Legal Eagle, LLC v. National Security Council Records Access and Information Security Management Directorate ( 2021 )


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  •                            UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    LEGAL EAGLE, LLC,                               :
    :
    Plaintiff,                               :       Civil Action No.:      20-1732 (RC)
    :
    v.                                       :       Re Document Nos.:      7, 13, 21, 27
    :
    NATIONAL SECURITY COUNCIL                       :
    RECORDS ACCESS AND                              :
    INFORMATION SECURITY                            :
    MANAGEMENT DIRECTORATE, et al.,                 :
    :
    Defendants.                              :
    MEMORANDUM OPINION
    GRANTING DEFENDANTS’ PARTIAL MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION FOR
    PARTIAL SUMMARY JUDGMENT; GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY
    JUDGMENT; DENYING PLAINTIFF’S MOTION TO STRIKE
    I. INTRODUCTION
    In this case brought pursuant to the Freedom of Information Act (“FOIA”), Plaintiff
    Legal Eagle, LLC (“Legal Eagle”), a business that runs a YouTube channel focused on legal
    issues, seeks records related to the prepublication review of Former National Security Adviser
    John Bolton’s book The Room Where It Happened. Legal Eagle has filed an Amended
    Complaint with twenty-one causes of action, all brought under FOIA, related to its various
    requests for records and requests for expedited processing. Legal Eagle named as Defendants
    the National Security Council Records Access and Information Security Management
    Directorate (“RAISMD”), the Central Intelligence Agency, the Department of Defense, the
    Department of Justice (“DOJ”), the Department of State, the National Archives and Records
    Administration, and the Office of the Director of National Intelligence (together “Defendants”).
    RAISMD has moved to dismiss the counts against it, arguing that under binding D.C. Circuit
    precedent, the National Security Council (“NSC”), and any of its subcomponents, are not subject
    to FOIA. Also before the Court are Legal Eagle’s and Defendants’ cross motions for partial
    summary judgment on the counts related to the requests for expedited processing. Additionally,
    Legal Eagle filed a motion to strike Defendants’ cross motion for partial summary judgment,
    arguing that Defendants failed to adhere to proper motions practice procedure.
    For the reasons discussed below, the Court will grant RAISMD’s motion to dismiss
    pursuant to Armstrong v. Exec. Office of the President, 
    90 F.3d 553
     (D.C. Cir. 1996). As a
    subcomponent of the NSC, which is not subject to FOIA, the Court finds that RAISMD is not
    subject to FOIA. With respect to the motions for partial summary judgment, the Court agrees
    with Defendants that based on the records before the agencies, the requests for expedited
    processing were properly denied. Finally, the Court finds nothing procedurally improper with
    Defendants’ cross motion for partial summary judgment, and therefore will deny Legal Eagle’s
    motion to strike.
    II. BACKGROUND
    As alleged in the Amended Complaint, Legal Eagle runs a “YouTube channel focused on
    legal issues . . . with more than one million subscribers, ten million monthly views, and 100
    million total video views.” Am. Compl. ¶ 3, ECF No. 5. The channel “features a recurring
    segment entitled ‘Real Law Review,’ in which the host explains the legal issues behind major
    stories in the news . . . for a general audience.” Id. ¶ 37. The company seeks records related to
    the prepublication review of a manuscript written by Former National Security Advisor John
    Bolton. Id. ¶ 38.
    Any person who possesses a security clearance must sign a Non-Disclosure Agreement
    that includes an agreement to submit any manuscript related to his or her national security
    2
    employment for prepublication review prior to disclosing it to any third party. Id. ¶ 15. The
    review process, generally handled by the agency that sponsored the security clearance, allows the
    government to deny an author permission to publish both classified and unclassified information
    depending on the circumstances. See id. ¶ 21. In late 2019, RAISMD conducted a
    prepublication review of Mr. Bolton’s book, The Room Where It Happened, and determined that
    it contained classified information. See id. ¶¶ 24–36. In June 2020, despite the ongoing
    prepublication review and determination that the manuscript contained classified information,
    Mr. Bolton had printed and shipped the book to distributors across the country. Id. ¶ 33. This
    led to the government seeking a temporary restraining order to prevent the book’s distribution.
