Reset Deadlines: Joint Status Report due by 5/7/2018 (lsj) (Entered: 04/10/2018)
2018-05-079Joint STATUS REPORT by AMERICAN OVERSIGHT. (Cafasso, Cerissa) (Entered: 05/07/2018)
2018-05-08MINUTE ORDER: In light of 9 the parties' joint status report, the parties shall submit a further joint status report by June 14, 2018 proposing a further schedule for production. Signed by Judge Christopher R. Cooper on 5/8/2018. (lccrc2) (Entered: 05/08/2018)
2018-05-08Set/Reset Deadlines: Joint Status Report due by 6/14/2018 (lsj) (Entered: 05/08/2018)
2018-06-1410Joint STATUS REPORT by AMERICAN OVERSIGHT. (Cafasso, Cerissa) (Entered: 06/14/2018)
2018-06-15MINUTE ORDER: In light of 10 the parties' joint status report, the parties are directed to file a further joint status report by August 10, 2018 updating the Court on the status of the case and, if necessary, proposing a further schedule for production or briefing. Signed by Judge Christopher R. Cooper on 6/15/2018. (lccrc2) (Entered: 06/15/2018)
2018-06-18Set/Reset Deadlines: Joint Status Report due by 8/10/2018 (lsj) (Entered: 06/18/2018)
2018-08-1011Joint STATUS REPORT by AMERICAN OVERSIGHT. (Cafasso, Cerissa) (Entered: 08/10/2018)
2018-08-13MINUTE ORDER: In light of 11 the parties' joint status report, the parties are directed to file a further joint status report by August 24, 2018 updating the Court on the status of the case and proposing a schedule for further production or briefing as necessary. Signed by Judge Christopher R. Cooper on 8/13/2018. (lccrc2) (Entered: 08/13/2018)
2018-08-13Set/Reset Deadlines: Joint Status Report due by 8/24/2018 (lsj) (Entered: 08/13/2018)
2018-08-2412Joint STATUS REPORT by AMERICAN OVERSIGHT. (Cafasso, Cerissa) (Entered: 08/24/2018)
2018-08-24MINUTE ORDER in light of 12 the parties' joint status report, the parties are directed to file a further joint status report by September 21, 2018, updating the Court on the status of the case and proposing a schedule for further production or briefing as necessary. Signed by Judge Christopher R. Cooper on 8/24/2018. (lccrc2) (Entered: 08/24/2018)
2018-08-24Set/Reset Deadlines: Status Report due by 9/21/2018 (lsj) (Entered: 08/24/2018)
2018-09-1913Joint STATUS REPORT by AMERICAN OVERSIGHT. (Cafasso, Cerissa) (Entered: 09/19/2018)
2018-09-20MINUTE ORDER: In light of the parties' September 19, 2018 joint status report, the parties are directed to file a fresh joint status report on or before October 2, 2018, updating the Court on the parties' discussions and proposing a schedule for any further proceedings, if necessary. Signed by Judge Christopher R. Cooper on 9/20/2018. (lccrc2) (Entered: 09/20/2018)
2018-09-20Set/Reset Deadlines: Joint Status Report due by 10/2/2018 (lsj) (Entered: 09/20/2018)
2018-10-0214Joint STATUS REPORT by AMERICAN OVERSIGHT. (Cafasso, Cerissa) (Entered: 10/02/2018)
2018-10-04VACATED PURSUANT TO MINUTE ORDER ENTERED 10/31/2018.....MINUTE ORDER: In light of the parties' 14 joint status report on October 2, 2018, the following briefing schedule shall apply: Defendant's Motion for Summary Judgment shall be due October 31, 2018; Plaintiff's Opposition and Cross-Motion for Summary Judgment shall be due November 27, 2018; Defendant's Reply and Opposition to Plaintiff's Cross-Motion shall be due December 21, 2018; and Plaintiff's Reply shall be due January 18, 2019. Signed by Judge Christopher R. Cooper on 10/4/2018. (lccrc2) Modified on 11/1/2018 (zlsj). (Entered: 10/04/2018)
