Case 1:12-cv-01871-TSC Document 1 Filed 11/19/12 Page 1 of 32

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NANCY CRISMAN

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8339 Forrester Boulevard

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Springfield, VA 22152,

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and

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NATIONAL SECURITY COUNSELORS *

1200 South Courthouse Road, Suite 124 *

Arlington, VA 22204,

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Plaintiffs,

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v.

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DEPARTMENT OF JUSTICE

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950 Pennsylvania Avenue, NW

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Washington, DC 20530,

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and

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BOARD OF GOVERNORS OF THE

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FEDERAL RESERVE SYSTEM

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20th & Constitution Avenue, NW

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Washington, DC 20551,

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and

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DEPARTMENT OF HOMELAND

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SECURITY

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Washington, DC 20528,

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and

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OFFICE OF THE DIRECTOR OF

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NATIONAL INTELLIGENCE

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Washington, DC 20511,

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Defendants.

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Civil Action No. 1:12-cv-01871 COMPLAINT
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COMPLAINT Plaintiffs Nancy Crisman and National Security Counselors bring this action against Defendants Department of Justice, Board of Governors of the Federal Reserve System, Department of Homeland Security, and Office of the Director of National Intelligence pursuant to the Freedom of Information Act, 5 U.S.C. § 552, et seq., as amended (“FOIA”), the Privacy Act, 5 U.S.C. § 552a, et seq. (collectively “FOIA/PA”), the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq., the Fifth Amendment of the United States Constitution, the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, and the All Writs Act, 28 U.S.C. § 1651.
JURISDICTION 1. This Court has both subject matter jurisdiction over this action and personal jurisdiction over Defendants pursuant to 5 U.S.C. §§ 552(a)(4)(B), 552a(g)(1) and 28 U.S.C. § 1331.
VENUE 2. Venue is appropriate under 5 U.S.C. §§ 552(a)(4)(B), 552a(g)(5), 703 and 28 U.S.C. § 1391.
PARTIES 3. Plaintiff Nancy Crisman (“Crisman”) is a U.S. citizen and is a resident of the Commonwealth of Virginia. 4. Plaintiff National Security Counselors (“NSC”) is a non-profit organization under the laws of the Commonwealth of Virginia and has the ability to disseminate information on a wide scale.
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5. Defendant Department of Justice (“DOJ”) is an agency within the meaning of 5 U.S.C. § 552(e), and is in possession and/or control of the records which are the subject of this action.
6. The Federal Bureau of Investigation (“FBI”), Justice Management Division (“JMD”), National Security Division (“NSD”), and Office of Information Policy (“OIP”) are DOJ components.
7. Defendant Board of Governors of the Federal Reserve System (“FRB”) is an agency within the meaning of 5 U.S.C. § 552(e), and is in possession and/or control of the records which are the subject of this action.
8. Defendant Department of Homeland Security (“DHS”) is an agency within the meaning of 5 U.S.C. § 552(e), and is in possession and/or control of the records which are the subject of this action.
9. Defendant Office of the Director of National Intelligence (“ODNI”) is an agency within the meaning of 5 U.S.C. § 552(e), and is in possession and/or control of the records which are the subject of this action.
BACKGROUND 10. In 2004 Crisman was employed as a nurse by Corporate Nurse, Inc. (“CNI”), a federal government contractor. Crisman was stationed at FRB Headquarters. 11. On 26 March 2004 the Florida-based Financial Institution Security Association sent a document with the heading “FISA Alert Report Form” to FBI’s Miami Field Office regarding Crisman. It was marked “CONFIDENTIAL” by an unknown source to reflect the fact that it included confidential personal information, such as Crisman’s Social Security Number and
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Date of Birth. This document was marked by FBI as Serial 2974 and placed in File 66F-MMA55222. This document will hereinafter be referred to as the “FISA Alert.”
12. The FISA Alert did not identify Crisman as a suspect in any criminal activity. It simply provided her identifying information and stated in boilerplate language, “We are looking for any and all information on the above subjects or businesses, including, but not limited to checking or savings accounts, safety deposit boxes, or any other pertinent information where these individuals/businesses may have accounts.” FBI has previously stated that it was not even the target of this inquiry, and that it was merely forwarded a copy of a FISA Alert sent from the Florida Attorney General’s Office of Statewide Prosecution to the Financial Institution Security Association.
13. Confusion surrounds the classification of this record as a “66F” file. According to previous FBI testimony, a 66F file “is maintained for administrative matters with regards to financial institution fraud.” Def.’s Mem. P. & A. Supp. Def.’s Mot. Summ. J., Dkt. #4, at 4, Crisman v. DOJ, No. 11-658 (EGS) (D.D.C.) (filed Oct. 11, 2011). However, the FBI Manual of Administrative Operations and Procedures merely identifies a 66F file as “Administrative Matters – Other”—a far broader description. Lastly, 66F files are involved in many of the most significant legal disputes over the Foreign Intelligence Surveillance Act, USA PATRIOT Act, and other national security law issues—many with absolutely no relationship to financial institution fraud. See, e.g., http://www.historycommons.org/sourcedocuments/2001/pdfs/attorneygeneral20010518.pdf (last accessed Nov. 17, 2012) (FISA in general); http://epic.org/privacy/terrorism/usapatriot/foia/fbi_fisa_patriot.pdf (last accessed Nov. 17, 2012) (same); http://epic.org/privacy/terrorism/usapatriot/foia/fbi_fisa_pen_proc.pdf (last accessed
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Nov. 17, 2012) (FISA pen register authority); http://www.aclu.org/files/fbimappingfoia/20111110/ACLURM004900.pdf (last accessed Nov. 17, 2012) (no-fly lists); http://www.aclu.org/files/pdfs/spyfiles/ma_16fbi_attach_NJTTFmemoMOU.pdf (last accessed Nov. 17, 2012) (Joint Terrorism Task Forces). FBI’s assertion that 66F files pertain solely to financial institution fraud is therefore of dubious merit.
14. Upon information and belief, the FBI Miami Field Office erroneously characterized this “FISA Alert” as a record pertaining to the Foreign Intelligence Surveillance Act and accordingly placed Crisman on numerous national security and homeland security watch lists which were then disseminated to other federal security agencies and DOJ components.
15. Shortly after this transmittal, Crisman’s personal belongings were searched and she was escorted out of FRB Headquarters by Security during the work day because of “something Security found.” Her contract was terminated several weeks later, and she was subsequently fired by CNI.
16. Crisman was later informed that the information “Security found” was “something in her FBI file.”
17. On 25 June 2005 Crisman filed a FOIA/PA request with FBI for all records about her from the Miami Field Office. FBI assigned it Request No. 1024779-000 (“the Original Request”).
18. On 13 October 2005 FBI classified the FISA Alert in its entirety as Confidential. A senior FBI representative has since opined that this appears to have been due to an FBI FOIA analyst seeing the word “CONFIDENTIAL” on the document and incorrectly assuming it was a classification marking, which it was not.
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19. On 4 November 2005 FBI withheld this entire document from Crisman, citing FOIA Exemption (b)(1) and Privacy Act Exemption (j)(2).
20. On 14 November 2005 Crisman filed an administrative appeal of FBI’s withholding decision with OIP. OIP assigned it Appeal No. 06-0524.
21. On 31 July 2006 OIP affirmed FBI’s initial determination, stating, “All of the information that is contained in the record responsive to your request is classified. I am affirming the FBI’s withholding of it pursuant to 5 U.S.C. § 552(b)(1), which protects classified information from disclosure. I am, however, referring this record to the Department of Justice's Department Review Committee so that it may determine if the information contained in it should remain classified under Executive Order No. 12,958, as amended. You will be informed if any of this information is declassified.”
22. Upon information and belief, no appellate reviewer at OIP reviewed the FISA Alert itself before affirming FBI’s withholding decision. Had someone done so, it would have been immediately obvious that the document was not properly classified.
23. On 8 October 2008 FBI re-reviewed the FISA Alert and declassified it in full, informing the Department Review Committee (“DRC”) that it no longer needed to review the record.
24. On 31 October 2008 OIP informed Crisman that the now-declassified FISA Alert was being remanded to FBI so it could be reviewed for additional withholdings.
25. On 13 February 2009 FBI released a redacted copy of the FISA Alert to Crisman with third parties’ personally identifiable information redacted pursuant to FOIA Exemptions (b)(6) and (b)(7)(C).
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26. The Original Request was the subject of the case Crisman v. DOJ, No. 11-658 (EGS) (D.D.C.). That case was dismissed pursuant to a stipulated dismissal, in which Crisman agreed, in pertinent part, not to bring further challenges to the adequacy of FBI’s search for records responsive to the Original Request or to FBI’s invocations of Exemptions (b)(6) or (b)(7)(C) to withhold information from the FISA Alert.
PART I: FOIA/PA ACCESS REQUESTS SUBPART A: PROCESSING MATERIALS
FIRST CAUSE OF ACTION (DOJ – FOIA/PA – CONSTRUCTIVE RECORDS DENIAL – 12-00052) 27. Plaintiffs repeat and reallege the allegations contained in all paragraphs set forth above. 28. On 27 December 2011 Crisman submitted to OIP a FOIA/PA request for: (1) all records pertaining to the classification of the FISA Alert; (2) all records pertaining to the subsequent declassification of the FISA Alert; and (3) all records pertaining to the administrative processing of Appeal No. 06-0524. OIP acknowledged receipt of this request and assigned it Request No. 12-00052. 29. On 31 July 2012 OIP released several records to Crisman. OIP informed Crisman that it had referred three documents, totaling four pages, to FBI for direct response to her. 30. As of this writing FBI has not issued a final determination for these referred records. 31. As twenty working days have elapsed without a substantive determination by DOJ, Crisman has exhausted all required administrative remedies.
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32. Crisman has a legal right under FOIA/PA to obtain the information she seeks, and there is no legal basis for the denial by DOJ of said right.
SECOND CAUSE OF ACTION (DOJ – FOIA/PA – CONSTRUCTIVE RECORDS DENIAL – 1187773-000) 33. Plaintiffs repeat and reallege the allegations contained in all paragraphs set forth above. 34. On 27 December 2011 Crisman submitted to FBI a FOIA/PA request for: (1) all records pertaining to the classification of the FISA Alert; (2) all records pertaining to the subsequent declassification of the FISA Alert; and (3) all records pertaining to the administrative processing of the Original Request. FBI acknowledged receipt of this request and assigned it Request No. 1179949-000.1 35. On 28 February 2012 FBI released four redacted pages from the Notes section of FBI’s FOIA Document Processing System (“FDPS”). 36. On 3 April 2012 Crisman filed an administrative appeal with OIP of the adequacy of FBI’s search and of FBI’s redactions. 37. On 12 April 2012 FBI reassigned this request Request No. 1187773-000. 38. On 17 April 2012 OIP acknowledged receipt of this appeal and assigned it Appeal No. AP-2012-01922. 39. On 31 May 2012 FBI released an additional record and reassigned this request Request No. 1187773-001.
1 FBI combined four requests into this Request Number but later divided them into four separate requests after numerous complaints and appeals were filed.
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40. On 25 September 2012 OIP remanded this request to FBI to perform an additional search.
41. As of this writing FBI has not issued a final determination for this remanded request.
42. As twenty working days have elapsed without a substantive determination by DOJ, Crisman has exhausted all required administrative remedies.
43. Crisman has a legal right under FOIA/PA to obtain the information she seeks, and there is no legal basis for the denial by DOJ of said right.
THIRD CAUSE OF ACTION (DOJ – FOIA/PA – CONSTRUCTIVE RECORDS DENIAL – 2522175) 44. Plaintiffs repeat and reallege the allegations contained in all paragraphs set forth above. 45. In 2005 the information classification policy for the federal government was set by Executive Order 12958 (it has since been replaced by Executive Order 13526). 46. An agency may classify information after it has received a FOIA/PA request for it “only if such classification . . . is accomplished on a document-by-document basis with the personal participation or under the direction of the agency head, the deputy agency head, or the senior agency official designated under section 5.6 of [Executive Order 12958].” Exec. Order 12958 § 1.8(d). 47. According to the Code of Federal Regulations, the DOJ “senior agency official” authorized to so classify information after the receipt of a FOIA/PA request or direct someone else on a document-by-document basis to do so is the Assistant Attorney General for Administration. 28 C.F.R. § 17.11(a).
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48. On 29 December 1999 the Assistant Attorney General for Administration improperly delegated this authority to the Chief of the FBI Document Classification Unit. That delegation memorandum also stated, “The Chief of the Document Classification Unit shall act under my direction and shall keep me apprised in a timely manner of any action taken under this authority.”
49. At the same time, the Assistant Attorney General for Administration directed that Gerald Schroeder, Deputy Director of the Security and Emergency Planning Staff (“SEPS”), periodically sample cases in which this delegation was exercised.
50. Records of the Assistant Attorney General for Administration and SEPS are maintained by JMD.
51. On 13 June 2012 Crisman submitted to JMD a FOIA/PA request for all records created between 2004-2009 about her, the Original Request, or Appeal No. 06-0524. JMD acknowledged receipt of this request and assigned it Request No. 2522175.
52. On 6 August 2012 Crisman advised JMD that archived records originally created by Mr. Schroeder or SEPS were also to be searched for responsive records.
53. As of this writing JMD has not issued a final determination for this request. 54. As twenty working days have elapsed without a substantive determination by DOJ, Crisman has exhausted all required administrative remedies. 55. Crisman has a legal right under FOIA/PA to obtain the information she seeks, and there is no legal basis for the denial by DOJ of said right.
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SUBPART B: OTHER RECORDS FOURTH CAUSE OF ACTION (DOJ – FOIA – RECORDS DENIAL – 1187769-000) 56. Plaintiffs repeat and reallege the allegations contained in all paragraphs set forth above. 57. On 27 December 2011 Crisman submitted to FBI a FOIA request for all records in File 66F-MM-A55222. FBI acknowledged receipt of this request and assigned it Request No. 1179949-000. 58. On 12 April 2012 FBI reassigned this request Request No. 1187769-000. 59. On 30 April 2012 FBI informed Crisman that the FISA Alert was the only document responsive to her request because “[n]o other documents in this file pertain to Ms. Crisman.” FBI did not claim that any FOIA exemptions applied to the remainder of the file. 60. On 4 June 2012 Crisman filed an administrative appeal with OIP of FBI’s response, arguing that she had requested the entire file, not just the portion of the file pertaining to her. 61. Crisman’s appeal letter further stated: “Ms. Crisman is willing to limit the scope of the request to just the ‘FISA Alert Report Forms’ in File 66F-MM-A55222 which are classified. She is further willing to limit the scope of the request to just the date, classification markings, and serial identifier for each such form, and will stipulate that the FBI may redact all other information as ‘non-responsive’ or ‘beyond the scope.’ In short, for each classified ‘FISA Alert Report Form’ in File 66F-MM-A55222, she wants the following information: (1) the date of the form (which is near the top of the form); (2) the classification markings on the form; and
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(3) the serial number of the form (for instance, the serial number for the form about her is 2974, which is written at the bottom of the page).”
62. On 11 June 2012 OIP acknowledged receipt of this appeal and assigned it Appeal No. AP-2012-02527.
63. On 25 September 2012 OIP affirmed FBI’s response “on partly modified grounds.” OIP stated: “Without consent, proof of death, official acknowledgment of an investigation, or an overriding public interest, disclosure of law enforcement records concerning an individual could reasonably be expected to constitute an unwarranted invasion of personal privacy. . . . Because any records responsive to your client’s request would be categorically exempt from disclosure, the FBI properly asserted Exemption 7(C) and was not required to conduct a search for the requested records.” OIP made no mention of the fact that FBI had in fact asserted no FOIA exemptions.
64. Crisman has a legal right under FOIA/PA to obtain the information she seeks, and there is no legal basis for the denial by DOJ of said right.
65. The information in these records is further needed to identify whether or not FBI’s confusion of the FISA Alert with Foreign Intelligence Surveillance Act materials or other misclassification actions was a unique occurrence or indicative of a more widespread problem.
FIFTH CAUSE OF ACTION (DOJ – FOIA/PA – RECORDS DENIAL – 1187783-000) 66. Plaintiffs repeat and reallege the allegations contained in all paragraphs set forth above. 67. On 27 December 2011 Crisman submitted to FBI a FOIA/PA request for “all FBI records about her, including cross-references.” The request further specified: “You may exclude
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records released to her in [the Original Request], as well as any records responsive to any other records requests submitted by her today. This request is intended to fill in the gaps between [Request Nos. 1187769-000 and 1187773-001]. This applies to all FBI records, including all records held at FBI headquarters, all records held at FBI field offices (especially Miami and the National Capital Area), the Special File Room, all ‘tickler’ files, and all shared drives, including the ‘I-drive’ and ‘S-drive’ (this includes shared drives which have been assigned letters besides ‘I-drive’ and ‘S-drive’). However, this is not an exclusive list and is provided only to assist in the FBI’s search. In addition, you are to specifically consider all records documenting the transmission or sharing of information about Mrs. Crisman to other local, state, or federal agencies as responsive to this request. This includes the placing of her name on any lists which are shared with other agencies.” FBI acknowledged receipt of this request and assigned it Request No. 1179949-000.
68. On 12 April 2012 FBI reassigned this request Request No. 1187783-000. 69. On 14 May 2012 FBI informed Crisman that it had identified no main file records in the Central Records System (“CRS”) responsive to this request and was refusing to confirm or deny the presence of her name on any watch lists. 70. On 16 May 2012 Crisman advised FBI that she had specifically requested crossreference records and not just main file records and had also instructed that several other locations besides the CRS were to be searched. 71. On 21 May 2012 FBI responded, “All indices that would contain information regarding Ms. Crisman have been searched and no records, main or cross-reference, were located.”
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72. On 3 June 2012 Crisman responded, “[T]his request specified several locations to be searched, including field offices, the Special File Room, and shared drives, among others. Please tell me exactly which records systems were searched (the ‘all indices’ to which you refer) and, if any that Ms. Crisman specifically instructed you to search were not, why.”
73. On 19 June 2012 OIP contacted Crisman and advised that FBI wished to treat the 3 June 2012 email as an appeal, asking if Crisman concurred. Crisman stated that it could be considered a formal appeal if that was the only way to make FBI search the locations it was clearly instructed to search.
74. On 25 June 2012 OIP acknowledged receipt of this appeal and assigned it Appeal No. AP-2012-02664.
75. On 11 September 2012 OIP affirmed FBI’s response. 76. Crisman has a legal right under FOIA/PA to obtain the information she seeks, and there is no legal basis for the denial by DOJ of said right.
SIXTH CAUSE OF ACTION (FRB – FOIA/PA – CONSTRUCTIVE RECORDS DENIAL – F-2012-00172) 77. Plaintiffs repeat and reallege the allegations contained in all paragraphs set forth above. 78. On 9 January 2012 Crisman submitted to FRB a FOIA/PA request for all records about her dated on or after 26 March 2004. The request further specified: “Please ensure that the Security Office is tasked with this search in addition to the Contracting Office and Occupational Health Unit, as Ms. Crisman was escorted from the Federal Reserve Building in April 2004 as a potential security risk. In addition, you are to specifically consider all records documenting the transmission or sharing of information about Ms. Crisman to other local, state, or federal
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agencies as responsive to this request. This includes the placing of her name on any lists which are shared with other agencies.” FRB acknowledged receipt of this request and assigned it Request No. F-2012-00172.
79. On 12 March 2012 FRB informed Crisman that it had located records and was releasing them to her in full. FRB subsequently released several records to Crisman, consisting almost exclusively of timesheets, invoices, and related records. FRB did not provide Crisman with any appeal rights.
80. On 3 April 2012 Crisman filed an administrative appeal of the adequacy of FRB’s search, providing further information that could aid in FRB’s search.
81. On 30 April 2012 FRB responded, “Because of the additional information you provided, we are treating your letter as a reconsideration of the prior request rather than an appeal.” FRB then proceeded to justify its failure to provide any additional records. Again FRB did not provide Crisman with any appeal rights.
82. On 4 June 2012 Crisman filed another administrative appeal of the adequacy of FRB’s search.
83. As of this writing FRB has not acknowledged this appeal. 84. As twenty working days have elapsed without a substantive determination by FRB, Crisman has exhausted all required administrative remedies. 85. Crisman has a legal right under FOIA/PA to obtain the information she seeks, and there is no legal basis for the denial by FRB of said right.
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PART II: AMENDMENT REQUESTS SEVENTH CAUSE OF ACTION
(DOJ – PA/APA/5TH AMENDMENT – FAILURE TO AMEND – 12-094) 86. Plaintiffs repeat and reallege the allegations contained in all paragraphs set forth above. 87. On 25 January 2012 Crisman submitted a Privacy Act amendment request to NSD advising it of FBI’s error regarding the FISA Alert and asking that all DOJ records identifying her as a potential national security risk, or otherwise stemming from the FISA Alert, be corrected to reflect the benign nature of that document, and that her name be removed forthwith from any lists upon which she was placed as a result of this error. 88. On 30 January 2012 NSD acknowledged receipt of this request and assigned it Request No. 12-094. NSD refused to amend Crisman’s records as requested. 89. On 13 February 2012 Crisman filed an administrative appeal with the Office of Privacy and Civil Liberties (“OPCL”) of NSD’s response. Crisman’s appeal stated further, “I informed [an NSD representative] that Ms. Crisman would be satisfied if the NSD stated, ‘We can neither confirm nor deny the fact of the existence or nonexistence of any records about Ms. Crisman in our FISA database, but if such a record exists, it will be corrected accordingly.’ This response would satisfy the NSD’s need to keep secret which people are in its database, while assuaging Ms. Crisman’s concerns that any records about her will remain incorrect. Basically, she is willing to trust that if the NSD says it will fix the problem if the records exist, it will do so, and she is willing to forego proof of this in exchange for just a simple promise.” 90. On 16 February 2012 OPCL acknowledged receipt of this appeal and assigned it Appeal No. 12-567.