    Id. ¶ 35. Although Judge Lamberth denied the government’s motion, he stated that “the Court is
    persuaded that Defendant Bolton likely jeopardized national security by disclosing classified
    information in violation of his nondisclosure agreement obligations.” Id. ¶ 36 (quoting United
    States v. Bolton, 
    468 F. Supp. 3d 1
    , 5 (D.D.C. 2020)).
    Legal Eagle submitted a series of FOIA requests to Defendants seeking records and
    information regarding Mr. Bolton’s book, the prepublication review process, and the information
    the government prohibited, or attempted to prohibit, Mr. Bolton from publishing. See generally
    Pl.’s Mot. Partial Summ. J. Ex. A, ECF No. 13-1. Alongside the requests for records, Legal
    Eagle submitted requests for expedited processing. See generally 
    id.
     The requests for expedited
    processing explained that Legal Eagle runs a YouTube channel focused on informing the public
    about legal issues and that the requested information concerned operations or activity of the
    government. See 
    id.
     In addition, the requests for expedited processing included the following
    statement:
    [B]ecuase of the issues surrounding [Mr. Bolton’s] manuscript and the
    Government’s efforts to prohibit [Mr.] Bolton from providing the requested
    3
    information—either in his book or in Congressional testimony—this request
    satisfies the compelling need standard for expedited processing, since it is made by
    a person primarily engaged in disseminating information to inform the public about
    Government activity involving topics of breaking news.
    
    Id.
     1 Two offices—the DOJ National Security Division and the Office of Legal Counsel
    (“OLC”)—agreed to expedite Legal Eagle’s FOIA requests. Pl.’s Mem. of P. & A. Supp. Cross
    Mot. Partial Summ. J. (“Pl.’s Mem.”) at 1–2, ECF No. 13. Five offices denied Legal Eagle’s
    requests to expedite and RAISMD did not decide the matter with respect to three requests. 
    Id. at 2
    . Counts 2, 4, 6, 8, 12, 14, 16, and 18 of the Amended Complaint charge Defendants with
    improperly denying, or constructively denying in RAISMD’s case, Legal Eagle’s requests to
    expedite processing of its FOIA requests. See Am. Compl. ¶¶ 50–53, 60–63, 73–76, 87–90,
    120–23, 131–34, 141–44, 152–57.
    Pending before the Court are several motions. Defendants filed a partial motion to
    dismiss arguing that RAISMD is not subject to FOIA because the NSC, of which it is a part, is
    not subject to FOIA under D.C. Circuit precedent. See Defs.’ Partial Mot. Dismiss, ECF No. 7.
    Legal Eagle filed a motion for partial summary judgment on the counts related to its requests to
    expedite processing. See Pl.’s Mem. In response, Defendants filed a cross motion for partial
    summary judgment of their own on the requests to expedite counts. See Defs.’ Cross Mot.
    Partial Summ. J. (“Defs.’ Partial MSJ”), ECF No. 21. Finally, because Legal Eagle argues that
    Defendants’ cross motion for summary judgment was improperly filed, it filed a motion to strike
    Defendants’ cross motion and the reply in support of that motion. See Pl.’s Mot. Strike, ECF No.
    27. The pending motions have all been fully briefed and are ripe for decision.
    1
    The requests for expedited processing submitted to Defendants included identical
    language, but a few of the requests had minor modifications. See 
    id. at 29, 30, 33, 35
    .
    4
    III. LEGAL STANDARD
    The Federal Rules of Civil Procedure require that a complaint contain “a short and plain
    statement of the claim” in order to give the defendant fair notice of the claim and the grounds
    upon which it rests. Fed. R. Civ. P. 8(a)(2); see also Erickson v. Pardus, 
    551 U.S. 89
    , 93 (2007)
    (per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s ultimate
    likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim.
