Case Detail

FOIA Project Annotation: Patrick Eddington, a researcher at the Cato Institute, has recently taken to submitting FOIA requests to a number of agencies aimed at challenging government FOIA policies, often by asking for records that are clearly exempt from FOIA to apparently test those policies and practices in court. The latest case in this saga is one Eddington filed against the Department of Justice's National Security Division for records that mention Amir Mohamed Meshal â€" a U.S. citizen who was detained by both Kenyan and Ethiopian government entities between 2006 and 2007. In 2007, Eddington was working as a senior policy advisor to Rep. Rush Holt (D-NJ). He received information from a journalist that Meshal was being detained by Kenyan authorities in Somalia. Eddington learned that Meshal lived in Holt's district. He contacted Meshal's father, who told him that he had been informed by the FBI that his son was being held by Kenyan authorities on terrorism charges. After informing Holt, Eddington contacted the FBI and spoke with then-Assistant Director for Counterterrorism Joseph Billy, who indicated that Meshal was in the custody of the Ethiopian government and that the FBI had access to him. During the next two months, Eddington was in near daily contact with the FBI and the State Department about Meshal. Meshal was released from detention in May 2007. In 2009, Meshal filed a Bivens action against several FBI agents, alleging that while traveling in Africa, he was detained and tortured on behalf of the U.S. government. The district court dismissed his case and the D.C. Circuit affirmed that decision. His case attracted considerable media attention and articles appeared in the New York Times, the Chicago Tribune and the Los Angeles Times. Eddington submitted a FOIA request to the Justice Department in 2019, asking for records on Meshal from the National Security Division. The agency provided 451 pages of records and withheld two records under Exemption 5 (privileges). The agency also invoked a Glomar response neither confirming nor denying the existence of records on the basis of Exemption 1 (national security) and Exemption 7(A) (interference with ongoing investigation or proceeding). By the time Judge Florence Pan ruled in the case, Eddington's only remaining challenge was to the Glomar response with respect to records from the Intelligence and Counterterrorism units of NSD. Eddington argued that DOJ had officially acknowledged the records and that that the Glomar response was improper. Eddington claimed there were three main sources of information supporting his official acknowledgement challenge â€" (1) evidence in the Bivens lawsuit filed by Meshal, (2) a statement from the FBI media spokesman that the FBI interviewed Meshal in Nairobi, and (3) a statement made by the FBI and the State Department to Meshal's family. Pan first explained that to successfully invoke the official acknowledgement standard, a plaintiff must show that the information requested was as specific as the information previously released, that the requested information must match the information previously disclosed, and that the information requested must have already been disclosed through an official and documented disclosure. She pointed out that "under the foregoing standard, Eddington must point to a specific, official acknowledgment that the NSD investigated Meshal for terrorism-related activities, in order to overcome the government's Glomar response. He fails to do so. Indeed, it appears that no such acknowledgement has ever been made." Eddington argued that facts disclosed in Meshal's Bivens action made it implausible for the government to claim that no records exist about Meshal being held by the Kenyan and Ethiopian governments. But Pan observed that "the general facts discussed in the D.C. Circuit opinion, however, do not contain any acknowledgement by the government that NSD investigated Meshal or considered prosecuting him for a terrorism-related offense. Further, the DOJ has not publicly commented on the truth of the allegations in the complaint in Meshal's case, and the Counterterrorism Section never provided any records in discovery during the litigation. Thus, the cited information from Meshal's Bivens action does not amount to an 'official acknowledgment' that responsive records exist in the Office of Intelligence or the Counterterrorism Section of the NSD or that Meshal was the subject of a counterterrorism investigation by the NSD." She also rejected Eddington's contention that the FBI had admitted interviewing Meshal in Nairobi. She indicated that "but Eddington's FOIA request was for records kept by the NSD. The statement that FBI agents interviewed Meshal in Nairobi does not prove that the NSD is in possession of any records memorializing those interviews." Pan agreed with the government that its Glomar response was appropriate under both Exemption 1 and Exemption 7(A). Eddington argued that the Exemption 7(A) Glomar response was improper because it was common knowledge that Meshal had been investigated. However, Pan noted that "the Court rejects Eddington's contention that the DOJ publicly acknowledged a terrorism-related investigation of Meshal by the NSD. Further, the Court agrees with the DOJ that confirming or denying the existence of records in the hands of the NSD would reveal whether prosecutors investigated Meshal for terrorism-related offenses; and that this could provide insight into the information that the government has at its disposal as it attempts to prevent and prosecute terrorism crimes."
