DocketNumber: Civil Case No. 17–cv–848 (RJL)
Citation Numbers: 292 F. Supp. 3d 501
Judges: Leon
Filed Date: 2/20/2018
Status: Precedential
Modified Date: 7/25/2022
Plaintiff American Oversight ("plaintiff") seeks expedited review of its Freedom of Information Act ("FOIA") request to the Department of Justice ("DOJ" or "the Department") for records concerning Noel Francisco, Solicitor General of the United *503States ("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. 1, 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") ¶ 1 [Dkt. # 17-9]. Prior to January 20, 2017, Francisco had been a partner at the Jones Day law firm in Washington, D.C. See id. ¶ 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 Washington v. Trump, No. 17-35105, ECF No. 4 (9th Cir. Feb. 4, 2017). See id. ¶ 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. ¶ 4. That afternoon, the Government filed its Reply brief Id. ¶ 5. The Government'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." Id. (quoting Reply Supp. Emergency Mot. Stay Pending Appeal, Washington v. Trump, No. 17-35105, ECF No. 70, at *1 (9th Cir. Feb. 6, 2017) ). General Francisco did not, however, withdraw from the case, and went on to sign subsequent filings. See id. ¶ 8. He provided no further explanation for his decision not to sign the Reply brief before the Ninth Circuit panel. See id. ¶¶ 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. Id. ¶ 11; see also
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, 17-5, 17-6].
As a result, plaintiff filed the instant action on May 9, 2017, [Dkt. # 1], moving immediately for a preliminary injunction, [Dkt. # 3]. Within weeks, on May 26, 2017, the Department produced to plaintiff four documents responsive to its request. See Notice of Production [Dkt. # 12]. These documents were emails granting General Francisco ethics waivers to continue working *505on specific litigation matters; three of the four pertained to the executive order litigation referenced in American Oversight's FOIA request. See
STATUTORY SCHEME
In 1996, Congress amended the Freedom of Information Act ("FOIA") to make available a path for expedited process of certain requests. See Electronic Freedom of Information Act Amendments of 1996 ("Electronic FOIA"), Pub. L. No. 104-231, § 8,
Pursuant to this statutory authority, the DOJ promulgated a regulation specifying four circumstances in which expedited processing would be permissible.
LEGAL STANDARD
Agency decisions whether to deny or grant a request for expedited processing *506are subject to judicial review. See
By contrast, courts grant deference to regulations promulgated pursuant to the second, discretionary prong, i.e., "cases determined by the agency."
The DOJ's regulation providing for expedited processing "in cases determined by the agency" is one such regulation.
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. ¶ 6.
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.
Id. ¶ 7.
In this case, "OPA determined that [plaintiff's] request pointed to sufficient media interest in Noel Francisco's nomination to the position of Solicitor General." Id. ¶ 8. "Nevertheless," Director Flores continued, "this media interest was only in the fact of the nomination and did not raise or consider Mr. 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. ¶ 9. Plaintiff therefore failed to meet its burden, "[b]ecause [plaintiff's] request did not demonstrate *507that 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." Id. ¶ 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 11 [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." Id. I 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 of a 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." Shieldalloy Metallurgical Corp. v. Nuclear Reg'y Comm'n,
The DOJ's current interpretation of subsection (iv) does not conflict with any past ones. Nor can I say that the DOJ's reading of subsection (iv) is "nothing more than a convenient litigating position."
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. ¶ 7. But *508this, 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 the government's integrity. It 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 of the rule and their existing precedent in analyzing it. That decision was both reasonable and legally sound.
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 issued this day.
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. # 16-1].
The request reads as follows:
(1) Records reflecting any recusal or disqualification of Noel Francisco from any matter, or from matters involving any particular parties or participants.
(2) Any conflicts or ethics waivers or authorization issued for Mr. Francisco, including authorizations pursuant to5 C.F.R. § 2635.502 .
(3) Any record reflecting a determination by DOJ that5 C.F.R. § 2635.502 or any other ethics requirement did not preclude Mr. 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.
(4) All records reflecting Mr. 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 11:01 AM on Monday, February 6, 2017, and the earlier of (i) the date and time of any written waiver or authorization received by Mr. Francisco authorizing him to continue to participate in that particular matter responsive to Item 2 or (ii) February 16, 2017. Please include:
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 Mr. Francisco or upon which he was copied.
b. Any documents or e-mails during this period exchanged among lawyers participating in the matter-including but not limited to Catherine Dorsey, Lowell Sturgill, Sharon Swingle, Douglas Letter, H. Thomas Byron, Edwin Kneedler, and August Flentje-discussing or concerning Mr. Francisco's participation in the matter, including any oral comments received from Mr. Francisco regarding the briefing, argument, strategy, or legal analysis for the Ninth Circuit appeal.
c. Calendar entries, meeting agendas, or notes during this period reflecting Mr. Francisco's attendance or participation in any meeting or call regarding the Ninth Circuit appeal or other litigation regarding the travel ban.
d. Records reflecting hand-written notes or comments regarding the Ninth Circuit appeal or other litigation regarding the travel ban from Mr. Francisco prepare during this period, such as edits on a draft brief.
(5) Any communications with the Office of Government Ethics regarding Mr. Francisco's continued participation in the Ninth Circuit appeal or other litigation regarding the travel ban.
FAC, Ex. A, at 2-3.
Pursuant to DOJ regulations, the Office of Public Affairs processes FOIA requests made under
The Office of Information Policy's letter was dated April 24, 2017; the Office of Solicitor General's letter was dated April 25, 2017; and the Civil Division's letter was dated May 16, 2017. See
These are: "(i) Circumstances in which the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safely of an individual; (ii) An urgency to inform the public about the actual or alleged Federal Government activity, if made by a person who is primarily engaged in disseminating information; (iii) The loss of substantial due process rights; or (iv) A matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity that affect public confidence."
This enables "the Department's media specialists [to] deal directly with matters of exceptional concern to the media."
The person seeking expedited processing bears the burden of showing that expedition is appropriate. See Al-Fayed,
American Oversight does not challenge the reasonableness of the DOJ's promulgation of the "media interest" regulation. MSJ at 6.