| Date Filed | Doc # | Docket Text |
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| 2022-05-09 | 1 | COMPLAINT against AMERICA FIRST LEGAL FOUNDATION ( Filing fee $ 402 receipt number ADCDC-9222940) filed by AMERICA FIRST LEGAL FOUNDATION. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9, # 10 Civil Cover Sheet Civil Cover Sheet, # 11 Summons Summons DOD, # 12 Summons Summons DOJ, # 13 Summons Summons USAO)(Sanderson, Tyler) (Entered: 05/09/2022) |
| 2022-05-09 | | Case Assigned to Judge Timothy J. Kelly. (zmh) (Entered: 05/09/2022) |
| 2022-05-09 | 2 | SUMMONS (3) Issued Electronically as to DEPARTMENT OF DEFENSE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zmh) (Entered: 05/09/2022) |
| 2022-06-21 | 3 | RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 5/27/2022. (Sanderson, Tyler) (Entered: 06/21/2022) |
| 2022-06-21 | 4 | RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/13/2022. Answer due for ALL FEDERAL DEFENDANTS by 7/13/2022. (Sanderson, Tyler) (Entered: 06/21/2022) |
| 2022-06-21 | 5 | RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF DEFENSE served on 5/31/2022 (Sanderson, Tyler) (Entered: 06/21/2022) |
| 2022-07-07 | 6 | NOTICE of Appearance by Stephen DeGenaro on behalf of DEPARTMENT OF DEFENSE (DeGenaro, Stephen) (Entered: 07/07/2022) |
| 2022-07-07 | 7 | Consent MOTION for Extension of Time to Respond to the Complaint by DEPARTMENT OF DEFENSE. (Attachments: # 1 Text of Proposed Order)(DeGenaro, Stephen) (Entered: 07/07/2022) |
| 2022-07-08 | | MINUTE ORDER granting Defendant's 7 Consent Motion for an Extension of Time to Respond to the Complaint. It is hereby ORDERED that, for good cause shown, Defendant's motion is GRANTED. It is further ORDERED that Defendant shall respond to Plaintiff's complaint by August 15, 2022. Signed by Judge Timothy J. Kelly on 7/8/2022. (lctjk1) (Entered: 07/08/2022) |
| 2022-08-15 | 8 | MOTION to Dismiss by DEPARTMENT OF DEFENSE. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(DeGenaro, Stephen) (Entered: 08/15/2022) |
| 2022-08-29 | 9 | Memorandum in opposition to re 8 Motion to Dismiss filed by AMERICA FIRST LEGAL FOUNDATION. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit)(Sanderson, Tyler) (Entered: 08/29/2022) |
| 2022-09-05 | 10 | REPLY to opposition to motion re 8 MOTION to Dismiss filed by DEPARTMENT OF DEFENSE. (DeGenaro, Stephen) (Entered: 09/05/2022) |
| 2023-01-27 | 11 | MOTION to Substitute by AMERICA FIRST LEGAL FOUNDATION. (Rubinstein, Reed) (Entered: 01/27/2023) |
| 2023-01-27 | 12 | ORDER granting Plaintiff's 11 Motion to Substitute. See Order for details. Signed by Judge Timothy J. Kelly on 1/27/2023. (lctjk1) (Entered: 01/27/2023) |
| 2023-01-31 | | NOTICE OF ERROR re 11 Motion to Substitute ; emailed to reed.rubinstein@aflegal.org, cc'd 6 associated attorneys -- The PDF file you docketed contained errors: 1. Please update the your address in PACER. (ztth, ) (Entered: 01/31/2023) |
| 2023-03-31 | | MINUTE ORDER granting in part Defendant's 8 Motion to Dismiss. Plaintiff sent seven FOIA requests to the Department of Defense ("DOD") seeking records "of, regarding, referring, or relating to," various subjects concerning DOD's "role in purging political conservatives and Christians from the military," See ECF Nos. 1 ¶ 3; 1-1 at 3-5. The DOD Education Activity Component uncovered no responsive records, ECF No. 9-2 at 3, but the rest of DOD found the request too broad, see ECF No. 1-7. When joint efforts to narrow the request stagnated, Plaintiff sued. Defendant moves to dismiss, arguing that Plaintiff's requests do not