UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN ()VERSIGHT, )
)
Plaintiff, )
)
v. ) Civil Case No. 17-cv-848 (RJL)
)
U.S. DEPARTMENT OF JUSTICE, )
)
Defendant. ) F I L E D
)
) FEB 2 2 2013
_ C|erk. U.S. Distrlct & Bankruptcy
MEMORANDUM OPlNION Courts for the Dlstrict ot Colum_b|a

 

February 20 ,2018 [Dkt. # 17]

Plaintiff Ar_nerican Oversight (“plaintiff”) seeks expedited review of its Freedom of
lnformation Act (“FG)IA”) request to the Department of Justice (“DOJ” or “the
Department”) for records concerning Noel Francisco, Solicitor General of the United States
(“General Francisco” or “Francisco”). Before the Court is Plaintiff’ s Motion for Partial
Summary Judgment [Dkt. # 17]. For the reasons that follow, the Court Will DENY the
Motion.

PROCEDURAL HISTORY

On March 7, 2017, President Donald J. Trump announced his intention to nominate
Noel J. Francisco as Solicitor General of the United States. See Part. Mot. for Summ. J.
(“MSJ”), Ex. l, at 1-2 [Dkt. 17-3]. At the time, Francisco Was serving as Acting Solicitor

General. See Pl.’s Statement of Material Facts as to Which There is No Dispute (“Pl.’s

Statement of Undisputed Material Facts”) 11 1 [Dkt. # l7-9]. Prior to January 20, 2017,
Francisco had been a partner at the Jones Day law firm in Washington, D.C. See id. 11 2.

As Acting Solicitor General, Francisco noticed his appearance in a case filed in the
Ninth Circuit challenging an executive order issued by President Trump regarding the so-
called “travel ban” of certain aliens into the United States. See Washingz‘on v. Trump, No.
l7-35105, ECF No. 4 (9th Cir. Feb. 4, 2017). See id. 11 3. Two days later, General
Francisco’s former firm, Jones Day, entered the case as an amicus opposed to the
Government’s position. See id. 11 4. That afternoon, the Government filed its Reply brief.
Id. 11 5. The Governmcnt’s brief stated in a footnote that Francisco had “refrained from
signing the brief`, out of an abundance of caution, in light of a last-minute filing of an
amicus brief by [his] former law firm.” Ia’. (quoting Reply Supp. Emergency Mot. Stay
Pending Appeal, Washingl'on v. Trump, No. 17-351()5, ECF No. 70, at *l (9th Cir. Feb. 6,
2017)). General Francisco did not, however, Withdraw from the case, and Went on to sign
subsequent filings. See id. 11 8. He provided no further explanation for his decision not to
sign the Reply brief`bef`ore the Ninth Circuit panel. See id. 1111 8-9.

On April 7, 2017, one month after the President’s announcement of Francisco’s
nomination as Solicitor General, plaintiff filed the FOIA request that gives rise to this case.
Ia’. 11 ll; see also 5 U.S.C. §§ 552 et seq.; 28 C.F.R. pt. l6.l Plaintif`f` seeks records

concerning (i) General Francisco’s role in litigation surrounding the Trump

 

l Plaintiff is a “nonpartisan organization committed to the promotion of transparency in government, the
education of the public about government activities, and ensuring the accountability of` government
officials.” First Am. Compl. (“FAC”), Ex. A, at 2 [Dkt. # l6-l].

Administration’s “travel ban,” and (ii) ethics issues related to General Francisco’s service

in the Office of Solicitor Gcneral. FAC, Ex. A, at 2-3.2 Plaintiff addressed its request to

several offices within the Department of Justice, including (i) the Office of Information

Policy (“OIP”); (ii) the Office of Solicitor General; and (iii) the Civil Division. Id. at l.3

 

2 The request reads as follows:

(l) Records refiecting any recusal or disqualification ofNoel Francisco from any matter, or from
matters involving any particular parties or participants

(2) /-\ny confiicts or ethics waivers or authorization issued for l\/lr. Francisco, including
authorizations pursuant to 5 C.F.R. § 2635.502.

