Case Detail

FOIA Project Annotation: Judge Randolph Moss has ruled that the Department of State may not use a "no number, no list" response, in which the agency identifies the categories of visa-processing records that the Department generally maintains and attests that the withheld records all fall within those categories but does not disclose the number or specific nature of each withheld record, as the basis for withholding three records from Olena Zynovieva. Zynovieva, citizen of Ukraine and a resident of the United Arab Emirates, submitted a FOIA request through counsel for records of the Department's Consular Lookout and Support System (CLASS) database concerning herself as well as documents Zynovieva submitted to the department in connection with her past visa applications. According to the State Department, its CLASS database is used by the Department and other agencies to perform namechecks on visa and passport applicants to identify individuals who may be ineligible for issuance or require other special action. The agency located three records, totaling 11 pages. The agency disclosed visa applications submitted by Zynovieva but withheld all the other records under Exemption 3 (other statues), citing 8 U.S.C. § 1202 of the Immigration and Nationality Act, arguing that the remainder of the records were protected by Exemption 3 but that providing information identifying the number and type of records could also harm the purposes of the exemption. Acknowledging that the D.C. Circuit had not accepted the "no number, no list" as applying to the kind of records claimed here by the State Department, the agency nevertheless relied heavily on the D.C. Circuit's opinion in ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013), the only D.C. Circuit opinion in which the "no number, no list" defense came up, albeit in the context of Exemption 1 (national security). In ACLU v. CIA, the D.C. Circuit provided some guidance on what it would take to convince the court to accept the "no number, no list" defense but did nothing more substantive than to send the case back to the district court. Nevertheless, Moss indicated that "here, the records withheld under § 1202(f) are amenable to categorical treatment. . .But that does not necessarily mean that the [agency's affidavits] adequately justify the Department's withholdings on a categorical basis, such that the Department has carried its burden of demonstrating that Exemption 3 and § 1202(f) apply to the withheld records." He pointed out that "even if the Department cannot identify the number of records at issue, it can surely describe the nature of its processing of the records in greater detail. Such an explanation would give the Court greater confidence that the records Plaintiff seeks do, in fact, all relate to visas." The agency argued that a more detailed Vaughn Index would be subject to multiple interpretations. However, Moss observed that "the problem is that the Department has not adequately substantiated this concern, particularly in light of the novelty of the approach the Department urges the Court to endorse and the D.C. Circuit's observation that a 'no number, no list' response is unlikely to pass muster unless supported by 'a particularly persuasive affidavit.'" Sending the case back to the agency, Moss noted that "because the Department has not justified its withholdings, the Court will deny the Department's motions for summary judgment. To the extent that the Department can justify its withholding in more detailed declarations, it may renew its motion."
Issues: Exemption 3 - Limited agency discretion

Date Filed	Doc #	Docket Text
2019-11-15	1	COMPLAINT against US DEPARTMENT OF STATE ( Filing fee $ 400 receipt number ADCDC-6566071) filed by OLENA ZYNOVIEVA. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)(Hampe, Carl) (Entered: 11/15/2019)
2019-11-18		Case assigned to Judge Randolph D. Moss. (zmc) (Entered: 11/18/2019)
2019-11-18	2	SUMMONS (3) Issued Electronically as to US DEPARTMENT OF STATE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zmc) (Entered: 11/18/2019)
