Case Detail

FOIA Project Annotation: Judge Trevor McFadden has ruled that CREW failed to state a claim in its suit against the Department of Justice to force the agency to post Office of Legal Counsel opinions that constitute final opinions under the affirmative disclosure provisions of Section (a)(2) because some OLC opinions are protected by Exemption 5 (privileges) and are not subject to FOIA disclosure. McFadden reviewed the intertwined litigation brought by CREW and the Campaign for Accountability, both requesting the agency post OLC opinions. Because CREW and the government believed that (a)(2)'s affirmative disclosure provisions could not be enforced under FOIA, CREW originally brought a case under the Administrative Procedure Act, arguing that the agency's failure to post OLC opinions constituted arbitrary and capricious conduct. But in CREW v. Dept of Justice, 164 F. Supp. 3d, 145 (D.D.C. 2016), Judge Amit Mehta ruled that FOIA did provide a remedy. His decision was upheld by the D.C. Circuit in CREW v. Dept of Justice, 846 F.3d 1235 (D.C. Cir. 2017), but the D.C. Circuit limited FOIA relief only to plaintiffs whose requests had been denied under FOIA. The litigation next moved to a suit brought by the Campaign for Accountability, also asking that OLC opinions be posted under (a)(2). Interpreting the D.C. Circuit's ruling in CREW v. Dept of Justice, Judge Ketanji Brown Jackson found that CfA had not shown that all OLC opinions were subject to affirmative disclosure, but allowed CfA to amend its complaint to a smaller universe of OLC opinions that could arguably be characterized as final opinions. However, with that state affairs, McFadden claimed in a footnote to his decision that Brown Jackson's presaged "the logic of this one." He acknowledged the existence of the amended complaint in the CfA litigation, but concluded that "interests of judicial economy currently weigh in favor of keeping these cases separate, given the different claims at issue and the fully-briefed status of the instant motion to dismiss." In dismissing CREW's suit, McFadden made the somewhat bizarre claim that "by its terms, the entire Act â€" including the reading room provision â€" 'does not apply' to nine specific exemption categories, referring to the Supreme Court's decision in NLRB v. Sears, Roebuck, 421 U.S. 132 (1975), which is a case about the Section (b) exemptions and not the affirmative disclosure provisions. McFadden then noted that "CREW's suit is premised on a universal claim â€" 'all existing and future OLC formal written opinions' and indices thereof are subject to mandatory disclosure under [Section (a)(2)]. Accordingly, if the DOJ can identify any formal written opinions that are not subject to FOIA disclosure, CREW's universal claim fails, and the suit cannot survive the motion to dismiss." He pointed out that the D.C. Circuit had ruled in EFF v. Dept of Justice, 739 F.3d 1 (D.C. Cir. 2014), that an OLC opinion for the FBI was privileged because it did not constitute the working law of the FBI. McFadden indicated that "this holding dooms CREW's complaint as currently articulated, because it established that at least one of OLC's formal written opinions â€" the opinion in EFF â€" is exempt from FOIA disclosure pursuant to Exemption 5. Even more broadly, the opinion suggests that many of OLC's formal written opinions would be subject to the same deliberative process privilege." McFadden pointed out that OLC opinions might also be protected by attorney-client privilege. McFadden recognized that the CfA litigation might ultimately provide CREW some relief as well, but decided to dismiss the case altogether. Rejecting CREW's request to take discovery, he observed that "but the possibility that some formal written OLC opinions are subject to disclosure cannot rescue a complaint that by its own terms seeks all opinions. To avoid dismissal, CREW must file a complaint â€" not proposed discovery â€" stating a plausible claim to relief."
