Case: 1:17-cv-7439 As of: 06/08/2018 03:34 PM EDT 1 of 3
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:17−cv−07439−KBF

CLOSED,ECF

New York Times Company et al v. U.S. Department Of Justice et al Assigned to: Judge Katherine B. Forrest Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 09/28/2017 Date Terminated: 01/17/2018 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

New York Times Company

represented by David Edward McCraw The New York Times Company (10018) 620 Eighth Avenue New York, NY 10018 (212) 556−4031 Fax: (212) 556−1009 Email: mccraw@nytimes.com ATTORNEY TO BE NOTICED

Plaintiff Charlie Savage

represented by David Edward McCraw (See above for address) ATTORNEY TO BE NOTICED

V. Defendant U.S. Department of Justice
Defendant U.S. Department of Education

represented by Sharanya Mohan United States Attorney's Office Southern District Of New York 86 Chambers Street, Third Floor New York, NY 10007 (212)−637−2737 Fax: (212)−637−2786 Email: sharanya.mohan@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sharanya Mohan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/28/2017
09/28/2017

# Docket Text
1 COMPLAINT against Department Of Justice, Department of Education. (Filing Fee $ 400.00, Receipt Number 0208−14183881)Document filed by New York Times Company, Charlie Savage. (Attachments: # 1 Civil Cover Sheet)(McCraw, David) (Entered: 09/28/2017)
2 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Corporate Parent Grupo Financiero Inbursa de S.A.B. de C.V for New York Times Company. Document filed by New York Times Company, Charlie Savage.(McCraw, David) (Entered: 09/28/2017)

Case: 1:17-cv-7439 As of: 06/08/2018 03:34 PM EDT 2 of 3

09/28/2017 09/29/2017
09/29/2017
09/29/2017
09/29/2017
09/29/2017 09/29/2017 09/29/2017 09/29/2017 10/02/2017 10/02/2017 10/02/2017
10/18/2017

3 FILING ERROR − DEFICIENT PLEADING − FILED AGAINST PARTY ERROR −REQUEST FOR ISSUANCE OF SUMMONS as to Department of Justice; Department of Education, re: 1 Complaint. Document filed by New York Times Company, Charlie Savage. (McCraw, David) Modified on 9/29/2017 (pc). (Entered: 09/28/2017)
***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney David Edward McCraw. The party information for the following party/parties has been modified: Department Of Justice, Department of Education. The information for the party/parties has been modified for the following reason/reasons: party name contained a typographical error. (pc) (Entered: 09/29/2017)
***NOTICE TO ATTORNEY REGARDING DEFICIENT CIVIL COVER SHEET. Notice to attorney David Edward McCraw to RE−FILE Document No. 1 Complaint. The filing is deficient for the following reason(s): the event wrong event type was used to file the civil cover sheet. Re−file the document using the event type Civil Cover Sheet found under the event list Other Documents and attach the correct PDF.. (pc) (Entered: 09/29/2017)
***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney to RE−FILE Document No. 3 Request for Issuance of Summons. The filing is deficient for the following reason(s): Parties listed on the docket entry for the summons must be written exactly as they appear on the complaint caption title. Re−file the document using the event type Request for Issuance of Summons found under the event list Service of Process − select the correct filer/filers − and attach the correct summons form PDF. (pc) (Entered: 09/29/2017)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The above−entitled action is assigned to Judge John G. Koeltl. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (pc) (Entered: 09/29/2017)
Magistrate Judge Gabriel W. Gorenstein is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php. (pc) (Entered: 09/29/2017)
Case Designated ECF. (pc) (Entered: 09/29/2017)
4 CIVIL COVER SHEET filed. (McCraw, David) (Entered: 09/29/2017)
5 REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Department of Education; U.S. Department of Justice, re: 1 Complaint. Document filed by New York Times Company, Charlie Savage. (McCraw, David) (Entered: 09/29/2017)
6 ELECTRONIC SUMMONS ISSUED as to U.S. Department of Education, U.S. Department of Justice. (kl) (Entered: 10/02/2017)
NOTICE OF CASE REASSIGNMENT to Judge Katherine B. Forrest. Judge John G. Koeltl is no longer assigned to the case. (ma) (Entered: 10/02/2017)
7 ORDER: Accordingly, the Court hereby directs the parties to confer and file a joint letter stating whether you agree and, if so, proposing a briefing schedule in this matter. The joint letter shall be filed by the parties not later than Monday, October 30, 2017. Additionally, it is hereby ORDERED that lead counsel for all parties shall appear for a conference on Thursday, November 2, 2017 at 9:00 a.m. SO ORDERED., ( Status Conference set for 11/2/2017 at 09:00 AM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 10/02/2017) (ama) (Entered: 10/02/2017)
8 NOTICE OF APPEARANCE by Sharanya Mohan on behalf of U.S. Department of Education, U.S. Department of Justice. (Mohan, Sharanya) (Entered: 10/18/2017)

