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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
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Plaintiff, )
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v.
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U.S. DEPARTMENT OF JUSTICE,
)
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Defendant. )
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AMERICAN OVERSIGHT,

Case No. 17-848 (RJL)

REPLY IN SUPPORT OF PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY JUDGMENT
The question before the Court remains a simple one: is compliance with ethics
requirements by federal employees a question of government integrity?
On April 7, 2017, American Oversight made a request under the Freedom of Information
Act, 5 U.S.C. § 552 (FOIA), for records that would reveal the approach undertaken by Noel
Francisco, President Trump’s nominee to be Solicitor General of the United States,1 to ensure his
conduct complied with standards of government and legal ethics. American Oversight seeks
expedited review of its request because, as called for by DOJ’s regulations, the request both
involves “a matter of widespread and exceptional media interest” and is one “in which there exist
possible questions about the government’s integrity that affect public confidence.” 28 C.F.R. §
16.5(e)(1)(iv). DOJ denied the request for expedited processing, and American Oversight here
asks the Court to remedy that error.

1

As of the filing of this brief, Mr. Francisco’s nomination is still pending in the U.S. Senate. See
Pl.’s Ex. 7 (PN299 – Noel J. Francisco – Department of Justice, CONGRESS.GOV,
http://bit.ly/2u5UH6h (last visited June 30, 2017)).

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ARGUMENT
A FOIA requester seeking expedition under prong (iv) must satisfy two elements. First,
the subject of the request must involve “a matter of widespread and exceptional media interest.”
28 C.F.R. § 16.5(e)(1)(iv). Second, the matter must be one “in which there exist possible
questions about the government’s integrity that affect public confidence.” Id. DOJ agrees that
American Oversight’s request satisfies the first element but contests the second, resting on a
newly advanced interpretation of the regulatory language.
DOJ’s denial of expedition was in error. The subject of American Oversight’s request is
one that clearly raises possible questions about the government’s integrity. DOJ’s alleged basis
for the denial—that news articles themselves must explicitly raise possible questions of
integrity—is neither consistent with the text of the regulation nor entitled to deference. Lastly,
DOJ’s conveniently timed production neither cures the administration’s lack of transparency as
of the date of American Oversight’s FOIA request nor resolves all of the possible ethical
questions arising from Mr. Francisco’s shifting conduct in the travel-ban litigation.
I.

AMERICAN OVERSIGHT’S REQUEST INVOLVES A MATTER WHERE
POSSIBLE QUESTIONS EXIST REGARDING GOVERNMENT INTEGRITY
THAT AFFECT PUBLIC CONFIDENCE.
Expedition is proper because American Oversight’s request satisfies both elements of

prong (iv). As DOJ has conceded, the request relates to “[a] matter of widespread and
exceptional media interest,” 28 C.F.R. § 16.5(e)(1)(iv); indeed, as spelled out in the request
itself, it relates to more than one such matter, as it concerns both the government’s conduct of
high-profile litigation regarding the travel ban and the nomination of Mr. Francisco to be
solicitor general, notwithstanding DOJ’s limited focus on the latter in its briefing. Moreover, the

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request seeks records that pertain to a matter in which there “exist possible questions about the
government’s integrity that affect public confidence.” Id. (emphasis added).
On February 6, 2017, after Mr. Francisco’s former law firm entered the travel-ban
litigation as counsel to amici, Mr. Francisco refrained from signing the government’s reply brief
filed later that day “out of an abundance of caution.” Reply Supp. Emergency Mot. Stay Pending
Appeal at 1, Washington v. Trump, No. 17-35105 (9th Cir. Feb. 6, 2017), ECF No. 70. Ten days
later Mr. Francisco was once again a full participant in the government’s litigation. Supp. Br. En
Banc Consideration, Washington v. Trump, No. 17-35105 (9th Cir. Feb. 16, 2017) , ECF No. 154
(bearing Mr. Francisco’s signature). As indicated in American Oversight’s FOIA request, this
apparent about-face regarding the propriety of his participation in the litigation was wholly
unexplained. There was no indication of whether he had been recused or disqualified or whether
he had received any waiver or other authorization. Thus DOJ itself created significant questions
about the government’s integrity through its own conduct and its refusal to explain why
Mr. Francisco could not sign the February 6th brief2 followed by its failure to explain why he
suddenly was able, once again, to sign the February 16th brief.
These significant questions arise in the context of the government’s conduct of highprofile litigation that is the subject of widespread and exceptional media interest and relates to
the conduct of the nominee to be solicitor general, a nomination which is itself also a matter of
widespread and exceptional media interest. Expedition of American Oversight’s request on
April 7, 2017, was thus appropriate because the request described in detail the government