Issues: Affirmative disclosure

Date Filed	Doc #	Docket Text
2017-03-10	1	COMPLAINT against UNITED STATES DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-4872127) filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Civil Cover Sheet, # 2 Summons to AG, # 3 Summons to DOJ, # 4 Summons to USAO, # 5 Notice to Counsel/Party)(McPhail, Stuart) (Entered: 03/10/2017)
2017-03-10	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (McPhail, Stuart) (Entered: 03/10/2017)
2017-03-10		Case Assigned to Judge James E. Boasberg. (sth) (Entered: 03/13/2017)
2017-03-13	3	SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(sth) (Entered: 03/13/2017)
2017-04-24	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/24/2015. Answer due for ALL FEDERAL DEFENDANTS by 4/23/2015. (Attachments: # 1 Exhibit postage receipts)(Weismann, Anne) (Entered: 04/24/2017)
2017-04-24	5	NOTICE of Appearance by Andrew Marshall Bernie on behalf of UNITED STATES DEPARTMENT OF JUSTICE (Bernie, Andrew) (Entered: 04/24/2017)
2017-04-24	6	Consent MOTION for Extension of Time to File Answer re 1 Complaint, or Otherwise Respond to the Complaint by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Bernie, Andrew) (Entered: 04/24/2017)
2017-04-24		MINUTE ORDER granting 6 Consent Motion for Extension of Time to File. The Court ORDERS that Defendant shall answer or otherwise respond to the Complaint by May 3, 2017. Signed by Judge James E. Boasberg on 4/24/2017. (lcjeb3) (Entered: 04/24/2017)
2017-04-24		Set/Reset Deadlines: Response due by 5/3/2017. (nbn) (Entered: 04/24/2017)
2017-04-24	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 3/24/17., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF JUSTICE served on 3/24/2017. (See Docket Entry 4 to view document). (znmw) (Entered: 04/25/2017)
2017-05-03	8	MOTION to Dismiss by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Text of Proposed Order)(Bernie, Andrew) (Entered: 05/03/2017)
2017-05-05	9	Consent MOTION for Extension of Time to File Response/Reply as to 8 MOTION to Dismiss by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (McPhail, Stuart) (Entered: 05/05/2017)
2017-05-05		MINUTE ORDER granting 9 Consent Motion for Extension of Time to File. The Court ORDERS that (1) Plaintiff's opposition to the Motion to Dismiss, if any, shall be filed on or before June 19, 2017; and (2) Defendant's reply in support of the Motion to Dismiss, if any, shall be filed on or before July 17, 2017. Signed by Judge James E. Boasberg on 5/5/2017. (lcjeb3) (Entered: 05/05/2017)
2017-05-05		Set/Reset Deadlines: Opposition due by 6/19/2017. Reply due by 7/17/2017. (nbn) (Entered: 05/08/2017)
2017-05-16	10	NOTICE of Appearance by Anne L. Weismann on behalf of CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Weismann, Anne) (Entered: 05/16/2017)
2017-06-01	11	ENTERED IN ERROR.....MOTION for Preliminary Injunction by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Attachments: # 1 Memorandum in Support, # 2 Exhibit A-C, # 3 Text of Proposed Order)(Weismann, Anne) Modified on 6/1/2017 (jf). (Entered: 06/01/2017)
2017-06-01		NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 11 MOTION for Preliminary Injunction was entered in error at the request of counsel and will be re-captioned with the correct case number.(jf) (Entered: 06/01/2017)
2017-06-19	12	Memorandum in opposition to re 8 MOTION to Dismiss filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Exhibit A and B, # 2 Text of Proposed Order)(Weismann, Anne) (Entered: 06/19/2017)
2017-07-11	13	Consent MOTION for Extension of Time to File Response/Reply as to 8 MOTION to Dismiss by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Bernie, Andrew) (Entered: 07/11/2017)
2017-07-11		MINUTE ORDER granting 13 Consent Motion for Extension of Time to File. The Court ORDERS that Defendant shall file its Reply on or before July 26, 2017. Signed by Judge James E. Boasberg on 7/11/2017. (lcjeb3) (Entered: 07/11/2017)
2017-07-11		Set/Reset Deadlines: Replies due by 7/26/2017. (znbn) (Entered: 07/11/2017)