reasonably describe the records they seek. ECF No. 8. To state a FOIA claim, Plaintiff must allege that "an agency has (1) improperly (2) withheld (3) agency records." Cause of Action Inst. v. IRS , 390 F. Supp. 3d 84, 92 (D.D.C. 2019) (cleaned up). A request must "reasonably describe[ ] such records," 5 U.S.C. § 552(a)(3)(A)(i), meaning it "enable[s] a professional employee of the agency who [is] familiar with the subject area...to locate the record with a reasonable amount of effort." Am. Ctr. for L. & Just. v. DHS , 573 F. Supp. 3d 78, 81 (D.D.C. 2021) (cleaned up). The agency must be "able to determine precisely what records are being requested." Tax Analysts v. IRS , 117 F.3d 607, 610 (D.C. Cir. 1997) (cleaned up). Under that standard, courts employ a "context-specific inquiry" to decide whether a request contains adequate limitations to "enable a processor to zero in on the set of documents at issue." See Gun Owners of Am., Inc. v. FBI , 594 F. Supp. 3d 37, 48 (D.D.C. 2022). Here, most of Plaintiff's requests do not. Requests A, B, C, E, F, and G suffer the same trifecta of defects as the requests in American Center for Law & Justice v. DHS . First and foremost, requests A, B, E, F, and G encompass all 2.91 million DOD personnel, see ECF No. 8-1 at 19, reflecting no effort "to limit [Plaintiff's] search to anyone who 'might have had something to do' with the [salient] issue." Am. Ctr. for L. & Just. , 573 F. Supp. 3d at 86 (quoting Freedom Watch, Inc. v. Dep't of State , 925 F. Supp. 2d 55, 61 (D.D.C. 2013)). Even request C, which Plaintiff confined to 12 DOD components, "does not try to cabin [it] to particular employees," instead reaching voluminous personnel who have "nothing to do with" the subject at issue. Id . Moreover, it seeks records "to" and "from" those components, ECF No. 1-1 at 3, without clarifying when a document sent or received by an employee should be attributed to the component, "leav[ing] the unfortunate FOIA processor...without clear guidance about what documents are being sought." Id. at 85; cf. Gun Owners , 594 F. Supp. 3d at 44 ("The problem is not that there might be gray area or close cases...--it is instead that the criteria for resolving those close calls are obscure or nonexistent."). Second, compounding the personnel issue, each request seeks records "of, regarding, referring, or relating to," its subject. See ECF No. 1-1 at 35. Requests containing such terms are not categorically unreasonable, but courts usually "disapprove[ ] of requests using phrases like 'related to,'" see Gun Owners , 594 F. Supp. 3d at 47-48 & n.5 (collecting cases), the subjectivity of which might "sweep in any communication," see Am. Ctr. for L. & Just. , 573 F. Supp. 3d at 85. Third, Plaintiff's definition of "records" is decidedly expansive--"not at all limited to certain records." Id . at 86 (emphasis added); see ECF No. 1-1 at 3-5. Rather than explaining why its requests were reasonable, Plaintiff argues only that they are not quite so broad as the request in Freedom Watch , 925 F. Supp. 2d 55. But "[t]o say that [a] request is narrower than [one] in another case does not answer whether [it] meets FOIA's requirements." Am. Ctr. for L. & Just. , 573 F. Supp. 3d at 87. Nor can Plaintiff's opposition brief narrow request A to "essentially...any definitions of [the terms listed] as they were used in the Secretary's Memo," ECF No. 9 at 8, when the request's plain terms are much broader. See Gun Owners , 594 F. Supp. 3d at 51. Thus, Plaintiff has not reasonably described the records sought. And that remains so "notwithstanding [any]...success [by] the [Education Activity Component]'s search efforts" because the requests fail on their face. Dale v. IRS , 238 F. Supp. 2d 99, 105 (D.D.C. 2002). Therefore, it is hereby ORDERED that Defendant's 8 Motion to Dismiss is GRANTED IN PART insofar as it seeks dismissal of Plaintiff's claim based on requests A, B, C, E, F, and G. Signed by Judge Timothy J. Kelly on 3/31/2023. (lctjk1) (Entered: 03/31/2023) |