2

Indeed, as reported on February X, DOJ both knew questions had been raised regarding
Mr. Francisco’s role in the travel-ban litigation and refused to offer clarity on the matter. See
Pl.’s Ex. 6, ECF No. 17-8 (“A DOJ spokesperson, responding to questions about Francisco’s
role, reiterated the ‘abundance of caution’ noted in the reply brief and declined to comment
further.”).
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conduct that raises questions about government integrity and outlined the ethics requirements
that may be implicated by this conduct. At the time of the request, in the absence of a more
robust explanation from DOJ or Mr. Francisco, these questions about government integrity could
only have been resolved through disclosure of the requested records.
Contrary to DOJ’s argument, Def.’s Opp’n at 14, American Oversight has never posited
that a recusal, standing alone, would raise questions of government integrity. See Pl.’s Reply
Supp. Prelim. Inj. at 12, ECF No. 10 (“A recusal, alone, would not raise questions of government
integrity that affect public confidence.”). Nor does American Oversight’s position require the
Court to believe that any recusal in a high-profile matter suffices to meet the standard for
expedition. Had Mr. Francisco simply recused himself from the litigation and withdrawn his
appearance in the case, American Oversight concedes that those facts would not be sufficient to
establish possible questions about government integrity. But those are not the facts here.
Mr. Francisco did not recuse himself from the litigation. He first refrained from signing a brief
“out of an abundance of caution” and then subsequently, and without explanation, resumed
signing briefs in the same litigation. To the best of American Oversight’s knowledge, there is no
word for what Mr. Francisco did. Ethics rules generally provide clear delineations: either an
official can participate in a matter or he cannot. Officials are not typically “half-recused.”
Here the government’s conduct raises significant questions of government integrity
because, from the public’s perspective, there was no apparent change in circumstances nor did
DOJ provide any explanation of what might have changed during the ten days between
February 6th and February 16th that would suddenly permit Mr. Francisco to participate publicly
in the case after announcing that he was not able to do so. That was the essence of the question
American Oversight sought to answer with its FOIA request.

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II.

DOJ’S DENIAL IS NOT ENTITLED TO DEFERENCE.
These significant questions about how Mr. Francisco and DOJ approached their

respective obligations to ensure that their conduct comported with applicable ethics requirements
in the travel-ban litigation clearly qualify as “possible questions” of government integrity. Rather
than try to contest this obvious fact, which DOJ’s opposition does not meaningfully challenge,
DOJ instead introduces an additional requirement for expedition—namely, that the “possible
questions” of public integrity must themselves be the subject of widespread media interest—and
argues that DOJ’s decision to include this additional requirement in the expedition standard is
entitled to deference. This argument ignores the administrative record and misreads the law, and
this Court should reject it.
A.

DOJ Overreads the Significance of a Footnote in Al-Fayed.

DOJ’s argument places tremendous weight on a brief footnote discussion in Al-Fayed v.
CIA, 254 F.3d 300 (D.C. Cir. 2001). That footnote states in full:
We note one caveat concerning deference to agency FOIA
regulations. FOIA directs each agency to promulgate regulations
providing for expedited processing, not only “in cases in which the
person requesting the records demonstrates a compelling need,” but
also “in other cases determined by the agency.” 5 U.S.C.
§ 552(a)(6)(E)(i) (emphasis added). According to the legislative
history, the latter provision gives an agency “latitude to expand the
criteria for expedited access” beyond cases of “compelling need.”
H. R. REP. NO. 104–795, at 26. A regulation promulgated in
response to such an express delegation of authority to an individual
agency is entitled to judicial deference, see United States v. Mead
Corp., 121 S. Ct. 2164, 2171 (2001), as is each agency’s reasonable
interpretation of its own such regulations, see United States v.
Cleveland Indians Baseball Co., 121 S. Ct. 1433, 1444-45 (2001).
We have examined the defendant agencies’ FOIA regulations
applicable to this case, and conclude that to the extent those
regulations expand the criteria for expedited processing beyond
“compelling need,” the agencies reasonably determined that
plaintiffs’ requests did not meet the expanded criteria.