(3) Any record reflecting a determination by DOJ that 5 C.F.R. § 2635.502 or any other ethics
requirement did not preclude l\/lr. Francisco’s continued participation in the Ninth Circuit
appeal or other litigation regarding the travel ban, including any determination by the Office of
the Attorney General, the Office of the Deputy Attorney General, the Office of Legal Counsel,
or the Departmental Ethics Office.

All records rc|lecting l\/lr. Francisco`s participation in litigation regarding the travel ban,
including but not limited to the appeal in the U.S. Court of Appeals for the Ninth Circuit
regarding the State of Washington’s challenge to that ban, between ll:Ol Al\/I on l\/Ionday,
liebl'uary 6, 2017, and the earlier of(i) the date and time of any written waiver or authorization
received by l\/lr. Francisco authorizing him to continue to participate in that particular matter
responsive to ltem 2 or (ii) February 16,2017. Please include:

(4)

a.

Any documents or emails during this period concerning the travel ban litigation,
including talking points, legal analysis, argument, briefing, or Strategy for the Ninth
Circuit appeal sent or received by l\/lr. Francisco or upon which he was copied

Any documents or e-mails during this period exchanged among lawyers participating
in the matter_including but not limited to Catherine Dorsey, Lowe|l Sturgill, Sharon
Swingle, Douglas Letter, H. Thomas Byron, Edwin Kneedler, and Aug'ust Flent_je_
discussing or concerning l\/lr. Francisco’s participation in the matter, including any oral
comments received from l\/ir. Francisco regarding the briefing, argument, strategy, or
legal analysis for the Ninth Circuit appeal.

Calendar entries, meeting agendas, or notes during this period reflecting l\/ir.
Francisco’s attendance or participation in any meeting or call regarding the Ninth
Circuit appeal or other litigation regarding the travel bau.

Records reflecting hand-written notes or comments regarding the Ninth Circuit appeal
or other litigation regarding the travel ban from l\/lr. Francisco prepare during this
period, such as edits on a draft brief.

(5) Any communications with the Office of Government Ethics regarding l\/Ir. Francisco’s
continued participation in the Ninth Circuit appeal or other litigation regarding the travel ban.

FAC, Ex, A, at 2-3.

l Pursuant to DO.l re‘r_;ulations1 the Office of Public Aft`airs processes FOIA requests made under 28 C.F.R.
§ ltS.S(e)(l)(iv) on behalf of (among others) the Office of the Attorney General, the Office of the Deputy
Attorney General, and the Office ofthe Associate Attorney General. See 28 C.F.R. § l6.5(e)(2).

The FOIA request runs nine pages in length, and cites five media articles concerning Mr.
Francisco’s nomination. See id_ at 6 & n.lS. By reason of “widespread and exceptional
media interest and . . . possible questions concerning the government’s integrity, which
affect public confidence,” the request seeks expedited processing of any responsive
documents Ia’. at 7. ln its brie'fing, plaintiff explains that it submitted its FOIA request to
ascertain “Mr. Francisco’s approach to ensuring his conduct complied with ethical
standards.” MSJ at 3.

The DOJ denied plaintiff"s request for expedited processing The Office of
Information Policy, Office of Solicitor General, and the Civil Division each sent American
Oversight a letter explaining their reasons for denial. [Dkt. ## 17-4, l7-5, l7-6].4 In each
letter, the responding office explained that, pursuant to DOJ policy, it had referred the
request for expedited processing to the Director of the Department’s Office of Public
Affairs, Sarah lsgur Flores. Id. While Director Flores agreed that plaintiff_` s request
involved “a matter of widespread and exceptional media interest,” id., she concluded that
plaintiff`s request did not “pertain[] to a matter ‘in which there exist possible questions
about the government’s integrity [that] affect public confidence.” Id. For this reason,
plaintiff”s request for expedited review was denied Id.

