Skip to content

Case Detail

[Subscribe to updates]
Case TitleAMERICAN CENTER FOR LAW AND JUSTICE v. FEDERAL BUREAU OF INVESTIGATIONS
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2019cv02643
Date Filed2019-09-04
Date ClosedOpen
JudgeJudge Rudolph Contreras
PlaintiffAMERICAN CENTER FOR LAW AND JUSTICE
Case DescriptionAmerican Center for Law and Justice submitted a FOIA request to the FBI for records concerning former FBI director James Comey and communications with Anthony Ferrante, Jordan Rae Kelly, and/or Tashina Gauhar. ACLJ also requested expedited processing and a fee waiver. The agency acknowledged receipt of the request. The agency denied ACLJ's request for a fee waiver. After hearing nothing further from the agency, ACLJ filed suit, alleging the agency had a policy of failing to respond to FOIA requests on time.
Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Litigation - Vaughn index, Litigation - Attorney's fees

DefendantFEDERAL BUREAU OF INVESTIGATIONS
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Opinion/Order [15]
FOIA Project Annotation: Judge Rudolph Contreras has ruled that the American Center for Law and Justice failed to show that the FBI had a pattern or practice of refusing to respond to requests within the statutory time limit and then forcing requesters to file suit if they wanted to pursue their request. As the basis for its pattern and practice claim, ACLJ explained that it had requested records from the FBI in 2016 concerning an unscheduled meeting between then Attorney General Loretta Lynch and former President Bill Clinton at the Phoenix airport. Eight months later, as a result of a related suit against the Justice Department, ACLJ discovered the FBI had responsive records. The FBI eventually provided 29 redacted responsive pages. The other ACLJ FOIA request, submitted in 2017, asked for records concerning the agency's decision not to pursue criminal charges against Hillary Clinton. The FBI did not respond to that request until ACLJ filed suit. Addressing the pattern or practice claim, Contreras explained that there were three D.C. Circuit decisions recognizing a pattern or practice claim " Payne Enterprises v. United States, 837 F.2d 486 (D.C. Cir. 1988), Newport Aeronautical Sales v. Dept of Air Force, 684 F.3d 160 (D.C. Cir. 2012), and Judicial Watch v. Dept of Homeland Security, 895 F.3d 770 (D.C. Cir. 2018). In Judicial Watch, the D.C. Circuit recognized the possibility that a plaintiff could show that an agency had a pattern or practice of ignoring FOIA requests. Relying on Judicial Watch, ACLJ argued that the FBI had shown a pattern or practice of failing to take the statutory time limits seriously. But Contreras observed that "the Court is not convinced that these episodes allow the required inference. First, ACLJ's three prior examples each implicate requests of strikingly different subject matter and scope. . .This contrasts markedly with Payne, Newport, and Judicial Watch, each of which concerned repeated requests for a narrowly-defined class of documents. . .To be sure, the Circuit has never articulated a 'single subject' or 'single type of request' requirement for a policy-or-practice claim. But the similarity of the underlying requests is a factor courts take into consideration, as it suggests that the agency's behavior stems from a considered decision (for example, the applicability of a particular exemption to a particular category of documents) rather than isolated mistakes. And even in Judicial Watch, which arguably widened the standard for a policy-or-practice claim beyond Payne and Newport, the majority and concurrence both emphasized that the records all concerned the same subject matter." Continuing, Contreras pointed out that "the FBI's behavior across each of the three episodes was not uniform, and ACLJ's complaint does not consistently identify or describe the offensive practice." He added that "but here, particularly in light of the small sample size, the variation in the three cases cuts against an inference that the FBI is acting pursuant to an informal or formal policy, and, by definition, undermines the contention that the FBI us engaged in a persistent practice." He rejected ACLJ's contention that the FBI's constant failure to respond within the statutory time limit inferred a pattern or practice policy. Contreras disagreed, noting that "here, ACLJ's argument boils down to the contention that the FBI, like many agencies engaged in repeat litigation with regular FOIA litigants, has violated FOIA multiple times in different ways in response to three novel kinds of requests. To the Court's knowledge, an agency policy or practice has never been inferred from such a diversity of conduct." Contreras indicated that "ACLJ's most plausible argument rests on the idea that Judicial Watch makes persistent or prolonged delay itself actionable regardless of the kind of request or reason for the delay. . .However, notwithstanding some of its language, Judicial Watch did not rely on missed deadlines alone; rather it conducted a fact- and context-sensitive analysis that focused on the similar and straightforward nature of the requests and the sheer number of times they were ignored. . .And here, there is little, if anything, beyond the delays themselves that 'could signal the agency has a policy or practice of ignoring FOIA's requirements.'" Contreras concluded by recognizing an alternative remedy for such routine failure to respond on time. He observed that "the Court does not endorse or excuse the FBI's alleged noncompliance. But FOIA offers its own mechanism for disciplining an agency's unjustified conduct in individual cases: fee awards. This counsels against inferring a policy or practice from a small number of episodes."
