U.S.

Department of Justice
United States Attorney
Eastern District of New York
271 Cadman Plaza East-7th Floor
Brooklyn, New York 11201
November 3, 2015
By Email and First-Class Mail
Louis Flores
34-21 77th Street, Apt. #406
Jackson Heights, New York 11372
Re:

Louis Flores v. United States Department of Justice

No. 15-CV-2627 (Gleeson, J.) (Mann, M.J.)

Dear Mr. Flores:

On behalf of Defendant United States Department of Justice (DOJ or Defendant), we
write in response to your letter dated October 26, 2015.
The Courts September 16, 2015 Minute Entry Order sustained Defendants objections to
your request for discovery. (See Dkt. No. 14). The information provided in the undersigneds
letter dated October 13, 2015 was offered in furtherance of the Courts direction to confer
further, in good faith to accommodate the Courts encouragement, and without waiver of
Defendants arguments and defenses asserted in this action. Most of your questions and
comments that span your 11-page October 26, 2015 letter appear to be an attempt to obtain
discovery that the Court has not permitted. Defendant again objects to discovery in this matter.
Nevertheless, and without waiver of any and all defenses and arguments asserted by
Defendant in this action, Defendant provides the following points of clarification as to a couple
questions raised in your October 26, 2015 letter.
Your question numbered 1(f) states that the search did not include a consultation with the
Assistant United States Attorney (AUSA) assigned to the prosecution of Daniel Choi. (Oct.
26, 2015 Letter at p. 2). However, it did; Ms. Kelly consulted the AUSA, as set forth in
paragraphs 16 through 18 of Ms. Kellys declaration.
In your question numbered 1(j), you have questions as to the discretionary release of
publicly-available documents by the EOUSA. (Oct. 26, 2015 Letter at pp. 2-3). To correct your
statement in that paragraph, and as previously discussed, the undersigned did not refer you to
PACER to collect documents, but stated that the publicly-available documents were available on
PACER and has offered on multiple occasions to provide you with copies of those referenced
documents. As to the publicly-available documents that are not on PACER referred to in your
question, those documents were provided in the discretionary release. This should also answer
your question numbered 4(j)(iii).

Louis Flores
November 3, 2015
Page 2
In your October 26, 2015 letter, you inform the undersigned that you have submitted a
FOIA request to the Civil Rights Division. 1 The undersigneds receipt of that request in no way
constitutes an acknowledgement that a proper FOIA request was submitted to that office and
does not indicate that the Civil Rights Division will accept, acknowledge, or undertake any
action upon the undersigneds receipt of the request. A FOIA request to components of DOJ
must be made to the FOIA office of that component, and a FOIA request must comply with 5
U.S.C. 522(a)(3). The undersigned does not undertake any obligations or responsibilities in
connection with the FOIA request attached to your October 26, 2015 letter.
Please note that the parties are to submit a joint report to the Court by November 6, 2015.
Defendant believes that there is no reason to extend the Court-ordered deadline. To that end,
enclosed please find a proposed Joint Status Letter, with proposed briefing schedule. Kindly
advise if we have your consent to the proposed Letter and briefing schedule.
Thank you for your attention to this matter.
Very truly yours,
ROBERT L. CAPERS
United States Attorney
By:

s/Rukhsanah L. Singh
RUKHSANAH L. SINGH
Assistant U.S. Attorney
(718) 254-6498
rukhsanah.singh@usdoj.gov

In your question numbered 4(m)(i), you note that the undersigned stated that there was
no other component at the DOJ that contained a criminal division. (Oct. 26, 2015 Letter at p.
10). Please note that the undersigned stated that there was no other criminal division component
that would have guidelines for the prosecution of activists other than the OAAG.

U.S. Department of Justice

United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201

November _, 2015
By ECF
Honorable Roanne L. Mann
United States Magistrate Judge
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
Re:

Louis Flores v. United States Department of Justice

No. 15-CV-2627 (Gleeson, J.) (Mann, M.J.)

