You are on page 1of 33

Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 1 of 33

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

THE PROTECT DEMOCRACY


PROJECT, INC.,

Plaintiff,

v. No. 17-cv-0842-CRC

U.S. DEPARTMENT OF DEFENSE, et al.,

Defendants.

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S


MOTION FOR A PRELIMINARY INJUNCTION

Plaintiff, The Protect Democracy Project, Inc., seeks an extraordinary, emergency

injunction compelling Defendants, Department of Justice (“DOJ”), Department of Defense

(“DOD”), and Department of State (“State”), to expedite the processing (or complete the

expedited processing) of Plaintiff’s requests under the Freedom of Information Act (“FOIA”), 5

U.S.C. § 552, and to produce to Plaintiff all non-exempt responsive records, as well as an index

justifying the withholding of any records, within 20 days of the date of the Court’s order on its

motion. Plaintiff’s motion should be denied.

First, Plaintiff has not established that it will suffer irreparable harm in the absence of an

injunction. Plaintiff has pointed to no imminently approaching deadline or event that requires

emergency relief. Nor does it explain why or how its ability to contribute to any ongoing public

debate about the legality of the April 6, 2017 U.S. military strikes against the Syrian government

(“April 6 strikes”) will be irreparably harmed if it receives all responsive, non-exempt material in

the normal course of this litigation as opposed to the truncated timeframe Plaintiff requests.
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 2 of 33

Second, Plaintiff has not established that it is likely to succeed on the merits of its claims.

DOD and State did not err in denying Plaintiff’s requests for expedited processing because

Plaintiff failed to demonstrate that the requested information is urgently needed or that Plaintiff

is primarily engaged in disseminating information. Even if an expedited request were granted

(as it was by DOJ’s Office of Information Policy (“OIP”), National Security Division (“NSD”),

and Office of Legal Counsel (“OLC”) (collectively “the DOJ components”), the plain language

of FOIA’s expedited processing provision requires only that an agency process an expedited

FOIA request “as soon as practicable” and imposes no time limit on such processing. Indeed, the

DOJ components are proceeding under that exact standard, and Plaintiff—which bears the

burden on a motion for preliminary injunction—offers no proof to the contrary.

Third, the balance of equities and public interest weigh against an injunction here.

Forcing Defendants to process Plaintiff’s FOIA requests on an arbitrary and infeasible timeline

would upset Congress’s careful balance under FOIA, disadvantaging numerous other requesters

whose FOIA requests were submitted prior to Plaintiff’s requests and risking inadvertent

disclosure of properly exempt material. Notably, Plaintiff’s analysis of the public interest takes

into account only the purported public interest in the records Plaintiff has requested in this case,

and fails to consider the public interest in the other FOIA requests Defendants are processing,

including those afforded expedited processing before Plaintiff’s.

Finally, the relief Plaintiff is requesting is the ultimate relief it seeks by way of this

lawsuit—release of the records requested—not “preliminary” relief designed to protect the status

quo. It is thus inappropriate and premature at this early juncture. Rather, Plaintiff seeks to use

the preliminary injunction provisions of Federal Rule of Civil Procedure 65, which are intended

to provide a shield against imminent injury while a court considers the merits of a dispute, as a

2
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 3 of 33

means of artificially accelerating the proceedings in this case. The Court should reject this

unfounded and improper tactic.

For these reasons, and those set forth at length below, Plaintiff’s motion for a preliminary

injunction should be denied.

BACKGROUND

I. RELEVANT STATUTORY AND REGULATORY FRAMEWORK

A. FOIA’s Expedited Processing Provision

Agencies ordinarily process FOIA requests for agency records on a first-in, first-out

basis. In 1996, Congress amended FOIA to provide for “expedited processing” of certain

categories of requests. See Electronic Freedom of Information Amendments of 1996 (“EFOIA”),

Pub. L. No. 104-231, § 8 (codified at 5 U.S.C. § 552(a)(6)(E)). Expedition, when granted,

entitles requesters to move immediately to the front of an agency processing queue, ahead of

requests filed previously by other persons, but at the end of the queue of other outstanding

requests that have previously been granted expedited processing.

As part of EFOIA, Congress directed agencies to promulgate regulations providing for

expedited processing of requests for records in the following circumstances: (i) “in cases in

which the person requesting the records demonstrates a compelling need,” 5 U.S.C. §

552(a)(6)(E)(i)(I); and (ii) “in other cases determined by the agency,” id. § 552(a)(6)(E)(i)(II).

FOIA defines “compelling need” to mean, as relevant here, “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). The “other cases

determined by the agency” provision (subsection (E)(i)(II)) gives agencies “‘latitude to expand

the criteria for expedited access’ beyond cases of ‘compelling need.’” Al-Fayed v. CIA, 254 F.3d

3
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 4 of 33

300, 307 n.7 (D.C. Cir. 2001) (quoting EFOIA, H.R. Rep. No. 104-795, at 26 (1996), reprinted

in 1996 U.S.C.C.A.N 3448, 3469, 1996 WL 532690 (Sept. 17, 1996)).

If an agency grants a request for expedited processing, the statute provides that it “shall

process as soon as practicable any request for records to which the agency has granted

expedition.” 5 U.S.C. § 552(a)(6)(E)(iii). In addition to expedited processing, Congress also

accelerated litigation involving all FOIA claims. See id. § 552(a)(4)(C) (providing that

government defendants have 30 days in which to answer a FOIA complaint as opposed to the

ordinary 60 days provided by Fed. R. Civ. P. 12).

B. DOJ’s Regulations

DOJ’s regulations provide that “[r]equests and appeals” will be taken out of order and

“processed on an expedited basis whenever it is determined that they involve,” as relevant here:

(ii) An urgency to inform the public about an actual or alleged Federal


Government activity, if made by a person primarily engaged in disseminating
information; . . .

(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). Category (ii) implements the statutory “compelling need” standard;

category (iv) defines additional categories for expedition. See Revision of FOIA and Privacy

Act Regulations and Implementation of EFOIA, 63 Fed. Reg. 29,591, 29,592 (June 1, 1998). If

the request is granted, “the request shall be given priority and shall be processed as soon as

practicable.” 28 C.F.R. § 16.5(e)(4).

C. DOD’s Regulations

DOD’s regulations provide that expedited processing is granted “when the requester

demonstrates a compelling need for the information.” 32 C.F.R. § 286.8(e)(1)(i). The regulation

4
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 5 of 33

specifies that “[a] compelling need exists when,” inter alia, “[t]he information is urgently needed

by an individual primarily engaged in disseminating information in order to inform the public

concerning actual or alleged government activity.” Id. As Congress recognized, agency

decisions regarding expedited processing depend on “factual and subjective judgments about the

circumstances cited by requestors to qualify them for ‘expedited processing.’” H.R. Rep. No.

104-795, at 26. Accordingly, DOD’s regulation specifically requires that a requester seeking

expedited processing “must submit a statement, certified to be true and correct, explaining in

detail the basis for making the request for expedited processing.” 32 C.F.R. § 286.8(e)(3).

A requester seeking expedited processing under subsection (e)(1)(i)(B) “who is not a full-

time member of the news media must establish that the requester is a person whose primary

professional activity or occupation is information dissemination, and not an incidental or

secondary activity, though it need not be the requester’s sole occupation.” Id. Moreover,

“[s]uch a requester also must establish a particular urgency to inform the public about the

government activity involved in the request—one that extends beyond the public’s right to know

about government activity generally.” Id.

D. State’s Regulations

Similarly, State’s regulations providing for expedited processing of FOIA requests

provide that “[r]equests and appeals shall be taken out of order and given expedited treatment

whenever a requester has demonstrated that a ‘compelling need’ for the information exists.” 22

C.F.R. § 171.11(f). A “‘compelling need’ is deemed to exist where the requester can

demonstrate that, inter alia:

The information is urgently needed by an individual primarily engaged in


disseminating information in order to inform the public concerning actual or alleged
Federal government activity. Requesters must demonstrate that their primary

5
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 6 of 33

activity involves publishing or otherwise disseminating information to the public


in general, not just a particular segment or group.