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91. On 2 May 2012 OPCL affirmed NSD’s decision. 92. Crisman has a legal right under the Privacy Act to amend these inaccurate government records, and there is no legal basis for the denial by DOJ of said right. 93. In addition to the Privacy Act, the APA and Fifth Amendment to the United States Constitution provide this Court with jurisdiction to order DOJ to remove Crisman from any watch list. See Latif v. Holder, 686 F.3d 1122, 1129 (9th Cir. 2012). Crisman therefore has a legal right to be removed from any watch lists on which she was placed because of the FISA Alert.
EIGHTH CAUSE OF ACTION (DOJ – PA/APA/5TH AMENDMENT – FAILURE TO AMEND – 1180650-000)
94. Plaintiffs repeat and reallege the allegations contained in all paragraphs set forth above.
95. On 27 December 2011 Crisman submitted a Privacy Act amendment request to FBI asking that all FBI records (regardless of location) identifying her as a potential national security risk, or otherwise referencing the FISA Alert, be corrected to reflect the benign nature of that document, and that her name be removed forthwith from any lists upon which she was placed as a result of this error.
96. On 10 January 2012 FBI acknowledged receipt of this request and assigned it Request No. 1179949-000.
97. On 12 April 2012 FBI reassigned this request Request No. 1180650-000. 98. On 3 May 2012 FBI refused to amend Crisman’s records as requested. 99. On 4 June 2012 Crisman filed an administrative appeal with OPCL of FBI’s response.
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100. On 7 June 2012 OPCL acknowledged receipt of this appeal and assigned it Appeal No. 12-658.
101. As of this writing OPCL has not issued a final determination for this appeal. 102. As thirty working days have elapsed without a substantive determination by DOJ, Crisman has exhausted all required administrative remedies. 103. Crisman has a legal right under the Privacy Act to amend these inaccurate government records, and there is no legal basis for the denial by DOJ of said right. 104. In addition to the Privacy Act, the APA and Fifth Amendment to the United States Constitution provide this Court with jurisdiction to order FBI to remove Crisman from any watch list. See Latif, 686 F.3d at 1129. Crisman therefore has a legal right to be removed from any watch lists on which she was placed because of the FISA Alert. 105. As with the NSD amendment request discussed above, Crisman is willing to accept a guarantee that DOJ will amend any inaccurate records if they exist without requiring DOJ to confirm or deny their existence.
NINTH CAUSE OF ACTION (DHS – PA/APA/5TH AMENDMENT – FAILURE TO AMEND – 12-0223) 106. Plaintiffs repeat and reallege the allegations contained in all paragraphs set forth above. 107. On 27 December 2011 Crisman submitted a Privacy Act amendment request to DHS advising it of FBI’s error and asking that all DHS records identifying her as a potential national security risk, or otherwise stemming from the FISA Alert, be corrected to reflect the benign nature of that document, and that her name be removed forthwith from any lists upon which she was placed as a result of this error.
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108. On 7 February 2012 DHS acknowledged receipt of this request and assigned it Request No. 12-0223.
109. On 19 March 2012 DHS refused to process this request on the grounds that it did not sufficiently describe the records at issue.
110. On 2 April 2012 Crisman filed an administrative appeal of DHS’ response. 111. As of this writing DHS has not acknowledged this appeal. 112. As thirty working days have elapsed without a substantive determination by DHS, Crisman has exhausted all required administrative remedies. 113. Crisman has a legal right under the Privacy Act to amend these inaccurate government records, and there is no legal basis for the denial by DHS of said right. 114. In addition to the Privacy Act, the APA and Fifth Amendment to the United States Constitution provide this Court with jurisdiction to order DHS to remove Crisman from any watch list. See Latif, 686 F.3d at 1129. Crisman therefore has a legal right to be removed from any watch lists on which she was placed because of the FISA Alert. 115. As with the NSD amendment request discussed above, Crisman is willing to accept a guarantee that DHS will amend any inaccurate records if they exist without requiring DHS to confirm or deny their existence.
TENTH CAUSE OF ACTION (ODNI – PA/APA/5TH AMENDMENT – FAILURE TO AMEND – DP-2012-00079)
116. Plaintiffs repeat and reallege the allegations contained in all paragraphs set forth above.
117. On 2 February 2012 Crisman submitted a Privacy Act amendment request to ODNI advising it of FBI’s error and asking that all ODNI records identifying her as a potential
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national security risk, or otherwise stemming from the FISA Alert, be corrected to reflect the benign nature of that document, and that her name be removed forthwith from any lists upon which she was placed as a result of this error.
118. On 19 March 2012 ODNI acknowledged receipt of this request and assigned it Request No. DP-2012-00079. ODNI refused to amend Crisman’s records as requested.
119. On 3 April 2012 Crisman filed an administrative appeal of ODNI’s response. 120. On 9 July 2012 ODNI acknowledged receipt of this appeal. ODNI affirmed its initial response. 121. Crisman has a legal right under the Privacy Act to amend these inaccurate government records, and there is no legal basis for the denial by ODNI of said right. 122. In addition to the Privacy Act, the APA and Fifth Amendment to the United States Constitution provide this Court with jurisdiction to order ODNI to remove Crisman from any watch list. See Latif, 686 F.3d at 1129. Crisman therefore has a legal right to be removed from any watch lists on which she was placed because of the FISA Alert. 123. As with the NSD amendment request discussed above, Crisman is willing to accept a guarantee that ODNI will amend any inaccurate records if they exist without requiring ODNI to confirm or deny their existence.
ELEVENTH CAUSE OF ACTION (FRB – PA – FAILURE TO AMEND – P-2012-00002) 124. Plaintiffs repeat and reallege the allegations contained in all paragraphs set forth above. 125. On 9 January 2012 Crisman submitted a Privacy Act amendment request to FRB advising it of FBI’s error and asking that all FRB records identifying her as a potential national
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security risk, or otherwise stemming from the FISA Alert, be corrected to reflect the benign nature of that document. Crisman also requested that all FRB records documenting her expulsion from the building in April 2004 be amended to reflect that this action was solely taken as a result of this error.
126. On 23 May 2012 FRB acknowledged this request and assigned it Request No. P2012-00002. FRB closed this request on the grounds that it had not identified any FRB records meeting this description. FRB did not provide Crisman with any appeal rights.
127. On 4 June 2012 Crisman filed an administrative appeal of FRB’s response. 128. As of this writing FRB has not acknowledged this appeal. 129. As thirty working days have elapsed without a substantive determination by FRB, Crisman has exhausted all required administrative remedies. 130. Crisman has a legal right under the Privacy Act to amend these inaccurate government records, and there is no legal basis for the denial by FRB of said right.
PART III: GENERAL CHALLENGES TWELFTH CAUSE OF ACTION
(DOJ – FOIA – ARBITRARY AND CAPRICIOUS WITHHOLDING – 1024779-000) 131. Plaintiffs repeat and reallege the allegations contained in all paragraphs set forth
above. 132. FOIA provides the Court with the authority to issue a written finding that the
circumstances surrounding a withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding. 5 U.S.C. § 552(a)(4)(F)(i).
133. FBI’s classification of the FISA Alert after receipt of the Original Request without following the strictures of Executive Order 12958 § 1.8(d) was an arbitrary and capricious action.
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134. FBI’s classification of the FISA Alert solely because it was labeled “CONFIDENTIAL” by an unknown source, despite its complete lack of any national securityrelated information, was an arbitrary and capricious action.
135. OIP’s affirmance of FBI’s withholding decision without a review of the FISA Alert itself, which would have shown that the document was not properly classified, was an arbitrary and capricious action.
136. Crisman is thereby entitled to a written finding that the circumstances surrounding DOJ’s withholding of the FISA Alert between 2005-2008 raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding.
THIRTEENTH CAUSE OF ACTION (DOJ – FOIA – WITHHOLDING IMPROPERLY CLASSIFIED INFORMATION)
137. Plaintiffs repeat and reallege the allegations contained in all paragraphs set forth above.
138. The heightened procedural requirements of Executive Order 12958 do not authorize an agency’s “senior agency official” to unilaterally delegate a subordinate to exercise the authority reserved for the agency head, the deputy agency head, or the senior agency official by Section 1.8(d) (§ 1.7(d) of Executive Order 13526). Such authorization must be made on a document-by-document basis.
139. DOJ’s current policy of allowing an FBI official to classify a record after receipt of a FOIA, Privacy Act, or Mandatory Declassification Review (“MDR”) request for it necessarily begets an ongoing practice of withholding information under Exemption (b)(1) which is not properly classified.
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140. The Court has virtually unlimited equitable authority to declare a “sufficiently outrageous” ongoing practice to be unlawful even if the agency reversed its position with respect to the FOIA request in question.
141. A practice of withholding improperly classified information under Exemption (b)(1) is a violation of FOIA. Such a policy constitutes outrageous conduct for purposes of the broad equitable powers provided by FOIA to the Court. Such a policy is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.
142. NSC has filed numerous FOIA requests with DOJ, both on its own behalf and for its clients, which have resulted in the withholding of information under Exemption (b)(1). The undersigned is currently involved in one case, Mobley v. DOD, No. 11-2073 (BAH) (D.D.C.), in which information was withheld from each of the seventeen released FBI documents after being classified after receipt of the client’s FOIA/PA request.
143. Upon information and belief, FBI has classified a significant amount of information after receipt of requests for it in this fashion, including information withheld from NSC.
144. As a frequent FOIA requester to FBI for records which are often redacted under Exemption (b)(1) which has made many such requests in the past and will continue making such requests in the future, NSC stands to continue to be harmed by this ongoing practice in the future.
145. Plaintiffs are therefore entitled to relief in the form of a declaratory order that DOJ is in violation of its statutory responsibilities under FOIA and an injunction compelling DOJ pursuant to that statute to only withhold information under Exemption (b)(1) which has been properly classified.
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FOURTEENTH CAUSE OF ACTION (DOJ – APA – CLASSIFYING WITHOUT AUTHORITY) 146. Plaintiffs repeat and reallege the allegations contained in all paragraphs set forth above. 147. The policy of allowing an FBI official to independently classify information for which a FOIA, Privacy Act, or MDR request has already been received is a violation of Executive Order 13526. Such a policy is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. 148. As a frequent FOIA and MDR requester to DOJ for records which are often withheld as classified which has made many such requests in the past and will continue making such requests in the future, NSC stands to continue to be harmed by this ongoing practice in the future. 149. Plaintiffs are therefore entitled to relief in the form of a declaratory order that DOJ is in violation of its responsibilities under Executive Order 13526 and an injunction compelling DOJ pursuant to the APA and that Executive Order to only allow the agency head, deputy agency head, or senior agency official, on a document-by-document basis, to classify information or direct another to do so after receipt of a FOIA, Privacy Act, or MDR request for it.
FIFTEENTH CAUSE OF ACTION (DOJ – FOIA – WITHHOLDING IMPROPERLY CLASSIFIED INFORMATION)
150. Plaintiffs repeat and reallege the allegations contained in all paragraphs set forth above.
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151. Assuming arguendo that DOJ’s delegation of the retroactive classification authority is legitimate, the 29 December 1999 memorandum required FBI to “keep [the AAGAdmin] apprised in a timely manner of any action taken under this authority.”
152. None of the information released to Crisman makes any mention of the timely apprisal of the AAG-Admin of FBI’s retroactive classification of the FISA Alert, and none of the request correspondence alleges that such information was not provided.
153. NSC has received a significant amount of FOIA processing information from FBI and DOJ regarding several requests for which Exemption (b)(1) was invoked, none of which makes any mention of the timely apprisal of the AAG-Admin of a retroactive classification decision. Upon information and belief, a percentage of these invocations of Exemption (b)(1) were due to retroactive classification, about which the AAG-Admin was not timely apprised.
154. Upon information and belief, FBI’s failure to apprise the AAG-Admin of these retroactive classification decisions is indicative of a pattern, practice, or standard operating procedure (“SOP”).
155. Such a pattern, practice, or SOP necessarily begets an ongoing practice of withholding information under Exemption (b)(1) which is not properly classified. By not apprising the AAG-Admin of these decisions, FBI is removing any chance that an improper retroactive classification decision (such as in this case) will be identified and corrected. By not insisting that FBI apprise the AAG-Admin of these decisions, DOJ is failing to exercise proper oversight over retroactive classification decisions.
156. A practice of withholding improperly classified information under Exemption (b)(1) is a violation of FOIA. Such a policy constitutes outrageous conduct for purposes of the
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broad equitable powers provided by FOIA to the Court. Such a policy is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.
157. NSC has filed numerous FOIA requests with DOJ, both on its own behalf and for its clients, which have resulted in the withholding of information under Exemption (b)(1). The undersigned is currently involved in one case, Mobley v. DOD, No. 11-2073 (BAH) (D.D.C.), in which information was withheld from each of the seventeen released FBI documents after being classified after receipt of the client’s FOIA/PA request.
158. Upon information and belief, FBI has classified a significant amount of information after receipt of requests for it in this fashion, including information withheld from NSC, and has failed to timely apprise the AAG-Admin of such decisions.
159. As a frequent FOIA requester to FBI for records which are often redacted under Exemption (b)(1) which has made many such requests in the past and will continue making such requests in the future, NSC stands to continue to be harmed by this ongoing practice in the future.
160. Plaintiffs are therefore entitled to relief in the form of a declaratory order that DOJ is in violation of its statutory responsibilities under FOIA and an injunction compelling DOJ pursuant to that statute to only withhold information under Exemption (b)(1) which has been properly classified. If DOJ’s delegation of the retroactive classification authority is allowed to stand, the Court should find that FBI cannot retroactively classify information pursuant to this delegated authority unless it timely apprises the AAG-Admin of such decisions.
SIXTEENTH CAUSE OF ACTION (DOJ – APA – FAILURE TO TIMELY APPRISE OR EXERCISE OVERSIGHT)
161. Plaintiffs repeat and reallege the allegations contained in all paragraphs set forth above.
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162. A pattern, practice, or SOP of not timely apprising the AAG-Admin of retroactive classification decisions is a violation of the 29 December 1999 memorandum. Such a policy is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.
163. As a frequent FOIA and MDR requester to DOJ for records which are often withheld as classified which has made many such requests in the past and will continue making such requests in the future, NSC stands to continue to be harmed by this ongoing practice in the future.
164. Plaintiffs are therefore entitled to relief in the form of a declaratory order that DOJ is in violation of its responsibilities under the 29 December 1999 memorandum and an injunction compelling DOJ pursuant to the APA and that memorandum to require FBI to timely apprise the AAG-Admin of all retroactive classification decisions.
PART IV: PRIVACY ACT DAMAGES SEVENTEENTH CAUSE OF ACTION (DOJ – PA – FAILURE TO MAINTAIN ACCURATE RECORDS) 165. Plaintiffs repeat and reallege the allegations contained in all paragraphs set forth above. 166. Any record identifying Crisman as a potential national security risk or linking her in any way to the Foreign Intelligence Surveillance Act is based on a misreading of the FISA Alert. Whether or not the FISA Alert pertains to national security is a fact capable of verification. 167. The presence of Crisman’s name on any watch list is similarly based on a misreading of the FISA Alert. Whether or not the FISA Alert pertains to national security is a fact capable of verification.
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168. The mere fact that DOJ possessed a properly classified record about Crisman, with all of the implications that accompany that fact should it be provided to someone querying the FBI for records about her, is itself a fact capable of verification. The FISA Alert was not properly classified.
169. Upon information and belief, DOJ took no steps to ensure the accuracy, relevance, timeliness, and completeness of its records about Crisman in clear violation of 5 U.S.C. § 552a(e)(5).
170. As a result, Crisman has suffered adverse and harmful effects, including, but not limited to, lost or jeopardized present or future employment or other financial opportunities.
171. Because Crisman did not learn until May 2012 that FBI had improperly classified the FISA Alert by not following the procedures of Executive Order 12958 or its own internal memorandum, because DOJ never provided her either in its administrative process or in Crisman v. DOJ, No. 11-658 (EGS) (D.D.C.) with any information about the classification decision, she had no way of knowing until May 2012 that the fact that FBI had had a properly classified record about her was an inaccurate fact. Up until that point, she had reasonably assumed that the classification decision, while substantively meritless, was procedurally sound; she did not know that the information had been classified after FBI’s receipt of her request for it. Therefore, the statute of limitations for a Privacy Act damages claim should not begin to run until 31 May 2012—the first date Crisman had reason to suspect that the information was not properly classified.
172. Crisman is therefore entitled to relief in the form of a declaratory order that DOJ violated the Privacy Act and an award of damages.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs Nancy Crisman and National Security Counselors pray that this Court: (1) Order the Department of Justice and Board of Governors of the Federal Reserve System to provide all responsive records to Crisman as soon as practicable; (2) Declare and find that DOJ, the Department of Homeland Security, the Office of the Director of National Intelligence, and FRB violated Section 552a(g)(1)(A) of the Privacy Act by depriving Crisman of her right to seek amendment of her records; (3) Invoke its equitable powers to expunge all records or information that is inaccurate, derogatory, or infringes upon Crisman’s express or implied constitutional or statutory rights, or alternatively conduct a de novo review and order Defendants under Section 552a(g)(2)(A) of the Privacy Act to abide by Crisman’s amendment requests; (4) Invoke its equitable powers to order Defendants to remove Crisman from any watch lists on which she was placed because of the FISA Alert; (5) Declare and find that the circumstances surrounding DOJ’s withholding of the FISA Alert raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding; (6) Declare and find that DOJ violated FOIA by invoking Exemption (b)(1) to withhold information which was retroactively classified without the personal participation or under the direction of the agency head, the deputy agency head, or the Assistant Attorney General for Administration; (7) Declare and find that the 29 December 1999 memorandum and any DOJ regulations, guidelines, or policy statements which authorize the invocation of Exemption (b)(1)
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to withhold such information constitute an unreasonable interpretation of the statutory obligations imposed by FOIA;
(8) Enjoin DOJ from invoking Exemption (b)(1) to withhold information classified after the receipt of a FOIA, Privacy Act, or Mandatory Declassification Review request without the personal participation or under the direction of the agency head, the deputy agency head, or the senior agency official, and order it to amend its regulations, guidelines, and policy statements accordingly;
(9) Declare and find that DOJ violated Executive Order 12958, as amended (by way of the Administrative Procedure Act), by retroactively classifying information without the personal participation or under the direction of the agency head, the deputy agency head, or the AAG-Admin;
(10) Declare and find that the 29 December 1999 memorandum and any DOJ regulations, guidelines, or policy statements which authorize such retroactive classification without proper authority constitute an unreasonable interpretation of the obligations imposed by Executive Order 12958, as amended;
(11) Enjoin DOJ from classifying information after the receipt of a FOIA, Privacy Act, or MDR request without the personal participation or under the direction of the agency head, the deputy agency head, or the senior agency official, and order it to amend its regulations, guidelines, and policy statements accordingly;
(12) Declare and find that DOJ violated FOIA by invoking Exemption (b)(1) to withhold information which was retroactively classified and about which the AAG-Admin was not timely apprised;
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(13) Declare and find that any DOJ regulations, guidelines, or policy statements which authorize the invocation of Exemption (b)(1) to withhold such information constitute an unreasonable interpretation of the statutory obligations imposed by FOIA;
(14) Enjoin DOJ from invoking Exemption (b)(1) to withhold information retroactively classified and about which the AAG-Admin was not timely apprised, and order it to amend its regulations, guidelines, and policy statements accordingly;
(15) Declare and find that DOJ violated Executive Order 12958, as amended, and the 29 December 1999 memorandum (by way of the Administrative Procedure Act), by retroactively classifying information and failing to timely apprise the AAG-Admin of the action;
(16) Declare and find that any DOJ regulations, guidelines, or policy statements which authorize the failure to timely apprise the AAG-Admin of such actions constitute an unreasonable interpretation of the obligations imposed by the 29 December 1999 memorandum, which is claimed by FBI to be its current authority on the matter;
(17) Enjoin DOJ from classifying information after the receipt of a FOIA, Privacy Act, or MDR request without the timely apprisal of the AAG-Admin, and order it to amend its regulations, guidelines, and policy statements accordingly;
(18) Declare and find that DOJ violated 5 U.S.C. § 552a(e)(5) by failing to maintain accurate, relevant, timely or complete records pertaining to Crisman;
(19) Award Crisman monetary damages, in an amount not less than $1,000, for the harm incurred due to DOJ’s failure to comply with its obligations under 5 U.S.C. § 552a(e)(5);
(20) Order preliminary and permanent injunctive and/or declaratory relief as may be appropriate;
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(21) Award reasonable costs and attorneys’ fees as provided in 5 U.S.C. § 552(a)(4)(E), 552a(g)(2)(A), 28 U.S.C. § 2412(d), or any other applicable law;
(22) Expedite this action in every way pursuant to 28 U.S.C. § 1657(a); and (23) Grant such other relief as the Court may deem just and proper. Date: November 19, 2012
Respectfully submitted,
Kelly B. McClanahan, Esq. D.C. Bar #984704 National Security Counselors 1200 South Courthouse Road Suite 124 Arlington, VA 22204 301-728-5908 240-681-2189 fax Kel@NationalSecurityLaw.org Counsel for Plaintiffs
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 Case 1:12-cv-01871-TSC Document 62 Filed 09/18/18 Page 1 of 27