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Id. at 307 n.7. From here, DOJ argues that courts must defer to any decision the agency makes
when a requester seeks expedition under prong (iii) or (iv)—the two “cases determined by the
agency” to be additionally appropriate for expedition—regardless of whether that determination
is based on a legal interpretation or a factual determination.
This argument fundamentally misstates what the court found in Al-Fayed. First, the FOIA
request at issue in Al-Fayed sought expedition under “compelling need” rather than one of the
agency-determined reasons. DOJ’s entire argument is based on a brief discussion in dicta in a
footnote. The holding of Al-Fayed is that a court may not defer to any individual agency’s efforts
to elaborate on FOIA’s definition of “compelling need” for purposes of expedition. Id. at 307.
Second, DOJ’s interpretation of this footnote in Al-Fayed asks this Court to ignore the
significance of the D.C. Circuit’s citation to Cleveland Indians Baseball Co., 532 U.S. 200
(2001). The Supreme Court’s analysis in that case makes even clearer that deference is only due
to fair and considered interpretations by the agency. There, the Court considered how the IRS
applies payroll taxes paid on back wages. Id. at 204-05. In 1994 the Cleveland Indians paid back
wages to players who should have earned additional salary in 1986 and 1987. The team sought to
have the payroll taxes for those wages allocated to 1986 and 1987, id. at 204; however, the IRS
regulations implementing the relevant statutes clearly stated that the taxes were attached at the
time the wages were paid, id. at 219. The Supreme Court’s analysis turned on the fact that the
IRS had a longstanding and publicly available interpretation that the plain text of the regulation
applied both to wages presently owed and back wages. Id. at 219-20 (citing to previously
published IRS Revenue Rulings regarding the application of the tax code to back pay).
Here DOJ’s overreading of the footnote in Al-Fayed results in two errors. First, DOJ
ignores Cleveland Indians’s implication that, in this context, its interpretation of the regulation

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must be longstanding, or at minimum be fair and considered by the agency, to be entitled to
deference. As discussed more fully below, there is no evidence that DOJ’s denial of expedition
here applied a longstanding, consistent, or considered interpretation of prong (iv), or even an
interpretation of prong (iv) that pre-dates this litigation. Second, DOJ erroneously conflates the
interpretation of the regulation and particular applications of the legal standard to the facts in any
given case. The former receives deference from the courts where the interpretation is considered
and reasonable; the latter remains subject to de novo review. See INS v. Yang, 519 U.S. 26, 32
(1996) (to be entitled to deference of a change in interpretation, an agency must make “an
avowed alteration” of a policy it has previously “announce[d] and follow[ed]”). That distinction
is particularly clear in the context of this case.
Moreover, DOJ’s approach also overlooks the larger policy issues the D.C. Circuit was
addressing in Al-Fayed, where the court expressed concern about inconsistent application of
FOIA requirements across agencies. Footnote 7 is attached to a sentence that notes that FOIA is
applied across the government and that the court may not defer to a particular agency’s attempts
to expand the statute’s definitions. Al-Fayed, 254 F.3d at 307. Although American Oversight
acknowledges that prong (iv) is not statutorily defined, nearly identical language nevertheless
appears in multiple agencies’ FOIA regulations. See, e.g., 5 C.F.R. § 1303.10(d)(1)(iv) (Office of
Management and Budget regulation allowing for expedition of a FOIA request where there is
“[a] matter of widespread and exceptional media interest in which there exist possible questions
about the government’s integrity which effect [sic] public confidence”); 6 C.F.R. § 5.5(e)(1)(iv)
(Department of Homeland Security regulation allowing for expedition of a FOIA request where
there is “[a] matter of widespread and exceptional media interest in which there exist possible
questions about the government’s integrity which affect public confidence”); 15 C.F.R.

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§ 4.6(f)(1)(iii) (Department of Commerce regulation allowing for expedition of a FOIA request
where there is “[a] matter of widespread and exceptional media interest involving questions
about the Government’s integrity which affect public confidence”). American Oversight has not
identified a requirement at other agencies that the media articles cited explicitly include the
questions of government integrity. Permitting DOJ to impose a secret, additional standard on a
FOIA requester could effectively result in nearly identical regulatory text promulgated under the
same statute meaning different things at different agencies. See Tax Analysts v. IRS, 117 F.3d
607, 613 (D.C. Cir. 1997), cited in Al-Fayed, 254 F.3d at 306 (“The meaning of FOIA should be
the same no matter which agency is asked to produce its records.”).
B.

The Administrative Record Does Not Support DOJ’s Litigating Position.