Case: 1:17-cv-7439 As of: 06/08/2018 03:34 PM EDT 3 of 3

10/24/2017
10/30/2017
10/30/2017 11/09/2017 11/22/2017 11/27/2017
11/27/2017 01/17/2018

9 CONSENT LETTER MOTION for Extension of Time to submit joint letter and for adjournment of conference addressed to Judge Katherine B. Forrest from Sharanya Mohan dated October 24, 2017. Document filed by U.S. Department of Education, U.S. Department of Justice.(Mohan, Sharanya) (Entered: 10/24/2017)
10 ORDER granting 9 Letter Motion for Extension of Time. Adjournment is granted. The IPTC is rescheduled to 12/8/2017 at 4 pm. The 10/30 deadline for the joint briefing schedule is adjourned to 11/22/2017. So Ordered. (Signed by Judge Katherine B. Forrest on 10/30/2017) (js) (Entered: 10/30/2017)
Set/Reset Hearings: Initial Conference set for 12/8/2017 at 04:00 PM before Judge Katherine B. Forrest. (js) (Entered: 10/30/2017)
11 ANSWER to 1 Complaint. Document filed by U.S. Department of Education, U.S. Department of Justice.(Mohan, Sharanya) (Entered: 11/09/2017)
12 JOINT LETTER addressed to Judge Katherine B. Forrest from David E. McCraw dated 11/22/2017 re: Joint Proposed Schedule. Document filed by New York Times Company, Charlie Savage.(McCraw, David) (Entered: 11/22/2017)
13 MEMO ENDORSED on re: 12 Letter filed by New York Times Company, Charlie Savage. ENDORSEMENT: The Initial conference previously scheduled for 12/8/17 is adjourned. The motions schedule above shall govern. So Ordered.( Cross Motions due by 2/26/2018., Motions due by 1/29/2018., Responses due by 2/26/2018, Replies due by 3/26/2017.) (Signed by Judge Katherine B. Forrest on 11/27/2017) (js) (Entered: 11/27/2017)
Set/Reset Deadlines: Replies due by 3/26/2018. (js) (Entered: 01/10/2018)
14 STIPULATION OF VOLUNTARY DISMISSAL: IT IS HEREBY STIPULATED AND AGREED by and between the parties' respective counsel that: 1. The above−captioned action is voluntarily dismissed with prejudice against defendants U.S. Department of Education and U.S. Department of Justice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), with each side bearing its own fees and costs. 2. This Stipulation may be signed in counterparts. SO ORDERED. (Signed by Judge Katherine B. Forrest on 1/17/2018) (ama) (Entered: 01/17/2018)

 
 Case 1:17-cv-07439-JGK Document 1 Filed 09/28/17 Page 1 of 6

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

________________________________________________

X

THE NEW YORK TIMES COMPANY

:

and CHARLIE SAVAGE,

:

Plaintiffs,

:

- against -

:

U.S. DEPARTMENT OF EDUCATION

:

and U.S. DEPARTMENT OF JUSTICE,

:

Defendants.