| 2023-03-31 | | MINUTE ORDER denying in part Defendant's 8 Motion to Dismiss. As the Court explained in a prior order, Plaintiff has not stated a claim as to its requests A, B, C, E, F, and G because they do not reasonably describe the records they seek. Request D, however, is different. There, Plaintiff named 14 DOD employees as records custodians, significantly narrowing the request's reach. ECF No. 1-1 at 4. Defendant points out that the request still suffers from some of the same flaws as the other six. See id. ; ECF No. 8-1 at 17-18. Of particular concern is the request for all records "containing" common words or terms such as "actionable" and "concerning." See id. ; ECF No. 8-1 at 17-18. Thus, Defendant says, the request sweeps in many documents "wholly unrelated" to the records it thinks Plaintiff truly seeks. See ECF No. 8-1 at 18. Maybe so. But because request D is limited in time and to a narrow set of custodians, it tells Defendant where to look. Whether a FOIA request is "reasonably describe[d]," 5 U.S.C. § 552(a)(3)(A)(i), depends on whether the agency can " locate the record[s] with a reasonable amount of effort," Am. Ctr. for L. & Just. v. DHS , 573 F. Supp. 3d 78, 81 (D.D.C. 2021) (quotation omitted and emphasis added). In other words, so long as the agency knows where to look without using "clairvoyance," it must deploy "reasonable effort." Gun Owners of Am., Inc. v. FBI , 594 F. Supp. 3d 37, 49 (D.D.C. 2022). Courts have recognized that requests facially require unreasonable effort if fulfilling them would require a "massive undertaking." See Nat'l Sec. Couns. v. CIA , 969 F.3d 406, 410 (D.C. Cir. 2020). Defendant argues that is true here, suggesting that request D requires a search of all records "in the Department's possession." ECF No. 8-1 at 18. Not so. Fulfilling request D requires searching, at least in the first instance, the records of the named 14 custodians. By listing "custodians," request D--and D alone--provides at least a starting point for a reasonable search. And Defendant may not unreasonably interpret a request to manufacture ambiguity or additional burden. See Gun Owners , 594 F. Supp. 3d at 44. Searching 14 individuals' records falls far short of the Sisyphean trawls that other courts have deemed facially unreasonable. See, e.g., Nat'l Sec. Couns. v. CIA , 960 F. Supp. 2d 101, 163 (D.D.C. 2013) (describing a search where every component of an agency was "equally likely to have responsive records" (cleaned up)). Thus, Plaintiff has stated a claim as to request D, and Defendant's motion must be denied in part. But that does not necessarily end the matter. Defendant is right that terms like "concerning" and "actionable" are likely to appear in many records, particularly given Plaintiff's expansive definition of the term. So even if the request is not facially deficient, the search still might turn out to place an unreasonable burden on Defendant. That, however, is an inquiry for the summary-judgment stage, where Defendant must sufficiently explain "why such a search would be unreasonably burdensome in a detailed affidavit." Pub. Emps. for Env't Resp. v. EPA , 314 F. Supp. 3d 68, 75 (D.D.C. 2018) (cleaned up). If Plaintiff will not agree to narrow its request, that inquiry may become necessary. For those reasons, it is hereby ORDERED that Defendant's 8 Motion to Dismiss is DENIED IN PART insofar as it seeks dismissal of Plaintiff's claim based on request D. It is further ORDERED that Defendant shall answer or otherwise respond to Plaintiff's 1 Complaint by April 14, 2023. Signed by Judge Timothy J. Kelly on 3/31/2023. (lctjk1) (Entered: 03/31/2023) |