Id. § 171.11(f)(2). The regulation defines “urgently needed” information as “information [that]

has a particular value that will be lost if not disseminated quickly. Ordinarily, this means a

breaking news story of general public interest.” Id. § 171.11(b)(2). State requires requesters to

“set forth with specificity the facts on which the request is based.” Id. § 171.11(f)(4).

II. PLAINTIFF’S FOIA REQUESTS AND REQUESTS FOR EXPEDITED


PROCESSING

On April 7, 2017, Plaintiff submitted FOIA requests to the DOJ components, DOD, and

State seeking the following: “Any and all records, including but not limited to emails and

memoranda, reflecting, discussing, or otherwise relating to the April 6, 2017 military strike on

Syria and/or the President’s legal authority to launch such a strike.” Pl.’s Mem. In Support of

Pl.’s Mot. for Prelim. Inj. (“Pl.’s Mem.”) at 7, ECF No. 3-1. The requests “include[d], but

[were] not limited to” all internal agency communications, communications between Defendants

and the Executive Office of the President (“EOP”), and communications between Defendants

and other agencies. Id. Plaintiff claimed that it was seeking the requested records because “[t]he

public has an immediate right to understand the administration’s position with respect to the

legality of the recent strike against Syria, and to assess whether that position is justified.” See,

e.g., id., Ex. A (FOIA request to OIP) at 3.1

1
Plaintiff claims that it submitted the FOIA request included as Exhibit A to its memorandum to
DOJ’s Office of the Attorney General (“OAG”) and Office of the Deputy Attorney General
(“ODAG”). Pl.’s Mem. at 7. In fact, the request was addressed to OIP, id., Ex. A, which is
responsible for processing FOIA requests seeking records from OAG and ODAG, as well as itself
and four other senior leadership offices within DOJ. OIP is processing Plaintiff’s request on behalf
of OAG and ODAG.

6
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 7 of 33

Each of Plaintiff’s FOIA requests included a request for expedited processing of the

records sought therein. Id. at 2-3. Plaintiff claimed that expedition was warranted “because

there is an urgent need ‘to inform the public about an actual or alleged Federal Government

activity’” and “The Protect Democracy Project intends to disseminate the information obtained

in response to this request.” Id. at 2. (citation omitted). With respect to its FOIA requests

submitted to the DOJ components, Plaintiff also claimed that the subject matter of the FOIA

requests were of “widespread and exceptional media interest” and involved “possible questions

about the government’s integrity that affect public confidence.” Id. (citation omitted).

On various dates in April 2017, all Defendants acknowledged Plaintiffs’ FOIA requests.

See Pl.’s Mem., Exs. F-J. Concurrent with their acknowledgments, OIP and OLC advised

Plaintiff that its requests for expedition were granted, see id., Exs. F,2 G, and DOD and State

advised Plaintiff that its requests for expedition were denied, see id., Exs. I, J. Contrary to

Plaintiff’s allegation, Pl.’s Mem. at 8, NSD has made a determination on Plaintiff’s expedition

request and advised Plaintiff that such request is granted. See Email from Arnetta Mallory to Ian

Bassin (May 1, 2017), at 1 (attached hereto as Ex. 1). Thus, there are only two denials of

expedited processing at issue in this case—those of DOD and State. Plaintiff does not allege that

it administratively appealed either of those denial decisions.

III. THE INSTANT LITIGATION

Almost four weeks after DOD and State denied expedited processing, and less than two

weeks after two of the DOJ components granted it, Plaintiff filed the instant lawsuit, on May 8,

2
As stated supra n.1, Plaintiff submitted its request to OIP, not to ODAG, nor did it otherwise
indicate to OIP that it was seeking ODAG records. Nonetheless, as OIP is responsible for
processing FOIA requests seeking records from ODAG, OIP’s decision to grant expedited
processing applies to any records sought from ODAG. Accordingly, Plaintiff’s claim that
“ODAG has not yet responded to [its] FOIA request,” Pl.’s Mem. at 8, is inaccurate.

7
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 8 of 33

2017. See Pl.’s Compl., ECF No. 1. Defendants have not yet filed a response to Plaintiff’s

Complaint, which is not due until June 23, 2017. But even before Defendants’ deadline to

respond, Plaintiff filed its motion for a preliminary injunction seeking the release of all non-

exempt responsive records, as well as an index justifying the withholding of any records, within

20 days of the date of the Court’s order on its motion. Pl.’s Mot. for a Prelim. Inj. (May 22,

2017), ECF No. 3.

ARGUMENT

Preliminary injunctive relief, of the kind requested here, “is ‘an extraordinary remedy

never awarded as of right.’” Friends of Animals v. U.S. Bureau of Land Mgmt., No. 17-0136,

2017 WL 499882, *3 (D.D.C. Feb. 7, 2017) (quoting Winter v. Nat. Res. Def. Council, 555 U.S.

7, 24, (2008)); see Munaf v. Green, 553 U.S. 674, 689 (2008) (“A preliminary injunction is an

extraordinary and drastic remedy”) (citation omitted)). It “should be granted only when the party

seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v. Norton, 391

F.3d 251, 258 (D.C. Cir. 2004).

A party moving for a preliminary injunction must “establish that it is ‘likely to succeed

on the merits, that [it is] likely to suffer irreparable harm in the absence of preliminary relief, that

the balance of equities tips in [its] favor, and that an injunction is in the public interest.’”

Friends of Animals, 2017 WL 499882, at *3 (quoting Winter, 555 U.S. at 20). The D.C. Circuit

has not yet definitively decided whether Winter abrogates the “sliding scale” approach for

assessing these four factors previously applied in this Circuit. Sherley v. Sebelius, 644 F.3d 388,

393 (D.C. Cir. 2011). The appellate court has nevertheless indicated that it considers Winter “at

least to suggest if not to hold ‘that a likelihood of success is an independent, free-standing

requirement for a preliminary injunction,’” regardless of whether a “sliding-scale analysis” is

8
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 9 of 33

used to weigh the four factors. Id. at 393 (quoting Davis v. Pension Benefit Guar. Corp., 571

F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanagh, J., concurring). This Circuit has also emphasized

that a showing of irreparable harm is an “independent prerequisite” for a preliminary injunction.

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006).

“The usual role of a preliminary injunction is to preserve the status quo pending the

outcome of litigation.” Cobell v. Kempthorne, 455 F.3d 301, 314 (D.C. Cir. 2006) (citation

omitted). Therefore, when, as here, a movant seeks mandatory injunctive relief, i.e., an

injunction that “would alter, rather than preserve, the status quo by commanding some positive

act—the moving party must meet a higher standard than in the ordinary case by showing clearly

that he or she is entitled to relief or that extreme or very serious damage will result from the

denial of the injunction.” Elec. Info. Privacy Ctr. v. Dep’t of Justice (“EPIC II”), 15 F.Supp.3d

32, 39 (D.D.C. 2014) (Brown Jackson, J.) (citations omitted). “A district court should not issue a

mandatory preliminary injunction unless the facts and law clearly favor the moving party.” Nat’l

Conference on Ministry to Armed Forces v. James, 278 F. Supp. 2d 37, 43 (D.D.C. 2003)

(citation omitted).3

3
Thus, courts in this district routinely deny requests for preliminary, mandatory injunctions
(“PI”) in FOIA cases. See, e.g., Progress v. Consumer Fin. Prot. Bureau, No. 17-686, 2017 WL
1750263 (D.D.C. May 4, 2017) (denying PI to expedite processing where requester failed to
show a likelihood of success on the merits and irreparable harm); Wadelton v. Dep’t of State, 941
F. Supp. 2d 120, 124 (D.D.C. 2013) (denying PI to expedite processing where requester failed to
meet all four PI prongs); Landmark Legal Found. v. EPA, 910 F. Supp. 2d 270, 279 (D.D.C.
2012) (denying PI to expedite processing where agency stated request is already at the top of the
queue and requester failed to meet other PI prongs); Elec. Privacy Info. Ctr. v. Dep’t of Justice,
No. 03-2078, slip op. at 1, (D.D.C. Oct. 20, 2003) (attached as Ex. 2) (denying, sua sponte, a PI
request “‘enjoining defendant DOJ from continuing to deny plaintiff expedited processing of
plaintiff’s Freedom of Information Act request’” because such relief “would effectively grant all
the relief plaintiff seeks” and was in the nature of a request for mandamus), vacated as moot
2004 WL 2713119 (D.C. Cir. 2004); Al-Fayed v. CIA, No. 00-20292, 2000 WL 34342564, *6
(D.D.C. Sept. 20, 2000) (finding that “upon consideration of the parties’ arguments, the statutory
and regulatory context, and the applicable case law,” emergency relief was not warranted despite
the agency’s delay in responding to FOIA requests); Judicial Watch v. Dep’t of Justice, No. 00-

9
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 10 of 33

Plaintiff has not satisfied the four factors or the heightened standard for mandatory

injunctions. Its motion for a preliminary injunction should therefore be denied.