Issues: Litigation - Jurisdiction
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2019-09-041COMPLAINT against FEDERAL BUREAU OF INVESTIGATIONS ( Filing fee $ 400 receipt number 0090-6356017) filed by AMERICAN CENTER FOR LAW AND JUSTICE. (Attachments: # 1 Exhibit A to Complaint, # 2 Civil Cover Sheet, # 3 Summons to FBI, # 4 Summons to DOJ AG, # 5 Summons to DOJ US Attorney DC)(Sisney, Benjamin) (Attachment 2 replaced on 9/6/2019) (zeg). (Entered: 09/04/2019)
2019-09-042LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by AMERICAN CENTER FOR LAW AND JUSTICE (Sisney, Benjamin) (Entered: 09/04/2019)
2019-09-043NOTICE of Appearance by Benjamin Paul Sisney on behalf of AMERICAN CENTER FOR LAW AND JUSTICE (Sisney, Benjamin) (Entered: 09/04/2019)
2019-09-06Case Assigned to Judge Rudolph Contreras. (zeg) (Entered: 09/06/2019)
2019-09-064SUMMONS (3) Issued Electronically as to FEDERAL BUREAU OF INVESTIGATIONS, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zeg) (Entered: 09/06/2019)
2019-09-125RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. FEDERAL BUREAU OF INVESTIGATIONS served on 9/11/2019 (Sisney, Benjamin) (Entered: 09/12/2019)
2019-09-126RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 09/11/2019. (Sisney, Benjamin) (Entered: 09/12/2019)
2019-09-127RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 9/11/2019. Answer due for ALL FEDERAL DEFENDANTS by 10/11/2019. (Sisney, Benjamin) (Entered: 09/12/2019)
2019-10-108NOTICE of Appearance by Michael Hendry Baer on behalf of FEDERAL BUREAU OF INVESTIGATIONS (Baer, Michael) (Entered: 10/10/2019)
2019-10-109Unopposed MOTION for Extension of Time to Respond to Plaintiff's Complaint by FEDERAL BUREAU OF INVESTIGATIONS (Attachments: # 1 Text of Proposed Order)(Baer, Michael) (Entered: 10/10/2019)
2019-10-10MINUTE ORDER granting 9 Defendant's Unopposed Motion for Extension of Time: It is hereby ORDERED that Defendant shall have up to and including November 20, 2019 to file a response to Plaintiff's complaint. SO ORDERED. Signed by Judge Rudolph Contreras on 10/10/2019. (lcrc1) (Entered: 10/10/2019)
2019-10-1110NOTICE of Appearance by Abigail A. Southerland on behalf of AMERICAN CENTER FOR LAW AND JUSTICE (Southerland, Abigail) (Entered: 10/11/2019)
2019-11-2011Partial MOTION to Dismiss by FEDERAL BUREAU OF INVESTIGATIONS (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Text of Proposed Order)(Baer, Michael) (Entered: 11/20/2019)
2019-12-0412Memorandum in opposition to re 11 Partial MOTION to Dismiss filed by AMERICAN CENTER FOR LAW AND JUSTICE. (Attachments: # 1 Text of Proposed Order)(Sisney, Benjamin) (Entered: 12/04/2019)
2019-12-1113REPLY to opposition to motion re 11 Partial MOTION to Dismiss filed by FEDERAL BUREAU OF INVESTIGATIONS. (Baer, Michael) (Entered: 12/11/2019)
