NLPC V.D OJ FOIA Complaint 4-17-19

Case 1:19-cv-01086 Document 1 Filed 04/17/19 Page 1 of 38
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
)
NATIONAL LEGAL AND POLICY CENTER )
107 Park Washington Court )
Falls Church, Virginia 22046 )
Plaintiff, )
) Civil Action No. _______________
v. )
)
UNITED STATES DEPARTMENT OF JUSTICE )
950 Pennsylvania Avenue, NW )
Washington, DC 20530 )
Defendant. )
)
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiff, NATIONAL LEGAL AND POLICY CENTER (NLPC), by undersigned
counsel, hereby files this Complaint to seek declaratory and injunctive relief, to compel
compliance with the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), and to enjoin
Defendant from withholding from disclosure certain records within the possession and control of
Defendant UNITED STATES DEPARTMENT OF JUSTICE (“DOJ”).
Among other documents, NLPC seeks disclosure of a withheld two-page agency
memorandum that formed the basis of granting a retroactive ethics waiver to Special Counsel
Robert S. Mueller, III, on May 18, 2017, the day after his appointment on May 17, 2017, which
was the day after he was interviewed by President Donald J. Trump on May 16, 2017, for the
position of the Director of the Federal Bureau of Investigation. Because the President, the U.S.
House of Representatives, and the public have called for the release of the confidential “Mueller
Report” (and the Attorney General is preparing to disclose a redacted version on April 18, 2019),
the two-page memorandum justifying an ethics waiver to Special Counsel Mueller should be
immediately released as well as a matter of law and policy.

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JURISDICTION AND VENUE
1. This Court has jurisdiction pursuant to 5 U.S.C. § 552(a)(4)(B) (FOIA) and 28 U.S.C.
§ 1331 (Federal question jurisdiction), 2201, and 2202 (Declaratory Judgment Act).
2. Venue is proper in this district pursuant to Court pursuant to 5 U.S.C. 552 (a)(4)(B)
and 28 U.S.C. § 1391(e).
PARTIES
3. Plaintiff NLPC is a national nonprofit 501(c)(3) public interest organization that
promotes ethics in public life through research, investigation, education, and legal action. See
generally www.nlpc.org.
4. Defendant DOJ is an agency of the United States government, headquartered in
Washington, D.C. It has in its possession, custody and control, records to which plaintiff seeks
access.
STATEMENT OF FACTS
Plaintiff’s September 4, 2018 FOIA Request
5. On September 4, 2018, Plaintiff NLPC submitted a FOIA Request to DOJ requesting
all records regarding the May 17, 2017, appointment of Robert S. Mueller, III, to be Special
Counsel by Deputy Attorney General Rod Rosenstein under the Special Counsel regulations,
particularly relating to a “detailed review of ethics and conflicts of interest issues” required by 28
C.F.R. 600.3(b). In addition, NLPC requested that the FOIA request be processed on an
expedited basis as required by DOJ’s FOIA regulation, 28 C.F.R. 16.5(e)(iv), which provides for
expedited treatment if the matter is “of widespread and exceptional media interest in which there
exists possible questions about the government’s integrity that affect public confidence.” See
Exhibit 1 incorporated herein by reference.