2019-11-19	3	STANDING ORDER: The parties are hereby ORDERED to comply with the directives set forth in the attached Standing Order. See document for details. Signed by Judge Randolph D. Moss on 11/19/2019. (lcrdm2, ) (Entered: 11/19/2019)
2019-11-19	4	NOTICE of Appearance by Daniel P. Pierce on behalf of OLENA ZYNOVIEVA (Pierce, Daniel) (Entered: 11/19/2019)
2019-11-22	5	NOTICE of Appearance by Johnny Hillary Walker, III on behalf of US DEPARTMENT OF STATE (Walker, Johnny) (Entered: 11/22/2019)
2019-11-25	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 11/22/2019. Answer due for ALL FEDERAL DEFENDANTS by 12/22/2019. (Pierce, Daniel) (Entered: 11/25/2019)
2019-11-25	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 11/22/2019. (Pierce, Daniel) (Entered: 11/25/2019)
2019-11-25	8	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF STATE served on 11/22/2019 (Pierce, Daniel) Modified to correct party served from plaintiff to Department of State on 11/25/2019 (ztd). (Entered: 11/25/2019)
2019-12-23	9	ANSWER to Complaint by US DEPARTMENT OF STATE.(Walker, Johnny) (Entered: 12/23/2019)
2019-12-27		MINUTE ORDER: The parties are hereby ORDERED to appear for an Initial Scheduling Conference on January 28, 2020, at 11:15 a.m. in Courtroom 21. It is further ORDERED that the parties shall confer in advance of the Initial Scheduling Conference on (1) whether any records can be released, and (2) the proper next steps in this litigation. Signed by Judge Randolph D. Moss on 12/27/2019. (lcrdm2, ) (Entered: 12/27/2019)
2020-01-27	10	Joint MOTION to Continue Initial Scheduling Conference by OLENA ZYNOVIEVA (Attachments: # 1 Text of Proposed Order)(Pierce, Daniel) (Entered: 01/27/2020)
2020-01-27		MINUTE ORDER: Upon consideration of the parties' joint motion to continue, Dkt. 10, it is hereby ORDERED that the motion is GRANTED. The Initial Scheduling Conference currently scheduled for January 28, 2020 is VACATED and RESCHEDULED to February 4, 2020, at 12:15 p.m. in Courtroom 21. Signed by Judge Randolph D. Moss on 01/27/2020. (lcrdm2, ) (Entered: 01/27/2020)
2020-02-04		Minute Entry for proceedings held before Judge Randolph D. Moss: Initial Scheduling Conference held on 2/4/2020. Joint Status Report due by 3/20/2020. (Court Reporter: Jeff Hook.) (kt) (Entered: 02/04/2020)
2020-03-20	11	Joint STATUS REPORT by OLENA ZYNOVIEVA. (Attachments: # 1 Text of Proposed Order)(Hampe, Carl) (Entered: 03/20/2020)
2020-03-22		MINUTE ORDER: In light of the parties' joint status report, Dkt. 11, it is hereby ORDERED that the parties shall file a further joint status report on or before April 22, 2020, updating the Court on the progress of their discussions and proposing recommended next steps. Signed by Judge Randolph D. Moss on 03/22/2020. (lcrdm2, ) (Entered: 03/22/2020)
2020-04-22	12	Joint STATUS REPORT by OLENA ZYNOVIEVA. (Hampe, Carl) (Entered: 04/22/2020)
2020-04-24		MINUTE ORDER: The parties are hereby ORDERED to comply with the terms of the Court's revised standing order, which is available on the Court's website. Click for details. Consistent with the Court's revised standing order, if the Plaintiff wishes to move for summary judgment, he shall file a short notice via ECF setting forth the basis for his motion, and Defendant shall submit a short notice setting forth its intended response along with a Vaughn index identifying its withholdings and the basis for each withholding. See Revised Standing Order in Civil Cases , at para. 10. Signed by Judge Randolph D. Moss on 04/24/2020. (lcrdm2, ) (Entered: 04/24/2020)
2020-04-27	13	MOTION for Hearing Request for Pre-Motion Conference by OLENA ZYNOVIEVA (Hampe, Carl) Modified event/relief on 4/29/2020 (ztd). (Entered: 04/27/2020)
2020-04-28		MINUTE ORDER: In light of Plaintiff's notice requesting a pre-motion conference, Dkt. 13, the parties are hereby ORDERED to appear telephonically for a pre-motion conference on May 14, 2020, at 1:00pm. Signed by Judge Randolph D. Moss on 04/28/2020. (lcrdm2, ) (Entered: 04/28/2020)
2020-04-28		Set/Reset Hearings: Telephonic Pre-motion Conference set for 5/14/2020, at 1:00 PM, before Judge Randolph D. Moss. (kt) (Entered: 04/28/2020)