    See Scheuer v. Rhodes, 
    416 U.S. 232
    , 236 (1974). The complaint’s factual allegations are to be
    taken as true, and the court is to construe them liberally in the plaintiff’s favor. See, e.g., United
    States v. Philip Morris, Inc., 
    116 F. Supp. 2d 131
    , 135 (D.D.C. 2000). Notwithstanding this
    liberal construal, the court deciding a Rule 12 motion must parse the complaint for “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)). This plausibility requirement means that a plaintiff’s factual allegations “must be
    enough to raise a right to relief above the speculative level, on the assumption that all the
    allegations in the complaint are true (even if doubtful in fact).” Twombly, 
    550 U.S. at
    555–56
    (citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere
    conclusory statements,” are insufficient to withstand a motion to dismiss. Iqbal, 
    556 U.S. at 678
    .
    A court need not accept a plaintiff’s legal conclusions as true, see 
    id.,
     nor must a court presume
    the veracity of legal conclusions that are couched as factual allegations, see Twombly, 
    550 U.S. at 555
    .
    Summary judgment is proper when “the movant shows that there is no genuine dispute as
    to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
    56(a). A “material” fact is one capable of affecting the substantive outcome of the litigation.
    5
    See Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 248 (1986). A dispute is “genuine” if there is
    enough evidence for a reasonable jury to return a verdict for the non-movant. See Scott v.
    Harris, 
    550 U.S. 372
    , 380 (2007). The principal purpose of summary judgment is to streamline
    litigation by disposing of factually unsupported claims or defenses and determining whether
    there is a genuine need for trial. See Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 323–24 (1986). The
    movant bears the initial burden of identifying portions of the record that demonstrate the absence
    of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 
    477 U.S. at 323
    . In
    response, the non-movant must point to specific facts in the record that reveal a genuine issue
    that is suitable for trial. See Celotex, 
    477 U.S. at 324
    . In considering a motion for summary
    judgment, a court must “eschew making credibility determinations or weighing the evidence[,]”
    Czekalski v. Peters, 
    475 F.3d 360
    , 363 (D.C. Cir. 2007), and all underlying facts and inferences
    must be analyzed in the light most favorable to the non-movant, see Anderson, 
    477 U.S. at 255
    .
    IV. ANALYSIS
    A. Partial Motion to Dismiss
    Defendants’ partial motion to dismiss relies on the D.C. Circuit’s decision in Armstrong
    v. Exec. Office of the President, which concluded that “the NSC is not an agency within the
    meaning of FOIA.” 
    90 F.3d at 556
    . Because RAISMD is an office within NSC, Defendants
    contend that it, like the NSC as a whole, is not subject to FOIA. Defs.’ Partial Mot. Dismiss at 1.
    Legal Eagle maintains that the fact that the NSC as a whole is not an agency subject to FOIA
    does not resolve the question of whether RAISMD is subject to FOIA. See Pl.’s Mem. P. & A.
    Opp’n Defs.’ Partial Mot. Dismiss (“Pl.’s Opp’n”) at 2, ECF No. 14. Legal Eagle argues that it
    has plausibly alleged that RAISMD’s function is sufficiently distinct from the NSC as a whole to
    render the D.C. Circuit’s opinion in Armstrong inapplicable. See 
    id.
     at 2–3.
    6
    FOIA’s record disclosure requirements apply to agencies, a term which “includes any
    executive department, military department, Government corporation, Government controlled
    corporation, or other establishment in the executive branch of the Government (including the
    Executive Office of the President), or any independent regulatory agency.” 
    5 U.S.C. § 552
    (f)(1).
    Although this definition explicitly includes the Executive Office of the President, the D.C.
    Circuit has recognized that the “definition was not [] meant to cover ‘the President’s immediate
    personal staff or units in the Executive Office whose sole function is to advise and assist the
    President.’” Armstrong, 
    90 F.3d at 558
     (quoting H.R. Conf. Rep. No. 1380, 93d Cong., 2d Sess.
    14 (1974)). The D.C. Circuit has developed a three-factor test to determine the status under
    FOIA of units within the Executive Office of the President. See Meyer v. Bush, 
    981 F.2d 1288
    ,
    1293 (D.C. Cir. 1993). The factors to be weighed are: (1) “how close operationally the group is
    to the President,” (2) “whether it has a self-contained structure,” and (3) “the nature of its
    delegate[ed]” authority. 
    Id.
