                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
CITIZENS FOR RESPONSIBILITY         )
AND ETHICS IN WASHINGTON,           )
                                    )
                  Plaintiff,        )
                                    )               Civil Action No. 19-1552 (ABJ)
      v.                            )
                                    )
U.S. DEPARTMENT OF JUSTICE,         )
                                    )
                  Defendant.        )
____________________________________)




                                 MEMORANDUM OPINION

        Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”) has brought this

action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against the United States

Department of Justice (“DOJ”), seeking the production of documents that Attorney General

William Barr may have reviewed in advance of his public announcement concerning the report

transmitted to him by Special Counsel Robert Mueller. Compl. [Dkt. # 1] ¶¶ 1–2. The complaint

contains two counts: the first alleges wrongful withholding of non-exempt records, and the second

requests a declaration from the Court, pursuant to 28 U.S.C. §§ 2201 and 2202, that DOJ violated

FOIA by refusing to grant expedited processing of its request. Id. at ¶¶ 23, 20.

         Pending before the Court is defendant’s partial motion to dismiss. Def.’s Partial Mot. to

Dismiss [Dkt. # 5] (“Def.’s Mot.”); Mem. in Supp. of Def.’s Partial Mot. to Dismiss [Dkt. # 5-1]

(“Def.’s Mem.”). DOJ argues that Count II should be dismissed because CREW failed to exhaust

administrative remedies before filing the claim concerning expedition, and because the claim fails

on the merits. Def.’s Mem. at 1–2. Plaintiff filed an opposition, Pl.’s Mem. in Opp. to Def.’s
Partial Mot. to Dismiss [Dkt. # 6] (“Pl.’s Opp.”), and defendant replied. Def.’s Reply Mem. in

Support of Def.’s Partial Mot. to Dismiss [Dkt. # 8] (“Def.’s Reply”). The Court finds that

administrative exhaustion was not required, so the claim should not be dismissed. And based on

a review of the pleadings, the expedited processing request, and DOJ’s denial, 1 it finds that DOJ’s

denial was not the product of reasoned decision making. Therefore, defendant’s partial motion to

dismiss will be denied.

                                        BACKGROUND

       CREW is a “non-profit, non-partisan organization . . . committed to protecting the rights

of citizens to be informed about the activities of government officials and agencies.” Compl. ¶ 4.

It alleges that on April 18, 2019, Attorney General Barr held a press conference in advance of the

public release of the Report (the “Report”) prepared by Special Counsel Mueller on the

investigation into Russian interference in the 2016 election. Id. ¶ 13. During that conference,

Attorney General Barr “stated ‘that the evidence developed by the Special Counsel is not sufficient

to establish that the President committed an obstruction-of-justice offense.’” Id. at 4, quoting

Attorney General Barr’s remarks.

       Later that day, CREW submitted a FOIA request to DOJ’s Office of Legal Counsel

(“OLC”) seeking “all documents pertaining to the views OLC provided Attorney General Barr on

whether the evidence developed by Special Counsel Mueller is sufficient to establish that the

President committed an obstruction-of-justice offense.” Compl. ¶ 14. CREW also sent a request

for expedited processing to DOJ’s Office of Public Affairs (“OPA”). Id. ¶ 17. On April 26, 2019,




1       A document outside the complaint may be considered on a motion to dismiss if it is
“referred to in the complaint and integral to” the plaintiff’s claim. Kaempe v. Myers, 367 F.3d
958, 965 (D.C. Cir. 2004). All documents referred to by exhibit number in this opinion were
attached to defendant’s partial motion to dismiss, and specifically referenced in the complaint.
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DOJ informed CREW that OPA had denied the request for expedited processing by stating that

“CREW’s FOIA request is not a matter in which there exist possible questions about the

government’s integrity that affect public confidence.” Id. DOJ also notified CREW that it would

be unable to comply with the 20-day deadline to respond to the FOIA request and would respond

“as soon as practicable.” Id. ¶ 18.

          CREW filed the instant complaint on May 28, 2019.

                                        LEGAL STANDARD

          “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal,

the Supreme Court reiterated the two principles underlying its decision in Twombly: “First, the

tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable

to legal conclusions.” Iqbal, 556 U.S. at 678. And “[s]econd, only a complaint that states a

plausible claim for relief survives a motion to dismiss.” Id. at 679, citing Twombly, 550 U.S.

at 556.