I. PLAINTIFF HAS FAILED TO ESTABLISH IT WILL SUFFER ANY


IRREPARABLE HARM ABSENT A MANDATORY, EMERGENCY
INJUNCTION

“[T]he basis of injunctive relief in the federal courts” has “always” been irreparable

harm. Sampson v. Murray, 415 U.S. 61, 88 (1974). Indeed, if a movant has not demonstrated

irreparable harm, a court need not even consider the remaining factors. See CityFed Fin. Corp.

v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995).

The D.C. Circuit “has set a high standard for irreparable injury.” In re Navy Chaplaincy,

534 F.3d 756, 766 (D.C. Cir. 2008) (citation omitted). The party seeking injunctive relief must

show that its injury is “both certain and great,” and that it is “actual and not theoretical.” Wisc.

Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam). It is a “well known and

indisputable principle[]” that “unsubstantiated and speculative” harm cannot constitute

“irreparable harm” sufficient to justify injunctive relief. Id. Moreover, the movant “‘must

demonstrate a causal connection between the alleged harm and the actions to be enjoined; a

preliminary injunction will not issue unless it will remedy the alleged injuries.’” Navistar, Inc. v.

U.S. EPA, No. 11-449, 2011 WL 3743732, *2 (D.D.C. Aug. 25, 2011) (quoting Hunter Group,

Inc. v. Smith, 164 F.3d 624 (4th Cir. 1998)); see also id. at *2 (citing Faulkner v. Jones, 10 F.3d

226, 235-36 (4th Cir. 1993) (Hamilton, J., dissenting) (“[A]ny inquiry into the irreparable harm

resulting from the denial of interim relief must necessarily begin with an analysis of the degree to

1396, slip op. at 1, (D.D.C., June 27, 2000) (attached as Ex. 3) (denying plaintiff’s “emergency
motion for expedited treatment” to “compel defendant to respond to plaintiff’s Freedom of
Information Act request”).

10
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 11 of 33

which that particular relief remedies the alleged injuries.”)). Because Plaintiff has not made the

requisite showing of a non-speculative injury that could be remedied by preliminary injunctive

relief, its application should be denied on this basis alone. See Greater New Orleans Fair Hous.

Action Ctr. v. U.S. Dep’t of Hous. & Urban Dev., 639 F.3d 1078, 1088 (D.C. Cir. 2011).

Plaintiff argues that, unless Defendants produce all non-exempt responsive documents

within 20 days of the Court’s order on its motion, its (and the public’s) “ability to participate in a

meaningful and informed debate about further military action against Syria [will be] severely

hampered,” and thus Plaintiff will be irreparably harmed. Pl.’s Mem. at 21. Plaintiff’s attempts

to establish irreparable harm, however, are entirely conclusory and speculative. First, it argues

that preliminary injunctive relief is warranted because further military strikes like the April 6

strikes “could continue [] at any point,” id. (emphasis added), and the ability to have a

“meaningful debate” before such strikes occur will be irreparably harmed “if the military conflict

escalates further,” id. at 2 (emphasis added). Such conditional allegations on their face fail to

rise to the level of the “both certain and great” injury necessary to establish irreparable harm.

See Wisc. Gas Co., 758 F.2d at 674. They are by their nature contingent on the future action of

the President. Contrary to Plaintiff’s suggestion, the President’s April 8, 2017 letter notifying

Congress of the April 6 strikes does not indicate that future military action against the Syrian

government is either imminent or certain. See Pl.’s Mem. at 4 (quoting President Donald J.

Trump, A Letter from the President to the Speaker of the House of Representatives and the

President Pro Tempore of the Senate, Apr. 8, 2017 (“President’s April 8 Letter”) (“[t]he United

States will take additional action, as necessary and appropriate, to further its important national

interests.”) (emphasis added)).4

4
The use of the phrase “as necessary and appropriate” is not unique to the President’s April 8
Letter, having been used by the prior administration in similar notifications to Congress. See,

11
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 12 of 33

The military strikes conducted in Syria on May 18, 2017 were not, as Plaintiff suggests,

related to the April 6 strikes. Pl.’s Mem. at 3, 21. As stated in the press release cited by

Plaintiff, the May 18 strikes were conducted by coalition forces in response to pro-regime forces

that posed a threat to U.S. forces. See id. at 3 n.2 (citing Coalition Statement on At Tanf

Garrison, May 18 2017). Those strikes were conducted in connection with Operation Inherent

Resolve, the military campaign against ISIS.5

Second, Plaintiff claims that it will be irreparably injured if it does not promptly receive

the requested documents given the current “time-sensitive” Congressional debates over U.S.

military actions towards Syria. Id. at 21. Contrary to Plaintiff’s claim, id. at 6, the proposed

legislation it cites does not establish an ongoing Congressional debate about the topic at issue in

its FOIA requests—i.e., the President’s legal authority to authorize the April 6 strikes against the

Syrian government. Specifically, Plaintiff refers to three proposed resolutions that relate to the

authorization of military force, but they pertain only to al-Qaeda, the Taliban, and ISIS, not the

Syrian government. See H.J. Res. 89, 115th Cong. (2017), Authorization for the Use of Military

Force Against al-Qaeda, the Taliban, and the Islamic State of Iraq and Syria; H.J. Res. 100, 115th

Cong. (2017), To authorize the Use of United States Armed Forces Against al Qaeda, the Islamic

State of Iraq and the Levant (ISIL), and the Afghan Taliban; S.J. Res. 31, 115th Cong. (2017),

Authorization for the Use of Military Force Against al-Qaeda, the Taliban, and the Islamic State

e.g., Letter from the President – War Powers Resolution, Oct. 14, 2016 (military action against
Houthi-controlled territory in Yemen; “The United States stands ready to take action in self-
defense, as necessary and appropriate, to address further threats.”), available at
https://obamawhitehouse.archives.gov/the-press-office/2016/10/14/letter-president-war-powers-
resolution.
5
See Operation Inherent Resolve, “About Us,” available at http://www.inherentresolve.mil/
About-Us/; see also Statement by the President on ISIL, Sept. 10, 2014, available at
https://obamawhitehouse.archives.gov/the-press-office/2014/09/10/ statement-president-isil-1.

12
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 13 of 33

of Iraq and Syria. Moreover, the fact that two of these proposed resolutions were introduced

approximately one month before the April 6 strikes further demonstrates that they are not the

“resultant [] Congressional debate” of those strikes.6 Pl.’s Mem. at 20.

And although the remaining proposed legislation Plaintiff relies on concerns the Syrian

government, these proposed resolutions only condemn or halt (by way of all diplomatic and

coercive economic means) the President of Syria’s (Bashar al Assad) use of chemical weapons.

They do not relate to, or even mention, the use of U.S. military action against the Syrian

government. See S. Res. 116, 115th Cong. (2017), A Resolution Condemning the Assad Regime

for its Continued Use of Chemical Weapons Against the Syrian People; H.R. 1677, 115th Cong.