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

NANCY CRISMAN, et al.,

)

)

)

Plaintiffs,

)

)

v.

)

)

DEPARTMENT OF JUSTICE, et al., )

)

)

Defendants.

)

)

Case No. 12-cv-1871 (TSC)

MEMORANDUM OPINION

Plaintiffs Nancy Crisman and National Security Counselors (“NSC”) have brought suit

against the Department of Justice (“DOJ”), the Board of Governors of the Federal Reserve

System (“FRB”), the Department of Homeland Security (“DHS”), and the Office of the Director

of National Intelligence (“ODNI”), alleging violations of the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552, et seq., as amended; the Privacy Act, 5 U.S.C. § 552a, et seq.; the

Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq.; and the Fifth Amendment of the

United States Constitution. Before the court are Defendants’ First Motion for Summary

Judgment (ECF No. 26) and Second Motion for Summary Judgment and to Dismiss (ECF No.

46). Upon consideration of the parties’ filings, and for the reasons stated herein, the court will

GRANT in part and DENY in part both motions.

I. BACKGROUND

A. The Financial Institution Security Association (“FISA”) Alert

In March 2004, the Financial Institution Security Association (“FISA”) sent a document

to the Federal Bureau of Investigations’ (“FBI”) Miami field office. ECF No. 1 (Compl.) ¶ 11.

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The document concerned Plaintiff Crisman and was titled “FISA Alert Report Form” (hereinafter, “FISA Alert”). Id. It was marked “CONFIDENTIAL,” and stated “[w]e are looking for any and all information on the above subjects or businesses, including, but not limited to checking or savings accounts, safety deposit boxes, or any other pertinent information where these individuals/businesses may have accounts.” Id. ¶¶ 11–12. Although the FISA Alert was a financial inquiry, the FBI erroneously characterized it as a record pertaining to the Foreign Intelligence Surveillance Act. Id. ¶ 14. Crisman alleges that the mischaracterization resulted in the termination of her employment as a nurse for Corporate Nurse, Inc. (“CNI”), her expulsion from the FRB headquarters, and the subsequent termination of her assignment as a nurse at the FRB headquarters—all of which occurred after the FISA Alert was sent to the FBI. See id. ¶ 15. Based on her expulsion from the FRB headquarters, Crisman also alleges that the mischaracterization has resulted in her name appearing on “numerous national security and homeland security watch lists which were disseminated to other federal security agencies and DOJ components.” Id. ¶ 14. B. Crisman’s Original FOIA Request
In June 2005, Crisman filed a FOIA and Privacy Act request with the FBI, requesting all records about her—including the FISA Alert—from the FBI’s Miami Field Office (the “Original Request”). Id. ¶ 17. The FBI refused to produce the FISA Alert, classifying the entire document as “Confidential” and finding that it was entitled to withhold the document under FOIA Exemption (b)(1) and Privacy Act Exemption (j)(2). Id. ¶¶ 18–19. Crisman appealed the FBI’s withholding decision, which the Office of Information Policy (“OIP”) affirmed on July 31,
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2006.1 Id. ¶¶ 20–21. On October 8, 2008, after re-reviewing the FISA Alert, the FBI declassified the document in full, releasing a redacted copy of the FISA Alert to Crisman on February 13, 2009. Id. ¶¶ 23–25. The document was redacted to withhold third parties’ personally identifiable information pursuant to FOIA Exemptions (b)(6) and (b)(7)(C). Id. ¶ 25.
In a lawsuit filed on March 31, 2011—Crisman v. Dep’t of Justice, No. 11-658 (EGS) (D.D.C.)—Crisman challenged, inter alia, the adequacy of the FBI’s search for documents responsive to her Original Request. See ECF No. 31-1, Ex. 2 ¶¶ 42–61. On November 8, 2011, in a Stipulation of Dismissal with Prejudice, Crisman agreed not to further challenge (1) the adequacy of the DOJ’s search for responsive records for the Original Request, or (2) the FBI’s invocations of FOIA Exemptions (b)(6) and/or (b)(7)(C) to withhold information from the FISA Alert. Compl. ¶ 26; ECF No. 31-1, Ex. 1 (Stipulation of Dismissal) at 1. C. Crisman’s Subsequent FOIA and Privacy Act Requests
Shortly after agreeing to the Stipulation of Dismissal in the first lawsuit, Crisman sent additional requests to the DOJ and other agencies relating to the FISA Alert and the termination of her assignment at the FRB headquarters. Specifically, between December 2011 and June 2012, Crisman sent FOIA and/or Privacy Act requests to four agencies: the DOJ, FRB, DHS, and ODNI. Her requests are set forth below:
 On December 27, 2011, Crisman requested that OIP, a DOJ component, search for: (1) all records pertaining to the classification of the FISA Alert; (2) all records pertaining to the subsequent declassification of the FISA Alert; and (3) all records pertaining to the administrative processing of Appeal No. 06-0524.
 On December 27, 2011, Crisman requested that the FBI, a DOJ component, search for: (1) all records pertaining to the classification of the FISA Alert; (2) all records pertaining to the subsequent declassification of the FISA Alert; and
1 Crisman’s appeal of the FBI’s withholding decision was assigned Appeal No. 06-0524. Compl. ¶ 20.
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(3) all records pertaining to the administrative processing of the Original Request.  On December 27, 2011, Crisman sent two additional requests to the FBI, requesting (1) all records in File 66F-MM-A55222 and (2) “all FBI records about her, including cross-references.”2  On January 9, 2012, Crisman submitted a request to the FRB for all records about her dated on or after March 26, 2004.  On June 13, 2012, Crisman requested that the Justice Management Division (“JMD”), a DOJ component, search for all records created between 2004 and 2009 about her, the Original Request, or Appeal No. 06-0524. Compl. ¶¶ 28, 34, 51, 57, 67, 78. Based on her belief that the mischaracterization of the FISA Alert resulted in her placement on national security and homeland watch lists, Crisman also submitted Privacy Act amendment requests requesting that all four agencies correct all records “identifying her as a potential national security risk, or otherwise referencing the FISA Alert . . . to reflect the benign nature of that document.” Id. ¶¶ 87, 95, 107, 117, 125. She further requested that the DOJ, DHS, and ODNI remove her name “forthwith from any lists upon which she was placed as a result of this error,” id. ¶¶ 87, 95, 107, 117, and that the FRB amend any records “documenting her expulsion from the building in April 2004.” Id. ¶ 125. D. Plaintiffs’ Allegations in the Current Case In the case before this court, Plaintiffs allege, in a seventeen-count Complaint, that the DOJ, FRB, DHS, and ODNI failed to comply with FOIA, the Privacy Act, the APA, and/or the Fifth Amendment in responding to Crisman’s FOIA and/or Privacy Act requests. In Counts 1 through 5, Crisman alleges that the DOJ constructively or affirmatively denied her access to certain records related to her, the FISA Alert and the Original Request in violation of FOIA and/or the Privacy Act. Compl. ¶¶ 27–76. In Count 6, Crisman alleges that the FRB violated
2 Upon receiving the FISA Alert, the FBI placed it in File 66F-MM-A55222. Compl. ¶ 13. 4