As of June 23, 2017, DOJ claims that requests for expedition under prong (iv) must
explicitly cite articles that mention “possible questions” regarding government integrity.
However, nothing in the administrative record suggests that DOJ actually applied that
interpretation to American Oversight’s April 7th request or that the agency has, in fact, ever
applied that interpretation before.
First, none of the denials of expedition received by American Oversight in response to
this request reference the purported lack of media interest in the possible questions of
government integrity, nor do they cite to such an interpretation of the regulation. See Pl.’s Exs. 24, ECF Nos. 17-4–17-6. Each of the denial letters makes clear that the denial was based solely on
a determination that the requested records did not involve a matter where there existed “possible
questions about government integrity.” See Pl.’s Exs. 2-4, ECF Nos. 17-4–17-6. There is no
mention of the absence of exceptional or widespread media interest in those “possible

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questions”; rather, the language in the denials suggests DOJ did not, in fact, view prong (iv) to
require exceptional media interest into those questions. See Pl.’s Exs. 2-4, ECF Nos. 17-4–17-6.
Second, there is no support in the administrative record for the assertion that DOJ has
adopted an interpretation of the regulation linking the two elements on prong (iv). The first
official indication by DOJ that it has such an interpretation is in last week’s Flores Declaration
attached to DOJ’s opposition to the motion presently before the Court. Def.’s Ex. 1 ¶ 7, ECF
No. 19-1. The Court should disregard this after-the-fact declaration that does not reflect positions
taken or facts contained in the administrative record. See Shieldalloy Metallurgical Corp. v.
Nuclear Regulatory Comm’n, 768 F.3d 1205, 1208-09 (D.C. Cir. 2014) (deference is not
appropriate where an agency’s interpretation “amounts to nothing more than a convenient
litigating position”).
Moreover, the form that the Office of Public Affairs (OPA) uses to evaluate requests for
expedition under prong (iv) makes clear that DOJ treats the two elements of prong (iv) as
separate requirements. See Pl.’s Ex. 8 (Mar. 23, 2017 OPA expedited processing worksheet for
unrelated FOIA request). The form shows that the first question is whether the request is a matter
of widespread media interest followed by the question of whether “the topic of the request [is/is
not] a matter ‘in which there exist possible questions about the government’s integrity [that]
affect public confidence.’” Id. (emphasis added). The form clearly portrays the two elements as
distinct and independent, and there is no indication on the form that the director of OPA should
consider whether there is media interest in the possible questions of government integrity.
Because the administrative record is devoid of any indication the wrongful denial of
expedition here rested on the interpretation of the regulation now advanced in this litigation, the
Court should decline to credit this post-hoc rationalization of the denial.

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C.

DOJ Has Not Adopted an Interpretation of Prong (iv) that Is Entitled to
Deference.

Even if the Court is inclined to consider material from outside the administrative record,
DOJ has not adopted a fair and considered interpretation of its regulations providing that there
must be widespread media attention specifically to the possible questions of government
integrity. In support of its purported interpretation of prong (iv), DOJ cites no published
regulation or guidance. It points to no publicly available statements regarding how to interpret
the regulation. It points to no documents containing internal guidance or training material relying
on this interpretation. Instead, DOJ points to two past cases, but those cases are easily
distinguished: Both of the cases turn not on whether there was exceptional and widespread media
interest in the possible questions of government integrity, but rather on the basic question of
whether such possible questions of government integrity existed.
For example, in EPIC v. U.S. Department of Justice, the Court considered the policy
criticisms raised in materials cited in the request but concluded that there was no indication that
“a law may have been violated.” 322 F. Supp. 2d 1, 5 (D.D.C. 2003). In no way did the Court in
EPIC hold that the possible questions of government integrity must, themselves, be the subject of
exceptional and widespread media interest, nor was there any indication that DOJ argued that
position. American Oversight’s request here can be readily distinguished, since the request
describes in detail how a law—5 C.F.R. § 2635.502—may have been violated by DOJ’s conduct.
DOJ’s reliance on ACLU v. U.S. Department of Justice, 321 F. Supp. 2d 24 (D.D.C.
2004), is even more surprising. In that case, the Court simply found that DOJ’s own position was
unreasonable because the media coverage reflected manifest questions regarding the
government’s integrity. See id. at 32. The Court made no holding that the possible questions had

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to be the subject of media coverage, it just determined that DOJ’s denial of expedition was
unreasonable in light of the evident issues of public integrity reflected in the coverage.
Nor do DOJ’s briefs in those cases discuss, or even refer to, any established interpretation
of the regulations adopting the view that there must be exceptional and widespread media
interest in the possible questions of government integrity. See Def.’s Ex. 2, ECF No. 19-2 at 15,
32-35 (DOJ brief in EPIC); Def.’s Ex. 3, ECF No. 19-3 at 21, 32-34 (DOJ brief in ACLU). Nor
did the declaration DOJ attached to the ACLU brief3 mention the need for the media articles to
state possible questions of government activity; rather, the declaration emphasized the distinct
elements of the standard. Hardy Decl. ¶ 12, ACLU v. U.S. Dep’t of Justice, No. 03-2522 (D.D.C.
Feb. 17, 2004), ECF No. 13-2 (“By letter dated January 9, 2004, plaintiffs were advised that the
DOJ Director of Public Affairs had not detected ‘widespread and exceptional media interest,’ nor
questions concerning the government’s integrity as a result of plaintiffs’ FOIA request.
Accordingly, plaintiffs were advised that the Director of Public Affairs had denied their request
for expedited processing.”).
Thus there is no evidence that the interpretation advanced in this litigation results from an
agency’s reasoned and considered view of the regulation entitled to deference. In the absence of