(2017), Caesar Syria Civilian Protection Act of 2017. Thus, Plaintiff has not clearly shown, and

it is not at all “certain,” that the records Plaintiff seeks are crucial to the public’s understanding

of, or participation in, the Congressional debate on which Plaintiff’s irreparable harm argument

is primarily based. See EPIC II, 15 F. Supp. 2d at 45 (finding no irreparable harm where

plaintiff did not explain how or why its request for documents pertaining to Section 214 of the

Patriot Act would inform the public debate about the reforms to Section 215 of the Patriot Act).

Even if the Court found that the pending legislation Plaintiff cites is directly related to its

FOIA requests, Plaintiff has not identified a single imminent deadline or looming event (or any

deadline or event at all) related to this legislation that requires an emergency, mandatory

6
H.J. Res. 89 was introduced in the House on March 15, 2017. See Congress.gov,
https://www.congress.gov/bill/115th-congress/house-joint-resolution/89/actions?q=%7B%22
search%22%3A%5B%22hj+res+89%22%5D%7D&r=1. S.J. Res. 31 was introduced in the
Senate on March 2, 2017. See Congress.gov, https://www.congress.gov/bill/115th-congress/
senate-joint-resolution/31/actions?q=%7B%22search%22%3A%5B%22sj+res+31%22%
5D%7D&r=1.

13
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 14 of 33

injunction. In fact, the vast majority of the legislative proposals it cites are simply sitting before

various committees, and in some cases have been stalled there for several months.7

As the court in EPIC II found, merely identifying allegedly related legislation that is

pending in Congress is insufficient to establish that, absent preliminary injunctive relief, a FOIA

requester will be irreparably harmed. Id. In EPIC II, the court denied the plaintiff’s motion for a

preliminary injunction ordering expedited production of responsive records where “it ha[d] not

pointed to any scheduled committee hearings, let alone committee or floor votes, that indicate

action on those bills is imminent.” Id. In cases, like this one, where the plaintiff has not

provided evidence of a looming event necessitating the immediate release of information,

numerous other courts have found similar conclusory claims of harm to be lacking.8 See Daily

Caller v. U.S. Dep’t of State, 152 F. Supp. 3d 1, 13 (D.D.C. 2015) (Howell, J.) (rejecting claim

7
For example, H.J. Res. 89 was referred to the House Committee on Foreign Affairs on March
15, 2017 with no further action to date. See Congress.gov, https://www. congress.gov/bill/115th-
congress/house-joint-resolution/89/all-actions?q=%7B%22search
%22%3A%5B%22hj+res+89%22%5D%7D&r=1. S.J. Res. 31 was referred to the Senate
Committee on Foreign Relations on March 2, 2017 with no further action to date. See
Congress.gov, https://www.congress.gov/bill/115th-congress/senate-joint-resolution/31/all-
actions?q=%7B%22search%22%3A%5B%22sj+res+31%22%5D%7D&r=1. Only S. Res. 116
has made it through all necessary committee review, but no action has been taken on it for over
two months. See Congress.gov, https://www.congress.gov/bill/115th-congress/senate-
resolution/116/all-actions?q=%7B%22search%22%3A%5B%22sres+116%22% 5D%7D&r=1.
8
For this reason, the cases on which Plaintiff relies are distinguishable. In Elec. Frontier Found.
v. Office of Dir. of Nat. Intelligence, the court granted a motion to compel the agency’s response
to plaintiff’s FOIA request for certain records sought “in order to inform the public debate of the
[Foreign Intelligence Surveillance Act (“FISA”)] amendments Congress [was] currently and
actively considering,” where Congress intended to pass the amendments by the end of the year
and prior FISA amendments were due to expire in three months. No. C-07-5278, 2007 WL
4208311, *7 (N.D. Cal. Nov. 27, 2017). In Washington Post v. Dep’t of Homeland Sec., the
court found that the plaintiff established irreparable injury where it showed that the requested
information, which the agency declined to process at all, was of vital public interest for the
impending mid-term election set to take place in less than a month. 459 F. Supp. 2d 61, 75
(D.D.C. 2006). Plaintiff has made no such showing of a concrete, imminent need here.

14
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 15 of 33

that delay in responding to plaintiff’s FOIA request irreparably injured its ability to provide the

public with its analysis and reporting of Secretary Clinton’s use of a private email server during

her time at the State Department); Al-Fayed v. CIA, No. 00-20292, 2000 WL 34342564, *5

(D.D.C. Sept. 20, 2000) (finding plaintiff’s claim of irreparable harm to “their ability to engage

in informed discussion and debate on the issue of government misconduct . . .” was conclusory

and did not explain “why th[e] information will not retain its value if procured through the

normal FOIA process”); Long v. Dep’t of Homeland Sec., 436 F. Supp. 2d 38, 44 (D.D.C. 2006)

(finding plaintiffs did not show irreparable harm to their “ability to timely inform the public

about the government’s treatment of aliens with drug possession convictions” and “participate in

the debate . . . over immigration policy” where it “failed to identify a time frame in which the

requested information would no longer be valuable”). Although Plaintiff’s desire to receive a

final response to its FOIA requests immediately “is understandable, that desire without more, is

insufficient to constitute irreparable harm necessary to justify the extraordinary relief requested

here.” Judicial Watch v. U.S. Dep’t of Homeland Sec., 514 F. Supp. 2d 7, 10 (D.D.C. 2007).

Moreover, Plaintiff itself acknowledges that there is already information in the public

record that permits Plaintiff, if it so wishes, to contribute its views on the legality of the April 6

strikes to any ongoing public debate. Pl.’s Mem. at 4-5 (citing the Pres.’s April 8 Letter and

statements of the White House Press Secretary, Secretary of State Tillerson, and Secretary of

Defense Mattis). Plaintiff’s chief complaints are that the President’s April 8 Letter allegedly

lacks legal analysis supporting his decision to conduct the April 6 strikes and that the public

statements of administration officials regarding the April 6 strikes are allegedly inconsistent.

Pl.’s Mem. at 4. Defendants disagree, but whether or not Plaintiff believes the President’s

notification to Congress is insufficient or that administration officials have stated inconsistent

15
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 16 of 33

rationales is irrelevant to the question of whether Plaintiff’s ability to participate in any ongoing

public debate is “severely hampered” such that it is entitled to the emergency, mandatory

injunction it requests. Indeed, this case is similar to Landmark Legal Found. v. EPA, 910 F.

Supp. 2d 270 (D.D.C. 2012), in which the court denied the plaintiff’s motion for a preliminary

injunction to expedite a request seeking records related to the delay of an agency rule based on

the plaintiff’s concern that the delay was politically motivated. The court explained that,

notwithstanding the impending close of the comment period, “nothing prevent[ed] Landmark

from filing comments [on the agency rule] (citing already-public information) expressing [its]

concern” about the reasons for the delay. Id. at 277.

Just as in Landmark Legal Found., nothing prevents Plaintiff from publicizing any

concerns it has over the legality of the April 6 strikes, whether based on the explanations

provided in the President’s April 8 Letter or in any one of the public statements of administration

officials Plaintiff cites, or the purported absence of any explanations. In fact, Plaintiff’s own

motion, which assesses several legal authorities to conclude that there is “no readily apparent []

authorization” for the April 6 strikes, belies its own claim that, in the absence of the

extraordinary relief requested here, it cannot participate in any ongoing public debate. Pl.’s

Mem. at 3-4.