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FOIA and the Privacy Act by constructively denying her access to records responsive to her request for “all records about her dated on or after 26 March 2004.” Id. ¶¶ 77–85. Crisman alleges in Counts 7 through 11 that the DOJ, DHS, ODNI, and FRB violated the Privacy Act, APA, and/or the Fifth Amendment by refusing to amend (1) records indicating that she was a national security risk, and/or (2) any watch list upon which she has been placed. Id. ¶¶ 86–130. In Counts 12 through 16, Plaintiffs allege FOIA and APA violations related to the DOJ’s classification and withholding of the FISA Alert. Id. ¶¶ 131–164. Lastly, in Count 17 Crisman seeks damages to compensate her for the “adverse and harmful effects” she has suffered because of the DOJ’s improper classification of the FISA Alert. Id. ¶¶ 165–172.
In their motions for summary judgment on all claims, Defendants maintain that they have complied with their obligations under FOIA, the Privacy Act, the APA, and the Fifth Amendment in responding to Crisman’s FOIA and Privacy Act requests, and that there is no evidence in the record indicating that Crisman was placed on a watch list. E. Defendants’ Current Motions for Summary Judgment
On December 3, 2013, Defendants filed their First Motion for Summary Judgment as to Crisman’s records denial claims (alleged in Counts 1 through 6) and Privacy Act damages claim (alleged in Count 17). ECF No. 26-1 (Defs. First Mem.) at 8–37. That motion also seeks partial summary judgment on Crisman’s Privacy Act amendment claims (alleged in Counts 7 through 11). Id. at 37–39. On June 10, 2014, Defendants filed a Second Motion for Summary Judgment and to Dismiss as to Crisman’s APA and Fifth Amendment claims in Counts 7 through 10. See ECF No. 46-1 (Defs. Second Mem.) at 2–10. Defendants also move for summary judgment on Plaintiffs’ claims under the APA in Counts 14 and 16. See ECF No. 56 (Defs. Second Reply) at 16–19.
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II. LEGAL STANDARD A. Summary Judgment
Summary judgment is appropriate where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A fact is material if “a dispute over it might affect the outcome of a suit under governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue is genuine if “‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Id. (quoting Anderson, 477 U.S. at 248). The party seeking summary judgment “bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified.” Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (citing Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir. 1980)).
FOIA cases are “typically and appropriately . . . decided on motions for summary judgment.” Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 (D.D.C. 2011) (internal quotation marks and citation omitted). Upon an agency’s request for summary judgment on the grounds that it has fully discharged its FOIA obligations, all underlying facts and inferences are analyzed in the light most favorable to the FOIA requester; only after an agency proves that it has fully discharged its FOIA obligations is
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summary judgment appropriate. Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citations omitted). B. Motion to Dismiss
When deciding a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a court has “an affirmative obligation ‘to consider whether the constitutional and statutory authority exist’” for it to consider the claims. James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v. Nat’l Academy of Scis, 974 F.2d 192, 196 (D.C. Cir. 1992)). In analyzing whether a plaintiff has standing at the dismissal stage, the court “must assume that [the plaintiff] states a valid legal claim.” Info. Handling Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024, 1029 (D.C. Cir. 2003) (citations omitted). The party claiming subject matter jurisdiction bears the burden of proving that it exists, Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008), and while “the district court may consider materials outside the pleadings,” it “must still accept all of the factual allegations in the complaint as true.” Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citations and internal quotation marks omitted).
III. ANALYSIS A. Defendants’ First Motion for Summary Judgment
1. Preclusive Effect of Prior Stipulation As explained above, Crisman entered into a stipulation in Crisman v. Dep’t of Justice, No. 11-658 (EGS) (D.D.C), in which she agreed not to “bring any further actions seeking to challenge” (1) the adequacy of the DOJ’s search for responsive records for the Original Request or (2) the FBI’s invocations of FOIA Exemptions (b)(6) and/or (b)(7)(C) to withhold information from the FISA Alert. Stipulation of Dismissal at 1; Compl. ¶ 26. Defendants argue that “[t]o the
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extent that [Plaintiffs’] claims violate the stipulation,” they are precluded by judicial or equitable estoppel as well as contract law. Defs. First Mem. at 3, 8–9. However, Defendants do not indicate which claims the stipulation arguably precludes, and therefore have failed to address this issue with sufficient specificity for the court to decide whether the stipulation has preclusive effect.3 See, e.g., Wilson v. Dist. of Columbia, 777 F. Supp. 2d 123, 126 (D.D.C. 2011) (failing to decide an issue on summary judgment where “the parties . . . failed to address [the] issue with sufficient specificity for the Court to rule”). Thus, based on the record before it, the court cannot find that judicial or equitable estoppel preclude Plaintiffs’ claims.
2. Claims Regarding the Adequacy of the Agencies’ Searches and Applicability of Exemptions
In cases involving the adequacy of an agency’s search efforts and the applicability of exemptions, summary judgment may be based on information provided in the agency’s supporting declarations. See, e.g., ACLU v. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011); Students Against Genocide v. Dep’t of State, 257 F.3d 828, 838 (D.C. Cir. 2001). An agency may prove the reasonableness of its search via the declaration of a responsible agency official, so long as the declaration is reasonably detailed and not controverted by contrary evidence or evidence of bad faith. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981) (citations omitted). There is no requirement that an agency search every record system, but it must conduct a good faith, reasonable search of those systems of records likely to possess the requested information. See Oglesby v. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The agency declaration can demonstrate reasonableness by “setting forth the search terms and the
3 In a footnote in their Reply in support of their Second Motion, Defendants state that the stipulation precludes the claims in Count 12 but fail to provide any argument or evidence to support this assertion. Defs. Second Reply at 19 n.7.
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type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.” Id. Once an agency has provided adequate affidavits, the burden reverts to the plaintiff to demonstrate the lack of a good faith search. Leopold v. Nat’l Sec. Agency, 196 F. Supp. 3d 67, 72 (D.D.C. 2016). The presumption of good faith “cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
With respect to exemptions, if “an agency’s affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency’s bad faith, then summary judgment is warranted on the basis of the affidavit alone.” ACLU, 628 F.3d at 619. Ultimately, “an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Id. (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). However, an agency’s “affidavits must show, with reasonable specificity, why the documents fall within [a given] exemption. The affidavits will not suffice if the agency’s claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping.” Hayden v. Nat’l Sec. Agency, 608 F.2d 1381, 1387 (D.C. Cir. 1979) (citations omitted).
i. Counts 1, 4 and 5 Crisman, in electing “to only challenge some of Defendants’ positions” in their First Motion for Summary Judgment, does not oppose Defendants’ motion with respect to Counts 1, 4 and 5. ECF No. 41 (Pls. First Opp.) at 5–6. She maintains that her position “should not be construed as a concession of the appropriateness of any agency action left unchallenged.” Id. at
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5. However, “[w]here a party fails to address arguments raised by the opposing party’s motion for summary judgment, the Court may treat those arguments as conceded.” 4 Comptel v. FCC, 945 F. Supp. 2d 48, 55 (D.D.C. 2013); see also Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. De C.V., 69 F. Supp. 3d 175, 227 (D.D.C. 2014) (“When a party fails to address an issue in its opposition brief, the Court may regard that issue as conceded and grant summary judgment to the moving party.”) (citing Comptel, 945 F. Supp. 2d at 55). Accordingly, the court finds that Defendants are entitled to summary judgment on Counts 1, 4 and 5.
ii. Count 2 – FBI’s Alleged Constructive Records Denial In Count 2, Crisman alleges that the FBI has constructively denied her access to records in response to her December 27, 2011 FOIA and Privacy Act request, which asks for “(1) all records pertaining to the classification of the FISA Alert; (2) all records pertaining to the subsequent declassification of the FISA Alert; and (3) all records pertaining to the administrative processing of the Original Request.” Compl. ¶¶ 33–43; ECF No. 31-1, Ex. 3 (Second Declaration of David M. Hardy, Second Hardy Decl.) ¶ 16. The FBI initially produced four pages in response to this request. Compl. ¶ 35; see also Second Hardy Decl. ¶ 12 n.3. Three months later, the FBI released the FISA Alert. Second Hardy Decl. ¶ 19; see also Compl. ¶ 39. Crisman filed an administrative appeal with OIP, contesting the adequacy of the FBI’s search and its redactions to the produced documents. Compl. ¶ 36; Second Hardy Decl. ¶ 13. On September 25, 2012, OIP remanded the December 27, 2011 request to the FBI “‘for a further search for additional responsive records.’” Second Hardy Decl. ¶ 21 (quoting Second Hardy
4 Crisman also indicates that she does not oppose Defendants’ motion with respect to Count 3. See Pls. First Opp. at 6. But, as Crisman points out, “Defendants’ Motion and brief are silent on Count[] 3,” id. at 4, and therefore Defendants have not demonstrated that they are entitled to summary judgment on Count 3.
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Decl., Ex. M); see also Compl. ¶ 40. By a letter dated November 21, 2012, the FBI released all non-exempt material, totaling eight pages, to Crisman. Second Hardy Decl. ¶ 22. An additional search, “[i]n response to this litigation,” resulted in six additional pages of responsive records. Id. ¶ 43.
Crisman argues that the FBI’s productions are deficient because the FBI (1) failed to produce certain relevant documents, and (2) improperly relied on FOIA Exemption (b)(5) to withhold information. See Pls. First Opp. at 10–13, 17–19. With regard to the first assertion, Crisman argues that the FBI failed to produce six documents that were “clearly referenced” in the FBI’s initial production and which she requested on appeal. Id. at 11–13 (detailing the “six clearly referenced documents”).
However, “mere reference to other files does not establish the existence of documents that are relevant to [a] FOIA request.” Steinberg v. Dep’t of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994). Crisman asserts that the six cross-referenced documents “are responsive to Count 2,” Pls. First Opp. at 13, but fails to provide any evidence or information to support this assertion. She also proffers no evidence demonstrating that the six cross-referenced records—all referenced in notes that were made at least two years prior to Crisman’s FOIA request—still exist. Absent such evidence, Crisman’s suggestion that the six records exist and are relevant to her FOIA request is speculative and does not undermine the reasonableness of the FBI’s search. See, e.g, Steinberg, 23 F.3d at 552 (finding that “‘mere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search’”) (quoting SafeCard Servs., Inc., 926 F.2d at 1201); see also Am. Immigration Council (“AIC”) v. Dep’t of Homeland Sec., 950 F. Supp. 2d 221, 234 (D.D.C. 2013) (finding plaintiff’s suggestion that
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correspondences exist “largely speculative” where there was no evidence demonstrating that the defendant “saved the meeting minutes” or “retained their correspondence”).
Crisman’s argument that the six cross-referenced documents were “clear and certain” indications of the existence of additional documents that the FBI could not “in good faith ignore,” Pls. First Opp. at 12–13, does not convince the court otherwise. None of the cases on which Crisman relies for this argument hold that cross-references in a responsive document qualify as “clear and certain” leads, requiring agencies to conduct additional searches. Indeed, the D.C. Circuit has suggested that the opposite is true. See Steinberg, 23 F.3d at 552 (“[M]ere reference to other files does not establish the existence of documents that are relevant to [a] FOIA request. If that were the case, an agency responding to FOIA requests might be forced to examine virtually every document in its files, following an interminable trail of cross-referenced documents like a chain letter winding its way through the mail. . . . FOIA clearly does not impose this burden upon federal agencies.”); see also Morley v. CIA, 508 F.3d 1108, 1121 (D.C. Cir. 2007) (finding that the CIA’s failure to search for records referenced in responsive documents did not render the CIA’s search inadequate). Accordingly, given that Crisman’s only challenge to the reasonableness of the FBI’s search is based on speculation regarding crossreferenced documents, the court finds that the FBI’s search was adequate.
Crisman also argues that the FBI improperly relied on Exemption (b)(5) to withhold information on three pages. Exemption (b)(5) allows federal agencies to withhold records if the requested documents include “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). In determining whether information was properly withheld under Exemption (b)(5), a court must ensure that the information satisfies two conditions: “its source must be a
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Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). The FBI contends that the redacted information is protected by the deliberative process and attorney work product privileges.
To justify summary judgment, “a declaration must provide detailed and specific information demonstrating ‘that material withheld is logically within the domain of the exemption claimed.’” Campbell v. Dep’t of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (quoting King v. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)). The court finds that the FBI has failed to do so here. David Hardy—the Section Chief of the Record/Information Dissemination Section, Record Management Division of the FBI—states that the withheld information “is deliberative as it reflects the internal discussion between FBI personnel regarding opinions and proposed recommendations in the handling of plaintiff’s FOIPA requests.” Second Hardy Decl. ¶ 59. He further states that the redacted “information is predecisional because the FBI evaluated preliminary opinions and analysis made by FBI personnel which eventually resulted in its response to plaintiff’s FOIPA request.” Id. He does not address the work product privilege at all.
Hardy’s generalized, conclusory statements do not aid the court in determining whether the redacted information provides an “opinion” or “recommendation” regarding Crisman’s FOIA request, and therefore do not adequately demonstrate that the deliberative process privilege applies in this case. See Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (“The [deliberative process privilege] exemption thus covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal
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opinions of the writer rather than the policy of the agency.”) Indeed, the Declaration does nothing more than recite the legal standards of the deliberative process privilege, and therefore cannot justify summary judgment with respect to the FBI’s withholdings under Exemption (b)(5). See, e.g., Hayden, 608 F.2d at 1387 (emphasizing that an agency’s affidavits will not suffice if they “are conclusory, merely reciting statutory standards, or if they are too vague or sweeping”).
In sum, the court finds that the FBI is entitled to summary judgment on the adequacy of the FBI’s search, but not on its withholding of information under Exemption (b)(5). The court will order the FBI to submit another declaration that provides more detail regarding the application of the deliberative process and work product privileges to the information withheld.
iii. Count 6 – FRB’s Alleged Constructive Records Denial In Count 6, Crisman alleges that the FRB failed to adequately search for records responsive to her January 9, 2012 FOIA and Privacy Act request, which asked for “all records about her dated on or after March 26, 2004.” Compl. ¶ 78. In response, the FRB submitted a 15page declaration from David G. Caperton—Special Counsel for Oversight Reviews in the Legal Division of the Board of Governors of the FRB. See ECF No. 31-2, Ex. 5 (Declaration of David G. Caperton, Caperton Decl.). Caperton explained that the FRB conducted two searches. In the first, the FRB searched four components of its Management Division—Human Resources, Health and Employee Relations, Finance and Accounting, and Law Enforcement. Id. ¶¶ 16, 19. The search resulted in 13 responsive documents. Id. ¶ 8. In response to Crisman’s appeal, the FRB conducted a second search of the relevant Management Division components. Id. ¶ 21. The second search revealed no additional documents. Id. ¶ 22–24. Crisman appears to no longer contest the adequacy of the FRB’s searches. Instead, she
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argues that the FRB should have conducted yet another search based on her claim that FRB security personnel informed her that they found “something in her FBI file.” Compl. ¶¶ 15–16; Caperton Decl. ¶ 13. During a June 20, 2012 telephone call, Caperton informed Plaintiff’s attorney that if he could provide the FRB with the “name of the security person who said something about the FBI,” and that person still worked at the FRB, “[they] could ask that person . . . if they have any records related to the incident.” Caperton Decl., Ex. H; Caperton Decl. ¶ 14. Crisman’s counsel did not provide a name until January 13, 2014, over a year after the Complaint was filed and almost three years after the FRB conducted its searches. See ECF No. 45 (Defs. First Reply) at 4; see also Pls. First Opp. at 13–14. Crisman cannot rely on this latesupplied information to argue that the FRB’s search was inadequate or to request another search.5 Mobley v. CIA, 806 F.3d 568, 582–83 (D.C. Cir. 2015) (finding that “[b]ecause agencies are not required to perform additional searches once their search is concluded, the court cannot conclude that the FBI failed to conduct an adequate search”). The court therefore finds that there is no genuine issue of material fact as to the adequacy of the FRB’s searches and grants Defendants summary judgment on Count 6.6
5 Crisman also requests that the court, if it “agrees with Crisman that FRB’s search was inadequate,” order the FRB “to take three other records . . . into account when performing a supplemental search.” Pls. First Opp. at 14–15. The records are attached to Plaintiffs’ Opposition as exhibits D through F. Having determined that FRB’s search was adequate, the court will not order the FRB to conduct another search based on these additional records. 6 In Count 11, Crisman alleges that the FRB failed to amend “all FRB records identifying her as a potential national security risk, or otherwise stemming from the FISA Alert” and “all FRB records documenting her expulsion from the building in April 2004.” Compl. ¶ 125. Caperton explains that the FRB’s search—which the court has determined was adequate—returned “‘no records identifying Ms. Crisman as a potential national security risk or pertaining to her alleged expulsion from the Federal Reserve Building in April 2004.’” Caperton Decl. ¶ 11 (quoting Caperton Decl., Ex. F). Because there are no records for the FRB to amend, the court finds that the FRB is also entitled to summary judgment on Count 11.
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iv. Count 9 – DHS’s Alleged Refusal to Search for Records On December 27, 2011, Crisman submitted a Privacy Act amendment request to DHS, in which she informed DHS of the erroneously characterized FISA Alert and explained that she had “reason to believe” that the FISA Alert “led to the creation of an FBI record classifying [her] as a potential national security risk.” ECF No. 30-1 (Declaration of James V.M.L. Holzer, I, Holzer Decl.), Ex. A, at 1. She further explained that she had “reason to believe that this information has been disseminated to other federal agencies, not least of which is DHS.” Id. Accordingly, she requested that “all DHS records (regardless of location) identifying her as a potential national security risk, or otherwise stemming from the 2004 ‘FISA Alert,’ be corrected immediately to reflect the utterly benign nature of that document, and that her name be removed forthwith from any lists upon which she was placed as a result of this mischaracterization.” Id. In response, DHS explained that “the limited information provided by [Crisman] was not sufficient for the agency to conduct an adequate search,” Holzer Decl. ¶ 4, and that it would “undertake a search for responsive records” once additional information was provided. Holzer Decl., Ex. D, at 1. In Count 9, Crisman alleges, in part, that DHS’s failure to process Crisman’s request was improper. The court disagrees. FOIA does not require an agency to “honor a request that requires ‘an unreasonably burdensome search,’” Am. Fed’n of Gov’t Emps., Local 2782 v. Dep’t of Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990) (quoting Goland v. CIA, 607 F.2d 339, 353 (D.C. Cir. 1978)), or that requires the agency “to locate, review, redact, and arrange for inspection a vast quantity of material.” Am. Fed’n of Gov’t Emps., 907 F.2d at 209. Here, Plaintiffs request that DHS conduct a search for “all DHS records (regardless of location)” relating to the FISA Alert without providing information regarding “the type of records [they] are seeking, the DHS