          A claim is facially plausible when the pleaded factual content “allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than

a sheer possibility that a defendant has acted unlawfully.” Id. A pleading must offer more than

“labels and conclusions” or a “formulaic recitation of the elements of a cause of action,” id.,

quoting Twombly, 550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id.




                                                   3
        In evaluating a motion to dismiss under Rule 12(b)(6), a court must “treat the complaint’s

factual allegations as true and must grant plaintiff ‘the benefit of all inferences that can be derived

from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)

(internal citation omitted), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979);

see also Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011), quoting Thomas v.

Principi, 394 F.3d 970, 972 (D.C. Cir. 2005). Therefore, when considering a motion to dismiss, a

court must construe a complaint liberally in the plaintiff’s favor. Kowal v. MCI Commc’ns Corp.,

16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the court need not accept inferences drawn by

the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the

court accept plaintiff’s legal conclusions. Id.; see also Browning v. Clinton, 292 F.3d 235, 242

(D.C. Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may

ordinarily consider only “the facts alleged in the complaint, documents attached as exhibits or

incorporated by reference in the complaint, and matters about which the Court may take judicial

notice.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), citing EEOC v. St.

Francis Xavier Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997).

                                            ANALYSIS

   I.      Expedited Processing

        The Freedom of Information Act, 5 U.S.C. § 552, requires agencies to make requested

records available to the public unless one or more specific statutory exemptions applies, and

charges agencies to “determine within 20 days . . . whether to comply with such request.” Id.

§ 552(a)(6)(A)(i). The statute also requires that “each agency shall promulgate regulations . . .

providing for expedited processing of requests for records – (I) in cases in which the person

requesting the records demonstrates a compelling need; and (II) in other cases determined by the



                                                  4
agency.” Id. § 552(a)(6)(E)(i). The statute specifies that “compelling need” means, “with respect

to a request made by a person primarily engaged in disseminating information, urgency to inform

the public concerning actual or alleged Federal Government activity.” Id. § 552(a)(6)(E)(v)(II).

Agencies must respond to expedited requests within 10 days. Id. § 552(a)(6)(E)(ii)(I).

         In accordance with this provision, DOJ promulgated rules setting forth the circumstances

that would warrant the expedited processing of FOIA requests, including “whenever it is

determined that they involve . . . (iv) [a] matter of widespread and exceptional media interest in

which there exist possible questions about the government’s integrity that affect public

confidence.” 28 C.F.R. § 16.5(e)(1).

   II.      Administrative exhaustion was not required to bring Count II.

         FOIA establishes a procedure through which a requestor may appeal an adverse decision

made by an agency regarding a FOIA request, and a plaintiff must exhaust those administrative

remedies before it can bring an action to enforce its rights under FOIA in federal court. See 5

U.S.C. § 552(a)(6)(C)(i); Citizens for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180, 182

(D.C. Cir. 2013) (“[A] FOIA requestor must exhaust administrative appeal remedies before

seeking judicial redress.”); Hidalgo v. FBI, 344 F.3d 1256, 1258–59 (D.C. Cir. 2003) (holding that

each FOIA requestor must exhaust administrative remedies before filing suit); Oglesby v. United

States Dept. of the Army, 920 F.2d 57, 65 (D.C. Cir. 1990) (“[F]oregoing an administrative appeal

will preclude the requester from ever bringing suit on that request because the individual will not

have exhausted his administrative remedies[.]”).

         However, FOIA uses different language in the provision relating to denials of requests for

expedited processing: “[a]gency action to deny or affirm denial of a request for expedited

processing . . . shall be subject to judicial review.” 5 U.S.C. § 552(a)(6)(E)(iii) (emphasis added).