    In Armstrong, the D.C. Circuit analyzed these factors to determine whether the NSC is an
    agency subject to FOIA. See 
    90 F.3d at
    558–65. The court first “conclude[d] that the NSC has a
    structure sufficiently self-contained that the entity could exercise substantial independent
    authority.” 
    Id. at 560
    . Second, the court found that the NSC’s “intimate organizational and
    operating relationship” with the President is “entitled to significantly greater weight in evaluating
    the NSC’s arguable status as an agency than [] the self-contained structure of the entity.” 
    Id.
    The court noted that the “President chairs the statutory Council, and his National Security
    Adviser, working in close contact with and under the direct supervision of the President, controls
    the NSC staff.” 
    Id.
     The court then turned to the statutory and presidential delegations of
    authority to the NSC, the third factor described in Meyer. See 
    id.
     at 560–65. Most importantly
    7
    for this case, the court considered the NSC’s delegated authority to protect national security
    information. See 
    id.
     at 561–62. The NSC had argued that it “merely monitors other agencies in
    order to assure that the objectives of the President, who retains ultimate authority over classified
    information, are achieved.” 
    Id. at 562
    . The NSC explained that declassification reviews “are
    really nothing more than the internal management of the information that the NSC generates in
    advising the President.” 
    Id.
     Despite Armstrong’s arguments that the NSC had an independent
    and discretionary role in declassification review for entities outside the NSC, the court did not
    consider this evidence “the indicium of an entity with substantial independence from the
    President.” 
    Id.
     The court concluded “that under the three-part test of Meyer, the NSC is not an
    agency subject to the FOIA.” 
    Id. at 565
    .
    Defendants argue that Armstrong resolves this case. See Defs.’ Partial Mot. Dismiss at
    6–7. They argue that a federal entity must be treated like its parent entity and that RAISMD “is
    not even appropriately named as a defendant, as under FOIA, the parent agency constitutes the
    proper defendant.” 
    Id.
     at 8 n.4 (citing Vasquez v. U.S. Dep’t of Justice, 
    764 F. Supp. 2d 117
    , 119
    (D.D.C. 2011)). Defendants argue that “an entity (NSC) that itself lacks substantial independent
    authority, and exists only to advise and assist the President, cannot have a subordinate sub-part
    (NSC-RAISMD) that operates independently.” Id. at 8. They point to Ryan v. Department of
    Justice where the D.C. Circuit stated that “depending on its general nature and functions, a
    particular unit is either an agency or it is not. Once a unit is found to be an agency, this
    determination will not vary according to its specific function.” Id. at 9 (quoting Ryan v. Dep’t of
    Justice, 
    617 F.2d 781
    , 788 (D.C. Cir. 1980)). Defendants further argue that even if the Court did
    examine the functions of RAISMD separately, Legal Eagle has failed to plead sufficient facts to
    8
    demonstrate that it should be considered, in the face of Armstrong, an agency subject to FOIA.
    See 
    id.
     at 10–12.
    Legal Eagle suggests that pointing to Armstrong is a straw man argument and that just
    because no court has determined that a sub-part of a non-FOIA entity is subject to FOIA does not
    mean that this Court should not make such a determination. Pl.’s Opp’n at 2–4. Legal Eagle
    claims, without citation to any cases in this district postdating Armstrong, that “[e]ach time a
    court has adjudicated a FOIA case against the NSC, it has performed a searching ‘sole function’
    examination of the functions of the office” and that this “fact removes any relevance of the case
    law cited” by Defendants. Id. at 4. As an example, Legal Eagle points to an out of circuit case
    in which the Second Circuit, after analyzing the functions of the NSC and its subcomponents,
    determined that the NSC was not subject to FOIA, just like the D.C. Circuit did in Armstrong.
    Id. at 5 (citing Main Street Legal Services v. National Security Council, 
    811 F.3d 542
     (2d Cir.
    2016)). It is Legal Eagle’s position that Armstrong and Main Street only determined that the
    NSC as a whole is not subject to FOIA but left open the possibility that subcomponents of the
    NSC might still be subject to FOIA if they are sufficiently independent. See 
    id.
     at 5–6.