| 2023-04-11 | 13 | Unopposed MOTION for Extension of Time to File Answer re 1 Complaint,, by DEPARTMENT OF DEFENSE. (Attachments: # 1 Text of Proposed Order)(Walker, Anna) (Entered: 04/11/2023) |
| 2023-04-12 | 14 | NOTICE of Appearance by Juli Zsuzsa Haller on behalf of All Plaintiffs (Haller, Juli) (Entered: 04/12/2023) |
| 2023-04-12 | | MINUTE ORDER granting Defendant's 13 Unopposed Motion for an Extension of Time. It is hereby ORDERED that, for good cause shown, Defendant's 13 unopposed motion for an extension of time to answer Plaintiff's complaint is GRANTED. It is further ORDERED that Defendant shall answer Plaintiff's complaint by May 15, 2023. Signed by Judge Timothy J. Kelly on 4/12/2023. (lctjk1) (Entered: 04/12/2023) |
| 2023-05-15 | 15 | ANSWER to Complaint by DEPARTMENT OF DEFENSE.(Walker, Anna) (Entered: 05/15/2023) |
| 2023-05-16 | | MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. It is hereby ORDERED that the parties shall meet, confer, and file a joint proposed schedule for briefing or disclosure by June 7, 2023. Signed by Judge Timothy J. Kelly on 5/16/2023. (lctjk1) (Entered: 05/16/2023) |
| 2023-06-07 | 16 | Joint STATUS REPORT by DEPARTMENT OF DEFENSE. (DeGenaro, Stephen) (Entered: 06/07/2023) |
| 2023-06-11 | | MINUTE ORDER: Upon consideration of the parties' 16 Joint Status Report, it is hereby ORDERED that the parties shall file a further joint status report by August 7, 2023. Signed by Judge Timothy J. Kelly on 6/11/2023. (lctjk1) (Entered: 06/11/2023) |
| 2023-08-07 | 17 | Joint STATUS REPORT by DEPARTMENT OF DEFENSE. (DeGenaro, Stephen) (Entered: 08/07/2023) |
| 2023-08-08 | | MINUTE ORDER: Upon consideration of the parties' 17 Joint Status Report, it is hereby ORDERED that the parties shall file a further Joint Status Report by October 6, 2023. Signed by Judge Timothy J. Kelly on 8/8/2023. (lctjk1) (Entered: 08/08/2023) |
| 2023-10-06 | 18 | Joint STATUS REPORT by DEPARTMENT OF DEFENSE. (DeGenaro, Stephen) (Entered: 10/06/2023) |
| 2023-10-11 | | MINUTE ORDER: : Upon consideration of the parties' 18 Joint Status Report, it is hereby ORDERED that the parties shall file a further joint status report by December 6, 2023. Signed by Judge Timothy J. Kelly on 10/11/2023. (lctjk1) (Entered: 10/11/2023) |
| 2023-12-06 | 19 | Joint STATUS REPORT by DEPARTMENT OF DEFENSE. (DeGenaro, Stephen) (Entered: 12/06/2023) |
| 2023-12-07 | | MINUTE ORDER: Upon consideration of the parties' 19 Joint Status Report, it is hereby ORDERED that the parties shall file a further joint status report by February 6, 2024. Signed by Judge Timothy J. Kelly on 12/7/2023. (lctjk1) (Entered: 12/07/2023) |
| 2024-02-06 | 20 | Joint STATUS REPORT by DEPARTMENT OF DEFENSE. (DeGenaro, Stephen) (Entered: 02/06/2024) |
| 2024-02-07 | | MINUTE ORDER: Upon consideration of the parties' 20 Joint Status Report, it is hereby ORDERED that the parties shall file a further joint status report by April 5, 2024. Signed by Judge Timothy J. Kelly on 2/7/2024. (lctjk1) (Entered: 02/07/2024) |
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