3

DOJ did not submit an analogous declaration for its EPIC brief. See Def.’s Mot. Summ. J.,
EPIC v. U.S. Dep’t of Justice, No. 03-2078 (D.D.C. Nov. 18, 2003), ECF No. 10. There DOJ
simply included a declaration that EPIC had not appealed the denial of expedition, see Jones
Decl., EPIC v. U.S. Dep’t of Justice, No. 03-2078 (D.D.C. Nov. 18, 2003), ECF No. 10-2, and
incorporated by reference into its statement of material facts the DOJ component’s letter denying
expedition, Statement of Material Facts at 3, EPIC v. U.S. Dep’t of Justice, No. 03-2078 (D.D.C.
Nov. 18, 2003), ECF No. 10-3 (citing Pl.’s Ex. 5, EPIC v. U.S. Dep’t of Justice, No. 03-2078
(D.D.C. Nov. 4, 2003), ECF No. 7-6). The denial letter again separates the element of prong (iv):
“The Office of Public Affairs has informed us that they have denied your expedit[ion] request.
The Office of Public Affairs determined that the subject of your request is not one of exceptional
media interest, nor does it raise any questions about the government’s integrity which might
affect public confidence.” Pl.’s Ex. 5 at 2, EPIC v. U.S. Dep’t of Justice, No. 03-2078 (D.D.C.
Nov. 4, 2003), ECF No. 7-6.
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any written DOJ analysis of the text of the regulation adopting this interpretation, or explaining
why DOJ construes the text of the regulation in this way, there is no basis for this Court to afford
the interpretation deference. See Smith v. City of Jackson, 544 U.S. 228, 248 (2005) (O'Connor,
J., concurring in judgment) (noting that deference is not warranted when “there is no reasoned
agency reading of the text to which we might defer”).
Indeed, the first public announcement by DOJ of this interpretation of its regulations is
the Flores Declaration attached to DOJ’s opposition to the motion presently before the Court,
Def.’s Ex. 1, ECF No. 19-1. What is notable about the Flores Declaration is what it does not say:
It does not cite to any memorialization of this purported interpretation of the regulation in any
written document. It points to no guidance or internal record reflecting this interpretation, much
less any public statement by DOJ adopting this interpretation. It does not meaningfully engage
with the text of the regulation; it does not identify any ambiguity in the regulation requiring
resolution, nor does it address why its interpretation is the best, or even a fair, reading of the
regulatory text. It does not aver that this interpretation is longstanding or that it resulted from a
reasoned and deliberate process of agency decisionmaking, or even indicate when or how DOJ
adopted the purported interpretation. It points to no prior cases where DOJ advanced this
interpretation. It points to no prior expedition requests where this interpretation was applied,
notwithstanding the thousands of determinations DOJ has made under prong (iv) since it was
formally promulgated in 1998. See Revision of Freedom of Information Act and Privacy Act
Regulations and Implementation of Electronic Freedom of Information Act Amendments of
1996, 63 Fed. Reg. 29,591, 29,592 (June 1, 1998). Indeed, it does not even indicate that this
interpretation pre-dated Ms. Flores’s convenient conclusion in the context of denying expedition
to American Oversight’s April 7th request. Cf. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,

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212 (1988) (“Deference to what appears to be nothing more than an agency’s convenient
litigating position would be entirely inappropriate.”).
The irony of DOJ’s position is palpable. DOJ insists that American Oversight’s request
must be judged solely by what it contained when submitted on April 7th. Then DOJ complains
that American Oversight’s request fails to include information sufficient to meet a construction
of its standard first publicly announced by DOJ in a declaration submitted in connection with its
opposition on June 23rd. This is precisely the sort of circumstance where the Supreme Court has
recently recognized deference would not be appropriate: where the interpretation was
unannounced and would have a negative impact on the rights of affected parties who had no
notice of the interpretation. See, e.g., Christopher v. SmithKline Beecham Corp., 567 U.S. 142,
155-56 (2012) (holding that “there are strong reasons for withholding [] deference” when an
interpretation adversely affects a party without adequate notice because that would result in
“unfair surprise”); cf. id. at 158-59 (“It is one thing to expect regulated parties to conform their
conduct to an agency’s interpretations once the agency announces them; it is quite another to
require regulated parties to divine the agency’s interpretations in advance . . .”); see also Indep.
Training & Apprenticeship Program v. Cal. Dep’t of Indus. Relations, 730 F.3d 1024, 1035
(9th Cir. 2012) (deference to agency interpretation of its regulations is “unsuitable when such
deference would result in ‘unfair surprise’ to one of the litigants”).
D.