                                                 5
While the D.C. Circuit has not spoken on the matter, courts in this district have interpreted that

language to relieve plaintiffs of the exhaustion requirement when appealing a denial of expedited

processing. See, e.g., ACLU v. U.S. Dep’t of Justice, 321 F. Supp. 2d 24, 28 (D.D.C. 2004) (“FOIA

. . . specifically authorizes judicial review for challenges to ‘[a]gency action to deny or affirm

denial of a request for expedited processing’”), quoting 5 U.S.C. § 552(a)(6)(E)(iii); Elec. Privacy

Info. Ctr. v. Dep’t of Defense, 355 F. Supp. 2d 98, 100 n.1 (D.D.C. 2004) (“Plaintiff is not required

to pursue an administrative appeal before seeking judicial review of its request for expedited

processing of a FOIA request.”); Al-Fayed v. CIA, No. 00-2092, U.S. Dist. LEXIS 21476, at *7

(D.D.C. Sept. 20, 2000) (holding that FOIA language “clearly indicates that judicial review is

appropriate at either of two moments: when the agency has denied a request for expedited

processing, or when the agency has, upon administrative appeal, affirmed the denial of such a

request”).

       The Court finds these opinions to be persuasive. Their reading of the statute is consistent

with the purpose underlying the provision that makes expedited review available, and the express

Congressional acknowledgment that time may be of the essence for certain requests. “Compelling

need,” for example, includes situations when “failure to obtain requested records on an expedited

basis . . . could reasonably be expected to pose an imminent threat to life or physical safety of an

individual[,]” and it should also be found when a requestor “is primarily engaged in disseminating

information, urgency to inform the public concern actual or alleged Federal Government activity.”

5 U.S.C. § 552(a)(6)(E)(v). To require a requestor who has been denied expedited processing to

exhaust administrative remedies before seeking judicial review would defeat the section’s aim of

accelerating response time.

       For these reasons, the Court will deny the motion to dismiss on exhaustion grounds.



                                                 6
   III.      DOJ’s denial of CREW’s expedited request was not reasonable.

          Turning to the question of whether DOJ properly denied CREW’s request for expedition,

the Court finds that OPA’s mere recitation of the language in the DOJ provision on expedited

review does not suffice as a reasoned explanation for its denial of CREW’s request.

          In accordance with the statutory directive that it do so, see 5 U.S.C. § 552(a)(6)(E)(i), DOJ

promulgated regulations governing requests for expedited processing under FOIA.                 Using

mandatory language, it requires that “[r]equests . . . shall be processed on an expedited basis

whenever it is determined that they involve” a number of enumerated circumstances. 28 C.F.R.

§ 16.5(e)(1) (emphasis added). One of those circumstances is when the request involves a “matter

of widespread and exceptional media interest in which there exist possible questions about the

government’s integrity that affect public confidence.” Id. § 16.5(e)(1)(iv).

          In Al Fayed v. CIA, a case involving a British magazine’s request for expediated

processing of records pertaining to the car crash that killed Princess Diana and others, the D.C.

Circuit considered the standard that should be applied when undertaking the review of an agency’s

application of its own regulations implementing FOIA, and it found the review of agency action

under the Administrative Procedure Act to be analogous. 254 F.3d 300, 302, 307 n. 7 (D.C.

Cir. 2001). Citing principles developed in that context, the Court of Appeals held that a decision

based on a regulation promulgated by an agency, as opposed to a statutory provision, “is entitled

to judicial deference . . . as is each agency’s reasonable interpretation of its own such regulations.”

Id. at 307 n.7, citing United States v. Mead Corp., 533 U.S. 218, 226–27 (2001); United States v.

Cleveland Indians Baseball Co., 532 U.S. 200, 219 (2001).

          Applying the well-established principles governing APA review, then, the Court

recognizes that deference should be accorded to an agency’s application of its own regulations,



                                                    7
even when the reasoning is “of less than ideal clarity if the agency’s path may reasonably be

discerned.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29,

43 (1983). But that does not mean that the Court has no say in the matter; as the Supreme Court

has emphasized, “courts retain a role, and an important one, in ensuring that agencies have engaged

in reasoned decisionmaking.” Judulang v. Holder, 565 U.S. 42, 53 (2011). Thus, in this context

as in others, an agency is required to offer an adequate explanation for its actions so that a court is

able to “evaluate the agency’s rationale at the time of the decision.” Pension Benefit Guar. Corp.

v. LTV Corp., 496 U.S. 633, 654 (1990). Put simply, “the agency must explain why it decided to

act as it did.” Butte Cty. v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010). And, pursuant to the FOIA

statute, judicial review of an agency’s decision to grant or deny a request for expedited processing

“shall be based on the record before the agency at the time of the determination.” 5 U.S.C. §

552(a)(6)(E)(iii).