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component [they] believe created and/or controls the records,” “the precipitating event that [they] believe warranted the creation of the records,” or “the time period that [they] believe the records or files were created and compiled.” See Holzer Decl., Ex. D, at 1. While the court appreciates that Crisman may not have access to some of this information because of the nature of her request, Crisman has failed to take any steps to narrow her request or assist DHS in its search.
Indeed, in response to DHS’s request for additional information, Crisman did not suggest a timeframe for DHS’s search or provide guidance as to the types of records DHS should search for, but instead assumed that the requested information “is exclusively under the control of DHS and the FBI.” Holzer Decl., Ex. E, at 1. Thus, to fulfill Crisman’s request, DHS—which does not maintain a central index of records about individuals—would have to take on the burdensome task of examining and sifting through numerous records, without guidance as to the timeframe, location, or likely format of the records Plaintiffs seek. Neither FOIA nor the Privacy Act require DHS to do so. See, e.g., Assassination Archives & Research Ctr. v. CIA, 720 F. Supp. 217, 219 (D.D.C. 1989) (“FOIA was not intended to reduce government agencies to fulltime investigators.”); see also Sack v. CIA, 53 F. Supp. 3d 154, 165 (D.D.C. 2014) (noting that seeking “additional guidance from the [FOIA] requester and, when none was provided, clos[ing] the file” was “a reasonable path” when the requester failed to provide sufficient information regarding the records sought); SAI v. TSA, 315 F. Supp. 3d 218, 248–49 (D.D.C. 2018) (finding a plaintiff’s FOIA and Privacy Act request “vastly overbroad” and thus not demanding a “response commensurate with the request”).
Nonetheless, the court is not inclined to grant Defendants summary judgment, and risk denying Crisman access to potentially responsive documents, when it appears that neither party
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has made a concerted effort to come to an agreement on the contours of DHS’s search. Based on the record, DHS, too, has failed to propose ways to define and narrow the scope of Crisman’s request. See Holzer Decl., Ex. D at 1 (letter detailing DHS’s need for additional information but failing to propose DHS components that may contain responsive records). Thus, the court will deny summary judgment on Count 9 as to DHS’s failure to search for responsive records and order the parties to meet, confer, and attempt to define and narrow the scope of DHS’s search for responsive records.
3. Privacy Act Amendment Claims (Counts 7–11, 17) In Counts 7 through 11, Crisman alleges that the National Security Division (“NSD”) of the DOJ, the FBI, DHS, ODNI, and the FRB violated the Privacy Act in failing to amend their records “identifying her as a potential national security risk, or otherwise stemming from the FISA Alert . . . to reflect the benign nature of [the FISA Alert].” See Compl. ¶¶ 87, 95, 107, 117, 125. Crisman further alleges that NSD, FBI, DHS, and ODNI improperly denied her request that “her name be removed forthwith from any lists upon which she was placed as a result of [the] error.” Id. ¶¶ 87–92, 95–103, 107–13, 117–21. Additionally, Crisman alleges that the FRB improperly refused to amend its records “documenting her expulsion from the building in April 2004 . . . to reflect that this action was solely taken as a result of” the improper classification of the FISA Alert. Id. ¶ 125. In Count 17, Crisman seeks damages under the Privacy Act for the “adverse and harmful effects” she has suffered as result of the DOJ’s misclassification of the FISA Alert. Id. ¶¶ 170, 172. She requests “relief in the form of a declaratory order that DOJ violated the Privacy Act and an award of damages.” Id. ¶ 172.
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Crisman voluntarily withdrew her Privacy Act claims in Counts 7, 8, 9, and 10.7 Pls. First Opp. at 6 n.8. The only Privacy Act claims remaining are Counts 11—Crisman’s failure to amend claim against the FRB—and Count 17—a claim for damages stemming from the DOJ’s failure to properly classify the FISA Alert. As discussed above, this court has found that because the FRB’s search returned no records “‘identifying Ms. Crisman as a potential national security risk or pertaining to her alleged expulsion from the Federal Reserve Building in April 2004,’” Caperton Decl. ¶ 11 (quoting Caperton Decl., Ex. F), there were no documents to amend, and therefore Defendants are entitled to summary judgment on Count 11.
In Count 17, Crisman alleges that she is entitled to damages under the Privacy Act’s accuracy provision, 5 U.S.C. § 552a(e)(5), because the FBI failed to follow the procedures of Executive Order 12958 and its own internal memorandum in classifying the FISA Alert. See Compl. ¶¶ 165–72. Defendants respond that they are entitled to summary judgment on Count 17 for two reasons. First, that Crisman was aware on February 9, 2009, when she received the “FISA Alert Report Form,” “of the potential for a Privacy Act claim regarding the proper classification of the record,” and therefore her November 2012 claim for damages is untimely. Defs. First Mem. at 37–38. In response, Crisman argues that the FBI “mistakes the nature of the alleged violation.” Pls. First Opp. at 19. She explains that she is contesting the FBI’s failure to follow the proper classification procedures detailed in Executive Order 12958 and its own internal memorandum in classifying the FISA Alert—which she learned about in May 2012—
7 Crisman maintains her claims in Counts 7, 8, 9, and 10 under the APA and the Fifth Amendment. Additionally, as discussed previously, Crisman also maintains her claims under Count 9 to the extent they challenge DHS’s failure to search for records responsive to her FOIA and Privacy Act request.
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and not the misclassification itself.8 Id. at 20. Therefore, Crisman argues, the two-year time frame for seeking damages under the Privacy Act did not begin to run until May 2012.
The Privacy Act permits complainants to bring actions “within two years from the date on which the cause of action arises.” 5 U.S.C. § 552a(g)(5). A cause of action arises under the Privacy Act when “the plaintiff knows or should know of the alleged violation.” Tijerina v. Walters, 821 F.2d 789, 798 (D.C. Cir. 1987) (citation omitted). Here, Crisman maintains that she did not learn “that FBI had actually improperly classified the ‘FISA Alert’ by not following the governing Executive Order or DOJ regulations” until May 2012. Pls. First Opp. at 20. Defendants have not offered any evidence or information to suggest otherwise. Given that Plaintiffs filed their Complaint on November 19, 2012—less than six months after Crisman learned of the FBI’s allegedly improper conduct—the court finds that Crisman’s claim for damages under the Privacy Act is not time-barred.
Second, Defendants argue that Crisman is not entitled to relief on Count 17 because DOJ’s records are exempt from the accuracy and amendment provisions of the Privacy Act. Defendants explain that “[t]he Privacy Act allows an agency’s Director to promulgate regulations that exempt any system of records within the agency from” certain provisions of the Privacy Act. Defs. First Mem. at 39 (citing 5 U.S.C. § 552a(j)(2)). In his declaration, Hardy points out that all records that are a part of the FBI’s Central Records System, including the FISA Alert, are exempt from disclosure under the Privacy Act, as prescribed by 28 C.F.R. § 16.96. Second Hardy Decl. ¶53. Pursuant to 28 C.F.R. § 16.96, the FISA Alert is also exempt from the Privacy Act’s accuracy provisions—5 U.S.C. § 552a(e)(5) and 5 U.S.C. §
8 The FBI released the FISA Alert with declassification markings to Crisman on May 31, 2012. See Second Hardy Decl. ¶¶ 19–20.
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552a(g)(1)(C)—which require agencies to maintain any record concerning an individual “with . . . accuracy, relevance, timeliness, and completeness.” 5 U.S.C. § 552a(e)(5); see also 5 U.S.C. § 552a(g)(1)(C). Accordingly, the FBI’s regulations prohibit Crisman from advancing a Privacy Act amendment or accuracy claim against it, and therefore the court will grant summary judgment on Count 17. B. Defendants’ Second Motion for Summary Judgment and to Dismiss
In their Second Motion for Summary Judgment and to Dismiss, Defendants seek dismissal or summary judgment on Counts 7 through 10,9 in which Crisman seeks, pursuant to the Privacy Act, APA and the Fifth Amendment, the removal of her name from any watch list on which she was placed following the mischaracterization of the FISA Alert. See Compl. ¶¶ 87, 95, 107, 117. As discussed above, Crisman voluntarily withdrew her claims under the Privacy Act amendment provisions in response to Defendants’ First Motion for Summary Judgment. See Pls. First Opp. at 6 n.8. In their Second Motion, Defendants request the dismissal of Counts 7 through 10 in their entirety, challenging Crisman’s allegations under the APA and Fifth Amendment. ECF No. 46 (Defs. Second Mot.) at 1.
9 Both parties reference Count 11 in their briefs. See, e.g., Defs. Second Reply at 4 (titling a subsection of their brief “Plaintiff’s Claims 7-11 are not Actionable and Should Be Dismissed”); ECF No. 50 (Pls. Second Opp.) at 16 n.8 (“While it is not explicitly stated, Defendants’ standing argument appears to only apply to Counts 7-11.”). The court has already granted summary judgment on Count 11 with respect to Crisman’s claims under the Privacy Act. See supra at 15 n.6. Moreover, in Count 11, Crisman does not allege violations under the APA or the Fifth Amendment—the focal points of Defendants’ second motion. Defs. Second Mot. at 1 (noting that the second motion “focuses primarily on additional claims advanced under the Administrative Procedure Act and the Fifth Amendment to the U.S. Constitution”). Therefore, the court will not address Count 11 in its analysis of Defendants’ second motion.
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1. Standing Defendants first argue that Crisman’s amendment claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Defs. Second Reply at 8. Specifically, Defendants argue that Crisman fails to “articulate any injury—actual, threatened, or imminent—entitling [her] to relief,” and therefore lacks standing to bring the APA and Fifth Amendment claims alleged in Counts 7 through 10. Defs. Second Mem. at 2. The court agrees. Under Article III of the United States Constitution, a federal court cannot consider the merits of a claim until the party seeking to invoke the jurisdiction of the court can establish the requisite standing to sue. Whitmore v. Arkansas, 495 U.S. 149, 154–55 (1990). To do so, a plaintiff “must have suffered or be imminently threatened with a concrete and particularized ‘injury in fact’ that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable decision.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125 (2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). When injunctive or declaratory relief is sought, a plaintiff “must show he is suffering an ongoing injury or faces an immediate threat of [future] injury.” Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir. 2011) (citations omitted). Past injuries do not themselves “‘show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.’” Veitch v. England, 471 F.3d 124, 133 (D.C. Cir. 2006) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). Crisman alleges that “[u]pon information and belief, the FBI Miami Field Office . . . placed [her] on numerous national security and homeland security watch lists which were then disseminated to other federal security agencies and DOJ components.” Compl. ¶ 14. However,
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she also “admits . . . that there is a chance that her name was not placed on a watchlist in 2004.” Pls. Second Opp. at 4 n.2. Crisman does not allege that the dissemination of these lists has resulted in “ongoing injury,” such as the inability to travel or recurring, intrusive delays while traveling. Nor does she allege that there is a threat that such harms will occur in the immediate future. Rather, she asserts that after allegedly being placed on a watch list in 2004, her “belongings were searched,” “she was escorted out of FRB Headquarters,” “[h]er contract was terminated” and “she was subsequently fired by CNI.” Compl. ¶ 15. She also argues that due to her alleged placement on a watch list, she was required to undergo “extra screening” both times she traveled by air since 2004, once in March 2009 and again in August 2011. Pls. Second Opp. at 12; ECF No. 50-4 (Pls. Second Opp., Ex. D) ¶¶ 8–9. All of these alleged harms—the search, contract termination, job termination, and “extra screenings”— occurred at least a year before Plaintiffs filed their Complaint, and are therefore not sufficiently “imminent” or “ongoing” to demonstrate that “a present case or controversy” exists. Veitch, 471 F.3d at 133.
Moreover, even if Crisman’s alleged harms were imminent and ongoing, she has failed to demonstrate that these harms are “fairly traceable” to her alleged placement on a watch list. As noted above, Crisman is herself unsure of whether her name was actually placed on a watch list, and makes her assertion based on “information and belief.” Compl. ¶ 14; see also Pls. Second Opp. at 4 n.2. Despite this concession, Crisman maintains that her “name was entered into a watch list—possibly [Violent Gang and Terrorist Organizations File] VGTOF, possibly the [Terrorist Screening Database] TSDB—by an FBI agent in the Miami Field Office in March or April 2004.” Pls. Second Opp. at 9.
Crisman’s main argument in support of this assertion is that because she was escorted out of FRB headquarters due to “something in her FBI file,” her name must have been placed on a
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watch list. Id. at 11. However, aside from quoting from a standard notice relating to the VGTOF and TSDB watch lists that FRB Security “would likely have read,” id. at 11–12, Crisman provides no evidence establishing that the “something in her FBI file” was a notice or other evidence indicating that her name was placed on a watch list.
Crisman further argues that there are three additional events demonstrating her placement on a watch list: (1) the FRB’s Assistant Director of Human Resources’ indication that Crisman had been “Removed, Based on Suitability or Security Determination,” (2) the fact that she was “singled out for extra screening” at the airport, and (3) DOJ’s observation that the “FBI’s procedures for tracking and removing names from the TSDB were far from optimal.” Id. 12–14. But again, Crisman fails to provide any evidence clearly connecting these events to her name being placed on a watch list.10 See, e.g., Pls. Second Opp. at 12 (arguing that “being singled out for extra screening” is “consistent with”—not indicative of— “placement on the Transportation Security Administration (“TSA”) Selectee List or Expanded Selectee List”).
This court cannot rely on Crisman’s speculative and conclusory assertions to find that the FISA Alert led to her placement on a watch list, let alone that her alleged harms are “fairly traceable” to such placement or to the FISA Alert. Winpisinger v. Watson, 628 F.2d 133, 139 (D.C. Cir. 1980) (finding no standing where the court “would have to accept a number of very
10 On September 9, 2014, Plaintiffs filed a Motion for Leave to File Additional Exhibits. ECF No. 52. The court will grant Plaintiffs’ motion. However, Plaintiffs’ first additional exhibit— Exhibit I—does not alter the court’s analysis regarding whether Crisman has established that she was placed on a watch list. Exhibit I is a document Plaintiffs believe “demonstrates that [the 66F files designation] was used for watch list issues in May 2003.” ECF No. 52 at 1. Plaintiffs appear to argue that this fact coupled with the fact that the FISA Alert was designated as a 66F file, Compl. ¶ 13, supports their argument that Crisman’s name was placed on a watch list in 2004. But, absent evidence demonstrating that the FISA Alert was designated a 66F file because Crisman was placed on a watch list, the court does not find that such a designation establishes her placement on a list.
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speculative inferences and assumptions in an endeavor to connect the alleged injury with [the challenged conduct]”); see also Am. Sports Council v. Dep’t of Educ., 850 F. Supp. 2d 288, 292 (D.D.C. 2012) (“A ‘mixture of speculation and conclusory assertion . . . does not satisfy the Supreme Court’s requirement for specific, concrete facts demonstrating injury, and particularized allegations of fact.’”) (quoting Block v. Meese, 793 F.2d 1303, 1308 (D.C. Cir. 1986)). Accordingly, the court finds that Crisman lacks standing to advance her Fifth Amendment and APA claims alleged in Counts 7 through 10, and that the claims are therefore dismissed.11
2. Defendants’ Additional Arguments Defendants also argue that Counts 7 through 10, to the extent they advance claims under the Fifth Amendment and APA, should be dismissed for their failure to state a claim. Having determined that Crisman lacks standing to bring her Fifth Amendment and APA claims raised in Counts 7 and 10, the court need not address these additional arguments. 3. Plaintiffs’ Remaining Claims In Counts 12 through 16, Plaintiffs allege that the FBI failed to follow the procedures of Executive Order 12958 and its own internal memorandum when classifying the FISA Alert. See Compl. ¶¶ 131–72. Although Defendants purport to address Counts 12, 13 and 15 in their second motion, they have not provided argument with regard to these counts.12 See Defs. Second Reply at 16 (titling a subsection of its reply brief “The Complaint Does Not State an APA Claim (Counts 7-10, 12-16)” but failing to address why summary judgment or dismissal is warranted on
11 As discussed previously, Count 9 survives Defendants’ motions to the extent that Defendants are required to meet, confer, and attempt to define and narrow the scope of DHS’s search for records responsive to Plaintiffs’ FOIA and Privacy Act request. 12 As stated previously, Defendants assert that the stipulation precludes the claims in Count 12 but fail to provide any argument or evidence to support this assertion. Defs. Second Reply at 19 n.7.
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Counts 12, 13 and 15). In light of Defendants’ failure to provide a basis for their motion, the court will deny summary judgment and dismissal on Counts 12, 13 and 15.
Defendants do address Counts 14 and 16, which allege violations under the APA, arguing that summary judgment should be granted on those counts because “FOIA provides for review” of Plaintiffs’ claims, and therefore “Plaintiff may not seek review under the more generalized provisions of the APA.” Defs. Second Reply at 18 (noting that the APA, at 5 U.S.C. § 704, provides that judicial review is warranted under the APA only when “there is no other adequate remedy” in a court); see also id. at 18 n.6 (“APA relief in FOIA cases suggests that the breadth of the relief available under FOIA may leave little need for reliance on the APA as a remedial measure.”). Plaintiffs do not dispute that their allegations under the APA can be brought under FOIA, alleging the APA violations in Counts 14 and 16 only “as alternatives to the FOIA arguments made in Counts 13 and 15, respectively.” Pls. Second Opp. at 23; see also Payne Enters., Inc. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988) (“FOIA imposes no limits on courts’ equitable powers in enforcing its terms,” and where an agency’s actions in response to a FOIA request “violate the intent and purpose of the FOIA . . . the courts have a duty to prevent these abuses.”) (citation omitted); Mutitt v. United States Cent. Command, 813 F. Supp. 2d 221, 229 (D.D.C. 2011) (“[W]here a plaintiff challenges an alleged pattern and practice of violating procedural requirements of FOIA in connection with the processing of the plaintiff’s FOIA requests[,] the Court has the power under FOIA and Payne to provide the requested declaratory and injunctive remedies.”). Given that the APA claims advanced in Counts 14 and 16 are properly brought under FOIA in Counts 13 and 15, the court will grant summary judgment on Counts 14 and 16.
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IV. CONCLUSION For the foregoing reasons, Defendants’ First Motion for Summary Judgment and Second Motion for Summary Judgment and to Dismiss will be GRANTED in part and DENIED in part. The court will grant Defendants summary judgment on and/or dismiss Counts 1, 4, 5, 6, 7, 8, 10, 11, 14, 16 and 17. The court will deny summary judgment as to Counts 3, 12, 13 and 15. The court will grant in part and deny in part summary judgment on Counts 2 and 9. A corresponding order will issue separately.