    The Court agrees with Defendants. “[T]he law in this Circuit is clear that the NSC is not
    an ‘agency’ for purposes of the FOIA.” Risenhoover v. U.S. Dep’t of State, No. 19-cv-715, 
    2020 WL 3128947
    , at *7 (D.D.C. June 12, 2020) (citing Armstrong, 
    90 F.3d at 559
    )); see also Citizens
    for Responsibility and Ethics in Wash. v. Off. of Admin., 
    566 F.3d 219
    , 223 (D.C. Cir. 2009)
    (“Nor is the National Security Council . . . covered by FOIA because it plays no ‘substantive role
    apart from that of the President, as opposed to a coordinating role on behalf of the President.’”
    (quoting Armstrong, 
    90 F.3d at 565
    )); Electr. Privacy Info. Ctr. v. Nat’l Sec. Agency, 
    795 F. Supp. 2d 85
    , 91 (D.D.C. 2011) (“This Circuit has unambiguously held that the NSC is not an
    9
    agency subject to FOIA.”); Property of the People, Inc. v. Off. of Mgmt. and Budget, 
    394 F. Supp. 3d 39
    , 44 (D.D.C. 2019) (“NSC and its subcommittees exercise no ‘meaningful non-
    advisory authority.’” (quoting Armstrong, 
    90 F.3d at 565
    )). The Court perceives no invitation in
    this Circuit’s binding precedent to reevaluate whether subcomponents of the NSC, an entity that
    itself has been found to not “exercise any significant non-advisory function,” Armstrong, 
    90 F.3d at 565
     (emphasis added), are agencies subject to FOIA. Although Armstrong did not specifically
    discuss prepublication review or RAISMD, the court did consider the NSC’s role in protecting
    classified information. See 
    id.
     at 561–62; see also Main Street, 811 F.3d at 553 (concluding after
    analyzing functions of NSC that it “is not an agency subject to the FOIA because its sole
    statutory function is to advise and assist the President”). 2 Where two Circuit courts have
    determined that the NSC as a whole functions in solely an advisory capacity, “[a]ny duties the
    NSC assigns to its staff . . . must also be deemed only to advise” because the NSC “can hardly
    confer on its staff more authority than it has itself.” Main Street, 811 F.3d at 554. Given the
    D.C. Circuit’s consideration of the functions of the NSC and its determination that it is not
    2
    Legal Eagle’s attempts to evade the key holdings in Armstrong and Main Street, by
    claiming that both cases leave open the possibility that entities within a non-FOIA entity may be
    subject to FOIA, see Pl.’s Opp’n at 5–6, are not rooted in the text or analysis of either decision.
    In both cases, the courts considered the various functions of the NSC and determined that it did
    not exercise any significant non-advisory functions. See Armstrong, 
    90 F.3d at 565
    ; Main Street,
    811 F.3d at 553; see also Defs.’ Reply in Supp. of their Partial Mot. Summ. J. at 3–4, ECF No.
    18 (“The [] conclusion that these cases only determined the FOIA status of the NSC, not its sub-
    units, strips the word ‘sole’ out of ‘sole function’—that is, a sub-unit of an entity whose sole
    function is to advise and assist the President cannot, by definition, be substantially independent
    from the President.”).
    10
    subject to FOIA, 3 the Court declines to reconsider the matter. 4 Accordingly, counts 1–4, 15, and
    16 and Defendant RAISMD are dismissed.
    B. Motions for Partial Summary Judgment
    The parties have both moved for partial summary judgment on the counts that charge
    Defendants with improperly denying Legal Eagle’s requests for expedited processing of its FOIA
    requests. FOIA allows for “expedited processing” of record requests where “the person
    requesting the records demonstrates a compelling need” and “in other cases determined by the
    agency.” 5 
    5 U.S.C. § 552
    (a)(6)(E)(i). “Compelling need” means “that a failure to obtain
    requested records on an expedited basis . . . could reasonably be expected to pose an imminent
    threat to the life or physical safety of an individual” or “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). The requester bears the
    3
    Even if the Court did conduct an analysis to determine separately if RAISMD should be
    considered an agency under FOIA, which it need not do, Legal Eagle has not plausibly alleged
    any facts that would change the D.C. Circuit’s analysis, which, again, included consideration of
    the NSC’s role in protecting classified information. See Armstrong, 
    90 F.3d at
    561–62. Legal
    Eagle simply alleges that RAISMD “bears primary responsibility for the classification review of
    written works submitted to the NSC for the prepublication review process.” Am. Compl. ¶ 4.