Issues: Determination - Glomar response

Date Filed	Doc #	Docket Text
2019-07-03	1	COMPLAINT against U.S. DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-6233947) filed by PATRICK EDDINGTON. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Civil Cover Sheet, # 5 Summons)(Burday, Joshua) (Entered: 07/03/2019)
2019-07-03	2	NOTICE of Appearance by Joshua Hart Burday on behalf of PATRICK EDDINGTON (Burday, Joshua) (Entered: 07/03/2019)
2019-07-05		Case Assigned to Judge Ketanji Brown Jackson. (zrdj) (Entered: 07/05/2019)
2019-07-05	3	SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent)(zrdj) (Entered: 07/05/2019)
2019-07-08	4	GENERAL ORDER AND GUIDELINES APPLICABLE TO FOIA CASES ASSIGNED TO JUDGE KETANJI BROWN JACKSON. The Court will hold the parties and counsel responsible for following these directives, and parties and counsel should pay particular attention to the Court's instructions for processing and production of records, batching motions, and filing exhibits. Failure to adhere to this Order may, when appropriate, result the imposition of sanctions and/or sua sponte denial of non-conforming motions. Signed by Judge Ketanji Brown Jackson on 7/8/2019. (lckbj1) (Entered: 07/08/2019)
2019-08-06	5	NOTICE of Appearance by Merrick Jason Wayne on behalf of PATRICK EDDINGTON (Wayne, Merrick) (Entered: 08/06/2019)
2019-08-07	6	Unopposed MOTION for Extension of Time to File Notice and Initial Response to the Complaint by U.S. DEPARTMENT OF JUSTICE (Lyons, Jane) (Entered: 08/07/2019)
2019-08-09		MINUTE ORDER granting 6 Motion for Extension of Time to File Notice and Initial Response to Complaint. It is hereby ORDERED that Defendant shall file any notice of intent to answer on or before 9/12/2019; and any answer on or before 9/18/2019. Signed by Judge Ketanji Brown Jackson on 8/9/2019. (lckbj1) (Entered: 08/09/2019)
2019-09-11	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF JUSTICE served on 7/16/2019 (Burday, Joshua) (Entered: 09/11/2019)
2019-09-11	8	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 7/19/2019. (Burday, Joshua) (Entered: 09/11/2019)
2019-09-11	9	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/19/2019. Answer due for ALL FEDERAL DEFENDANTS by 8/18/2019. (Burday, Joshua) (Entered: 09/11/2019)
2019-09-12	10	NOTICE of Intent to File Answer by U.S. DEPARTMENT OF JUSTICE (Lyons, Jane) (Entered: 09/12/2019)
2019-09-18	11	ANSWER to Complaint by U.S. DEPARTMENT OF JUSTICE.(Lyons, Jane) (Entered: 09/18/2019)
2019-09-19		MINUTE ORDER. Before the Court in this FOIA case are a complaint and an answer. It is hereby ORDERED that the parties shall review this Court's 4 General Order and Guidelines Applicable to FOIA Cases, and promptly confer and file a joint proposed schedule for disclosure or briefing motions for summary judgment, on or before 10/3/2019. Signed by Judge Ketanji Brown Jackson on 9/19/2019. (lckbj1) (Entered: 09/19/2019)
2019-10-03	12	Joint STATUS REPORT by U.S. DEPARTMENT OF JUSTICE. (Lyons, Jane) (Entered: 10/03/2019)
2019-10-09		MINUTE ORDER. In light of the representations in the parties' 12 Joint Status Report, it is hereby ORDERED that, on or before 11/15/2019, the parties shall file a further joint status report, which shall include a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 10/9/2019. (jag) (Entered: 10/09/2019)
2019-11-15	13	Joint STATUS REPORT (Second) by U.S. DEPARTMENT OF JUSTICE. (Lyons, Jane) (Entered: 11/15/2019)
2019-12-02		MINUTE ORDER. In light of the representations in the parties' 13 Joint Status Report, it is hereby ORDERED that the parties shall file their processing completion notice and joint proposed schedule on or before 1/7/2020. Signed by Judge Ketanji Brown Jackson on 12/2/2019. (jag) (Entered: 12/02/2019)
2020-01-08	14	Joint STATUS REPORT Processing and Disclosure Completion Notice and Third Joint Status Report by PATRICK EDDINGTON. (Burday, Joshua) (Entered: 01/08/2020)