As a result, plaintiff filed the instant action on May 9, 2()l7, [Dkt. # l], moving
immediately for a preliminary injunction, [Dkt. # 3]. Within weeks, on l\/[ay 26, 2017, the

Department produced to plaintiff four documents responsive to its request. See Notice of

 

4 The Office oflnformation Policy’s letter was dated April 24, 2017; the Office of Solicitor General’s letter
was dated April 25, 20l7; and the Civil Division’s letter was dated l\/lay l6, 2017. See id.

4

Production [Dkt. # l2]. These documents were emails granting General Francisco ethics
waivers to continue working on specific litigation matters; three of the four pertained to
the executive order litigation referenced in American Oversight’s FOIA request. See id.
Following this disclosure, plaintiff withdrew its motion for a preliminary injunction on
l\/[ay 30, 2017. [Dkt. # 13]. ln its Partial l\/[otion for Summary Judgment, however, plaintiff
still seeks expedited review of its FOIA request pursuant to 5 U.S.C. § 552(a)(6)(E)(i)(iv),
and that provision’s implementing regulation, 28 C.F.R. § l6.5(e)(l)(iv).
STATUTORY SCHEME

In 1996, Congress amended the Freedom of lnformation Act (“FOIA”) to make
available a path for expedited process of certain requests See Electronic Freedom of
lnformation Act Amendments of 1996 (“Electronic FOIA”), Pub. L. No. 104-231, § 8, ll()
Stat. 3048 (codified as amended in 5 U.S.C. § 552(a)(6)(E)). Expedited requests will be
“taken out of turn,” a departure from the ordinary first-in, first-out practice of processing
FOIA petitions See Revision of`Freedom of lnformation Act, 63 Fed. Reg. 29,591, 29,592
(June l, 1998). ln Electronic FOIA, Congress directed “[e]ach agency” to “promulgate
regulations, pursuant to notice and receipt of public comment, providing for expedited
processing of requests for records” in two circumstances: first, in “cases in which the
person requesting the records demonstrates a compelling need,” id. § 552(a)(6)(E)(i)(I),

and, second, in “other cases determined by the agency,” id. § 552(a)(6)(E)(i)(Il).

Pursuant to this statutory authority, the DOJ promulgated a regulation specifying
four circumstances in which expedited processing would be permissible5 See 28 C.F.R. §
l6.5(e)(l)(i)-(iv). Subsection (iv) is the sole regulatory provision at issue in this case.
That subsection allows for expedited processing of FOIA requests concerning “[l] [a]
matter of widespread and exceptional media interest [2] in which there exist possible
questions about the government’s integrity [3] that affect public confidence.” Id. §
l6.5(e)(l)(iv). ln issuing subsection (iv), the DOJ relied on its statutory authority to
“provide for expedited processing of records . . . in other cases to be determined by the
agency,” rather than its power to promulgate regulations in cases of “compelling need.”
See Am. Civil Libertl`es Union v. U.S. Dep’t of.]ustice, 321 F. Supp. 2d 24, 3l n.9 (D.D.C.
2004). The Department has interpreted subsection (iv) to require that “the same matter that
draws widespread and exceptional media interest must be the matter in which there exists
possible questions about the government’s integrity that affect public confidence.” Decl.
of Sarah lsgur Flores 11 6 (“Flores Decl.”) [Dkt. # l9-2]. DOJ regulations provide that the
Director of the Office of Public Affairs (“OPA”) process requests relying on subsection
(iv), z'.e., those involving “widespread and exceptional media interest.” See 28 C.F.R. §

16.5(@)(2).<>

 

5 'l`hese are: "[i) Circumstanees in which the lack of expedited processing could reasonably be expected to
pose an imminent threat to the life or physical safety of an individual; (ii) An urgency to inform the public
about the actual or alleged Federal Government aetivity. if made by a person who is primarily engaged in
disseminating information; (iii) The loss of substantial due process rights; or (iv) A matter ot` widespread
and exceptional media interest in which there exist possible questions about the government`s integrity that
affect public confidence.” 5 C.F.R. § l6.5(e)(l)(i)-(iv).

6 This enables “the Department’s media specialists [to] deal directly with matters of exceptional concern to
the media.” 63 Fed. Reg. at 29,592.