    This allegation is followed by the conclusory statement that “RAISMD is accordingly an agency
    . . . with substantial independent authority in the exercise of specific functions whose sole
    function is not to advise and assist the President.” 
    Id.
     Without any additional factual allegations
    speaking to the independence of RAISMD or the nature of its delegated authority, Legal Eagle
    fails to allege a plausible claim. Legal Eagle’s notice of supplemental authority, which
    references a court filing that describes the prepublication review process of Mr. Bolton’s
    manuscript, adds little to the factual allegation in the Amended Complaint and does not change
    the Court’s conclusion either. See Pl.’s Notice of Supp. Auth., ECF No. 23.
    4
    Therefore, the Court will not permit Legal Eagle an opportunity to conduct limited
    discovery on this matter.
    5
    The statute “gives an agency latitude to expand the criteria for expedited access beyond
    cases of ‘compelling need.’” Al-Fayed v. C.I.A., 
    254 F.3d 300
    , 307 n.7 (D.C. Cir. 2001). An
    agency’s reasonable interpretation of its own regulations is entitled to judicial deference. See 
    id.
    11
    burden of showing that he or she is entitled to expedited processing. Al-Fayed v. C.I.A., 
    254 F.3d 300
    , 305 n.4 (D.C. Cir. 2001). Agency decisions on requests for expedited processing are
    subject to judicial review “based on the record before the agency at the time of the
    determination.” 
    5 U.S.C. § 552
    (a)(6)(E)(iii). Such decisions are reviewed de novo. 6 See Al-
    Fayed, 
    254 F.3d at
    307–08.
    The parties’ disagreement centers on whether Legal Eagle established an “urgency to
    inform the public” about the government activity at issue. See Defs.’ Partial MSJ at 11–12 (not
    contesting that Legal Eagle is “primarily engaged in disseminating information” or that the
    requests concerned “actual or alleged Federal Government activity”). When evaluating this
    statutory requirement, courts must consider three factors: “(1) whether the request concerns a
    matter of current exigency to the American public; (2) whether the consequences of delaying a
    response would compromise a significant recognized interest; and (3) whether the request
    concerns federal government activity.” Al-Fayed, 
    254 F.3d at 310
    . The requester must develop
    the record to demonstrate an urgency to inform the public. See 
    id.
     at 310–11; see also Progress
    v. Consumer Fin. Prot. Bureau, No. 17-cv-686, 
    2017 WL 1750263
    , at *5 (D.D.C. May 4, 2017);
    Wadelton v. Dep’t of State, 
    941 F. Supp. 2d 120
    , 122 (D.D.C. 2013) (“The requestor bears the
    burden of proof.”).
    6
    Because the Court conducts a de novo review of the record before the agency, Legal
    Eagle’s argument that the denials fail to demonstrate reasoned decisionmaking does not affect
    the Court’s conclusion. See Pl.’s Mot. Partial Summ. J. at 9–13. Legal Eagle points to a
    decision in which Judge Jackson found that an agency’s denial of a request to expedite under its
    own regulation was “entitled to little deference.” Citizens for Responsibility & Ethics in
    Washington v. Dep’t of Justice, 
    436 F. Supp. 3d 354
    , 361 (D.D.C. 2020). There, unlike here, the
    court did not conduct a de novo review of the record before the agency for denials made under
    the statutory framework. See 
    id.
     at 359–61.
    12
    As noted above, Legal Eagle’s requests for expedited processing submitted to each of the
    Defendants included the following statement speaking to a “compelling need”:
    [B]ecuase of the issues surrounding [Mr. Bolton’s] manuscript and the
    Government’s efforts to prohibit [Mr.] Bolton from providing the requested
    information—either in his book or in Congressional testimony—this request
    satisfies the compelling need standard for expedited processing, since it is made by
    a person primarily engaged in disseminating information to inform the public about
    Government activity involving topics of breaking news.