2018-10-04Set/Reset Deadlines: Summary Judgment motions due by 10/31/2018. Response to Motion for Summary Judgment and Cross Motion due by 11/27/2018. Defendant's Reply and Opposition to Motion for Summary Judgment due by 12/21/2018. Plaintiff's Replies due by 1/18/2019. (lsj) (Entered: 10/04/2018)
2018-10-3115Consent MOTION to Amend/Correct Order,, Setting Summary Judgment Briefing Schedule by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Gerardi, Michael) (Entered: 10/31/2018)
2018-10-31MINUTE ORDER granting 15 Defendant's Consent Motion to Amend the Briefing Schedule. The Court's 10/4/2018 minute order setting a briefing schedule is hereby vacated, and the following briefing schedule shall apply: Defendant's motion for summary judgment shall be due November 16, 2018; Plaintiff's combined opposition and cross-motion for summary judgment shall be due December 13, 2018; Defendant's reply and opposition shall be due January 10, 2019; and Plaintiff's reply shall be due January 25, 2019. Signed by Judge Christopher R. Cooper on 10/31/2018. (lccrc2) Modified on 11/1/2018 (zlsj). (Entered: 10/31/2018)
2018-11-01Set/Reset Deadlines: Summary Judgment motions due by 11/16/2018. Response to Motion for Summary Judgment due by 12/13/2018. Reply to Motion for Summary Judgment due by 1/10/2019. Replies due by 1/25/2019. (lsj) (Entered: 11/01/2018)
2018-11-1616MOTION for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Brinkmann Declaration, # 4 Text of Proposed Order)(Gerardi, Michael) (Entered: 11/16/2018)
2018-11-20NOTICE OF ERROR re 16 Motion for Summary Judgment; emailed to michael.j.gerardi@usdoj.gov, cc'd 4 associated attorneys -- The PDF file you docketed contained errors: 1. Incorrect document/case, 2. Incorrect caption and case number or incorrect document attached as Memorandum in Support; Please file an Errata with corrected memorandum attached. (znmw, ) (Entered: 11/20/2018)
2018-11-2017ERRATA (Corrected Caption) by U.S. DEPARTMENT OF JUSTICE 16 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Corrected Motion, # 2 Corrected Memoranda)(Gerardi, Michael) (Entered: 11/20/2018)
2018-12-1318Cross MOTION for Summary Judgment by AMERICAN OVERSIGHT (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Declaration, # 4 Statement of Facts)(Cafasso, Cerissa) (Entered: 12/13/2018)
2018-12-1319Memorandum in opposition to re 16 MOTION for Summary Judgment filed by AMERICAN OVERSIGHT. (Attachments: # 1 Text of Proposed Order, # 2 Declaration, # 3 Statement of Facts)(Cafasso, Cerissa) (Entered: 12/13/2018)
2018-12-2620MOTION to Stay Forthcoming Briefing Deadlines in Light of a Lapse in Appropriations by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Gerardi, Michael) (Entered: 12/26/2018)
2018-12-27MINUTE ORDER granting 20 Defendant's Motion to Stay Briefing Deadlines. All deadlines shall be stayed pending renewed funding. Signed by Judge Christopher R. Cooper on 12/27/2018. (lccrc2) (Entered: 12/27/2018)
2019-01-3121NOTICE TO THE COURT OF RESTORATION OF APPROPRIATIONS by U.S. DEPARTMENT OF JUSTICE (Gerardi, Michael) (Entered: 01/31/2019)
2019-02-01MINUTE ORDER: In light of 21 Notice of Restored Government Funding, the stay in this case is lifted. The following deadlines shall now apply: Defendant's response and reply is due on or before February 28, 2019, and Plaintiff's reply is due on or before March 14, 2019. Signed by Judge Christopher R. Cooper on 2/1/2019. (lccrc2) (Entered: 02/01/2019)
2019-02-05Set/Reset Deadlines: Reply to Motion for Summary Judgment due by 2/28/2019. Replies due by 3/14/2019. (lsj) (Entered: 02/05/2019)