LEGAL STANDARD

Agency decisions whether to deny or grant a request for expedited processing are
subject tojudicial review. See 5 U.S.C. § 552(a)(6)(E)(ii).7 Judicial review “shall be based
on the record before the agency at the time of the determination.” Id. The standard of
judicial review depends on the basis ofthe agency decision. See Al-Fayea’, 254 F.3d at 307
n.7. Courts apply de novo review to regulations issued pursuant to Electronic FOIA’s
“compelling need” prong. Id.

By contrast, courts grant deference to regulations promulgated pursuant to the
second, discretionary prong, z`.e., “cases determined by the agency.” Id.; see also 5 U.S.C.
§ 552(a)(6)(E)(i)(lI). This is because Congress’ grant to the DOJ to determine cases in
which expedited processing is appropriate constitutes an “express delegation of authority,”
id. (quoting United Sl'ates v. Mead Corp., 533 U.S. 2l8, 227 (2001)), which, the Supreme
Court tells us, renders “any ensuing regulation . . . binding in the courts unless procedurally
def`ective, arbitrary or capricious in substance, or manifestly contrary to the statute,” Mead,
533 U.S. at 227.

The DOJ’s regulation providing for expedited processing “in cases determined by
the agency” is one such regulation. 5 U.S.C. § 552(a)(6)(E)(i)(ll). “[A]n agency’s
reasonable interpretation of [] regulations” adopted pursuant to such an “express delegation
of authority” is entitled to the same degree of deference as the regulation itself. See Al-

Fayed, 254 F.3d at 307 n.7 (citing United States v. Clevelcma' Indl`arzs Baseball CO., 532

 

7 The person seeking expedited processing bears the burden of showing that expedition is appropriate
See Al-Fayea', 254 F.3d at 305 n.4.

U.S. 200, 218~19 (2001)); see also Public [rlvestors Arbitralz`on Bar Ass ’n v. S.E.C., 77l
F.3d l, 3 (D.C. Cir. 2014); Hall & Assocs. v. U.S. Environ. Prolection Agency, 77 F. Supp.
3d 40, 47 (D.D.C. 2014).
DISCUSSION

The Department of Justice has interpreted subsection (iv) to require that “the same
matter that draws widespread and exceptional media interest must be the matter in which
there exists possible questions about the Government’s integrity that affect public
confidence.” Flores Decl. 11 6.8 OPA Director Flores has explained the way in which the
DOJ applies this interpretation:

OPA views the media interest and reporting as an indicator of whether public

confidence might be affected by any possible questions about the

government’s integrity that the requester raises Where the media coverage

that a requestor points to does not mention the possible questions of

government integrity that a requestor suggests might exist, this suggests to

OPA that the questions do not rise to the level of affecting public confidence
Io’. 11 7.

ln this case, “OPA determined that [plaintiff`s] request pointed to sufficient media
interest in Nocl Francisco’s nomination to the position of Solicitor General.” Io’. 11 8.
“Nevertheless,” Director Flores continued, “this media interest was only in the fact of the
nomination and did not raise or consider l\/[r. Francisco’s participation in the executive

order litigation, which [plaintiff] points to as raising possible questions about the

government integrity that affect public confidence.” Id. 11 9. Plaintiff therefore failed to

 

8 American Oversight does not challenge the reasonableness of the DOJ’s promulgation of the “media
interest” regulation. l\/ISJ at 6.

meet its burden, “[b]ecause [plaintif`F s1 request did not demonstrate that the matter
attracting media interest (the nomination) was a matter in which there exist possible [ethics]
questions, and because the cited media coverage did not indicate any public concern over
the questions that American Oversight raised.” Icl. 11 10.
I. The Measure of Deference Due the DOJ’s Interpretation