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6. On September 13, 2018, NLPC received a response from DOJ’s Office of Information
and Policy acknowledging receipt of the FOIA request, summarily denied the request for
expedited processing without stating any reasons, assigned the request to DOJ’s “complex track”
for processing, and forwarded parts of the request to the Federal Bureau of Investigation (FBI)
and the Justice Management Division (JMD). See Exhibit 2 incorporated herein by reference.
7. On September 14, 2018, NLPC filed an immediate appeal of the denial for expedited
treatment of the FOIA request stating that it was arbitrary and capricious since there was no
reason given for the denial. See Exhibit 3 incorporated herein by reference.
8. On December 21, 2018, Arthur Gary, the General Counsel of the JMD, responded to
that part of the September 4, 2018 FOIA request for documents regarding Mr. Mueller’s ethics
review, and disclosed a one-sentence Authorization by Associate Deputy Attorney General Scott
Schools dated May 18, 2017, the day after Mr. Mueller’s appointment, giving Mr. Mueller an
ethics waiver under 5 CFR 2635.502(d). However, Mr. Gary withheld from disclosure the two-
page recommendation memorandum in full under FOIA Exemption 5, the deliberative process
privilege. Mr. Gary further advised that an administrative appeal of his decision may be
appealed within 90 days. See Exhibit 4 incorporated herein by reference.
9. On January 14, 2019, NLPC filed a five-page administrative appeal from that part of
the response to the initial FOIA request by JMD that withheld the two-page memorandum
recommending an ethics waiver to Special Counsel Mueller. See Exhibit 5 incorporated herein
by reference.
10. NLPCs administrative appeal noted that press accounts raised possible conflicts with
Mr. Mueller’s association with his law firm that also represented the President’s son-in-law Jared
Kushner and Paul Manafort. Other possible conflicts included an alleged membership dispute
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between Mr. Mueller and one of President Trump’s Golf Clubs in Virginia to which Mr. Mueller
had belonged. Exhibit 5 at 2. In addition, Mr. Mueller was interviewed by President Trump on
May 16 but was not hired, yet was promptly appointed the very next day which both he and Mr.
Rosenstein likely had already agreed to do. Id.
11. NLPC also noted in its appeal that there was a possible conflict by Mr. Rosenstein
himself, in that his recommendation on May 9, 2017, to fire then-FBI Director James Comey for
his mishandling of the Hillary Clinton email investigation was used as a pretext by the President
for firing Mr. Comey. Mr. Rosenstein was reported in the New York Times to be “shaken” and
very upset for being used in this fashion. Id. at 3.
12. The ethics waiver exemption granted to Mr. Mueller on May 18, 2017
(Authorization), could only be granted under DOJ regulations if there was a finding that his
participation in the Russia election interference investigation “would raise a question in the mind
of a reasonable person about his impartiality” 28 C.F.R. 2635.502(d).
13. According to the regulation cited in the Authorization, 28 C.F.R. 2635,502(d), the
grounds for granting a waiver to Mr. Mueller’s questionable impartiality may be based on one or
more of the following circumstances:
(1) The nature of the relationship involved;
(2) The effect that resolution of the matter would have upon the financial interests of the
person involved in the relationship;
(3) The nature and importance of the employee’s role in the matter, including the extent
to which the employee is called upon to exercise discretion in the matter;
(4) The sensitivity of the matter;
(5) The difficulty of reassigning the matter to another employee; and
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(6) Adjustments that may be made in the employee’s duties that would reduce or
eliminate the likelihood that a reasonable person would question the employee's
impartiality.
Id.
14. Because the two-page recommendation memorandum justifying the ethics waiver
was withheld in its entirety, the public does not know which of one or more of the six reasons
were invoked to authorize Mr. Mueller’s conflicts waiver.
15. The reason or reasons for granting the waiver are inexplicable due to Mr.
Rosenstein’s testimony before Congress on June 28, 2018, regarding any conflict that Robert
Mueller may have had to justify the waiver:
“If there were any conflicts of interest that were brought to our attention, I would discuss
with Mr. Mueller, and then there could be review within the department, if there were a
credible allegation of a conflict of interest . . . . And so I'm not aware of any
disqualifying conflict of interest."
https://abcnews.go.com/Politics/president-trump-claims-nasty-contentious-relationship-mueller-
amounts/story?id=56914885 (emphasis added). See Exhibit 5 at 3.
In fact, there was a review within the department because there was a reasonable question
of Mr. Mueller’s impartiality for which a waiver was sought and granted under the ethics
regulation.
CLAIMS FOR RELIEF
COUNT I
(Failure to Expedite FOIA Request)
20. Plaintiff realleges paragraphs 1 to 19 of this Complaint as if fully set forth herein.
21. The denial by DOJ to expedite Plaintiff’s FOIA request was per se arbitrary,
capricious, and contrary to law because no reason was given for the denial. 5 U.S.C. § 552
(a)(6)(E)(iii), “Agency action to deny… a request for expedited processing pursuant to this
subparagraph…shall be subject to judicial review....”