Finally, given the fact that Plaintiff cannot now show with certainty what non-exempt

information it may eventually receive as a result of the completed processing of its FOIA

requests, Plaintiff cannot meet its burden to establish that it will be irreparably harmed if it fails

to receive that information immediately. Plaintiff’s irreparable harm argument “ignores the well-

established statutory FOIA process,” which permits Defendants to “withhold certain requested

documents and to engage in subsequent litigation over them, without regard to the resulting

16
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 17 of 33

production delay.” EPIC II, 15 F. Supp. 3d at 46. Plaintiff’s requests specifically seek

documents, including any communications between EOP and Defendants (such as DOJ’s OLC

and NSD), relating to the President’s legal authority for the April 6 strikes. To the extent they

exist, such documents very likely include classified national security information and material

that is subject to one or more privileges and thus protected from disclosure. See 5 U.S.C. §

552(b)(1), (b)(5); Landmark Legal Found., 910 F. Supp. 2d at 278 (“there is no guarantee, even

if the Court were to issue a preliminary injunction that the records Landmark seeks would be

disclosed”). The Court should not “engage in rank speculation” to conclude that any non-exempt

responsive information Defendants possess will be of value to Plaintiff and thus that Plaintiff is

irreparably harmed absent an order requiring immediate disclosure. See Elec. Frontier Found. v.

Dep’t of Justice, No. 06-1773, slip op. at 11 (D.D.C. Sept. 27, 2007) (attached as Ex. 4) (finding

no irreparable injury where “the Court would have to engage in rank speculation to conclude that

the information possessed by the FBI is of value to the EFF and to assess the extent to which the

plaintiff may be harmed due to the FBI’s unavoidable delay”).

For these reasons, Plaintiff makes no showing that proceeding in this matter in the normal

course of litigation will injure Plaintiff in a way that is both “certain and great” and has

accordingly demonstrated no reason for the Court to invoke its emergency powers.

II. PLAINTIFF CANNOT ESTABLISH IT IS LIKELY TO SUCCEED ON THE


MERITS OF ITS CLAIM

Plaintiff also cannot demonstrate a clear likelihood of success on the merits of its request

for expedited processing, sufficient to warrant a court order granting such relief on a preliminary

basis. “It is particularly important for the movant to demonstrate a substantial likelihood of

success on the merits,” because “absent a substantial indication of [such] likely success . . . ,

there would be no justification for the [C]ourt’s intrusion into the ordinary processes of

17
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 18 of 33

administration and judicial review.” Hubbard v. United States, 496 F. Supp. 2d 194, 198

(D.D.C. 2007) (citation omitted). Plaintiff has not established that it will be able to show that

DOD and State erred in denying its requests for expedited processing. In any event, even if

Plaintiff ultimately prevailed as to expedited processing, its success would not entitle it to a

mandatory injunction directing Defendants to release responsive documents by a date certain.

For that reason, Plaintiff has also failed to establish that the DOJ components violated FOIA by

failing to expedite processing of its requests to such an extent as to produce all responsive

records within 20 business days of the requests, or by failing to process its requests “as soon as

practicable.”

A. Plaintiff Has Not Established a Likelihood of Success on Its Expedited


Processing Claim

Plaintiff has not established that DOD and State likely erred in denying its requests for

expedited processing. Plaintiff sought expedited processing from DOD under 32 C.F.R. §

286.8(e)(1)(i)(B) and from State under 22 C.F.R. § 171.11(f)(2). Both provisions implement

FOIA’s compelling need standard, which is defined as, “with respect to a request made by a

person primarily engaged in disseminating information, [an] urgency to inform the public

concerning actual or alleged Federal Government activity.” 5 U.S.C. § 552(a)(6)(E)(v)(II).

In enacting FOIA’s expedited processing provision, Congress intended that the “‘[t]he

specified categories of compelling need’” should be “‘narrowly applied.’” Al-Fayed, 254 F.3d at

310 (quoting H.R. Rep. No. 104-795, at 26). As the D.C. Circuit explained in Al-Fayed, “‘Given

the finite resources generally available for fulfilling FOIA requests, unduly generous use of the

expedited processing procedure would unfairly disadvantage other requestors who do not qualify

for its treatment.’ . . . Indeed, an unduly generous approach would also disadvantage those

requestors who do qualify for expedition, because prioritizing all requests would effectively

18
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 19 of 33

prioritize none.” Id. A decision denying expedited processing for failure to establish

“compelling need” under Section 552(a)(6)(E)(i)(I) is reviewed by the courts de novo, id. at 307,

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

552(a)(6)(E)(iii). The requester bears the burden of showing that expedition is appropriate. Al-

Fayed, 254 F.3d at 305 n.4 (quoting H.R. Rep. No. 104-795, at 25).

To determine the first criteria for compelling need under Section 552(a)(6)(E)(v)(II)—an

“urgency to inform” the public—courts must consider “(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.” Id. at 310; see 22 C.F.R. § 171.11(b)(2) (“urgently needed” information

is “information [that] has a particular value that will be lost if not disseminated quickly”). “The

public’s right to know, although a significant and important value, would not by itself be

sufficient to satisfy this standard.” Al-Fayed, 254 F.3d at 310 (quoting H.R. Rep. No. 104-795,

at 26); see also 32 C.F.R. § 286.8(e)(3) (“requester also must establish a particular urgency to

inform the public . . . beyond the public’s right to know”).

Plaintiff’s arguments for why its requests involve an “urgency to inform” the public are

essentially the same as its arguments for irreparable injury, and thus for the same reasons they

fail. In its FOIA requests, which was the record before DOD and State at the time of their

determinations (and thus to which this Court’s review is limited), Plaintiff justified its requests

for expedited processing with only conclusory and speculative allegations that it “expect[ed]” the

public and Congressional debate regarding the April 6 strikes to intensify and that there was a

“possibility” that the President may authorize further military action. Pl.’s Mem., Ex. D (FOIA

request to DOD) at 3, Ex. E (FOIA request to State) at 3. Plaintiff cited no news articles or

19
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 20 of 33

impending Congressional legislation discussing the President’s legal authority for the April 6

strikes, or any facts supporting its claim of compelling need. See 32 C.F.R. § 286.8(e)(3) (“[t]he

existence of numerous articles published on a given subject can be helpful in establishing the

requirement that there be an ‘urgency to inform’ the public on the topic.”). And the remaining

allegation set forth in its expedition requests—that “[t]he public has an immediate right” to the

requested documents, see, e.g., Pl.’s Mem., Ex. D at 3—is insufficient on its own. Al-Fayed, 254

F.3d at 310; see also 32 C.F.R. § 286.8(e)(3). Given the scant record before DOD and State, the

agencies did not err in finding that Plaintiff had not “clearly demonstrated how the information

will lose its value if not processed on an expedited basis.”9 Pl.’s Mem., Ex. I (Response from

DOD) at 1; see Ex. J (Response from State) at 1 (“Regrettably, I must advise that you have not

provided adequate justification for expedition.”).

Even considering (and the Court should not) the additional facts that Plaintiff has

mustered for its motion, other courts have found that a requester, like Plaintiff, fails to show

sufficient exigency to warrant expedited processing in circumstances where the ongoing public

controversy is not associated with a specific time frame. See, e.g., Long, 436 F. Supp. 2d at 43

(requester failed to justify expedited processing of request related to ongoing immigration policy

9
The decisions of the DOJ components to grant Plaintiff expedited processing do not
demonstrate that the decisions of DOD and State were likely in error. Plaintiff sought expedited
processing under not only DOJ’s regulatory provision that implements the statutory compelling
need standard, 28 C.F.R. § 16.5(e)(ii), but also under an additional “widespread and exceptional
media interest” category for expedition, id. § 16.5(e)(iv), which finds no corollary in DOD’s or
State’s regulations. Moreover, FOIA provides each agency with authority to make its own
determination on a request for expedited processing. 5 U.S.C. § 552(a)(6)(E)(i)-(iii). Plaintiff
has cited no authority for the proposition that the decision of one agency to grant expedited
processing binds the decision of another agency to which the requester submitted a similar
request. The ACLU opinion on which Plaintiff relies is distinguishable, as it held only that the
expedited processing denial at issue was unreasonable given that the same agency previously
granted a similar request. ACLU v. U.S. Dep’t of Justice, 321 F. Supp. 2d 24, 32 (D.D.C. 2004).

20
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 21 of 33

debate where to failed to identify “imminent action indicating that the requested information will

not retain its value if procured through normal FOIA channels, id.” (citation omitted)).