2020-01-09		MINUTE ORDER setting schedule for further proceedings: Plaintiff's Amended Complaint is due on or before 2/24/2020; Defendant's Answer to the Amended Complaint is due on or before 3/9/2020; Plaintiff's Motion for Summary Judgment shall be served on or before 3/30/2020; Defendant's Opposition and Cross-Motion for Summary Judgment shall be served on or before 4/29/2020; Plaintiff's Reply and Cross-Motion Opposition shall be served on or before 5/29/2020; Defendant's Cross-Motion Reply shall be served on or before 6/19/2020; briefs shall be filed as a batch within three (3) business days of the service of the last reply brief authorized by this Minute Order, but in any event no later than the Final Filing Deadline of 7/27/2020. Signed by Judge Ketanji Brown Jackson on 1/9/2020. (jag) (Entered: 01/09/2020)
2020-02-24	15	AMENDED COMPLAINT against U.S. DEPARTMENT OF JUSTICE filed by PATRICK EDDINGTON. (Attachments: # 1 Exhibit Amended Complaint - redline version)(Burday, Joshua) (Entered: 02/24/2020)
2020-03-09	16	ANSWER to 15 Amended Complaint by U.S. DEPARTMENT OF JUSTICE.(Lyons, Jane) (Entered: 03/09/2020)
2020-06-03	17	NOTICE Regarding Briefing Schedule by PATRICK EDDINGTON (Burday, Joshua) (Entered: 06/03/2020)
2020-06-03	18	NOTICE Corrected Notice Regarding Briefing Schedule by PATRICK EDDINGTON (Burday, Joshua) (Entered: 06/03/2020)
2020-06-19	19	NOTICE of Service of Defendant's Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support (Cross-Motion and Memorandum), # 2 Statement of Facts, # 3 Text of Proposed Order, # 4 Exhibit 1 (Findlay Decl.), # 5 Exhibit 2 (Kravitz Decl.), # 6 Exhibit 3 (Stein Decl.), # 7 Exhibit 4 (Civil Withholdings))(Hudak, Brian) (Entered: 06/19/2020)
2020-07-13	20	Unopposed MOTION for Extension of Time to Briefing Schedule by PATRICK EDDINGTON (Attachments: # 1 Text of Proposed Order)(Burday, Joshua) (Entered: 07/13/2020)
2020-07-16		MINUTE ORDER granting 20 Motion for Extension of Time to Briefing Schedule. It is hereby ORDERED that the briefing schedule in this matter is modified as follows: Plaintiff's Reply and Cross-Motion Opposition shall be served on or before 8/12/2020; Defendant's Cross-Motion Reply shall be served on or before 8/26/2020; briefs shall be filed as a batch within three (3) business days of the service of the last reply brief authorized by this Minute Order, but in any event no later than the Final Filing Deadline of 9/14/2020. Signed by Judge Ketanji Brown Jackson on 7/16/2020. (jag) (Entered: 07/16/2020)
2020-08-05	21	Unopposed MOTION for Extension of Time to Briefing Schedule by PATRICK EDDINGTON (Attachments: # 1 Text of Proposed Order)(Burday, Joshua) (Entered: 08/05/2020)
2020-08-05		MINUTE ORDER, granting 21 Motion for Extension of Time to Briefing Schedule. It is hereby ORDERED that the briefing schedule in this matter is modified as follows: Plaintiff's Reply and Cross-Motion Opposition shall be served on or before 9/11/2020; Defendant's Cross-Motion Reply shall be served on or before 9/25/2020; briefs shall be filed as a batch within three (3) business days of the service of the last reply brief authorized by this Minute Order, but in any event no later than the Final Filing Deadline of 10/13/2020. Signed by Judge Ketanji Brown Jackson on 08/05/2020. (lckbj2) (Entered: 08/05/2020)
2020-08-05		Set/Reset Deadlines: Plaintiff's reply and response to Cross Motion due by 9/11/2020. Defendant's reply to Cross Motions due by 9/25/2020. (zgdf) (Entered: 08/06/2020)
2020-09-11	22	NOTICE of Service by PATRICK EDDINGTON (Attachments: # 1 Exhibit Opposition and Reply, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Statement of Facts Opposition to Statement of Facts, # 7 Text of Proposed Order)(Burday, Joshua) (Entered: 09/11/2020)
2020-10-06	23	Unopposed MOTION for Extension of Time to Serve Reply , Unopposed MOTION to Modify Final Filing Deadline by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Lyons, Jane) (Entered: 10/06/2020)
2020-11-06	24	NOTICE of Service by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Def.'s Reply With Second Declaration of Hirsh D. Kravitz)(Lyons, Jane) (Entered: 11/06/2020)
2020-11-09	25	MOTION for Partial Summary Judgment by PATRICK EDDINGTON (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibit A to Statement of Facts, # 4 Text of Proposed Order)(Burday, Joshua) (Entered: 11/09/2020)