Dear Judge Mann:

This letter is respectfully submitted in accordance with the Courts September
16, 2015 Order directing the parties to report on the status of their meeting and conferring
further and to provide a proposed briefing schedule for Defendants motion for summary
judgment in this Freedom of Information Act (FOIA) case. (Dkt. No. 14).
This action challenges Defendants response to Plaintiffs April 30, 2013
request under the FOIA, which was sent to the Department of Justice (DOJ) Executive
Office of United States Attorneys (EOUSA), seeking certain information and records
pertaining to the U.S. Attorneys Offices (USAOs) prosecution of Lieutenant Daniel
Choi and the DOJs policies relating to the prosecution of activists. After this action was
filed, the EOUSA responded on August 17, 2015, that no responsive records had been
located upon searches conducted in the USAO for the District of Columbia (USAO-DC),
the prosecuting USAO, but also made a discretionary release of publicly available documents
that involved, generally, the prosecution of Choi that were located in the files of the USAODC. Plaintiff continued to dispute the EOUSAs response.
At the conference on September 16, 2015, Your Honor granted Plaintiffs
request to file an amended complaint and sustained Defendants objection to discovery being
conducted. (See Dkt. No. 14). Your Honor encouraged the Government to voluntarily
search the files of Main Justice and produce any written guidelines for prosecution of

activists, and to consider voluntarily producing at least some of the documents listed on an
index that Plaintiff had served that same day. (Id.).
Following the September 16, 2015 conference with the Court, Defendant DOJ
voluntarily searched within the Office of the Assistant Attorney General (OAAG) of the
Criminal Division in Washington, D.C. for any written guidelines for prosecution of
activists. 1 (Dkt. No. 14). Defendant also voluntarily searched for and collected documents
that appeared to be responsive to some of Plaintiffs discovery requests set forth in his
September 16, 2015 Index. Defendant conducted these searches even though Plaintiffs
FOIA request that is the subject of this action was directed solely to the EOUSA, which
processes requests for USAOs records, and did not seek DOJ Criminal Division records.
By letter to Plaintiff dated October 13, 2015, Defendant provided copies of
two declarations outlining the searches for records responsive to Plaintiffs April 2013 FOIA
request (as suggested by Your Honor during the September 16, 2015 conference), and
provided documents sought in Plaintiffs September 16, 2015 Index that were voluntarily
gathered. In doing so, Defendant expressly stated that it was not waiving its objections to
discovery or agreeing to the broadening of the FOIA request that is the subject of this action.
By letter dated October 15, 2015, Defendant informed Plaintiff that the OAAGs search did
not locate any guidelines for the prosecution of activists.
On October 16, 2015, the parties had a conference call. During that call,
Plaintiff indicated that he would review the materials provided to him and provide a letter
outlining remaining issues he had as to the response to the FOIA request and the additional
materials voluntarily provided.
On October 26, 2015, Plaintiff served Defendant with an 11-page singlespaced letter seeking additional information and raising numerous questions as to the
searches (including those voluntarily undertaken), the discretionary release of publiclyavailable documents, and Defendants October 13, 2015 letter and materials provided
therewith. On November 3, 2015, Defendant provided a response to Plaintiffs October 26,
2015 letter.
It is Defendant DOJs position that all non-exempt records responsive to
Plaintiffs FOIA request to EOUSA that is the subject of this action have been released to
Plaintiff. Plaintiff will not agree to discontinue this action. Accordingly, motion practice
will be necessary.
The parties propose the following briefing schedule, subject to the Courts
approval:

The OAAG is responsible for formulating and implementing the Department of

Justices criminal enforcement policies.

By November 20, 2015, Defendant to file and serve its motion for
summary judgment;
By December 21, 2015, Plaintiff to file and serve his opposition and
any cross-motion; and
January 20, 2016, Defendant to file and serve its reply and opposition
to any cross-motion.
We appreciate the Courts attention to this matter.

Respectfully submitted,
ROBERT L. CAPERS
United States Attorney
By:
RUKHSANAH L. SINGH
Assistant U.S. Attorney
(718) 254-6498

cc:

[By ECF and first-class mail]

Louis Flores
34-21 77th Street, Apt. #406
Jackson Heights, New York 11372