      Here, CREW provided the following justification for its request for expedited processing:

               CREW seeks expedition because the subject matter of the request is of
               widespread and exceptional media interest and the requested information
               involves possible questions about the government’s integrity, which clearly
               affect public confidence. Today Attorney General Barr took the
               unprecedented step of holding a press conference in advance of his release
               to Congress and the public of the Mueller Report. During that press
               conference the Attorney General discussed his decision that President
               Donald Trump had not obstructed the Special Counsel’s investigation,
               which he explained was made “[a]fter carefully reviewing the facts and
               legal theories outlined in the report.” He further stated that the OLC was
               among those he had consulted before reaching his conclusion “that the
               evidence developed by the Special Counsel is not sufficient to establish that
               the President committed an obstruction-of-justice offense.

               The Attorney General’s repeated efforts to spread misinformation about the
               Mueller Report and its findings, particularly with respect to the issue of
               whether President Trump obstructed justice, raise serious concerns that the
               process undertaken by the Special Counsel has been tainted in an effort to
               protect the President rather than the American public. The requested
               records will shed light on the legality and reasonableness of the Attorney


                                                  8
               General’s conclusions and whether he was acting as a personal counsel for
               the President or on behalf of the United States. Because the Attorney
               General has so directly and significantly placed his hand on the scales of
               justice in making and announcing his declination decision, the public
               deserves to know the full basis for that decision.

               CREW’s primary purpose is to inform and educate the public about the
               activities of government officials and those who influence public officials.
               Toward that end, CREW uses statutes like the FOIA to gather information
               to hold public officials accountable. The request for which CREW seeks
               expedition will further those goals.

Ex. 2 to Def.’s Mot. [Dkt. # 5-3] (“Expedition Request”) at 1–2.

       The agency responded with a single sentence: “CREW’s FOIA request is not a matter in

which there exist possible questions about the government’s integrity that affect public

confidence.” 2 Since the agency did nothing more than parrot its own regulatory language, and

offered no reasoning or analysis, its decision, as in the APA context, is entitled to little deference.

See State Farm, 463 U.S. at 303 (explaining that while the scope of judicial review of agency

action is “narrow and a court is not to substitute its judgment for that of the agency[,]

[n]evertheless, the agency must . . . articulate a satisfactory explanation for its action including a

rational connection between the facts found and the choice made”) (internal citation omitted).

       Neither FOIA nor the departmental regulations require the requester to prove wrongdoing

by the government in order to obtain documents on an expedited basis. The request must simply

provide grounds to support the contention that the matter is time sensitive, and that it is a “matter




2     In its briefing, DOJ expends considerable effort explaining why CREW’s request failed to
meet DOJ’s “media-related” standard for expedited processing under 28 C.F.R. § 16.5(e)(1).
While it is true that CREW provided nothing more than its own assertion that the matter was of
widespread public interest, DOJ’s belated objections on those grounds are misplaced. Since the
agency did not identify any deficiency in this regard as a basis for its decision, it cannot argue now
that its decision was appropriate based on some newly developed theory that was not stated in the
record before the Court for review.


                                                  9
of widespread and exceptional media interest in which there exist possible questions about the

government’s integrity that affect public confidence.” 28 C.F.R. § 16.5(e)(1)(iv) (emphasis

added). Here, CREW stated in its request that the Attorney General of the United States had

mischaracterized some of the core conclusions contained in a report of great public significance,

written by the Department’s own duly appointed Special Counsel, in advance of its public release.

CREW’s submission supported an inference that at best, the Attorney General undertook to frame

the public discussion on his own terms while the report itself remained under wraps, and at worst,

that he distorted the truth. For these reasons, the request raised “possible questions” about

government integrity that could affect public confidence. And the disclosure of any material that

either influenced or contradicted those public statements could very well bear upon the resolution

of those questions. Since DOJ provided no explanation for its flat assertion to the contrary, it does

not stand up to judicial review.

                                         CONCLUSION

       For the foregoing reasons, the Court will deny defendant’s partial motion to dismiss

Count II. CREW may proceed with Counts I and II. A separate order will issue.




                                              AMY BERMAN JACKSON
                                              United States District Judge

DATE: January 31, 2020




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