    Pl.’s Mot. Partial Summ. J. Ex. A. Without focusing on the content of the record before the
    agency, Legal Eagle argues that “records about a prepublication review process applied to a
    highly popular and controversial tell-all book . . . concern a matter of ‘current exigency to the
    American public.” Pl.’s Mem. at 8 (footnoted omitted). Although not mentioned in its requests
    for expedited processing, Legal Eagle states that “it is highly relevant that [Mr.] Bolton has
    levied several accusations at the White House of misconduct in the prepublication review
    process” and that information related to these allegations “would clearly be ‘central to a pressing
    issue of the day,’ in the run-up to a Presidential election.” 
    Id.
     (quoting Wadelton, 941 F. Supp.
    2d at 123). Defendants counter that besides the statement noted above in the requests, Legal
    Eagle “provided no further information, or any explanation of why the information was time
    sensitive—nothing at all—to support a finding of urgency to inform the public on the topic.”
    Defs.’ Partial MSJ at 13. In an apparent concession regarding the inadequacy of the record
    before the agency, Legal Eagle argues in reply that Defendants should not have ignored
    “commonly-known information” when evaluating the requests for expedited processing. Pl.’s
    Reply Supp. Mot. Partial Summ. J. (“Pl.’s Reply”) at 4, ECF No. 25. Legal Eagle contends that
    “[t]here is no requirement that requesters must spell out in exacting detail why something is
    important when any person with even a casual awareness of current events would automatically
    know that it is important.” Id. at 3–4.
    13
    The Court again agrees with Defendants; the record before the agencies fails to establish
    a compelling need for expedited processing. 7 Congress has made clear that judicial review of
    agency denials of requests for expedited processing must be “based on the record before the
    agency at the time of the determination,” 
    5 U.S.C. § 552
    (a)(6)(E)(iii), not on “commonly-known
    information” that the agency should have considered in addition to the record. Legal Eagle’s
    requests offered no evidence of an urgency to inform the public that would justify placing its
    requests ahead of others. Courts often affirm denials of requests to expedite on comparatively
    more robust records. See Al-Fayed, 
    254 F.3d at 311
     (“[T]he record does not contain any news
    report on the subject . . . other than reports on the press conference plaintiffs held to announce
    the filing of their complaint . . . Such evidence is insufficient to demonstrate that the request
    concerns a matter of current exigency.”); Progress, 
    2017 WL 1750263
    , at *5 (“[T]he Court in no
    way concludes that there is not in reality substantial public interest . . . Rather, the Court merely
    finds that the current record, which it was Plaintiff’s burden to develop, does not provide any
    evidence of this public interest.”); Wadelton, 941 F. Supp. 2d at 124 (“Plaintiffs’ submission of
    one article, a series of posts on a specialized blog, and plaintiff Truthout’s representation that it
    ‘intends’ to publish a story do not come close to demonstrating a comparable level of media
    interest.”); but see Am. Civil Liberties Union of N. California v. U.S. Dep’t of Def., No. C 06-
    01698, 
    2006 WL 1469418
    , at *7 (N.D. Cal. May 25, 2006) (finding that numerous “articles in
    the record also suggest that there was an urgency”); Gerstein v. C.I.A., No. C 06-4643, 
    2006 WL 3462658
    , at *4–5 (finding record containing recent statements from high profile officials, reports
    7
    Legal Eagle’s notice of new evidence regarding the Department of Defense’s decision
    to deny its request for expedited processing does not alter the Court’s de novo analysis because it
    does not change the record before the agency at the time of the determination. See Pl.’s Notice
    of New Evid., ECF No. 30.
    14
    of complaints from members of Congress, and database search showing “977 news reports in the
    previous 90 days” sufficiently demonstrated a compelling need). Because Legal Eagle failed to
    offer evidence demonstrating a “compelling need,” the Court finds that Defendants properly
    denied the requests for expedited processing based on the records before the agencies at the time
    of the determinations. 8 Accordingly, the Court grants Defendants’ motion for summary
    judgment on counts 6, 8, 12, 14, and 18. 9
    C. Motion to Strike
    Finally, Legal Eagle filed a motion to strike Defendants’ Partial Motion for Summary
    Judgment because it characterizes the cross motion as an inappropriate “cross-cross-motion.”