FOIA Itself Precludes Using Unpublished Interpretations of the Regulations
Against American Oversight.

The irony of DOJ’s position is compounded by the fact that FOIA itself mandates that, if
DOJ had adopted such an interpretation of its regulation, it would have had to be published,
5 U.S.C. § 552(a)(2)(B)-(C), and the penalty for failing to publish the adoption of such an
interpretation is that it cannot be applied to the detriment of any party, see 5 U.S.C.

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§ 552(a)(2)(E). FOIA requires agencies to publish statements of policy and interpretations that
have been adopted by the agency and are not published in the Federal Register. See 5 U.S.C.
§ 552(a)(2) (“Each agency, in accordance with published rules, shall make available for public
inspection in an electronic format— . . . (B) those statements of policy and interpretations which
have been adopted by the agency and are not published in the Federal Register; (C)
administrative staff manuals and instructions to staff that affect a member of the public”). If an
agency fails to publish or otherwise make available for public inspection an interpretation of law
adopted by the agency, FOIA precludes the agency from relying on that interpretation in a
manner that adversely affects a party. See 5 U.S.C. § 552(a)(2)(E) (“A final order, opinion,
statement of policy, interpretation, or staff manual or instruction that affects a member of the
public may be relied on, used, or cited as precedent by an agency against a party other than an
agency only if—(i) it has been indexed and either made available or published as provided by
this paragraph; or (ii) the party has actual and timely notice of the terms thereof.”).
Because the interpretation of the regulation DOJ purports to rely on here has not been
made public and because American Oversight did not have actual and timely notice of the
interpretation, DOJ cannot rely on that interpretation against American Oversight here. This
requirement exists precisely to prevent the chain of events that have occurred here, where DOJ
contends that American Oversight’s request in April failed to satisfy the terms of an
interpretation of its regulation that DOJ first made public in June. FOIA requesters cannot ensure
that their requests satisfy secret legal requirements that DOJ might have adopted but not made
public. Rather, American Oversight’s request should be evaluated by the plain terms of the
regulation, which clearly spell out two distinct, and independent, elements for expedition under
prong (iv).

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E.

DOJ’s Interpretation Conflicts with the Regulation’s Unambiguous Text and
Is Unreasonable.

Even if DOJ had actually adopted an interpretation of its regulation that requires media
interest specifically in the possible questions of government integrity, that interpretation of the
regulation is not entitled to deference because the regulatory text is not ambiguous and, in any
event, such an interpretation must fail because it is unreasonable. An interpretation of a
regulation is not entitled to deference when it is inconsistent with the plain terms of the
regulation. See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) (administrative
interpretation is controlling unless inconsistent with the regulation); Edwards v. Califano,
619 F.2d 865, 869 (10th Cir. 1980) (agency “cannot ignore the plain terms of [its] own
regulations”). Moreover, the Supreme Court has made clear that deference to an agency’s
interpretation of its regulations is only appropriate where the regulation itself is ambiguous. See
Christensen v. Harris Cty., 529 U.S. 576, 588 (2000) (“But [ ] deference is warranted only when
the language of the regulation is ambiguous.”).
Here, the plain and unambiguous text of the regulation demonstrates that there are two
independent elements—media interest and possible questions of government integrity. The
application of the basic rules of grammar to the regulation here make clear that the two elements
are separate and distinct. There is no requirement in the regulatory text that the “possible”
questions about government integrity themselves be the subject of widespread media interest. To
conclude otherwise would be to fail to apply the basic rules of grammar to the language in the
regulation—the phrase “in which” necessarily modifies “[a] matter” and indicates that the
requester’s obligation is to show that the request relates to a matter “in which there exist possible
questions about the government’s integrity that affect public confidence.” 28 C.F.R.
§ 16.5(e)(iv). As a matter of simple grammar, the second clause does not refer back to or