2020-05-04	14	NOTICE of Defendant's Anticipated Response to Plaintiff's Motion for Summary Judgment and Anticipated Basis for Its Cross-Motion for Summary Judgment by US DEPARTMENT OF STATE (Walker, Johnny) (Entered: 05/04/2020)
2020-05-14		Minute Entry for proceedings held before Judge Randolph D. Moss: Telephonic Pre-motion Conference held on 5/14/2020. Both parties, and the Court, appeared via telephone. Defendant's Summary Judgment Motion is due by 6/15/2020; Plaintiff's Opposition to the Motion for Summary Judgment and Cross Motion are due by 7/15/2020; Defendant's Reply to the Motion for Summary Judgment and Opposition to the Cross Motion are due by 7/29/2020; Plaintiff's Final Reply is due by 8/12/2020. (Court Reporter: Jeff Hook.) (kt) (Entered: 05/14/2020)
2020-06-15	15	MOTION for Summary Judgment by US DEPARTMENT OF STATE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts Not in Dispute, # 3 Declaration of Eric Stein (with exhibits), # 4 Text of Proposed Order)(Walker, Johnny) (Entered: 06/15/2020)
2020-07-15	16	Memorandum in opposition to re 15 MOTION for Summary Judgment and Plaintiff's Cross Motion filed by OLENA ZYNOVIEVA. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibit, # 4 Text of Proposed Order)(Pierce, Daniel) (Entered: 07/15/2020)
2020-07-15	17	MOTION for Summary Judgment by OLENA ZYNOVIEVA (ztd); (SEE DOCKET ENTRY NO. 16 TO VIEW.) (Entered: 07/16/2020)
2020-07-16		NOTICE OF ERROR re 16 Memorandum in Opposition; emailed to dpierce@fragomen.com, cc'd 5 associated attorneys -- The PDF file you docketed contained errors: 1. Two-part docket entry, 2. Do not refile. Counsel is reminded to file all parts of document. The Court has entered the Motion on the docket. (ztd, ) (Entered: 07/16/2020)
2020-07-29	18	Consent MOTION for Extension of Time to File Response/Reply as to 17 MOTION for Summary Judgment, 15 MOTION for Summary Judgment by US DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Walker, Johnny) (Entered: 07/29/2020)
2020-07-29		MINUTE ORDER: Upon consideration of the Department of State's motion for extension of time, Dkt. 18 , the motion is hereby GRANTED. The Department shall file its reply in support of its motion for summary judgment and opposition to Plaintiff's motion for summary judgment on or before July 31, 2020. Signed by Judge Randolph D. Moss on 7/29/20. (lcrdm2) (Entered: 07/29/2020)
2020-07-31	19	Memorandum in opposition to re 17 MOTION for Summary Judgment filed by US DEPARTMENT OF STATE. (Attachments: # 1 Declaration of Susan Weetman, # 2 Response to Plaintiff's Statement of Facts)(Walker, Johnny) (Entered: 07/31/2020)
2020-07-31	20	REPLY to opposition to motion re 15 MOTION for Summary Judgment filed by US DEPARTMENT OF STATE. (Attachments: # 1 Declaration of Susan Weetman)(Walker, Johnny) (Entered: 07/31/2020)
2020-08-10	21	Consent MOTION for Extension of Time to File Response/Reply as to 17 MOTION for Summary Judgment, 15 MOTION for Summary Judgment by OLENA ZYNOVIEVA (Attachments: # 1 Text of Proposed Order)(Hampe, Carl) (Entered: 08/10/2020)
2020-08-10		MINUTE ORDER: Upon consideration of Plaintiff's motion for extension of time, it is hereby ORDERED that the motion is GRANTED. Plaintiff shall file her Final Reply brief on or before August 14, 2020. Signed by Judge Randolph D. Moss on 8/10/2020. (lcrdm2) (Entered: 08/10/2020)
2020-08-14	22	REPLY to opposition to motion re 17 MOTION for Summary Judgment, 15 MOTION for Summary Judgment filed by OLENA ZYNOVIEVA. (Hampe, Carl) (Entered: 08/14/2020)
2021-08-05	23	MEMORANDUM OPINION AND ORDER: For the reasons explained in the attached opinion, it is hereby ORDERED that the Department's motion for summary judgment, Dkt. 15 , is DENIED, and that Plaintiff's cross-motion for summary judgment, Dkt. 16 , is also DENIED. It is further ORDERED that the parties shall file a joint status report on or before September 3, 2021, proposing next steps in this litigation, including a briefing schedule for renewed motions for summary judgment, if appropriate. Signed by Judge Randolph D. Moss on 8/5/2021. (lcrdm2) (Entered: 08/05/2021)
2021-09-03	24	Joint STATUS REPORT by OLENA ZYNOVIEVA. (Hampe, Carl) (Entered: 09/03/2021)