Date: September 18, 2018

Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge

27

 
 Case 1:12-cv-01871-TSC Document 66 Filed 03/25/19 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

NANCY CRISMAN, et al.,

)

)

)

Plaintiffs,

)

)

v.

)

)

DEPARTMENT OF JUSTICE, et al., )

)

)

Defendants.

)

)

Case No. 12-cv-1871 (TSC)

SUPPLEMENTAL MEMORANDUM OPINION

Plaintiffs Nancy Crisman and National Security Counselors sued the Department of Justice, the

Board of Governors of the Federal Reserve System (“FRB”), the Department of Homeland Security, and

the Office of the Director of National Intelligence, alleging violations of the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552, et seq., as amended; the Privacy Act, 5 U.S.C. § 552a, et seq.; the

Administrative Procedure Act, 5 U.S.C. § 701, et seq.; and the Fifth Amendment of the United States

Constitution.

Before the court is Defendants’ First Motion for Summary Judgment with respect to three documents covered by Count 2.1 (ECF No. 26.) Upon consideration of the parties’ filings, and for the

reasons stated herein, the court will GRANT Defendants’ First Motion for Summary Judgment with

respect to Count 2.

1 By Memorandum Opinion and Order dated September 18, 2018, the court granted Defendants’ summary judgment motion with respect to six other documents covered by Count 2.

Case 1:12-cv-01871-TSC Document 66 Filed 03/25/19 Page 2 of 6
I. BACKGROUND In March 2004, the Financial Institution Security Association (“FISA”) sent a document entitled “FISA Alert Report Form” to the Federal Bureau of Investigation (“FBI”), and the FBI erroneously recorded the document as pertaining to the Foreign Intelligence Surveillance Act. (See ECF No. 1 (“Compl.”) ¶¶ 11, 14.) Crisman alleges this error resulted in the termination of her employment as a nurse for Corporate Nurse, Inc., expulsion from the FRB headquarters, and the addition of her name to various national security watch lists. (See id. ¶¶ 14–15.) In June 2005, Crisman filed a FOIA request with the FBI, seeking all records pertaining to her— including the FISA Alert. (Id. ¶ 17.) The FBI refused her request because the records were classified as “Confidential.” (Id. ¶¶ 18–19.) Crisman then appealed, and the FBI’s decision was affirmed by the Office of Information Policy (“OIP”). (Id. ¶¶ 20–21.) The FBI subsequently re-reviewed the FISA alert, declassified it, and released a redacted version to Crisman on February 13, 2009. (Id. ¶¶ 23–25.) Crisman filed suit on March 31, 2011—Crisman v. Dep’t of Justice, No. 11-658 (EGS) (D.D.C.)—challenging, inter alia, the adequacy of the FBI’s search for documents. (See ECF No. 31-1, Ex. 2.) On November 8, 2011, by stipulation, the suit was dismissed with prejudice. (Compl. ¶ 25; ECF No. 31-1, Ex. 1 (“Stipulation of Dismissal”) at 1.) Crisman then filed a December 27, 2011 FOIA request with the FBI, seeking all records in the FBI file in which the FISA Alert was placed and “all FBI Records about her, including crossreferences.” (Compl. ¶¶ 34, 57, 67.) Almost a year later, on November 19, 2012, Plaintiffs filed their Complaint in this case, alleging, in part, that the FBI failed to comply with FOIA. (Id. ¶¶ 27–43, 56– 76.) On December 3, 2013, Defendants filed their First Motion for Summary Judgment as to Plaintiffs’ records denial claims and Privacy Act damages claims. (ECF No. 26.) In reviewing one of
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the records denial claims, the court found that it did not have enough information to determine whether three documents were properly withheld. Accordingly, on September 18, 2018, with respect to Count 2 of the Complaint, this court directed the FBI to submit a declaration providing more detail regarding its decision to withhold information from Plaintiffs under FOIA Exemption (b)(5). (ECF No. 63.) On November 1, 2018, in response to the court’s request, Defendants filed the Third Hardy Declaration. (ECF No. 65.)
II. LEGAL STANDARD Summary judgment is appropriate where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A fact is material if “a dispute over it might affect the outcome of a suit under governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue is genuine if “‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Id. (quoting Anderson, 477 U.S. at 248). The party seeking summary judgment “bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified.” Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (citing Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir. 1980)). FOIA cases are “typically and appropriately . . . decided on motions for summary judgment.” Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 (D.D.C. 2011) (internal quotation marks and citation omitted). Upon an agency’s request for summary
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judgment on the grounds that it has fully discharged its FOIA obligations, all underlying facts and inferences are analyzed in the light most favorable to the FOIA requester; only after an agency proves that it has fully discharged its FOIA obligations is summary judgment appropriate. Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citations omitted).
III. ANALYSIS Under FOIA Exemption (b)(5), an agency can withhold information if it consists of: inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested. 5 U.S.C. § 552(b)(2). For this exemption to apply, two conditions must be satisfied: (1) the source of the information must be a government agency, and (2) the information must “fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.” Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). In assessing whether these two conditions have been met, courts first look to the agency’s declaration because it is the agency’s burden to establish that the privilege exists. See Campbell v. Dep’t of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998). The declaration must show that the information over which privilege is asserted is akin to an opinion or recommendation or reflects agency employees’ deliberative process. See Coastal Gas Corp. v. Dep’t. of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). In addition, the declaration should be detailed and specific so that it offers more than categorical descriptions of the redacted material. See Campbell, 164 F.3d at 30. A declaration that simply restates statutory standards or contains vague, conclusory, or sweeping statements will be deemed insufficient. See Hayden v. Nat’l Sec. Agency, 608 F.2d 1381, 1387 (D.C. Cir. 1979).
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In this case, neither party disputes that the FBI is a federal agency under the meaning provided in Klamath. See Klamath, 532 U.S. at 8. Thus, this court’s decision turns on whether the three withheld documents fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the FBI.
The decision with respect to two of the documents is straightforward. After the FBI received the court’s order to produce an additional declaration, the FBI conducted an additional review of the documents over which it was asserting the (b)(5) exemption. (See ECF No. 65 (“Third Hardy Declaration”) ¶ 7.) The FBI concluded that two of the three documents withheld—“Crisman-7” and “Crisman-8”—could be released in full because of a new law, the FOIA Improvement Act, directing agencies to withhold information only if it is reasonably foreseeable that disclosure would harm an interest protected by the exemption. (Id.) Crisman-7 and Crisman-8 were released on November 1, 2018. (Id.) Accordingly, Plaintiffs’ claims with respect to those two documents are moot.
With respect to the final withheld document—“Crisman-5”—some analysis is required. In reexamining the document in light of the FOIA Improvement Act, the FBI determined that portions of the document could be released to Crisman and subsequently released those portions on November 1, 2018. (Id.) Only two portions of the document are still redacted, and the FBI maintains that the (b)(5) exemption is properly asserted over these redactions. (Id. ¶¶ 7–10.) One redaction begins with “I will recommend….”; the FBI withheld the remainder of the sentence because “it discussed inter-agency communications between employees at the Office of Information Policy and the FBI.” (Id. ¶ 8.) The other redaction ends with “…send to DCU to have the package prepared to send to the DRC”; the FBI withheld the beginning portion because it describes “communications between FBI staff and details an employee’s advice based on anticipated responses from the Office of Information Policy.” (Id.)
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The agency’s declaration provides context, and the disclosures are detailed as opposed to categorical assertions regarding the content of the redacted material. See Campbell, 164 F.3d at 30 (holding that a declaration satisfies the agency’s burden only if it is specific). Indeed, from the content provided in the unredacted portions, it is apparent that the first redaction protects inter-agency communications about an employee’s recommendation for handling a Freedom of Information Act/Privacy Act request, and the second redaction relates to intra-agency communications about an employee’s advice based on anticipated OIP responses; both are permissible purposes for asserting the FOIA (b)(5) exemption. See Coastal Gas, 617 F.2d at 866. Thus, the FBI has met its burden with its submission of the Third Hardy Declaration. See Klamath, 532 U.S. at 8.
IV. CONCLUSION For the foregoing reasons, Defendants’ First Motion for Summary Judgment will be GRANTED with respect to Count 2. A corresponding order will issue separately.

Date: March 25, 2019

Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge

6

 
 TYPE I−PRIVACY
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:12−cv−01871−TSC

CRISMAN et al v. DEPARTMENT OF JUSTICE et al Assigned to: Judge Tanya S. Chutkan Cause: 05:552 Right to Privacy Act
Plaintiff

Date Filed: 11/19/2012 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

NANCY GALE CRISMAN

represented by Kelly Brian McClanahan NATIONAL SECURITY COUNSELORS 4702 Levada Terrace Rockville, MD 20853 (301) 728−5908 Fax: (240) 681−2189 Email: kel@nationalsecuritylaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
NATIONAL SECURITY COUNSELORS

represented by Kelly Brian McClanahan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant DEPARTMENT OF JUSTICE
Defendant BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM

represented by Brian J. Field U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252−2551 Fax: (202) 234−2806 Email: brian.field@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Oliver W. McDaniel U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252−2508 Fax: (202) 252−2599 Email: oliver.mcdaniel@usdoj.gov TERMINATED: 05/27/2016
represented by Brian J. Field (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Oliver W. McDaniel (See above for address) TERMINATED: 05/27/2016

Defendant DEPARTMENT OF HOMELAND SECURITY
Defendant OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

represented by Brian J. Field (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Oliver W. McDaniel (See above for address) TERMINATED: 05/27/2016
represented by Brian J. Field (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Oliver W. McDaniel (See above for address) TERMINATED: 05/27/2016

Date Filed 11/19/2012 11/19/2012 11/19/2012 11/20/2012 11/21/2012
12/07/2012
12/20/2012 12/20/2012

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 350 receipt number 0090−3136288) filed by NANCY GALE CRISMAN, NATIONAL SECURITY COUNSELORS. (Attachments: # 1 Civil Cover Sheet)(McClanahan, Kelly) (Attachment 1 replaced on 11/20/2012) (jf, ). (Entered: 11/19/2012)
2 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by NATIONAL SECURITY COUNSELORS (McClanahan, Kelly) (Main Document 2 replaced on 11/20/2012) (jf, ). (Entered: 11/19/2012)
Case Assigned to Judge Emmet G. Sullivan. (mmh) (Entered: 11/19/2012)
3 NOTICE (Summonses) by NANCY GALE CRISMAN re 1 Complaint, (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons)(McClanahan, Kelly) (Entered: 11/20/2012)
4 ELECTRONIC (6) SUMMONS Issued as to BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 11/21/2012)
5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM served on 11/26/2012; DEPARTMENT OF HOMELAND SECURITY served on 11/26/2012; DEPARTMENT OF JUSTICE served on 11/26/2012; OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE served on 11/26/2012, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 11/26/2012., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 11/28/2012. ( Answer due for ALL FEDERAL DEFENDANTS by 1/27/2013.) (Attachments: # 1 Exhibit A − USPS letter)(McClanahan, Kelly) Modified on 12/8/2012 (jf, ). (Entered: 12/07/2012)
6 NOTICE of Appearance by Oliver W. McDaniel on behalf of All Defendants (McDaniel, Oliver) (Entered: 12/20/2012)
7 Consent MOTION for Extension of Time to File Answer re 1 Complaint, by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 12/20/2012)

12/20/2012 12/27/2012 01/25/2013
01/25/2013 01/28/2013 02/21/2013
02/25/2013 03/14/2013
03/15/2013 03/18/2013 03/18/2013 03/19/2013 04/16/2013
04/16/2013
04/17/2013

MINUTE ORDER granting 7 defendants' consent motion for extension of time to respond to the complaint. Defendants shall file their response to the complaint by no later than January 28, 2013. Signed by Judge Emmet G. Sullivan on December 20, 2012. (lcegs4) (Entered: 12/20/2012)
Set/Reset Deadlines: Answer due by 1/28/2013, (clv, ) (Entered: 12/27/2012)
8 MOTION for Extension of Time to File Answer re 1 Complaint, (Partial Consent) by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 01/25/2013)
MINUTE ORDER treating as partially opposed and granting over partial opposition 8 defendants' motion for extension of time to respond to the Complaint. Defendants shall respond to the Complaint by no later than February 21, 2013. Signed by Judge Emmet G. Sullivan on January 25, 2013. (lcegs4) (Entered: 01/25/2013)
Set/Reset Deadlines: Answer due by 2/21/2013, (clv, ) (Entered: 01/28/2013)
9 Consent MOTION for Extension of Time to File Answer re 1 Complaint, (until March 14, 2013) by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 02/21/2013)
MINUTE ORDER granting 9 consent motion for extension of time. Defendants shall file their responses to the complaint by no later than March 14, 2013. Signed by Judge Emmet G. Sullivan on February 25, 2013. (lcegs4) (Entered: 02/25/2013)
10 Consent MOTION for Extension of Time to File Answer re 1 Complaint, (TWO−BUSINESS−DAY) by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 03/14/2013)
MINUTE ORDER granting 10 defendants' unopposed motion for extension of time to respond to Complaint. Defendants shall file their response to the Complaint by no later than March 18, 2013. Signed by Judge Emmet G. Sullivan on March 15, 2013. (lcegs4) (Entered: 03/15/2013)
Set/Reset Deadlines: Answer due by 3/18/2013, (clv, ) (Entered: 03/18/2013)
11 ANSWER to Complaint by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE.(McDaniel, Oliver) (Entered: 03/18/2013)
12 ORDER FOR MEET AND CONFER REPORT. Attorney Meet and Confer Conference due by 4/09/2013. Meet & Confer Statement due by 4/16/2013. Signed by Judge Emmet G. Sullivan on 03/19/13. (mac) (Entered: 03/19/2013)
13 Joint MOTION for Extension of Time to File Meet and Confer Report (until April 23, 2013) by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 04/16/2013)
MINUTE ORDER. Upon consideration of 13 the parties' joint motion for extension of time to submit a meet and confer report so that they may focus on settlement discussions, the motion is GRANTED. The parties shall file their meet and confer report by no later than April 25, 2013. Signed by Judge Emmet G. Sullivan on April 16, 2013. (lcegs4) (Entered: 04/16/2013)
Set/Reset Deadlines: Meet & Confer Statement due by 4/25/2013. (clv, ) (Entered: 04/17/2013)