2020-11-09	26	Memorandum in opposition to re 25 MOTION for Partial Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Statement of Facts, # 2 Exhibit 1 - Declaration of Patrick N. Findlay, # 3 Exhibit 2 - Declaration of Hirsh D. Kravitz, # 4 Exhibit 3 - Declaration of Eric F. Stein, # 5 Exhibit 4 - Documents Processed by Civil Div., # 6 Text of Proposed Order)(Lyons, Jane) (Entered: 11/09/2020)
2020-11-09	27	Cross MOTION for Summary Judgment (Otherwise Identical to ECF No. 26) by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Statement of Facts, # 2 Exhibit 1 - Declaration of Patrick N. Findlay, # 3 Exhibit 2 - Declaration of Hirsh D. Kravitz, # 4 Exhibit 3 - Declaration of Eric F. Stein, # 5 Exhibit 4 - Documents Processed by Civil Div., # 6 Text of Proposed Order)(Lyons, Jane) (Entered: 11/09/2020)
2020-11-09	28	Memorandum in opposition to re 27 Cross MOTION for Summary Judgment (Otherwise Identical to ECF No. 26) filed by PATRICK EDDINGTON. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Statement of Facts Opposition to Statement of Facts, # 6 Text of Proposed Order)(Burday, Joshua) (Entered: 11/09/2020)
2020-11-09	29	REPLY to opposition to motion re 25 MOTION for Partial Summary Judgment filed by PATRICK EDDINGTON. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Statement of Facts Opposition to Statement of Facts, # 6 Text of Proposed Order)(Burday, Joshua) (Entered: 11/09/2020)
2020-11-09	30	REPLY to opposition to motion re 27 Cross MOTION for Summary Judgment (Otherwise Identical to ECF No. 26) filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Second Declaration of Hirsh D. Kravitz)(Lyons, Jane) (Entered: 11/09/2020)
2020-11-09		MINUTE ORDER granting, for good cause shown, 23 Unopposed Motion to Extend Final Filing Deadline, nunc pro tunc. Signed by Judge Ketanji Brown Jackson on 11/9/2020. (jag) (Entered: 11/09/2020)
2020-11-10	31	NOTICE of Appearance by Brian P. Hudak on behalf of U.S. DEPARTMENT OF JUSTICE (Hudak, Brian) (Entered: 11/10/2020)
2021-06-28		Judge Ketanji Brown Jackson has been elevated to serve on the U.S. Court of Appeals for the D.C. Circuit. She is therefore no longer assigned to this case, and this matter has been reassigned to the Calendar Committee, which will oversee it until it is assigned to another district judge. Any questions should be directed to Judge Jackson's former deputy clerk, Gwendolyn Franklin, at 202-354-3145 or gwen_franklin@dcd.uscourts.gov. (rj) (Entered: 06/28/2021)
2021-10-01		Case directly reassigned to Judge Florence Y. Pan. Judge Ketanji Brown Jackson has been appointed to the D.C. Circuit and is no longer assigned to the case. (ztnr) (Entered: 10/01/2021)
2021-10-18		Set/Reset Deadlines/Hearings: Telephone Conference set for 10/20/2021 at 3:30 PM before Judge Florence Y. Pan. (zcdw) (Entered: 10/18/2021)
2021-10-25		Set/Reset Deadlines/Hearings: Status Conference reset for 11/2/2021 at 2:30 PM before Judge Florence Y. Pan. (zcdw) (Entered: 10/25/2021)
2021-11-02		Minute Entry for videoconference proceedings held before Judge Florence Y. Pan: Status Conference held on 11/2/2021. Orders from chambers forthcoming regarding outstanding motions. (Court Reporter Lisa Edwards.) (zacr) (Entered: 11/02/2021)
2022-01-21	32	NOTICE of Appearance by Matthew Topic on behalf of PATRICK EDDINGTON (Topic, Matthew) (Entered: 01/21/2022)
2022-01-21	33	MOTION to Withdraw as Attorney by PATRICK EDDINGTON. (Attachments: # 1 Text of Proposed Order)(Topic, Matthew) (Entered: 01/21/2022)
2022-01-24		MINUTE ORDER granting 33 Motion to Withdraw as Attorney for good cause shown. Counsel has complied with LCvR 83.6. Signed by Judge Florence Y. Pan on 1/24/2022. (lcrl) (Entered: 01/24/2022)
2022-01-25	34	ORDER denying 25 Motion for Partial Summary Judgment; granting 27 Motion for Summary Judgment. Signed by Judge Florence Y. Pan on 1/25/2022. (lcrl) (Entered: 01/25/2022)
2022-01-25	35	MEMORANDUM AND OPINION. Signed by Judge Florence Y. Pan on 1/25/2022. (lcrl) (Entered: 01/25/2022)
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