2017-07-26	14	REPLY to opposition to motion re 8 MOTION to Dismiss filed by UNITED STATES DEPARTMENT OF JUSTICE. (Bernie, Andrew) (Entered: 07/26/2017)
2017-08-07	15	MOTION for Leave to File Sur-Reply by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Weismann, Anne) (Entered: 08/07/2017)
2017-08-17	16	Memorandum in opposition to re 15 MOTION for Leave to File Sur-Reply filed by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(Bernie, Andrew) (Entered: 08/17/2017)
2017-08-17	17	REPLY to opposition to motion re 15 MOTION for Leave to File Sur-Reply filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Weismann, Anne) (Entered: 08/17/2017)
2017-08-25		MINUTE ORDER: The Court ORDERS that Plaintiff's 15 Motion for Leave to File Sur-Reply is GRANTED. The Sur-Reply is hereby deemed FILED. Signed by Judge James E. Boasberg on 8/25/2017. (lcjeb3) (Entered: 08/25/2017)
2017-08-28	18	SURREPLY to re 8 MOTION to Dismiss filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (znmw) (Entered: 08/28/2017)
2017-10-12	19	NOTICE OF SUPPLEMENTAL AUTHORITY by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Exhibit)(Bernie, Andrew) (Entered: 10/12/2017)
2017-10-13	20	RESPONSE re 19 NOTICE OF SUPPLEMENTAL AUTHORITY filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Weismann, Anne) (Entered: 10/13/2017)
2017-10-31	21	Supplemental RESPONSE by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON re 20 Response to Document, 19 NOTICE OF SUPPLEMENTAL AUTHORITY (Weismann, Anne) Modified event title on 11/1/2017 (znmw). (Entered: 10/31/2017)
2017-11-02		Case directly reassigned to Judge Trevor N. McFadden. Judge James E. Boasberg is no longer assigned to the case. (ztnr) (Entered: 11/02/2017)
2018-02-02		MINUTE ORDER. In light of the 19 Notice of Supplemental Authority filed by the Defendant, and the 20 Response and 21 Supplemental Response filed by the Plaintiff, the parties are hereby ORDERED to file a statement of the parties' views regarding whether this case is related to case no. 1:16-cv-01068-KBJ under the terms of Local Civil Rule 40.5. This filing may be made jointly or separately, but each party must make its views clear no later than February 16, 2018. SO ORDERED. Signed by Judge Trevor N. McFadden on 2/2/2018. (lctnm2) (Entered: 02/02/2018)
2018-02-05		Set/Reset Deadlines: Parties' statements due by 2/16/2018. (hmc) (Entered: 02/05/2018)
2018-02-09	22	NOTICE as to Whether This Case is Related to Campaign for Accountability v. Dep't of Justice by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON re Order,, (Weismann, Anne) (Entered: 02/09/2018)
2018-02-16	23	NOTICE NOTICE as to Whether This Case is Related to Campaign for Accountability v. Dep't of Justice by UNITED STATES DEPARTMENT OF JUSTICE (Bernie, Andrew) (Entered: 02/16/2018)
2018-02-28	24	MEMORANDUM OPINION re the Defendant's 8 Motion to Dismiss. Signed by Judge Trevor N. McFadden on 2/28/2018. (lctnm2) (Entered: 02/28/2018)
2018-02-28	25	ORDER. For the reasons stated in the 24 Memorandum Opinion, the Defendant's 8 Motion to Dismiss is GRANTED, and the Plaintiff's request for limited discovery is DENIED. If the Plaintiff wishes to file an amended complaint, it must do so on or before March 30, 2018. If the Plaintiff does not file an amended complaint on or before March 30, 2018, then on that date the case will stand dismissed without further order. SO ORDERED. Signed by Judge Trevor N. McFadden on 2/28/2018. (lctnm2) (Entered: 02/28/2018)
2018-02-28		Set/Reset Deadlines: Plaintiff's amended complaint due by 3/30/2018. (hmc) (Entered: 02/28/2018)
2018-03-26	26	MOTION for Judgment by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Attachments: # 1 Text of Proposed Order)(Weismann, Anne) (Entered: 03/26/2018)
2018-03-27	27	ORDER granting the Plaintiff's 26 Motion for Judgment. This case is DISMISSED for the reasons stated in the 24 Memorandum Opinion. See the attached Order for details. This is a final, appealable order. Signed by Judge Trevor N. McFadden on 3/27/2018. (lctnm2) (Entered: 03/27/2018)
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