:

________________________________________________X

COMPLAINT

Plaintiffs THE NEW YORK TIMES COMPANY and CHARLIE SAVAGE, by their undersigned attorney, allege for their Complaint:
1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to obtain an order for the production of agency records from Defendants Department of Education (“DOE”) and Department of Justice (“DOJ”) in response to FOIA requests properly made by Plaintiffs.
2. On August 1, 2017, Plaintiff Charlie Savage reported in The New York Times that the Department of Justice had posted an announcement to the agency’s Civil Rights Division seeking lawyers for a new project involving “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.” The announcement suggested that President Trump and his administration intend to use DOJ resources to investigate and sue universities over affirmative action admissions policies that allegedly discriminate against white applicants. See Charlie Savage, Justice Dept. to Take On
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Affirmative Action in College Admissions, N.Y. TIMES, Aug. 1, 2017, available at http://nyti.ms/2yuEYzp.
3. Administration officials subsequently disputed the account, and there remains an unresolved dispute over whether the administration is shifting direction in its review of university affirmative action admissions policies.
4. The FOIA requests at issue in this action seek records relating to the work of the Civil Rights Division on affirmative action under the new administration.
PARTIES 5. Plaintiff The New York Times Company publishes The New York Times newspaper and www.nytimes.com. The New York Times Company is headquartered in this judicial district at 620 Eighth Avenue, in Manhattan. 6. Plaintiff Charlie Savage is a reporter for The New York Times and an employee of The New York Times Company. 7. Defendant DOJ is an agency of the federal government that has possession and control of the records that Plaintiffs seek. 8. Defendant DOE is an agency of the federal government that has possession and control of the records that Plaintiffs seek.
JURISDICTION AND VENUE 9. This Court has subject matter jurisdiction over this action, pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 552(a)(4)(B). 10. Venue is premised on the place of business of Plaintiffs and is proper in this district under 5 U.S.C. § 552(a)(4)(B).
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11. Plaintiffs have exhausted all administrative remedies available. An agency must make and communicate its determination whether to comply with a request under FOIA within 20 business days of receiving the request, 5 U.S.C. § 552(a)(6)(A)(i), or within 30 business days if the agency determines that unusual circumstances apply. 5 U.S.C. § 552(a)(6)(B)(i)-(iii). The DOE and DOJ have failed to make an initial determination with respect to Plaintiffs’ request within the timeframe set by FOIA, and Plaintiffs are therefore deemed to have exhausted all administrative remedies, pursuant to 5 U.S.C. § 552(a)(6)(C).
FACTS 12. On August 10, 2017, the Times submitted a FOIA request to the DOJ (DOJ-2017-006008) seeking: “1. Emails, texts, memos, or other documents sent to or from Rachel Brand or Jesse Panuccio in the Office of the Associate Attorney General, or to John Gore, Kathy Toomey, Eric Treene or Tom Wheeler in the Civil Rights Division, between January 20, 2017 and the present, containing any of the following terms: ‘admissions,’ ‘affirmative action,’ ‘Blum,’ ‘Center for Equal Opportunity,’ ‘Chapel Hill,’ ‘Clegg,’ ‘college,’ ‘Department of Education,’ ‘Education Department,’ ‘Harvard,’ ‘North Carolina,’ ‘OCR,’ ‘O.C.R.,’ ‘Office for Civil Rights,’ ‘Princeton,’ ‘PFR,’ ‘P.F.R.,’ Project on Fair Representation,’ ‘reverse discrimination,’ ‘SFA,’ ‘S.F.A.,’ ‘Students for Fair Admissions,’ ‘UNC,’ ‘U.N.C.,’ ‘university,’ or ‘17-CRT-DTL-012.’ 2. Emails, texts, or memos pertaining to the Civil Rights Division detail opportunity to work on investigations and possible litigation related to intentional race-based discrimination in college and university admissions. 3. Resumes submitted by Justice Department employees applying for detail opportunity No. 17-CRT-DTL-012.” 13. On September 8, 2017, the DOJ determined that “unusual circumstances” applied, pursuant to 5 U.S.C. § 552 (a)(6)(B)(i)-(iii).