04/25/2013 04/26/2013 04/26/2013 05/01/2013 05/02/2013
05/02/2013 07/12/2013 07/12/2013
07/12/2013 08/15/2013

14 MEET AND CONFER STATEMENT. (McDaniel, Oliver) (Entered: 04/25/2013)
MINUTE ORDER. The Court, sua sponte, schedules a status hearing on May 1, 2013 at 12:15 PM in Courtroom 24A to discuss the parties' meet and confer report. Signed by Judge Emmet G. Sullivan on April 26, 2013. (lcegs4) (Entered: 04/26/2013)
Set/Reset Hearings: Status Conference set for 5/1/2013 12:15 PM in Courtroom 24A before Judge Emmet G. Sullivan. (clv, ) (Entered: 04/26/2013)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 5/1/2013. Order To Be Issued. (Court Reporter SUSAN TYNER.) (mac) (Entered: 05/01/2013)
MINUTE ORDER. Upon consideration of the joint meet and confer statement, and pursuant to the parties' consent during the status hearing held on the record on May 1, 2013, the parties are directed to comply with the following schedule. The parties shall continue to engage in settlement negotiations until May 31, 2013. If at any point in time, they desire to have a mediator from the District Court's mediation program appointed to assist with settlement discussions, the parties shall electronically file a motion captioned "Joint Motion for Appointment of a Mediator." If this case settles in whole or in part, counsel are directed to notify the Court by filing a stipulation. In the event this case does not settle, defendants' motion for summary judgment shall be filed no later than July 15, 2013. To the extent applicable, defendants shall prepare and file a Vaughn index and the administrative record by no later than that same date. Plaintiffs' opposition shall be filed no later than August 15, 2013. If plaintiffs choose to file a cross−motion, it shall be combined with the opposition and filed on the same date. Defendants' reply and, if applicable, combined opposition shall be filed no later than September 16, 2013. Plaintiffs' reply, if applicable, shall be filed no later than October 1, 2013. These dates are firm and will not be moved absent exigent circumstances. SO ORDERED. Signed by Judge Emmet G. Sullivan on May 2, 2013. (lcegs4) (Entered: 05/02/2013)
Set/Reset Deadlines: Vaughn Indes and Administrative Record due by 7/15/2013; Summary Judgment Motion due by 7/15/13; response and Cross Motions due by 8/15/2013; reply and Response to Cross Motions due by 9/16/201;. Reply to Cross Motions due by 10/1/2013. (clv, ) (Entered: 05/02/2013)
15 Consent MOTION for Extension of Time to Submit Briefing (by One Month) by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 07/12/2013)
MINUTE ORDER granting 15 defendants' consent motion for extension of briefing schedule so that the parties may continue to focus on settlement. If this case settles in whole or in part, counsel are directed to notify the Court by filing a stipulation. In the event this case does not settle, defendants' motion for summary judgment shall be filed no later than August 15, 2013. To the extent applicable, defendants shall prepare and file a Vaughn index and the administrative record by no later than that same date. Plaintiffs' opposition shall be filed no later than September 16, 2013. If plaintiffs choose to file a cross−motion, it shall be combined with the opposition and filed on the same date. Defendants' reply and, if applicable, combined opposition shall be filed no later than October 16, 2013. Plaintiffs' reply, if applicable, shall be filed no later than November 1, 2013. SO ORDERED. Signed by Judge Emmet G. Sullivan on July 12, 2013. (lcegs4) (Entered: 07/12/2013)
Set/Reset Deadlines: Summary Judgment Motion due by 8/15/13; Vaughn Index and administrative record due by 8/15/13; Response and Cross Motions due by 9/16/2013; Reply and Response to Cross Motions due by 10/16/2013. Reply to Cross Motions due by 11/1/2013.. (clv, ) (Entered: 07/12/2013)
16 MOTION for Mediation(Circuit Executive's Alternative Dispute Resolution (ADR) Program), MOTION to Stay Pending Resolution of ADR by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 08/15/2013)

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17 Memorandum in opposition to re 16 MOTION for Mediation(Circuit Executive's Alternative Dispute Resolution (ADR) Program) MOTION to Stay Pending Resolution of ADR filed by NANCY GALE CRISMAN, NATIONAL SECURITY COUNSELORS. (Attachments: # 1 Exhibit A − McDaniel−McClanahan email, # 2 Text of Proposed Order)(McClanahan, Kelly) (Entered: 09/03/2013)
18 REPLY to opposition to motion re 16 MOTION for Mediation(Circuit Executive's Alternative Dispute Resolution (ADR) Program) MOTION to Stay Pending Resolution of ADR filed by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (McDaniel, Oliver) (Entered: 09/09/2013)
MINUTE ORDER. Pending before the Court is 16 Defendants' Motion for a Stay and Referral to this Court's Mediation Program, which plaintiffs strongly oppose. In light of the fact that plaintiffs do not agree to mediate, the Court is unwilling to waste the valuable time of a seasoned mediator. If at any future time the parties desire to have a mediator from the District Court's mediation program appointed to assist with settlement discussions, the parties shall electronically file a motion captioned "Joint Motion for Appointment of a Mediator." Accordingly, it is hereby ORDERED that defendants' motion is denied. It is FURTHER ORDERED that defendants' motion for summary judgment shall be filed no later than October 11, 2013.To the extent applicable, defendants shall prepare and file a Vaughn index and the administrative record by no later than that same date. Plaintiffs' opposition shall be filed no later than November 12, 2013. If plaintiffs choose to file a cross−motion, it shall be combined with the opposition and filed on the same date. Defendants' reply and, if applicable, combined opposition shall be filed no later than December 9, 2013. Plaintiffs' reply, if applicable, shall be filed no later than December 23, 2013. SO ORDERED.Signed by Judge Emmet G. Sullivan on September 11, 2013. (lcegs4) (Entered: 09/11/2013)
Set/Reset Deadlines: Defendant's Summary Judgment motions due by 10/11/2013. Defendant Vaughn Index due by 10/11/2013. Defendant Administrative Record due by 10/11/2013. Plaintiff Opposition to Motion for Summary Judgment due by 11/12/2013. Defendant's Reply to Motion for Summary Judgment due by 12/9/2013. Plaintiff's Replies due by 12/23/2013. (mac) (Entered: 09/12/2013)
19 Consent MOTION to Stay Case Because of Lapse of Appropriations by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 10/01/2013)
MINUTE ORDER granting 19 unopposed request for stay of the proceedings in light of the government shutdown. The government shall notify the Court as soon as Congress has appropriated funds for the Department of Justice, shall request that the stay be lifted, and shall set forth proposed new deadlines in this matter commensurate with the duration of the lapse in appropriations. Signed by Judge Emmet G. Sullivan on October 1, 2013. (lcegs4) (Entered: 10/01/2013)
Case Stayed (mac) (Entered: 10/02/2013)
20 NOTICE OF RESUMPTION OF GOVERNMENT OPERATIONS by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (McDaniel, Oliver) (Entered: 10/21/2013)
MINUTE ORDER. In view of the end of the government shut down, the parties are directed to file a proposed revised briefing schedule by no later than October 24, 2013. Signed by Judge Emmet G. Sullivan on October 22, 2013. (lcegs4) (Entered: 10/22/2013)
21 WITHDRAWN PURSUANT TO 22 NOTICE OF WITHDRAWAL..... NOTICE OF JOINT PROPOSED BRIEFING SCHEDULE by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (McDaniel, Oliver) Modified on 10/28/2013 (jf, ). (Entered:

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10/24/2013)
22 NOTICE OF WITHDRAWAL OF NOTICE OF JOINT PROPOSED BRIEFING SCHEDULE by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE re 21 Notice (Other) (McDaniel, Oliver) (Entered: 10/25/2013)
23 MOTION for Extension of Time to File Briefs (Partially Unopposed) by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 10/25/2013)
24 NOTICE OF FILING DECLARATION OF DAVID M. HARDY by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE re 23 MOTION for Extension of Time to File Briefs (Partially Unopposed) (Attachments: # 1 Declaration of David M. Hardy and Exhibit A)(McDaniel, Oliver) (Entered: 10/25/2013)
MINUTE ORDER treating as partially opposed and granting over partial opposition 23 defendants' motion for extension of briefing schedule. Defendants' motion for summary judgment shall be filed by no later than December 2, 2013, and Vaughn indices/administrative records shall be filed by no later than that same date. Plaintiffs' opposition and cross motion, if any, shall be filed by no later than January 9, 2014. Defendants' reply and opposition to cross motion, if any, shall be filed by no later than February 11, 2014, and plaintiffs' reply in support of cross motion, if any, shall be filed by no later than February 25, 2104. No further extensions of time will be granted absent exigent circumstances. Signed by Judge Emmet G. Sullivan on October 29, 2013. (lcegs4) (Entered: 10/29/2013)
Set/Reset Deadlines: Defendant's Summary Judgment motion due by 12/2/2013. Administrative Record due by 12/2/2013. Plaintiff Response to Motion for Summary Judgment due by 1/9/2014. Defendant's Reply to Opposition due by 2/11/2014. Plaintiff Reply in Support of Cross Motion due by 2/25/2014. (mac) (Entered: 10/29/2013)
25 Consent MOTION for Extension of Time to File Motion for Summary Judgment (for One Business Day) by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 12/02/2013)
MINUTE ORDER granting 25 consent motion for one day extension of time. Defendants shall file their summary judgment motion by no later than December 3, 2013. Signed by Judge Emmet G. Sullivan on December 3, 2013. (lcegs4) (Entered: 12/03/2013)
Set/Reset Deadlines: Defendant's Summary Judgment motion due by 12/3/2013. (mac) (Entered: 12/03/2013)
26 MOTION for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Memorandum in Support)(McDaniel, Oliver) (Entered: 12/03/2013)
27 MOTION for Leave to File Late Exhibits and a Statement Of Material Facts Not In Genuine Dispute In Support Of Defendants' Motion for Summary by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Text of Proposed Order, # 2 Ex. 1 (Stipulation of Dismissal), # 3 Ex. 2 (Other Complaint), # 4 Ex. 3 (2nd Declaration of David Hardy), # 5 Ex. 3 (Exhibits A − X of Hardy Dec.), # 6 Ex. 3 (Exhibit Z to Hardy Dec.), # 7 SEALED PER COUNSEL. . . . Ex. 4 (Declaration of James Holzer and Exhibits), # 8 Ex. 5 (Declaration of David Caperton and Exhibits), # 9 Ex. 6 (Declaration of Jennifer Hudson and Exhibits), # 10 Statement of Facts)(McDaniel, Oliver) Modified on 12/6/2013 (td, ). (Entered: 12/04/2013)

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28 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Text of Proposed Order, # 2 Ex. 3 (Exhibit Y − Part 1 to Hardy Dec.), # 3 Ex. 3 (Exhibit Y − Part 2 to Hardy Dec.))(McDaniel, Oliver) (Entered: 12/04/2013)
29 NOTICE OF FILING REDACTED EXHIBIT Y TO EXHIBIT 3, DECLARATION OF DAVID M. HARDY, IN SUPPORT OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE re 27 MOTION for Leave to File Late Exhibits and a Statement Of Material Facts Not In Genuine Dispute In Support Of Defendants' Motion for Summary, 26 MOTION for Summary Judgment (Attachments: # 1 Exhibit 3 (Ex. Y (redacted) to Hardy Dec. − Part 1), # 2 Exhibit 3 (Ex. Y (redacted) to Hardy Dec. − Part 2))(McDaniel, Oliver) (Entered: 12/04/2013)
MINUTE ORDER granting 27 defendants' motion for leave to late file statement of material facts and exhibits in support of the motion for 26 summary judgment. Defendants' statement of material facts and exhibits in support of motion for summary judgment are hereby deemed filed. Signed by Judge Emmet G. Sullivan on December 5, 2013. (lcegs4) (Entered: 12/05/2013)
31 STATEMENT OF MATERIAL FACTS re 26 MOTION for Summary Judgment filed by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Attachments: # 1 Exhibits, # 2 Exhibits)(jf, ) (Entered: 12/11/2013)
30 NOTICE OF FILING CORRECTED EXHIBIT 4, DECLARATION OF JAMES HOLZER, IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE re 26 MOTION for Summary Judgment (Attachments: # 1 Exhibit 4 (Declaration of James Holzer and Exhibits))(McDaniel, Oliver) (Entered: 12/06/2013)
32 SEALED ORDER re 28 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (This document is SEALED and only available to authorized persons) filed by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, DEPARTMENT OF HOMELAND SECURITY.(This document is SEALED and only available to authorized persons.)Signed by Judge Emmet G. Sullivan on 12/05/13.(zmac) (Entered: 12/11/2013)
33 SEALED Exhibit Y re 31 STATEMENT OF MATERIAL FACTS re 26 MOTION for Summary Judgment filed by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, DEPARTMENT OF HOMELAND SECURITY. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Part 2)(zjf, ) (Entered: 12/17/2013)
34 Consent MOTION for Extension of Time to File Response/Reply as to 26 MOTION for Summary Judgment by NANCY GALE CRISMAN, NATIONAL SECURITY COUNSELORS (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 01/09/2014)
MINUTE ORDER granting 34 plaintiffs' consent motion for extension of time. Plaintiffs' opposition to defendants' motion for summary judgment shall be filed by no later than January 16, 2014. Signed by Judge Emmet G. Sullivan on January 13, 2014. (lcegs4) (Entered: 01/13/2014)

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Set/Reset Deadlines: Plaintiff Opposition to Defendant'sMotion for Summary Judgment due by 1/16/2014. (mac) (Entered: 01/13/2014)
35 MOTION to Stay re 26 MOTION for Summary Judgment by NANCY GALE CRISMAN, NATIONAL SECURITY COUNSELORS (Attachments: # 1 Exhibit A − Ibrahim order, # 2 Text of Proposed Order)(McClanahan, Kelly) (Entered: 01/15/2014)
36 Memorandum in opposition to re 35 MOTION to Stay re 26 MOTION for Summary Judgment filed by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (McDaniel, Oliver) (Entered: 01/29/2014)
37 Cross MOTION for Briefing Schedule (New) by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 01/29/2014)
38 REPLY to opposition to motion re 35 MOTION to Stay re 26 MOTION for Summary Judgment filed by NANCY GALE CRISMAN, NATIONAL SECURITY COUNSELORS. (McClanahan, Kelly) (Entered: 02/05/2014)
39 Memorandum in opposition to re 37 Cross MOTION for Briefing Schedule (New) filed by NANCY GALE CRISMAN, NATIONAL SECURITY COUNSELORS. (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 02/05/2014)
MINUTE ORDER granting 35 plaintiffs' motion to stay and denying 37 defendants' cross motion for briefing schedule. "A trial court has broad discretion to stay all proceedings in an action pending the resolution of independent proceedings elsewhere." Hisler v. Gallaudet Univ., 344 F.Supp.2d29, 35 (D.D.C. 2004) (citing Landis v. North Am. Co., 299 U.S. 248, 254 (1936)). The court "must weigh competing interests and maintain an even balance," when determining when to stay a proceeding. Landis, 299 U.S. at 254. "The power to stay proceedings is... inherent in every court to control thedisposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." Air Line Pilots Ass'n v. Miller, 523 U.S. 866, 879 n.6 (1998) (quoting Landis, 299 U.S. at 254−55). "Indeed, a trial court may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it pending resolution of independent proceedings which bear upon the case." IBT/HERE Employee Representatives Councilv. Gate Gourmet Div. Ams., 402 F.Supp.2d 289, 292 (D.D.C. 2005). For substantially the reasons stated in plaintiffs' motion to stay the case and reply in support thereof, the Court will, in the exercise of its sound discretion, STAY this case for a limited period of time, until April 22, 2014, in order to provide plaintiffs the opportunity to address Judge Alsup's unsealed, or partially unsealed, memorandum opinion in Ibrahim v. DHS, No. 06−545 (N.D. Cal.). Plaintiffs' opposition to defendants' motion for summary judgment and cross motion, if any, shall be filed by no later than April 22, 2014. Defendants' reply and opposition to cross motion, if any, shall be filed by no later than May 22, 2014, and plaintiffs' reply in support of cross motion, if any, shall be filed by no later than June 5, 2014. SO ORDERED. Signed by Judge Emmet G. Sullivan on February 13, 2014. (lcegs4) (Entered: 02/13/2014)
40 MOTION for Extension of Time to File Response/Reply as to 26 MOTION for Summary Judgment by NANCY GALE CRISMAN, NATIONAL SECURITY COUNSELORS (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 04/18/2014)
MINUTE ORDER treating as opposed and granting over objection 40 plaintiffs' motion for extension of time. Plaintiffs' opposition to defendants' motion for summary judgment shall be filed by no later than April 28, 2014. Signed by Judge Emmet G. Sullivan on April 18, 2014. (lcegs2) (Entered: 04/18/2014)
Set/Reset Deadlines: Plaintiff's Opposition to Defendant's Motion for Summary Judgment due by 4/28/2014. (mac) (Entered: 04/24/2014)
41 Memorandum in opposition to re 26 MOTION for Summary Judgment filed by NANCY GALE CRISMAN, NATIONAL SECURITY COUNSELORS. (Attachments: # 1 Exhibit A − NSD response letter, # 2 Exhibit B −