2021-09-07		MINUTE ORDER: In light of the parties' joint status report, Dkt. 24 , it is hereby ORDERED that Defendant's renewed motion for summary judgment shall be filed on or before October 15, 2021; Plaintiff's opposition and cross-motion for summary judgment shall be filed on or before November 15, 2021; Defendant's opposition and reply shall be filed on or before December 6, 2021; and Plaintiff's reply shall be filed on or before December 21, 2021. Signed by Judge Randolph D. Moss on 09/07/2021. (lcrdm2) (Entered: 09/07/2021)
2021-10-15	25	Consent MOTION for Extension of Time to File a Renewed Motion for Summary Judgment by U.S. DEPARTMENT OF STATE. (Attachments: # 1 Text of Proposed Order)(Walker, Johnny) (Entered: 10/15/2021)
2021-10-16		MINUTE ORDER: Upon consideration of Defendant's motion for extension of time, Dkt. 25 , it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the schedule previously entered on September 7, 2021, see Minute Order (Sept. 7, 2021), is VACATED and RESCHEDULED as follows: Defendant's renewed motion for summary judgment shall be filed on or before October 22, 2021; Plaintiff's opposition and cross-motion for summary judgment shall be filed on or before November 22, 2021; Defendant's opposition and reply shall be filed on or before December 13, 2021; and Plaintiff's reply shall be filed on or before December 28, 2021. Signed by Judge Randolph D. Moss on 10/18/2021. (lcrdm2) (Entered: 10/16/2021)
2021-10-22	26	WITHDRAWN PURSUANT TO MINUTE ORDER FILED ON 1/12/2022..... MOTION for Summary Judgment by U.S. DEPARTMENT OF STATE. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration of Brenda Grewe, # 4 Text of Proposed Order)(Walker, Johnny) Modified on 1/12/2022 (kt). (Entered: 10/22/2021)
2021-11-10	27	NOTICE OF SUBSTITUTION OF COUNSEL by Patricia K. McBride on behalf of U.S. DEPARTMENT OF STATE Substituting for attorney Johnny Hillary Walker III (McBride, Patricia) (Entered: 11/10/2021)
2021-11-17	28	Consent MOTION for Extension of Time to File Response/Reply as to 26 MOTION for Summary Judgment by OLENA ZYNOVIEVA. (Pierce, Daniel) (Entered: 11/17/2021)
2021-11-18		MINUTE ORDER: Upon consideration of Plaintiff's motion to extend 28 , the Court hereby ORDERS that the motion is GRANTED. It is further ORDERED that Plaintiff's opposition and cross-motion to Defendant's renewed motion for summary judgment shall be filed on or before December 6, 2021; Defendant's opposition and reply shall be filed on or before January 12, 2022 ; and Plaintiff's reply shall be filed on or before January 26, 2022. Signed by Judge Randolph D. Moss on 11/18/2021. (lcrdm2) (Entered: 11/18/2021)
2021-12-06	29	NOTICE of Appearance by Samantha Anne Caesar on behalf of OLENA ZYNOVIEVA (Caesar, Samantha) (Entered: 12/06/2021)
2021-12-06	30	RESPONSE re 26 MOTION for Summary Judgment filed by OLENA ZYNOVIEVA. (Attachments: # 1 Exhibit)(Pierce, Daniel) (Entered: 12/06/2021)
2022-01-11	31	Unopposed MOTION to Withdraw 26 Defendants Motion for Summary Judgment and Status Report by U.S. DEPARTMENT OF STATE. (McBride, Patricia) Modified to add link on 1/11/2022 (znmw). (Entered: 01/11/2022)
2022-01-12		MINUTE ORDER: Upon consideration of Defendant's motion to withdraw, Dkt. 31 , it is hereby ORDERED that the motion is GRANTED and Defendant's motion for summary judgment 26 is hereby deemed WITHDRAWN. It is further ORDERED that the parties shall file a joint status report on or before February 28, 2022. Signed by Judge Randolph D. Moss on 1/12/2022. (lcrdm2) (Entered: 01/12/2022)
2022-02-28	32	Joint STATUS REPORT by U.S. DEPARTMENT OF STATE. (McBride, Patricia) (Entered: 02/28/2022)
2022-03-01		MINUTE ORDER: Upon consideration of the parties' joint status report, Dkt. 32 , it is hereby ORDERED that the parties shall file a further joint status report on or before May 1, 2022. Signed by Judge Randolph D. Moss on 3/1/2022. (lcrdm2) (Entered: 03/01/2022)
2022-04-29	33	Joint STATUS REPORT by U.S. DEPARTMENT OF STATE. (McBride, Patricia) (Entered: 04/29/2022)
2022-05-02		NOTICE OF ERROR regarding 33 Status Report. The following error(s) need correction: Incorrect document (Draft). Invalid attorney signature. Please refile correct version as an Errata. (znmw) (Entered: 05/02/2022)