Likewise, a requester does not show that denial of expedited processing compromises a

recognized interest where, as here, nothing prevents it from commenting on the subject of the

records request before the agency has responded. See Landmark Legal Found., 910 F. Supp. 2d

at 277. As fully explained above, infra 13-14, Plaintiff has not identified any imminent deadline

or looming event to which its FOIA requests relate, nor explained how it is prevented from

publicizing its analysis and opinions of the legality of the April 6 strikes in the absence of a

mandatory injunction.10

Additionally, Plaintiff’s FOIA requests failed to demonstrate that it is “primarily engaged

in disseminating information.” See 32 C.F.R. § 286.8(e)(3); 22 C.F.R. § 171.11(f)(2). “The

standard of ‘primarily engaged’ requires that information dissemination be the main activity of

the requestor, although it need not be their sole occupation.’” Landmark Legal Found., 910 F.

Supp. 2d at 276 (quoting H.R. Rep. No. 104-795, at 26). Courts therefore “must be cautious in

deeming non-media organizations as persons primarily engaged in information dissemination”—

especially when the court is considering a request for a preliminary injunction. Id. at 275-76 &

10
Plaintiff cites cases that found an “urgency to inform” the public in the face of concrete
legislative deadlines, and are thus distinguishable from the instant matter. Pl.’s Mem. at 16
(citing ACLU, 321 F. Supp. 2d at 29-31 (request related to Section 215 of the Patriot Act, which
was set to expire at the end of 2005, only six months after the agency estimated it could produce
responsive documents); Leadership Conf. on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 260
(D.D.C. 2005) (request related to Voting Rights Act, which was due to expire in 2007).
Plaintiff’s reliance on ACLU of N. California v. U.S. Dep’t of Defense is also misplaced. The
interest that the ACLU of N. California recognized was merely that which was defined by DOD’s
expedited processing regulation. No. C-06-1698, 2006 WL 1469418, *8 (N.D. Cal. May 25,
2006) (citing 32 C.F.R. § 286.4(3)(i), now found at § 286.8(e)(3)). As explained herein, based
on the record before DOD, Plaintiff did not demonstrate that it met the standard for expedited
processing as set forth in DOD’s regulation.

21
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 22 of 33

n.7 (public-interest law firm had not demonstrated it was primarily engaged in disseminating

information). “Courts generally only find that a plaintiff is primarily engaged in information

dissemination if information dissemination is the primary activity of the organization, to the

exclusion of other main activities.” Treatment Action Grp. v. Food & Drug Admin., No. 15-976,

2016 WL 5171987, *7-8 (D. Conn. Sept. 20, 2016) (advocacy group had not demonstrated it was

primarily engaged in disseminating information); see also ACLU of N. California v. U.S. Dep’t

of Justice, No. C-04-4447, 2005 WL 588354, *14 (N.D. Cal. Mar. 11, 2005) (ACLU chapter had

not demonstrated it was primarily engaged in disseminating information; “[W]hile dissemination

of information may be a main activity of ACLU-NC, there is no showing that it is the main

activity.”).

Asserting in its FOIA request that it qualified as such a requester, Plaintiff stated that it

submitted its records request “in consort with the organization’s mission to gather and

disseminate information that is likely to contribute significantly to the public understanding of

executive branch operations and activities” and that it intends to disseminate any records

received in response to its FOIA request on its website.11 Pl.’s Mem., Ex. D (FOIA request to

DOD) at 3-4, Ex. E (FOIA request to State) at 3-4. These statements do not appear under

Plaintiff’s requests for expedited processing, but rather in its requests for a fee waiver.12 Id.

11
Plaintiff attaches as an exhibit to its motion the Declaration of Ian Bassin. Pl.’s Mem., Ex. K.
This declaration was not a part of Plaintiff’s request for expedition and therefore it should not be
considered as a basis for expedition by the Court. See 5 U.S.C. § 552(a)(6)(E)(iii); see also Nat’l
Day Laborer Org. Network v. U.S. Immigration & Customs Enforcement, No. 16-0387, 2017
WL 746444, *5-6 (S.D.N.Y. Feb. 17, 2017) (declining to consider group’s later-submitted
declaration because it was not before the agency at time of decision).
12
Plaintiff suggests that because it has been granted fee waivers under FOIA as a “representative
of the news media,” it is also primarily engaged in information dissemination for purposes of
expedited processing. Pl.’s Mem. at 17 (citing ACLU, 321 F. Supp. 2d at 29 n.5). But this
conclusion is undermined by the fact that both DOD and State amended their expedited
processing provisions to eliminate reference to representatives of the news media or news media

22
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 23 of 33

Under similar facts, another court in this district found that such allegations do not establish that

a requester is primarily engaged in information dissemination. See Progress v. Consumer Fin.

Protect. Bureau, No. 17-686, 2017 WL 1750263, *4 (D.D.C. May 4, 2017). In Progress, the

court found that the only indicia in the record before the agency (i.e., the plaintiff’s FOIA

request) that the plaintiff was involved in information dissemination was its claim, made in

support of its fee waiver request, that it would “use the information gathered, and its analysis of

it, to educate the public” and “make materials it gathers available on [its] public website.” Id.

The court held that such statements did not show that information dissemination was the

plaintiff’s main activity. Id.; see Nat’l Day Laborer Org. Network v. U.S. Immigration &

Customs Enf’t, No. 16-387, 2017 WL 746444, *5 (S.D.N.Y. Feb. 17, 2017) (advocacy group did

not demonstrate it was primarily engaged in information dissemination by maintaining

frequently visited websites and intending to widely publish and disseminate the requested

information to the press and public). Based on the record, Plaintiff has similarly failed to

establish that it is a person primarily engaged in information dissemination.

requesters as persons who presumptively meet the “primarily engaged in information


dissemination” factor. Compare 32 C.F.R. § 286.4(c)(3)(ii) (1998) (“Representatives of the
news media (see § 286.28(e)) would normally qualify as individuals primarily engaged in
disseminating information. Other persons must demonstrate that their primary activity involves
publishing or otherwise disseminating information to the public.”) with 32 C.F.R. § 286.8(e)(3)
(“a requester who is not a full-time member of the news media must establish that the requester
is a person whose primary professional activity or occupation is information dissemination”).
Compare 22 C.F.R. § 171.12(b)(2) (2004) (“News media requesters would normally qualify;
however, other persons must demonstrate that their primary activity involves publishing or
otherwise disseminating information to the public . . .”) with 22 C.F.R. § 171.11(f)(2)
(“Requesters must demonstrate that their primary activity involves publishing or otherwise
disseminating information to the public . . .”).

23
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 24 of 33

B. Plaintiff Has Failed to Demonstrate That FOIA’s Expedited Processing


Provision Requires Production By a Date Certain

Even if Plaintiff were to ultimately prevail on its request for expedited processing by

DOD and State, that success would not entitle it to the relief it seeks by way of this motion, a

mandatory injunction directing the government to release responsive documents by a date

certain. And, by the same token, Plaintiff cannot demonstrate a clear likelihood of success on

the merits of its claim that the DOJ components have failed to expedite processing of its requests

by not producing all responsive records within 20 business days of the requests, or by failing to

process its requests “as soon as practicable.” Pl.’s Mem. at 19-20.