Plaintiff contends that the DOJ is not entitled to deferential review of its
interpretation because “there is no evidence that the interpretation advanced in this
litigation results from an agency’s reasoned and considered view of the regulation entitled
to deference.” Reply in Support of Pl.’s Mot. for Part. Summ. J. (“Reply”), at ll [Dkt. #
20]. More specifically, plaintiff contends that DOJ’s requirement that the matter of
“widespread public attention” also be the matter in which “possible questions about the
government’s integrity that affect public confidence” exist is unreasonable because of the
absence of (i) “regulation or guidance” memorializing this interpretation, (ii) “publicly
available statements regarding how to interpret the regulation,” and (iii) “internal guidance
or training material relying on this interpretation.” Ia’. l disagree

Put simply, plaintiff misunderstands the governing case law. Although plaintiff` s
catalogue of preferred materials may constitute evidence of a “reasoned and considered
view,” those materials are not required to ensure one Indeed, the DOJ has noted that an

interpretation ofa regulation otherwise entitled to deference may, itself, warrant deference
even if it “first appears during litigation, unless the interpretation conflicts with prior

interpretations or amounts to nothing more than a convenient litigating position.”

Shl'elclalloy Metallargl`cal Corp. v. Naclear Reg’y Comm ’n, 768 F.3d 1205, 1208»09 (D.C.
Cir. 2014). And no such characterization is warranted here

The DOJ’s current interpretation of subsection (iv) does not conflict with any past
ones Nor can l say that the DOJ’s reading of subsection (iv) is “nothing more than a
convenient litigating position.” Ia’. at 1209. Although the Flores Declaration does not chart
the origin of the DOJ’s interpretation, the Department has advanced a similar interpretation
of subsection (iv) in several past cases See Electrom`c Prz'vacy Information Cir. (“EPIC ”)
v. Dep ’l‘ ofJustz'ce, 322 F. Supp. 2d 1, 5-6 (D.D.C. 2003) (“As f`or ‘po`ssible questions about
the governments integrity,’ moreover, [plaintiftj placed nothing before [the agency]
except” a single New Yor/r Times editorial, which failed to raise ethical issues sufficient to
affect public conl'idence), vacated as moot Civ. No. 04-5063, 2004 WL 2713119 (D.C. Cir.
Nov. 24, 2004); A.C.L. U. v. Dep ’t of Jastz`ce, 321 F. Supp. 2d 24, 31 (2004) (“The
government, howeveix argues that the newspaper articles cited by plaintiffs in their request
for expedited processing do not suffice to demonstrate a significant amount of media
interest in the issue or suggest an improper government act to the detriment of` public
confidence.”). And in both cases, this District Court accepted and applied the DOJ’s
interpretation of subsection (iv) to the record before the DOJ at the time of its decision as
to the expedited processing request As such, this is hardly a case in which the
Department’s “interpretation was unannounced and would have a negative impact on the
rights of affected parties who had no notice of the interpretation.” Reply at 13 (citing

C//zrl`stopher v. SmithKline Beecham Corp., 567 U.S. 142, 155»56) (2012)).

10

What plaintiff truly appears to be troubled by is the DOJ’s practice of looking to the
media articles as one indication as to whether any “possible questions [exist] as to the
government’s integrity that affect public confidence.” Flores Decl. 11 7. But this, of course,
is a wholly appropriate way for the DOJ to analyze the issue The regulation does not ask
whether possible questions exist that might or could_should they become known_affect
public confidence in thc government’s integrity. lt asks whether there are possible
questions as to the Government’s integrity “that affect public confidence,” full stop. The
primary way to determine whether such possible questions exist is by examining the state
of public coverage of the matter at issue, and whether that coverage surfaces possible ethics
issues so potentially significant as to reduce public confidence in governmental institutions

In the final analysis, Director Flores correctly concluded that plaintiff had met its
burden of showing that there was the necessary media interest concerning General
Francisco’s nomination, but that none of the articles raised any ethical issues concerning
his nomination, or his work in the Solicitor General’s Office, or for Jones Day. As such,
the Department reached the only conclusion supported by the plain meaning ofthe rule and

their existing precedent in analyzing it. That decision was both reasonable and legally

sound

11

CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s Motion for Partial

Summary Judgment [Dkt. # 17]. A separate order consistent with this opinion will be

%Mww
RICHARDLJ-.JLEON

United States District Judge

issued this day.

12