2022-05-03	34	ERRATA by U.S. DEPARTMENT OF STATE re 33 Status Report filed by U.S. DEPARTMENT OF STATE. (Attachments: # 1 (Joint Status Report))(McBride, Patricia) (Entered: 05/03/2022)
2022-05-04		MINUTE ORDER: Upon consideration of the parties' joint status report, Dkt. 34 -1, it is hereby ORDERED that the parties shall file a further joint status report on or before June 30, 2022. Signed by Judge Randolph D. Moss on 5/4/2022. (lcrdm2) (Entered: 05/04/2022)
2022-06-29	35	Joint STATUS REPORT by U.S. DEPARTMENT OF STATE. (McBride, Patricia) (Entered: 06/29/2022)
2022-07-01		MINUTE ORDER: Upon consideration of the parties' joint status report, Dkt. 35 , it is hereby ORDERED that the parties shall appear for a pre-motion conference, to occur via Zoom, on July 26, 2022, at 10:00 a.m. It is further ORDERED that (1) Plaintiff shall file a short notice, not to exceed six double-spaced pages in length, setting forth the basis for the anticipated motion for attorneys' fees, including the legal standards and the claims at issue, on or before July 12, 2022; and (2) Defendant shall file a response setting forth its anticipated response to the proposed motion on or before July 19, 2022. Signed by Judge Randolph D. Moss on 7/1/2022. (lcrdm2) (Entered: 07/01/2022)
2022-07-12	36	NOTICE IN ANTICIPATION OF MOTION FOR ATTORNEYS FEES by OLENA ZYNOVIEVA re Order,,, Set Deadlines/Hearings,, (Hampe, Carl) (Entered: 07/12/2022)
2022-07-19	37	RESPONSE re 36 Notice filed by U.S. DEPARTMENT OF STATE. (McBride, Patricia) Modified on 7/20/2022 to correct docket text/link (zjm). (Entered: 07/19/2022)
2022-07-21	38	NOTICE of Appearance by Samantha Anne Caesar on behalf of OLENA ZYNOVIEVA (Caesar, Samantha) (Entered: 07/21/2022)
2022-07-26		Minute Entry for proceedings held before Judge Randolph D. Moss: Video (Zoom) Pre-motion Conference held on 7/26/2022. Plaintiff's Motion for Attorney Fees is due by 8/16/2022; Defendant's Response due by 9/12/2022; Reply due by 9/26/2022. (Court Reporter: Sara Wick.) (kt) (Entered: 07/26/2022)
2022-08-16	39	MOTION for Attorney Fees by OLENA ZYNOVIEVA. (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Text of Proposed Order)(Hampe, Carl) (Entered: 08/16/2022)
2022-09-12	40	Unopposed MOTION for Extension of Time to File by U.S. DEPARTMENT OF STATE. (McBride, Patricia) (Entered: 09/12/2022)
2022-09-12		MINUTE ORDER: Upon consideration of the Defendant's Unopposed Motion to Extend Time to File an Opposition to Plaintiff's Motion for Attorney's Fees, Dkt. 40 , it is hereby ORDERED that the Motion is GRANTED. It is further ORDERED that Defendant's Opposition is now due on or before September 14, 2022. Signed by Judge Randolph D. Moss on 09/12/2022. (lcrdm2) (Entered: 09/12/2022)
2022-09-14	41	Memorandum in opposition to re 39 Motion for Attorney Fees filed by U.S. DEPARTMENT OF STATE. (McBride, Patricia) (Entered: 09/14/2022)
2022-09-26	42	REPLY to opposition to motion re 39 MOTION for Attorney Fees filed by OLENA ZYNOVIEVA. (Hampe, Carl) (Entered: 09/26/2022)
2023-03-31	43	MEMORANDUM OPINION AND ORDER: For the reasons provided herein, it is hereby ORDERED that Plaintiff's motion for attorneys' fees and costs, Dkt. 39 , is DENIED. See document for details. Signed by Judge Randolph D. Moss on 3/31/2023. (lcrdm1) Modified on 4/3/2023 to change document type to Opinion (zglw). (Entered: 03/31/2023)
2023-04-03		MINUTE ORDER: In an April 29, 2022 status report, the parties indicated that Plaintiff "does not intend to litigate the Freedom of Information Act disclosures further." Dkt. 33 at 1. On June 29, 2022, the parties explained that they were unable to reach an agreement with respect to attorney's fees, Dkt. 35, and the Court subsequently set a schedule for briefing on that issue, Min. Entry (July 26, 2022). Because the Court subsequently denied Plaintiff's motion for attorney's fees and costs, Dkt. 43 , there are no further actions to take in this matter. Accordingly, the Court ORDERS that the case is DISMISSED. The Clerk of Court is directed to terminate this case. Signed by Judge Randolph D. Moss on 4/3/2023. (lcrdm2) (Entered: 04/03/2023)
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