Plaintiff’s argument that it is entitled to a preliminary injunction ordering documents

released within a set period of time is predicated on the erroneous assertion that FOIA requires

an agency to complete its processing within a specific period of time. The statute, however, does

not impose such a requirement. Instead, the statute directs agencies to “determine within 20 days

. . . whether to comply” with the request. 5 U.S.C. § 552(a)(6)(A)(i); see also id. § 552

(a)(6)(B)(i) (permitting the agency to extend the time limit by up to ten working days “[i]n

unusual circumstances”). The D.C. Circuit has made clear that to satisfy this provision, the

agency “need not actually produce the documents” but should “at least indicate . . . the scope of

the documents it will produce and the exemptions it will claim with respect to any withheld

documents.” Citizens for Ethics and Responsibility in Wash. v. Federal Election Comm’n, 711

F.3d 180, 182-83 (D.C. Cir. 2013) (“CREW”). If the agency makes such a determination within

twenty working days, the requester must pursue an administrative appeal before seeking judicial

review. See, e.g., Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003). If an agency does not

make a determination within that time, “the ‘penalty’ is that the agency cannot rely on the

administrative exhaustion requirement to keep cases from getting into court.” CREW, 711 F.3d

24
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 25 of 33

at 189. The requesting party is instead “deemed to have exhausted his administrative remedies”

and can file suit in a federal district court without first pursuing an administrative appeal. 5

U.S.C. § 552(a)(6)(C)(i). After suit is filed, the district court can “allow the agency additional

time to complete its review of records,” so long as “the Government can show exceptional

circumstances exist and that the agency is exercising due diligence in responding to the request.”

Id. § 552(a)(6)(C)(i). An agency complies with FOIA simply by making “a good faith effort . . .

to comply with all lawful demands under [FOIA] in as short a time as is possible by assigning all

requests on a first-in, first-out basis.” Open Am. v. Watergate Special Prosecution Force, 547

F.2d 605, 616 (D.C. Cir. 1976). The statute’s determination deadline thus provides no basis for a

preliminary injunction requiring production by a date certain.

Nor would such a result be called for if the Court were to order expedited processing by

DOD and State, or in the case of the DOJ components, which have already granted expedited

processing. The expedited processing provision of FOIA does not require agencies to process

expedited requests within a specific time limit. Instead, the statute directs agencies to “process

as soon as practicable any request for records to which [they have] granted expedited

processing.” 5 U.S.C. § 552(a)(6)(E)(iii) (emphasis added); see, e.g., 28 C.F.R. § 16.5(e)(4) (“If

expedited processing is granted, the request shall be given priority . . . and shall be processed as

soon as practicable”) (emphasis added). As the Senate Report accompanying the FOIA

amendments that inserted the expedited processing procedures explains, the intent of the

expedited processing provision was to give certain requests priority, not to require that such

requests be processed within a specific period of time:

No specific number of days for compliance is imposed by the bill since, depending
on the complexity of the request, the time needed for compliance may vary. The
goal is not to get the request processed within a specific time frame, but to give
the request priority for processing more quickly than would otherwise occur.

25
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 26 of 33

S. Rep. No. 104-272 (May 15, 1996), 1996 WL 262861, *17 (emphasis added). Thus, while the

purported urgency of Plaintiff’s request may be a factor in determining whether a request for

expedited treatment will be granted, see 5 U.S.C. § 552(a)(6)(E)(v)(II), it is not a factor in

determining the speed by which an agency needs to complete the request. Rather, what is

practicable, and hence what is required by the statute, will vary depending on the size, scope,

detail, and complexity of issues presented by the request; the number of offices with responsive

documents; other agencies or components which must be consulted or to which documents might

have to be referred for additional review; exemption issues; and the resources available to

process the request.

Recent decisions by courts in this district have denied similar requests for preliminary,

mandatory injunctions ordering production in FOIA cases by a date certain where, like the DOJ

components, the agency had already granted expedited processing. See Daily Caller, 152 F.

Supp. 3d at 11 (holding that State Department’s failure to issue a final determination within

twenty days “does not conclusively demonstrate that the plaintiff is likely to prevail in its

underlying effort to accelerate the processing of its FOIA requests and the ultimate production of

any responsive, non-exempt records”); EPIC II, 15 F. Supp. 3d at 44 (same with respect to FOIA

response of DOJ).

In short, the expedited processing provision of FOIA is an ordering mechanism, allowing

certain FOIA requesters to jump to a faster processing queue, avoiding the simple or complex

queues. See, e.g., 28 C.F.R. § 16.5(b). Once a request is in the expedited queue, however,

“practicability” is the standard that governs how quickly any particular request can be processed.

See Landmark Legal Found., 910 F. Supp. 2d at 279 (denying preliminary injunction to expedite

processing where, inter alia, the agency stated that the request is already at the top of the queue).

26
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 27 of 33

The statute does not require an agency to complete the processing “as soon as a requester needs

it.”13

Furthermore, Plaintiff has provided no evidence and only conclusory allegations that it is

practicable for Defendants to complete the processing of its FOIA requests within 20 days, as it

requests, or that the DOJ components are not in fact processing its requests as soon as

practicable. Its one negligible attempt to support that claim—stating that the delay in producing

responsive documents is “[in]explicable” given the “very discrete” nature of its requests—is

contradicted by the plain language of requests themselves. Pl.’s Mem. at 20. Far from being

narrowly tailored, the first clause of Plaintiff’s requests broadly reaches “any and all records”

“reflecting, discussing, or otherwise relating” to the April 6 missile strike (without limitation to

President’s legal authority for the strike), see id. at 7, and specifically includes “but is not limited

to” all intra-agency and inter-agency communications, as well as communications with the EOP,

id. By essentially seeking any records touching upon the April 6 strikes, which would include

military operational matters, the requests may implicate a number of different types of

documents from a number of Defendants’ different offices or components.

13
Plaintiff relies on a single, non-precedential, contrary decision, EPIC v. Dep’t of Justice, 416
F. Supp. 2d 30 (D.D.C. 2006) (Kennedy, J.) (“EPIC I”), in which a preliminary injunction was
granted in the FOIA expedited processing context requiring the agency to produce or identify all
responsive documents within 20 days. As is plain from the above discussion, EPIC I is in
tension with the FOIA statutory and regulatory framework and the general principles governing
issuance of preliminary relief and was issued several years prior to the D.C. Circuit’s decision in
CREW. Moreover, the preliminary injunction entered in EPIC I was later modified upon
reconsideration to provide the government considerably longer to process responsive documents,
following a factual submission by the government regarding its processing capacity. See EPIC I,
slip op., No. 06-0096 (D.D.C. Mar. 24, 2006) (attached as Ex. 5) (granting in part the
government’s expedited motion for relief from the February 16, 2006 Order and extending the
deadline for several DOJ components to process plaintiff’s FOIA request by 60 or 120 additional
days, respectively). For these reasons, among others, the more recent decision in EPIC II found
EPIC I distinguishable. See EPIC II, 15 F. Supp. 3d at 42.

27
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 28 of 33

Even assuming the requests were discrete, Plaintiff’s assertion completely ignores the

numerous other factors that will likely impact the processing of any records responsive to

Plaintiff’s FOIA requests. For example, given that Plaintiff seeks communications within and

among agencies and with EOP, it is likely Defendants must consult with or refer responsive

documents for additional review to a number of other agencies or components, as required by

agency regulations. See, e.g., 28 C.F.R. § 16.4(d)(1). Further, it is likely that responsive

documents will contain sensitive information, including, inter alia, classified national security

information that must be evaluated for release under 5 U.S.C. § 552(b)(1) and Executive Order

13526, “Classified National Security Information,” 75 Fed. Reg. 707 (Dec. 29, 2009), and

material that is subject to one or more privileges and thus protected from disclosure, see 5 U.S.C.

§ 552(b)(5). These consultations, referrals, and exemption issues will necessarily take time.

And all this must take into account that the rate at which Defendants can practically process

Plaintiff’s requests is limited by the resources that are currently devoted to processing requests

received prior to Plaintiff’s requests, including those ahead of Plaintiff in the DOJ components’

expedited processing tracks.

Finally, there is no legal support for Plaintiff’s request that the Court order Defendants to

provide, with the production of all non-exempt responsive documents, an index justifying the

withholding of any records within 20 days of the date of the Court’s order on its motion, and

Plaintiff does not even offer one. Pl.’s Mem. at 23. Courts generally do not require Vaughn

indices until dispositive motions are filed. See CREW, 711 F.3d at 187 n.5. Indeed, both the

EPIC II and Daily Caller courts denied similar requests by plaintiffs seeking preliminary

injunctions to expedite the processing of their FOIA requests, citing a lack of authority requiring

such an order. See EPIC II, 15 F. Supp. 3d at 46 n.9; Daily Caller, 152 F. Supp. 3d at 5 n.3.