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14. The DOJ has failed to issue a response within 30 business days, as required under FOIA. See 5 U.S.C. § 552(a)(6)(A)(i); 5 U.S.C. § 552(a)(6)(B)(i)-(iii).
15. On August 10, 2017, the Times submitted a FOIA request to the DOE (1702423-F) seeking: “copies of emails, texts memos, or other documents sent to or from Candice Jackson in the Office for Civil Rights containing any of the following words or terms: ‘admissions,’ ‘affirmative action,’ ‘Blum,’ ‘Brand,’ ‘Center for Equal Opportunity,’ ‘Chapel Hill,’ ‘Civil Rights Division,’ ‘CRT,’ ‘C.R.T.’ ‘Clegg,’ ‘Department of Justice,’ ‘Gore, ‘Justice Department,’ ‘Harvard,’ ‘North Carolina,’ ‘Panuccio,’ ‘Princeton,’ ‘PFR,’ ‘P.F.R.,’ ‘Project on Fair Representation,’ ‘reverse discrimination,’ ‘SFA,’ ‘S.F.A.,’ ‘Students for Fair Admissions,’ ‘Toomey,’ ‘Treene,’ ‘UNC,’ ‘U.N.C.,’ or ‘Wheeler.’”
16. On August 28, 2017, Plaintiff Charlie Savage agreed to narrow his request to the DOE to the “generally understood meanings of the terms.”
17. On September 12, 2017, Plaintiff Charlie Savage further narrowed his request to the DOE to records relating to “cases/complaints/discussion” of “college and university affirmative action/race conscious admissions policies,” and to the names of specific individuals (for example, he narrowed the search for keyword “Brand” to records relating to Rachel Brand, the Associate Attorney General of the United States).
18. The DOE has failed to issue a response to the request within 20 business days, as required under FOIA. See 5 U.S.C. § 552(a)(6)(A)(i).
COUNT I 19. Plaintiffs repeat, reallege, and reincorporate the allegations in the foregoing paragraphs as though fully set forth herein.
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20. Defendant DOJ is subject to FOIA and must therefore release in response to a FOIA request any disclosable records in its possession at the time of the request and provide a lawful reason for withholding any materials as to which it is claiming an exemption.
21. The DOJ has failed to act on Plaintiffs’ request within 30 business days as required by FOIA. See 5 U.S.C. § 552(a)(6)(A)(i); 5 U.S.C. § 552(a)(6)(B)(i)-(iii). Accordingly, Plaintiffs are deemed to have exhausted their administrative remedies under FOIA.
22. The DOJ has no lawful basis for declining to release the records requested by Plaintiffs under FOIA.
23. Accordingly, Plaintiffs are entitled to an order compelling DOJ to produce records responsive to their FOIA request.
COUNT II 24. Plaintiffs repeat, reallege, and reincorporate the allegations in the foregoing paragraphs as though fully set forth herein. 25. Defendant DOE is subject to FOIA and must therefore release in response to a FOIA request any disclosable records in its possession at the time of the request and provide a lawful reason for withholding any materials as to which it is claiming an exemption. 26. The DOE has failed to act on Plaintiffs’ request within 20 business days as required by FOIA. See 5 U.S.C. § 552(a)(6)(A)(i). Accordingly, Plaintiffs are deemed to have exhausted their administrative remedies under FOIA. 27. The DOE has no lawful basis for declining to release the records requested by Plaintiffs under FOIA. 28. Accordingly, Plaintiffs are entitled to an order compelling the DOE to produce records responsive to their FOIA request.
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REQUEST FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court:
29. Declare that the documents sought by their FOIA request, as described in the foregoing paragraphs, are public under 5 U.S.C. § 552 and must be disclosed;
30. Order the DOE and DOJ to provide the requested documents to Plaintiffs within 20 business days of the Court’s order;
31. Award Plaintiffs the costs of this proceeding, including reasonable attorneys’ fees, as expressly permitted by FOIA; and
32. Grant Plaintiffs such other and further relief as this Court deems just and proper.

Dated: New York, NY September 28, 2017

_____________/s/_________________ David E. McCraw, Esq. Legal Department The New York Times Company 620 8th Avenue, 18th Floor New York, NY 10018 phone: (212) 556-4031 fax: (212) 556-1009 e-mail: mccrad@nytimes.com Counsel for Plaintiffs
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