2019-02-2822Unopposed MOTION for Extension of Time to File Response/Reply as to 16 MOTION for Summary Judgment , 18 Cross MOTION for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Gerardi, Michael) (Entered: 02/28/2019)
2019-03-05MINUTE ORDER granting 22 Defendant's Motion for Extension of Time to File Response/Reply Brief. The parties shall file a joint status report on or before March 7, 2019, proposing an updated deadline for Defendant's response-reply brief and Plaintiff's reply. Signed by Judge Christopher R. Cooper on 3/5/2019. (lccrc2) (Entered: 03/05/2019)
2019-03-0723Joint STATUS REPORT by U.S. DEPARTMENT OF JUSTICE. (Gerardi, Michael) (Entered: 03/07/2019)
2019-03-08MINUTE ORDER: In light of 23 the parties' joint status report, Defendant's response-reply is due on or before April 26, 2019, and Plaintiff's reply is due on or before May 15, 2019. Plaintiff may move to modify the above schedule for good cause after reviewing the records. Signed by Judge Christopher R. Cooper on 3/8/2019. (lccrc2) Modified on 3/11/2019 (zlsj). (Entered: 03/08/2019)
2019-03-11Set/Reset Deadlines: Responses due by 4/26/2019. Replies due by 5/15/2019. (lsj) (Entered: 03/11/2019)
2019-03-11Set/Reset Deadlines: Responses due by 4/26/2019 Replies due by 5/15/2019. (lsj) (Entered: 03/11/2019)
2019-04-1224NOTICE of Appearance by Daniel Alexander McGrath on behalf of AMERICAN OVERSIGHT (McGrath, Daniel) (Entered: 04/12/2019)
2019-04-1525MOTION to Stay Summary Judgment Briefing , MOTION for Discovery Pursuant to Rule 56(d) by AMERICAN OVERSIGHT (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Text of Proposed Order)(Cafasso, Cerissa) (Entered: 04/15/2019)
2019-04-2626Memorandum in opposition to re 25 MOTION to Stay Summary Judgment Briefing MOTION for Discovery Pursuant to Rule 56(d) , 18 Cross MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Second Brinkmann Declaration, # 2 Response to Plaintiff's Statement of Facts, # 3 Text of Proposed Order)(Gerardi, Michael) (Entered: 04/26/2019)
2019-04-2627REPLY to opposition to motion re 16 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Second Brinkmann Declaration, # 2 Response to Plaintiff's Statement of Facts)(Gerardi, Michael) (Entered: 04/26/2019)
2019-05-0328REPLY to opposition to motion re 25 MOTION to Stay Summary Judgment Briefing MOTION for Discovery Pursuant to Rule 56(d) filed by AMERICAN OVERSIGHT. (Cafasso, Cerissa) (Entered: 05/03/2019)
2019-05-1529REPLY to opposition to motion re 18 Cross MOTION for Summary Judgment filed by AMERICAN OVERSIGHT. (Cafasso, Cerissa) (Entered: 05/15/2019)
2019-07-3030ORDER granting 16 Defendant's Motion for Summary Judgment; denying 18 Plaintiff's Cross-Motion for Summary Judgment; and denying 25 Plaintiff's Motion to Stay Summary Judgment Briefing and Motion for Discovery. A Memorandum Opinion accompanies this Order. Signed by Judge Christopher R. Cooper on 7/30/2019. (lccrc2) (Entered: 07/30/2019)
2019-07-3031MEMORANDUM OPINION re 30 Order granting Defendant's motion for summary judgment and denying Plaintiff's cross-motion for summary judgment and motion to stay summary judgment briefing and permit discovery. Signed by Judge Christopher R. Cooper on 7/30/2019. (lccrc2) (Entered: 07/30/2019)
2019-07-31ENTERED IN ERROR......Minute Entry for Initial Scheduling Conference held before Judge Christopher R. Cooper on 7/31/2019. Forthcoming Scheduling Order. (Court Reporter: Lisa Moreira) (lsj) Modified on 7/31/2019 (zlsj). (Entered: 07/31/2019)
Hide Docket Events
by FOIA Project Staff
Skip to toolbar