28
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 29 of 33

In sum, Plaintiff is not likely—and certainly not clearly likely—to succeed on the merits

of its claim for expedited processing by DOD and State and, even if granted, its claim that

Defendants must produce all responsive records within 20 days of Plaintiff’s FOIA requests, or

that the DOJ components (having already granted expedition) have failed to process Plaintiff’s

requests as soon as practicable.

III. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST WEIGH


AGAINST A MANDATORY EMERGENCY INJUNCTION

Along with harm to the plaintiff, the Court must “consider the effect on each party of the

granting or withholding of the requested relief,” as well as “the public consequences of

employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24. In this case, the

balance of equities and the public’s interest weigh in favor of denying the requested injunction.

The mandatory injunction Plaintiff seeks would unduly burden Defendants. Plaintiff’s

effort to impose an arbitrary, artificial timeline on Defendants ignores the fact that an agency has

a “responsibility” when processing FOIA requests to “safeguard[] potentially sensitive

information.” Daily Caller, 152 F. Supp. 3d at 14 (citing United Techs. Corp. v. U.S. Dep’t of

Defense, 601 F.3d 557, 559 (D.C. Cir. 2010) (FOIA “represents a balance [of] the public’s

interest in governmental transparency against legitimate governmental and private interests that

could be harmed by release of certain types of information.”)). As the court in Daily Caller held,

releasing records without sufficient time for processing “raises significant risk of harm to the

public and private interests served by the thorough processing of responsive agency records prior

to their ultimate production,” particularly through “inadvertent disclosure of records properly

subject to exemption under FOIA.” Id. at 15. That risk has especially grave consequences here

where responsive documents likely contain classified national security information and

privileged material protected from disclosure.

29
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 30 of 33

Plaintiff argues that the injunction requested would also not “burden [] others’ interests”

in a way that has not already been “weighed and concluded” by Congress to be “of subsidiary

importance to compelling and time-sensitive cases, such as this one.”14 Pl.’s Mem. at 22. In

reality, however, Plaintiff’s request for relief threatens to compromise the delicate balancing of

interests that Congress undertook in enacting FOIA. Importantly, Plaintiff’s argument ignores

the fact that granting Plaintiff’s motion for accelerated processing of its requests would

disadvantage other, similarly situated members of the press or the public who themselves have

FOIA requests pending before Defendants, which are also viewed as urgent by the requesters and

that have also been granted expedited processing.

More than bypassing the normal course of FOIA litigation, a preliminary injunction

requiring production within 20 days would require that resources be diverted from requests

submitted prior to Plaintiff’s and, thus, would undermine the interests of such requests as well as

the overall public interest in proper operation of FOIA, including its provision for expedition.

EPIC II, 15 F. Supp. 3d at 47 (“allowing EPIC to jump to the head of the line would upset the

agency’s processes and be detrimental to the other expedited requesters, some of whom may

have even more pressing needs.”) (citing The Nation Magazine v. Dep’t of State, 805 F. Supp.

68, 74 (D.D.C. 1992) (entry of a preliminary injunction expediting a FOIA request over other

14
Plaintiff cites Elec. Frontier Found., 2007 WL 4208311, at *7 (quoting Fiduccia v. Dep’t of
Justice, 185 F.3d 1035, 1041 (9th Cir. 1999)), for the proposition that any complaints Defendants
have about the burden of Plaintiff’s mandatory injunction request should be directed to Congress,
not this Court. Pl.’s Mem. at 22. Fiduccia, the case on which Elec. Frontier Found. relies,
involved an appeal from the district court’s order granting FBI an 8-year stay to produce
documents, not a request for a mandatory preliminary injunction where, as here, the FOIA
requests were submitted only two months ago and most have been granted expedited processing.
Fiduccia, 185 F.3d at 1041. To the contrary, Fidducia recognizes that expedited processing is
the only proper basis enabling a requester to “jump the queue.” Id.

30
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 31 of 33

pending requests “would severely jeopardize the public’s interest in an orderly, fair, and efficient

administration of [ ] FOIA”)).

Weighed against these substantial interests, Plaintiff does little more than recite the broad

purpose of public disclosure embodied by FOIA and the public’s interest in a meaningful debate

on the Executive’s legal authority to initiate military action. Pl.’s Mem. at 22-23. Plaintiff’s

“bald reliance on its own interest in obtaining the sought-after records and the more generalized

public interest in the disclosure of those records” does little to distinguish its requests from any

other expedited FOIA request. Daily Caller, 152 F. Supp. 2d at 15. Moreover, the mere

allegation that the topic pertaining to Plaintiff’s FOIA request has received public attention, even

if considerable, does not necessarily mean that the public’s interest would be served by the Court

granting the extraordinary relief Plaintiff requests. See EPIC II, 15 F. Supp. 3d at 47-48; see

also Judicial Watch, 514 F. Supp. 2d at 11.

IV. PLAINTIFF’S REQUESTED MANDATORY, EMERGENCY INJUNCTION


IS IMPROPER

Preliminary injunctive relief is not intended to provide plaintiffs with a means to bypass

the litigation process and achieve rapid victory, and so a preliminary injunction should not work

to give a party essentially the full relief it seeks on the merits. See Univ. of Texas v. Camenisch,

451 U.S. 390, 395 (1981) (“[I]t is generally inappropriate for a federal court at the preliminary-

injunction stage to give a final judgment on the merits.”); Dorfmann v. Boozer, 414 F.2d 1168,

1173 n.13 (D.C. Cir. 1969) (“[A] preliminary injunction should not work to give a party

essentially the full relief he seeks on the merits.”). As Plaintiff has made clear, however, that is

what it seeks here: an injunction that the government produce responsive documents to Plaintiff

on a hurried timeline. E.g., Pl.’s Mem. at 23. That is further indication that Plaintiff’s

emergency motion is merely a tactic to circumvent the standard litigation process.

31
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 32 of 33

And Plaintiff is not alone in its unwarranted attempt to accelerate FOIA proceedings. In

approximately the last month alone, plaintiffs in two other FOIA actions involving DOJ have

also filed motions for emergency, mandatory injunctions to compel DOJ, among other agency-

defendants, to expedite processing of FOIA requests and produce responsive, non-exempt

records within a timeframe set by the Court. See Pl.’s Mot. for a Prelim. Inj. (May 9, 2017), Am.

Oversight v. U.S. Dep’t of Justice, No. 17-848, ECF No. 3; see also Pl.’s Mot. for a Prelim. Inj.

(June 1, 2017), Citizens for Responsibility and Ethics in Washington v. Dep’t of Justice, No. 17-

599, ECF No. 10. Far from being treated as an “extraordinary and drastic remedy,” Munaf, 553

U.S. at 689, plaintiffs are routinely seeking emergency mandatory injunctions as a means of

jumping ahead of other requests (including those already in the expedited processing track) and

requests that have been in litigation longer than these newly-filed cases. Not only is this

procedure unfair to other FOIA requesters, but it also results in burdensome and unnecessary

motion practice for the parties and the Court. That is especially true where, as here, Defendants

are actively processing Plaintiff’s requests and, in the case of the DOJ components, on an already

expedited basis.

CONCLUSION

For all of the foregoing reasons, the Court should deny Plaintiff’s Motion for a

Preliminary Injunction.

Dated: June 13, 2017 Respectfully submitted,

CHAD A. READLER
Acting Assistant Attorney General

CHANNING D. PHILLIPS
United States Attorney

32
Case 1:17-cv-00842-CRC Document 11 Filed 06/13/17 Page 33 of 33

ELIZABETH J. SHAPIRO
Deputy Branch Director
Federal Programs Branch

/s/ Kathryn C. Davis


KATHRYN C. DAVIS (DC Bar No. 985055)
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW, Rm. 6130
Washington, D.C. 20530
Tel: (202) 616-8298
Fax: (202) 616-8460
Email: Kathryn.C.Davis@usdoj.gov

Attorneys for Defendants

33