    Pl.’s Mot. Strike at 1. Legal Eagle takes issue with the fact that Defendants had already filed a
    dispositive motion (the partial motion to dismiss) and argues that Defendants should have filed
    for partial summary judgment on the counts involving the requests for expediting processing
    when they filed their first dispositive motion. 
    Id.
     at 2–3. Legal Eagle further contends that
    because it never filed an opposition to Defendants cross motion for summary judgment (instead
    styling its submission as merely a reply brief), Defendants’ reply brief should be struck from the
    record under Local Rule 7(d). 
    Id. at 3
    .
    As Defendants correctly point out in opposition, “Rule 56 allows a party to move for
    summary judgment ‘at any time until 30 days after the close of discovery,’ regardless of whether
    they have first filed a motion to dismiss on other issues.” Defs.’ Opp’n Pl.’s Mot. Strike at 2,
    8
    The Court does not agree that OLC’s decision to grant Legal Eagle’s request for
    expedited processing should bear on the independent decisions of other agencies. See Pl.’s Mot.
    Partial Summ. J. at 4–5. Legal Eagle has pointed to no authority suggesting that OLC’s decision
    should be treated as an official OLC opinion that is binding on the Executive Branch and this
    Court can think of no reason to treat it as such.
    9
    The Court does not grant summary judgment on the counts that it has already dismissed
    that involve the NSC and RAISMD.
    15
    ECF No. 28 (quoting Fed. R. Civ. P. 56(b)). Beyond Legal Eagle’s contentions that the motion
    is an inappropriate “cross-cross-motion” and that it never filed an opposition so the local rules
    prohibit a reply, 10 it cites no legal precedent or rule supporting its argument that the motion and
    reply should be struck from the record. Even the Court acknowledged that Defendants would
    file a “combined cross-motion for partial summary judgment and opposition to Plaintiff’s motion
    for partial summary judgment” in an order granting an extension of time to file. See Min. Order
    (Sep. 8, 2020). “[A] district court enjoys broad discretion in managing its docket.” Grimes v.
    District of Columbia, 
    794 F.3d 83
    , 90 (D.C. Cir. 2015). The Court will not use that discretion in
    this case to strike Defendants’ motion and reply from the record.
    ***
    To summarize, based on the Court’s discussion above, counts 1–4, 15, and 16 and
    Defendant RAISMD are dismissed. Partial summary judgment is granted in Defendants’ favor
    on counts 6, 8, 12, 14, and 18. Therefore, counts 5, 7, 9–11, 13, 17, and 19–21 remain. Pursuant
    to the Court’s previous order, see Min. Order (Sep. 3, 2020), the stay on Defendants’ time to
    respond to the Amended Complaint is lifted; Defendants shall have fourteen days to respond to
    the Amended Complaint.
    V. CONCLUSION
    For the foregoing reasons, Defendants’ Partial Motion to Dismiss (ECF No. 7) is
    GRANTED. Plaintiff’s Motion for Partial Summary Judgment (ECF No. 13) is DENIED and
    Defendants’ Motion for Partial Summary Judgment (ECF No. 21) is GRANTED. Plaintiff’s
    10
    Defendants argued in opposition that if the Court does not treat Legal Eagle’s filing as
    an opposition to its cross motion, it should deem to motion conceded. Defs.’ Opp’n Pl.’s Mot.
    Strike at 2–3. Legal Eagle is correct that motions for summary judgment cannot be conceded,
    see Pl.’s Reply Supp. Mot. Strike at 2, ECF No. 29, but the Court will not strike Defendants’
    motion and reply based on Defendants’ incorrect assertion.
    16
    Motion to Strike (ECF No. 27) is DENIED. An order consistent with this Memorandum
    Opinion is separately and contemporaneously issued.
    Dated: March 18, 2021                                      RUDOLPH CONTRERAS
    United States District Judge
    17