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incorporate the existence of media interest in any way. Because there is no ambiguity in the
regulation on this point, DOJ’s interpretation is not entitled to deference, a point reinforced by
the inconsistency between the plain language of the regulation and DOJ’s views.
Indeed, a contrary standard requiring media coverage of ethical issues in order for them
to be cognizable under prong (iv) would incentivize the DOJ to do what it has done here: refuse
to answer questions, stymying public information and interest. Moreover, affording DOJ’s
unreasonable interpretation of the regulation deference here would create the very danger the
Supreme Court warned against in Christensen: “To defer to the agency’s position would be to
permit the agency, under the guise of interpreting a regulation, to create de facto a new
regulation.” 529 U.S. at 588. Applying DOJ’s interpretation would effectively establish a new
element necessary for expedition on prong (iv)—media interest in the questions of government
integrity. And FOIA requesters would have received no notice to this new de facto element.
* * * * * * *
For these reasons, the Court should reject DOJ’s suggestion that its purported
interpretation of the regulation creates this new required showing for expedition. Rather, the only
requirement is that the requester establish an administrative record that there exist “possible”
questions about government integrity in connection with the subject matter of the request.
American Oversight’s request amply meets the standard. It addresses the government’s conduct
that raises questions about government integrity. It outlines the ethics requirements that may be
implicated by this conduct. In the absence of a more robust explanation from DOJ or
Mr. Francisco, these questions about government integrity can only be resolved through the
requested records.

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III.

DOJ’S BELATED PRODUCTION OF FOUR DOCUMENTS IN MAY DOES NOT
AFFECT AMERICAN OVERSIGHT’S ENTITLEMENT TO EXPEDITION IN
APRIL.
As DOJ has taken care to note, the evaluation of a request for expedition is “based on the

record before the agency at the time of the determination.” 5 U.S.C. § 552(a)(6)(E)(iii). It stands
to reason that the agency should be held to the same standard. At the time of American
Oversight’s request, there was no public record explaining Mr. Francisco’s shifting posture
regarding the propriety of his public participation in the travel-ban litigation. American
Oversight sought expedition to answer the possible questions regarding government integrity that
Mr. Francisco’s continued public participation raised. DOJ produced four records on the eve of a
preliminary injunction hearing that answered some of those questions. While this conveniently
timed production4 may have lessened the irreparable harm resulting from DOJ’s continued
withholding of responsive documents, the production does not alter the facts upon which the
determination regarding American Oversight’s April request for expedition must be evaluated.
For the reasons described in American Oversight’s April request, it was entitled to expedited
processing at that time, and it is the entitlement to that determination that American Oversight
now asks this Court to enforce.
Because American Oversight asks this Court to reverse DOJ’s erroneous denial of
expedition based on the record before DOJ in April, it did not highlight in its opening brief the
serious questions regarding DOJ and Mr. Francisco’s approach to addressing ethical obligations
in the travel-ban litigation that remain after DOJ’s May 26th production. The extent to which the
May 26th production answered, or failed to answer, the possible questions regarding public

4

Conveniently timed FOIA productions on the eve of a hearing on a motion for a preliminary
injunction appear to be a recurring event. See Pl.’s Notice of Filing, Citizens for Responsibility &
Ethics in Wash. v. U.S. Dep’t of Justice, No. 17-599 (D.D.C. June 19, 2017), ECF No. 14.
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integrity that exist in connection with the travel-ban litigation and Mr. Francisco’s nomination is
irrelevant to its entitlement to expedition based on the record before the agency in April.
Nonetheless, DOJ is incorrect to state that the May 26th production resolved all “possible
questions about government integrity” that arise from the facts outlined in American Oversight’s
request. Rather, significant questions regarding DOJ and Mr. Francisco’s approach to meeting
their respective ethical obligations remain that the requested records yet to be produced should
address.
First, the documents produced on May 26th do not address in any way whether
Mr. Francisco continued to work on the case between 2:01 pm EST (the time when his former
law firm entered the case)5 and 4:30 pm EST (the time when Mr. Francisco’s authorization under
5 C.F.R. § 2635.502(d) to participate was approved). The requested records could show that
Mr. Francisco refrained from participating during this interval, or that he continued to
participate.6 If Mr. Francisco refrained from participating during this interval, it would reflect
positively on his qualifications to serve as solicitor general. By contrast, if Mr. Francisco
continued to participate in the substance of this matter before receiving authorization under
5 C.F.R. § 2635.502(d), it could indicate a serious ethical transgression that would raise
questions about his fitness to serve as solicitor general. As the Director of the Office of
Government Ethics has recently made clear, there are no retroactive waivers under 5 C.F.R.

