Case 1:18-cv-01803 Document 1 Filed 08/01/18 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) Plaintiff, ) ) v. ) ) U.S. DEPARTMENT OF EDUCATION, ) 400 Maryland Avenue SW ) Washington, DC 20202 ) ) Defendant. ) ) NATIONAL STUDENT LEGAL DEFENSE NETWORK, 1015 15th Street NW, Suite 600 Washington, DC 20005 Case No. 18-cv-1803 COMPLAINT 1. Plaintiff National Student Legal Defense Network brings this action against the U.S. Department of Education under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, seeking declaratory and injunctive relief to compel compliance with the requirements of FOIA. JURISDICTION AND VENUE 2. This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. §§ 1331, 2201, and 2202. 3. Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391(e). 4. Because Defendant has failed to comply with the applicable time-limit provisions of the FOIA, the National Student Legal Defense Network is deemed to have exhausted its administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(C)(i) and is now entitled to judicial 1 Case 1:18-cv-01803 Document 1 Filed 08/01/18 Page 2 of 6 action enjoining the agency from continuing to withhold agency records and ordering the production of agency records improperly withheld. PARTIES 5. Plaintiff National Student Legal Defense Network (NSLDN) is a nonpartisan, non-profit organization incorporated in the District of Columbia. NSLDN’s mission is to work, through a variety of means, to advance students’ rights to educational opportunity, and to ensure that higher education provides a launching point for economic mobility. To further its mission, NSLDN gathers information, including through responses to FOIA requests submitted to government agencies, in order to inform the public via, inter alia, its website, social media, press releases and other comments to the media, and regulatory comments to government agencies. 6. Defendant the U.S. Department of Education (ED) is a department of the executive branch of the U.S. government headquartered in Washington, D.C., and an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1). ED has possession, custody, and control of the records that NSLDN seeks. STATEMENT OF FACTS 7. On March 8, 2018, NSLDN submitted a FOIA request to ED seeking all records produced by ED to Navient Corporation, Navient Solutions, Inc., or Pioneer Credit Recovery, Inc. in response to discovery requests issued in connection with an ongoing Consumer Financial Protection Bureau enforcement action, CFPB v. Navient Corporation et al., Case No. 3:17-cv00101-RDM (“the Litigation”), and any communications between ED or the U.S. Department of Justice and the defendants in the Litigation. 8. Specifically, NSLDN’s request sought: 1) All documents produced by the U.S. Department of Education to Navient Corporation, Navient Solutions, Inc., or Pioneer Credit 2 Case 1:18-cv-01803 Document 1 Filed 08/01/18 Page 3 of 6 Recovery, Inc., pursuant to any discovery request, subpoena, or other request issued in, or in connection with, the Litigation. 2) All communications or correspondence between the U.S. Department of Education or the U.S. Department of Justice, on the one hand, and counsel for any defendant in the Litigation regarding any discovery or subpoena request issued in the Litigation. 9. ED assigned the request tracking number 18-01253-F. 10. On March 15, 2018, ED granted NSLDN’s request for a fee waiver. 11. NSLDN has not received any further communication from ED regarding its request. Exhaustion of Administrative Remedies 12. As of the date of this complaint, ED has failed to (a) notify NSLDN of any determination regarding its FOIA request, including the scope of any responsive records ED intends to produce or withhold and the reasons for any withholdings; or (b) produce the requested records or demonstrate that the requested records are lawfully exempt from production. 13. Through ED’s failure to respond to NSLDN’s FOIA request within the time period required by law, NSLDN has constructively exhausted its administrative remedies and seeks immediate judicial review. COUNT I Violation of FOIA, 5 U.S.C. § 552 Failure to Conduct Adequate Search for Responsive Records 14. NSLDN repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 15. NSLDN properly requested records within the possession, custody, and control of ED. 3 Case 1:18-cv-01803 Document 1 Filed 08/01/18 Page 4 of 6 16. ED is an agency subject to FOIA and must therefore make reasonable efforts to search for requested records. 17. ED has failed to promptly review agency records for the purpose of locating those records which are responsive to NSLDN’s FOIA request. 18. ED’s failure to conduct an adequate search for responsive records violates FOIA. 19. Plaintiff NSLDN is therefore entitled to injunctive and declaratory relief requiring Defendant to promptly make reasonable efforts to search for records responsive to NSLDN’s FOIA request. COUNT II Violation of FOIA, 5 U.S.C. § 552 Wrongful Withholding of Non-Exempt Responsive Records 20. NSLDN repeats the allegations in the foregoing paragraphs and incorporates them as though fully set forth herein. 21. NSLDN properly requested records within the possession, custody, and control of 22. ED is an agency subject to FOIA and must therefore release in response to a ED. FOIA request any non-exempt records and provide a lawful reason for withholding any materials. 23. ED is wrongfully withholding non-exempt agency records requested by NSLDN by failing to produce non-exempt records responsive to its FOIA request. 24. ED is wrongfully withholding non-exempt agency records requested by NSLDN by failing to segregate exempt information in otherwise non-exempt records responsive to NSLDN’s FOIA request. 25. ED’s failure to provide all non-exempt responsive records violates FOIA. 4 Case 1:18-cv-01803 Document 1 Filed 08/01/18 Page 5 of 6 26. Plaintiff NSLDN is therefore entitled to declaratory and injunctive relief requiring Defendant to promptly produce all non-exempt records responsive to its FOIA request and provide indexes justifying the withholding of any responsive records withheld under claim of exemption. REQUESTED RELIEF WHEREFORE, NSLDN respectfully requests the Court to: (1) Order Defendant to conduct a search or searches reasonably calculated to uncover all records responsive to NSLDN’s FOIA request; (2) Order Defendant to produce, within twenty days of the Court’s order, or by such other date as the Court deems appropriate, any and all non-exempt records responsive to NSLDN’s FOIA request and indexes justifying the withholding of any responsive records withheld under claim of exemption; (3) Enjoin Defendant from continuing to withhold any and all non-exempt records responsive to NSLDN’s FOIA request; (4) Award NSLDN the costs of this proceeding, including reasonable attorneys’ fees and other litigation costs reasonably incurred in this action, pursuant to 5 U.S.C. § 552(a)(4)(E); and (5) Grant NSLDN such other relief as the Court deems just and proper. Dated: August 1, 2018 Respectfully submitted, /s/ Daniel A. McGrath Daniel A. McGrath D.C. Bar No. 1531723 /s/ Elizabeth France Elizabeth France D.C. Bar No. 999851 5 Case 1:18-cv-01803 Document 1 Filed 08/01/18 Page 6 of 6 /s/ John E. Bies John E. Bies D.C. Bar No. 483730 AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 869-5244 daniel.mcgrath@americanoversight.org beth.france@americanoversight.org john.bies@americanoversight.org /s/ Robyn K. Bitner Robyn K. Bitner* N.Y. Bar No. 5294970 Pro hac vice motion to be submitted NATIONAL STUDENT LEGAL DEFENSE NETWORK 1015 15th Street NW, Suite 600 Washington, DC 20005 (202) 734-7495 robyn@nsldn.org *Member of the N.Y. bar only; practicing in the District of Columbia under the supervision of members of the D.C. Bar while D.C. Bar application is pending. Counsel for Plaintiff NSLDN 6