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Jones−McClanahan appeal correspondence, # 3 Exhibit C − McClanahan−McDaniel email, # 4 Exhibit D − April 2004 transmittal notice, # 5 Exhibit E − May 2004 transmittal notice, # 6 Exhibit F − FRB−OPM notice of termination, # 7 Exhibit G − Ibrahim declarations, # 8 Exhibit H − Ibrahim opinion, # 9 Text of Proposed Order)(McClanahan, Kelly) (Entered: 04/29/2014)
42 Consent MOTION for Extension of Time to File Response/Reply as to 26 MOTION for Summary Judgment (Nunc Pro Tunc) by NANCY GALE CRISMAN, NATIONAL SECURITY COUNSELORS (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 04/29/2014)
MINUTE ORDER granting, nunc pro tunc, 42 plaintiffs' motion for one day extension to file opposition to the government's motion for summary judgment. Signed by Judge Emmet G. Sullivan on April 30, 2014. (lcegs4) (Entered: 04/30/2014)
43 MOTION to Modify the Current Briefing Schedule or, alternatively,, MOTION for Extension of Time to File Response/Reply (Partial Consent) by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 05/15/2014)
44 NOTICE OF PLAINTIFFS' FULL CONSENT TO DEFENDANTS' MOTION TO MODIFY THE CURRENT BRIEFING SCHEDULE OR, ALTERNATIVELY, TO EXTEND THE TIME FOR DEFENDANTS TO FILE THEIR REPLY BRIEF by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE re 43 MOTION to Modify the Current Briefing Schedule or, alternatively, MOTION for Extension of Time to File Response/Reply (Partial Consent) (McDaniel, Oliver) (Entered: 05/20/2014)
MINUTE ORDER granting defendants' request to modify the briefing schedule. The revised schedule shall be as follows: by no later than June 10, 2014 Defendants shall file their Reply in Support of their First Motion for Summary Judgment (MSJ) and Second MSJ; by no later than July 14, 2014 Plaintiffs shall file their Second Opposition and, if applicable, Cross−Motion for Summary Judgment; by no later than August 12, 2014 Defendants shall file their Reply in support of their Second MSJ and, if applicable, Cross−Opposition; by no later than September 5, 2014, plaintiffs shall file their Reply in support of their Cross−Motion, if applicable. Signed by Judge Emmet G. Sullivan on May 23, 2014. (lcegs4) (Entered: 05/23/2014)
Set/Reset Deadlines: Defendants Shall File Reply In Support of First And Second Motion For Summary Judgment due by 6/10/14. Plaintiff's Shall File Their Second Opposition And If Applicable, Cross Motion For Summary Judgment ue by 7/14/14. Defendants Shall File Their Reply In Support Of Their Second Motion For Summary Judgment And, If Applicable, Cross−Oppostion due by 8/12/14. Plaintiffs Shall File Their Reply In Support Of Their Cross−Motion, If Applicable, due by 9/5/14. (mac) (Entered: 05/23/2014)
45 REPLY to opposition to re 26 First Motion for SUmmary Judgment filed by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (McDaniel, Oliver) Modified on 6/11/2014 (jf, ). (Entered: 06/10/2014)
46 Second MOTION for Summary Judgment and to Dismiss by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Memorandum in Support)(McDaniel, Oliver) (Entered: 06/11/2014)
Case reassigned to Judge Tanya S. Chutkan. Judge Emmet G. Sullivan no longer assigned to the case. (ztnr, ) (Entered: 06/11/2014)
47 Consent MOTION for Extension of Time to File Response/Reply as to 46 Second MOTION for Summary Judgment and to Dismiss by NANCY GALE CRISMAN,

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NATIONAL SECURITY COUNSELORS (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 07/14/2014)
48 NOTICE of Circumstances Necessitating Requested Modification of Briefing Schedule by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE re 47 Consent MOTION for Extension of Time to File Response/Reply as to 46 Second MOTION for Summary Judgment and to Dismiss (McDaniel, Oliver) (Entered: 07/14/2014)
49 Consent MOTION for Extension of Time to File Response/Reply as to 46 Second MOTION for Summary Judgment and to Dismiss by NANCY GALE CRISMAN, NATIONAL SECURITY COUNSELORS (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) (Entered: 07/31/2014)
MINUTE ORDER: Finding as moot 47 Consent Motion for Extension of Time to File Response/Reply ; Granting 49 Consent Motion for Extension of Time to File Response/Reply ; Set/Reset Deadlines: Plaintiffs' Response due by 8/18/2014. Defendants' Reply due by 9/30/2014. Plaintiffs' Reply due by 10/21/2014. Signed by Judge Tanya S. Chutkan on 8/15/14. (djs) (Entered: 08/15/2014)
50 Memorandum in opposition to re 46 Second MOTION for Summary Judgment and to Dismiss filed by NANCY GALE CRISMAN, NATIONAL SECURITY COUNSELORS. (Attachments: # 1 Exhibit A − Watchlisting Guidance, # 2 Exhibit B − National Foreign Intelligence Program Manual, # 3 Exhibit C − 2003 QFR responses, # 4 Exhibit D − Crisman declaration, # 5 Exhibit E − 2009 QFR responses, # 6 Exhibit F − 1999 delegation memo, # 7 Exhibit G − Crisman JMD response, # 8 Exhibit H − NSC JMD response, # 9 Text of Proposed Order)(McClanahan, Kelly) (Entered: 08/20/2014)
51 NOTICE of Filing Corrected Exhibit by NANCY GALE CRISMAN, NATIONAL SECURITY COUNSELORS re 50 Memorandum in Opposition,, (Attachments: # 1 Exhibit D − Crisman declaration)(McClanahan, Kelly) (Entered: 08/20/2014)
52 MOTION for Leave to File Additional Exhibits by NANCY GALE CRISMAN, NATIONAL SECURITY COUNSELORS (Attachments: # 1 Exhibit I − VGTOF EC, # 2 Exhibit J − May 2001 AG memo, # 3 Text of Proposed Order)(McClanahan, Kelly) (Entered: 09/09/2014)
53 ERRATA by NANCY GALE CRISMAN, NATIONAL SECURITY COUNSELORS 52 MOTION for Leave to File Additional Exhibits filed by NATIONAL SECURITY COUNSELORS, NANCY GALE CRISMAN. (McClanahan, Kelly) (Entered: 09/09/2014)
54 Consent MOTION for Extension of Time to File Response/Reply as to 46 Second MOTION for Summary Judgment and to Dismiss , MOTION for Extension of Time to File Opposition to 52 Plaintiffs' Motion for Leave to File Additional Exhibits by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Text of Proposed Order)(McDaniel, Oliver) (Entered: 09/26/2014)
MINUTE ORDER: Granting 54 Consent Motion for Extension of Time to File. Defendants' Combined Reply Memorandum Supporting their Second Motion for Summary Judgment and their Opposition to Plaintiff's Motion shall be filed not later than 10/3/2014. Signed by Judge Tanya S. Chutkan on 9/27/14. (DJS) (Entered: 09/27/2014)
Set/Reset Deadlines: Defendant's Reply Memorandum supporting their Second Motion for Summary Judgment and their Opposition to Plaintiff's Motion due by 10/3/2014. (sm) (Entered: 09/29/2014)
55 Memorandum in opposition to re 52 MOTION for Leave to File Additional Exhibits filed by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (McDaniel, Oliver) (Entered: 10/03/2014)

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56 REPLY to opposition to motion re 46 Second MOTION for Summary Judgment and to Dismiss and Supplemental Memorandum filed by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (McDaniel, Oliver) (Entered: 10/03/2014)
57 REPLY to opposition to motion re 52 MOTION for Leave to File Additional Exhibits filed by NANCY GALE CRISMAN, NATIONAL SECURITY COUNSELORS. (Attachments: # 1 Exhibit A)(McClanahan, Kelly) (Entered: 10/15/2014)
58 NOTICE of Change of Address by Kelly Brian McClanahan (McClanahan, Kelly) (Entered: 07/21/2015)
59 NOTICE OF SUPPLEMENTAL AUTHORITY by NANCY GALE CRISMAN, NATIONAL SECURITY COUNSELORS (Attachments: # 1 Exhibit K − DOJ guidance)(McClanahan, Kelly) (Entered: 08/20/2015)
60 NOTICE OF SUBSTITUTION OF COUNSEL by Brian J. Field on behalf of All Defendants Substituting for attorney Oliver W. McDaniel (Field, Brian) (Entered: 05/27/2016)
61 Unopposed MOTION for Hearing Status Conference by NANCY GALE CRISMAN, NATIONAL SECURITY COUNSELORS (Attachments: # 1 Text of Proposed Order)(McClanahan, Kelly) Modified event title on 4/23/2018 (znmw). (Entered: 04/19/2018)
62 MEMORANDUM AND OPINION regarding 26 Defendants' First Motion for Summary Judgment, 46 Defendants' Second Motion for Summary Judgment and to Dismiss, and 52 Plaintiffs' Motion for Leave to File Additional Exhibits. Signed by Judge Tanya S. Chutkan on 9/18/2018. (lctsc2). (Entered: 09/18/2018)
63 ORDER: Granting in part and denying in part Defendants' 26 First Motion for Summary Judgment and 46 Second Motion for Summary Judgment and to Dismiss. The order also grants 52 Plaintiffs' Motion for Leave to File Additional Exhibits. The Department of Justice is hereby ordered to submit a declaration that provides more details regarding the application of the deliberative process and work product privileges to the information withheld pursuant to Exemption (b)(5). This declaration is due by October 2, 2018. Signed by Judge Tanya S. Chutkan on 9/18/2018. (lctsc2). Modified on 9/19/2018 (DJS). (Entered: 09/18/2018)
MINUTE ORDER: Denying 61 without prejudice Plaintiffs' Motion for Hearing. Signed by Judge Tanya S. Chutkan on 9/25/18. (DJS) (Entered: 09/25/2018)
64 MOTION for Extension of Time to File Supplemental Declaration by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Field, Brian) (Entered: 09/28/2018)
MINUTE ORDER: Defendants' 64 Motion for Extension of Time is hereby GRANTED. The Department of Justice shall submit its supplemental declaration concerning Exemption (b)(5) by November 2, 2018. Signed by Judge Tanya S. Chutkan on 10/1/2018. (lctsc2). (Entered: 10/01/2018)
Set/Reset Deadlines: Supplemental declaration due by 11/2/2018. (tb) (Entered: 10/02/2018)
65 NOTICE of filing of Third Hardy Declaration by DEPARTMENT OF JUSTICE re Order on Motion for Extension of Time to, (Attachments: # 1 Declaration Third Hardy Declaration)(Field, Brian) (Entered: 11/01/2018)
66 SUPPLEMENTAL MEMORANDUM OPINION regarding Defendants' First Motion 26 for Summary Judgment. Signed by Judge Tanya S. Chutkan on 3/25/2019. (lctsc1) (Entered: 03/25/2019)
67 ORDER granting Defendants' First Motion 26 for Summary Judgment with respect to Count Two. Signed by Judge Tanya S. Chutkan on 3/25/2019. (lctsc1) (Entered: 03/25/2019)

03/25/2019 03/26/2019 03/29/2019 04/04/2019
04/05/2019 04/30/2019 05/30/2019 07/01/2019 07/24/2019 07/24/2019 07/26/2019 08/07/2019 08/26/2019
08/27/2019 09/03/2019 10/03/2019

MINUTE ORDER: On or before March 29, 2019, the parties shall file a joint status report advising whether this case can be closed. Signed by Judge Tanya S. Chutkan on 3/25/2019. (lctsc1) (Entered: 03/25/2019)
Set/Reset Deadline: The parties shall file a Joint Status Report by 3/29/2019 advising whether this case can be closed. (jth) (Entered: 03/26/2019)
68 Joint STATUS REPORT by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Field, Brian) (Entered: 03/29/2019)
MINUTE ORDER: Having considered the parties' joint status report 68 , it is hereby ordered that the parties shall file another joint report by 4/30/19 and every 30 days thereafter. To the extent the report contains a proposed briefing schedule, the report shall include a proposed order. Signed by Judge Tanya S. Chutkan on 4/4/19. (DJS) (Entered: 04/04/2019)
Set/Reset Deadlines: Joint Status Report due by 4/30/2019. (tb) (Entered: 04/05/2019)
69 Joint STATUS REPORT by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Field, Brian) (Entered: 04/30/2019)
70 Joint STATUS REPORT by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Field, Brian) (Entered: 05/30/2019)
71 Joint STATUS REPORT by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Field, Brian) (Entered: 07/01/2019)
72 Consent MOTION for Extension of Time to file Joint Status Report by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Field, Brian) (Entered: 07/24/2019)
MINUTE ORDER: Granting 72 Consent Motion for Extension of Deadlines. The parties shall file a joint status report and proposed order by August 7, 2019. Signed by Judge Tanya S. Chutkan on 7/24/19. (DJS) (Entered: 07/24/2019)
Set/Reset Deadlines: Joint Status Report due by 8/7/2019. (tb) (Entered: 07/26/2019)
73 Joint STATUS REPORT by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Field, Brian) (Entered: 08/07/2019)
MINUTE ORDER: Having considered the parties' joint status report 73 , it is hereby ordered that the parties shall file another joint report by 9/3/19 and every 30 days thereafter. A proposed order shall be attached to the report to the extent the report contains a proposed production schedule or briefing schedule. Signed by Judge Tanya S. Chutkan on 8/26/19. (DJS) (Entered: 08/26/2019)
Set/Reset Deadlines: Joint Status Report due by 9/3/2019. (tb) (Entered: 08/27/2019)
74 Joint STATUS REPORT by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Field, Brian) (Entered: 09/03/2019)
75 Joint STATUS REPORT by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Field, Brian) (Entered: 10/03/2019)

11/04/2019 12/04/2019 01/03/2020 02/03/2020 03/03/2020 04/03/2020 04/13/2020
04/13/2020 05/22/2020 06/02/2020
06/02/2020 07/30/2020

76 Joint STATUS REPORT by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Field, Brian) (Entered: 11/04/2019)
77 STATUS REPORT by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Field, Brian) (Entered: 12/04/2019)
78 Joint STATUS REPORT by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Field, Brian) (Entered: 01/03/2020)
79 Joint STATUS REPORT by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Attachments: # 1 Exhibit)(Field, Brian) (Entered: 02/03/2020)
80 Joint STATUS REPORT by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Field, Brian) (Entered: 03/03/2020)
81 Joint STATUS REPORT by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Attachments: # 1 Exhibit Pls.' Exhibit)(Field, Brian) (Entered: 04/03/2020)
MINUTE ORDER: Having considered the parties' joint status report 81 , the court hereby orders the parties to file another joint status report by May 22, 2020. In that report, the Defendants shall provide: 1) a detailed explanation regarding the status of any ongoing searches; 2) a list of all agency searches that have concluded and are ready for release to the Plaintiff; and 3) the specific reasons any searches are currently hampered or have been hampered by Plaintiff's alleged failure to provide required or helpful additional information. To the extent the current national crisis has impacted the Defendants' search efforts, the Defendants shall explain the nature of the impact and provide a short declaration in support of Defendants' position. Signed by Judge Tanya S. Chutkan on 4/13/2020. (DJS) (Entered: 04/13/2020)
Set/Reset Deadlines: Joint Status Report due by 5/22/2020. (tb) (Entered: 04/13/2020)
82 Joint STATUS REPORT by BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Attachments: # 1 Declaration Hardy Decl.)(Field, Brian) (Entered: 05/22/2020)
MINUTE ORDER: Having considered the parties' joints status report 82 , it is hereby ordered that the parties shall adhere to the following deadlines: Defendants' Motion for Summary Judgment shall be filed by July 30, 2020. Plaintiffs' Combined Opposition and Cross−Motion for Summary Judgment shall be filed by August 31, 2020. Defendants' Combined Reply and Opposition shall be filed by September 30, 2020. Plaintiffs' Reply shall be filed by October 21, 2020. The parties are hereby reminded that pursuant to Local Civil Rule 5.1(d), footnotes "shall not be excessive" and shall appear in 12−pt. font. Failure to comply with this rule or any other relevant rule may result in the court sua sponte striking a parties' brief. Signed by Judge Tanya S. Chutkan on 6/2/2020. (DJS) (Entered: 06/02/2020)
Set/Reset Deadlines: Cross Motion due by 8/31/2020. Response to Cross Motion due by 9/30/2020. Reply to Cross Motion due by 10/21/2020. Summary Judgment motion due by 7/30/2020. Response to Motion for Summary Judgment due by 8/31/2020. Reply to Motion for Summary Judgment due by 9/30/2020. (tb) (Entered: 06/02/2020)
83 MOTION for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2

Statement of Facts, # 3 Exhibit A (McFadden Decl.), # 4 Exhibit B (2d Holzer Decl.), # 5 Exhibit C (Proposal), # 6 Exhibit D (E−mails))(Field, Brian) (Entered: 07/30/2020)