5

American Oversight’s Amended Complaint indicated that this amicus brief was filed at 11:01
am, but further discussions with the clerk’s office for the U.S. Court of Appeals for the Ninth
Circuit have made clear that the brief was filed at 11:01 am Pacific Standard Time.
6
On Tuesday, June 27th DOJ’s Civil Division made an additional production of records, but
these records too fail to clarify this possibility because they include substantial redactions both
under FOIA and because they have been referred to the Office of the Solicitor General (OSG),
where Mr. Francisco worked on February 6th, which has yet to respond. See Pl.’s Ex. 9
(Response of the Civil Division). Separately, the component with the records most likely to
address this question, OSG, has not yet produced any records.
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§ 2635.502(d). Pl.’s Ex. 10 (Letter from Walter M. Shaub, Jr., Director, Office of Government
Ethics, to U.S. Senators Elizabeth Warren, Sheldon Whitehouse, Edward J. Markey, and Mazie
K. Hirono (June 13, 2017), http://bit.ly/2trwh9o) (“More importantly, the putative retroactivity is
inconsistent with the very concept of a waiver, which is to take decisions regarding the
appropriateness of an employee’s participation in covered matters out of the employee’s hands.
By engaging in a prohibited matter at a time when the appointee does not possess a waiver, the
appointee violates the rule.”). Mr. Francisco was prohibited from participating in the substance
of the case between the filing of the Jones Day amicus brief and the issuance of authorization to
participate under 5 C.F.R. § 2635.502(d), and his participation during that period, if it happened,
would be a serious ethical breach.
Second, the records produced on May 26th themselves contain internal contradictions
that raise continued questions about the approach taken by DOJ and Mr. Francisco to complying
with applicable ethics obligations. The preliminary authorization Mr. Francisco received on
February 6th and the final authorization he received on February 9th impose different limitations
on the scope of Mr. Francisco’s participation in the travel-ban case, but there is no explanation
for, or even acknowledgement of, the changes in the February 9th authorization. Mr. Francisco
received a preliminary authorization on Monday, February 6th, to continue to participate in the
case notwithstanding his former law firm’s appearance. The preliminary authorization contained
the following instruction, which presumably explains his failure to sign the reply brief filed later
that evening:
Adjustments that may be made in the employee’s duties to eliminate
the likelihood that a reasonable person would question his
impartiality are being made in conformity with the January 28, 2017
Executive Order, which disallows communications with former
employers. Mr. Francisco has been instructed not to communicate

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with Jones Day or sign the brief, which would constitute making an
appearance or communication.
ECF No. 12-1 at 3-4. On Thursday, February 9th, Mr. Francisco received a second § 2635.502
waiver authorizing him to continue to participate in the case notwithstanding the same conflict.
ECF No. 12-1 at 8-10. This second authorization contains a more robust explanation of DOJ’s
analysis regarding the application of § 2635.502 and the appropriateness of the waiver. Notably,
however, this second authorization does not contain the same limitation regarding
Mr. Francisco’s public participation in the case. Nor does it contain an acknowledgement of the
reasons for the change, much less any analysis explaining the reasons for the change or analyzing
the application of the president’s January 28, 2017 executive order. Thus DOJ’s rationale for the
decision to allow Mr. Francisco to resume signing briefs in the case remains an open question.
As a legal matter, the records produced on May 26th should be irrelevant to the Court’s
analysis of whether American Oversight was entitled to expedition at the time that it requested it,
in April. But to the extent that the Court considers those records in evaluating the equities of
granting American Oversight its requested relief, those records do not, as the government
contends, resolve all outstanding questions that exist regarding government integrity in the
conduct of the travel-ban litigation. However, taken together, the records that have been
produced do highlight the significant ethics questions that arise from the course of events in the
travel-ban litigation described in American Oversight’s request. For these reasons, and the
reasons explained above and in the Memorandum in Support of Plaintiff’s Motion for Partial
Summary Judgment, the equities here weigh in favor of granting the relief American Oversight
seeks.

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CONCLUSION
For the foregoing reasons, the Court should grant American Oversight’s Motion for
Partial Summary Judgment and order DOJ to expedite the processing of American Oversight’s
April 7, 2017 FOIA request as of the date it was received by Defendant.

Dated: June 30, 2017

Respectfully submitted,
/s/ Cerissa Cafasso
Cerissa Cafasso
D.C. Bar No. 1011003
Sara Kaiser Creighton
D.C. Bar No. 1002367
Melanie Sloan
D.C. Bar No. 434584
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 869-5246
cerissa.cafasso@americanoversight.org
sara.creighton@americanoversight.org
msloan@americanoversight.org
Counsel for Plaintiff

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