5
COUNT II
(Failure to Produce Records)
22. Plaintiff realleges paragraphs 1 to 21 of this Complaint as if fully set forth herein.
23. Even if DOJ correctly denied expedited treatment, the records requested have not
been produced as of this date in violation of FOIA’s normal processing time requirements of 20
business days. If there are “unusual circumstances,” an agency may extend the time limit by no
more than ten working days. Placing NLPC‘s request on the “complex” track for processing was
arbitrary, capricious, and unreasonable, particularly where the documents requested are small in
number, clearly identifiable, of recent vintage, and easily located. The continued failure to
produce the non-exempt records requested for over six months grossly violates the time
requirements of 5 U.S.C. § 552 (a)(6)(A)(ii) to provide the documents within the maximum
allowed of 30 business days and is arbitrary, capricious, an abuse of discretion and contrary to
law. NLPC has constructively exhausted its administrative remedies and is entitled to file this
action.
COUNT III
(Failure to Produce Mueller’s Ethics Waiver Memorandum)
24. The DOJ response from its JMD on December 21, 2018 (Exhibit 4) to withhold the
entire two-page memorandum recommending that Special Counsel Mueller be granted an ethics
waiver under Exemption 5 of FOIA is arbitrary, capricious, and contrary to law as further
demonstrated in NLPC’s January 14, 2019, five-page appeal attached hereto as Exhibit 5 and
incorporated herein.
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COUNT IV
(Failure to Respond to NLPC’s Administrative Appeal)
23. Under the provisions of FOIA, 5 U.S.C. § 552 (a)(6)(A)(ii), DOJ had 20 days to
respond to NLPC’s January 14, 2019, appeal of the decision to withhold the two-page
memorandum recommending that Special Counsel Mueller be granted an ethics waiver..
23. As of this date, it has been over 90 days since the appeal has been filed and DOJ’s
has yet to respond to NLPC’s appeal other than to acknowledge that it was submitted. DOJ’s
failure to timely respond to the Plaintiff’s appeal violates 5 U.S.C. § 552 (a)(6)(A)(ii), and
therefore, Plaintiff has constructively exhausted its administrative remedies and is entitled to file
this action.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in its favor
and:
(1) Declare that Defendant’s failure to expedite Plaintiff’s September 14, 2018, FOIA
request was unlawful;
(2) Declare that Defendant’s failure to respond to Plaintiff’s FOIA request and produce
the records requested was unlawful;
(3) Declare that Defendant’s failure to produce the two-page memorandum justifying
Mr. Mueller’s ethics waiver was unlawful;
(4) Declare that Defendant’s failure to timely process Plaintiff’s administrative appeal of
the withholding of the two-page memorandum was unlawful.
(5) Enjoin Defendant from continuing to withhold non-exempt records responsive to
Plaintiff’s FOIA request.

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(6) Order Defendant immediately to produce all responsive records improperly withheld
from Plaintiff without further delay or charge, including the two-page memorandum;
(7) Award Plaintiff attorney fees, and other litigation costs reasonably incurred in this
action pursuant to 5 U.S.C. § 552(a)(4)(B); and
(8) Grant such other relief as may be necessary and appropriate, or as the Court deems
just and proper.
Respectfully submitted,
April 17, 2019 /s/Paul D. Kamenar

Paul D. Kamenar
DC Bar No. 914200
1629 K Street, N.W.
Washington, D.C. 20006
301-257-9435
paul.kamenar@gmail.com
Counsel for Plaintiff NLPC
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NLPC V.D OJ FOIA Complaint 4-17-19

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Case 1:19-cv-01086 Document 1 Filed 04/17/19 Page 1 of 38

IN THE UNITED STATES DISTRICT COURT

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiff, NATIONAL LEGAL AND POLICY CENTER (NLPC), by undersigned

Defendant UNITED STATES DEPARTMENT OF JUSTICE (“DOJ”).

Among other documents, NLPC seeks disclosure of a withheld two-page agency

immediately released as well as a matter of law and policy.

JURISDICTION AND VENUE

and 28 U.S.C. § 1391(e).

3. Plaintiff NLPC is a national nonprofit 501(c)(3) public interest organization that

4. Defendant DOJ is an agency of the United States government, headquartered in

Plaintiff’s September 4, 2018 FOIA Request

5. On September 4, 2018, Plaintiff NLPC submitted a FOIA Request to DOJ requesting

Exhibit 1 incorporated herein by reference.

appealed within 90 days. See Exhibit 4 incorporated herein by reference.

Rosenstein likely had already agreed to do. Id.

very upset for being used in this fashion. Id. at 3.

of a reasonable person about his impartiality” 28 C.F.R. 2635.502(d).

more of the following circumstances:

(1) The nature of the relationship involved;

(4) The sensitivity of the matter;

(5) The difficulty of reassigning the matter to another employee; and

were invoked to authorize Mr. Mueller’s conflicts waiver.

Mueller may have had to justify the waiver:

CLAIMS FOR RELIEF

subparagraph…shall be subject to judicial review....”

(Failure to Produce Mueller’s Ethics Waiver Memorandum)

(Failure to Respond to NLPC’s Administrative Appeal)

memorandum recommending that Special Counsel Mueller be granted an ethics waiver..

PRAYER FOR RELIEF

request was unlawful;

the records requested was unlawful;

Mr. Mueller’s ethics waiver was unlawful;

the withholding of the two-page memorandum was unlawful.

(5) Enjoin Defendant from continuing to withhold non-exempt records responsive to

Plaintiff’s FOIA request.

action pursuant to 5 U.S.C. § 552(a)(4)(B); and

just and proper.

April 17, 2019 /s/Paul D. Kamenar

Counsel for Plaintiff NLPC

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