2020-07-0214ORDER granting 11 Defendant's Partial Motion to Dismiss. See document for details. Signed by Judge Rudolph Contreras on 7/2/2020. (lcrc1) (Entered: 07/02/2020)
2020-07-0215MEMORANDUM OPINION granting 11 Defendant's Partial Motion to Dismiss. See document for details. Signed by Judge Rudolph Contreras on 7/2/2020. (lcrc1) (Entered: 07/02/2020)
2020-07-1616ANSWER to Complaint by FEDERAL BUREAU OF INVESTIGATIONS. (Attachments: # 1 Exhibit A - FOIA Request, # 2 Exhibit B - FBI Aug. 2 Letter, # 3 Exhibit C - DOJ Memo, # 4 Exhibit D - FBI Aug. 9 Letter, # 5 Exhibit E - FBI Sept. 3 Letter)(Baer, Michael) (Entered: 07/16/2020)
2020-07-16MINUTE ORDER: It is hereby ORDERED that, by July 30, 2020, the parties shall meet, confer, and submit a proposed schedule or schedules to govern further proceedings. SO ORDERED. Signed by Judge Rudolph Contreras on 7/16/2020. (lcrc1) (Entered: 07/16/2020)
2020-07-17Set/Reset Deadlines: Proposed Briefing Schedule due by 7/30/2020 (tj) (Entered: 07/17/2020)
2020-07-3017Joint STATUS REPORT by FEDERAL BUREAU OF INVESTIGATIONS. (Baer, Michael) (Entered: 07/30/2020)
2020-07-31MINUTE ORDER: Upon consideration of 17 the parties' Joint Status Report, it is hereby ORDERED that the parties shall submit a further joint status report on or before August 31, 2020, and every 30 days thereafter. SO ORDERED. Signed by Judge Rudolph Contreras on 7/31/2020. (lcrc1) (Entered: 07/31/2020)
2020-08-03Set/Reset Deadlines: Status Report due by 8/31/2020. (tj) (Entered: 08/03/2020)
2020-08-3118Joint STATUS REPORT by FEDERAL BUREAU OF INVESTIGATIONS. (Baer, Michael) (Entered: 08/31/2020)
2020-09-3019Joint STATUS REPORT by FEDERAL BUREAU OF INVESTIGATIONS. (Baer, Michael) (Entered: 09/30/2020)
2020-10-3020Joint STATUS REPORT by FEDERAL BUREAU OF INVESTIGATIONS. (Baer, Michael) (Entered: 10/30/2020)
2020-11-3021Joint STATUS REPORT by FEDERAL BUREAU OF INVESTIGATIONS. (Baer, Michael) (Entered: 11/30/2020)
2020-11-30MINUTE ORDER: Upon consideration of 21 the parties' joint status report, it is hereby ORDERED that the parties shall submit their next joint status report on or before January 14, 2021. After that, they shall continue to submit joint status reports every 30 days. SO ORDERED. Signed by Judge Rudolph Contreras on 11/30/2020. (lcrc1) (Entered: 11/30/2020)
2020-12-04Set/Reset Deadlines: Status Report due by 1/14/2021 (tj) (Entered: 12/04/2020)
2021-01-1422Joint STATUS REPORT by FEDERAL BUREAU OF INVESTIGATIONS. (Baer, Michael) (Entered: 01/14/2021)
2021-02-1623NOTICE of Appearance by Michael James Gaffney on behalf of FEDERAL BUREAU OF INVESTIGATIONS (Gaffney, Michael) (Entered: 02/16/2021)
2021-02-1624Joint STATUS REPORT by FEDERAL BUREAU OF INVESTIGATIONS. (Gaffney, Michael) (Entered: 02/16/2021)
Hide Docket Events
by FOIA Project Staff
Skip to toolbar