Case 1:20-cv-01258-EGS Document 1 Filed 05/13/20 Page 1 of 7

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 EDUCATION,
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400 Maryland Avenue SW
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Washington, DC 20202
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Defendant. )
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NATIONAL STUDENT LEGAL DEFENSE
NETWORK,
1015 15th Street NW, Suite 600
Washington, DC 20005

Case No. 20-cv-1258

COMPLAINT
1.

Plaintiff National Student Legal Defense Network (“Student Defense”) 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, Student Defense 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 action enjoining the agency from

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continuing to withhold agency records and ordering the production of agency records improperly
withheld.
PARTIES
5.

Plaintiff Student Defense is a nonpartisan, non-profit organization incorporated in

the District of Columbia. Student Defense’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, Student Defense 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 Student Defense seeks.
STATEMENT OF FACTS
Gainful Employment FOIA
7.

On October 1, 2018, Student Defense submitted a FOIA request to ED seeking

communications with non-governmental parties concerning the Notice of Proposed Rulemaking
(NPRM) titled “Program Integrity: Gainful Employment” (GE) published on August 14, 2018.
8.

Specifically, Student Defense’s request sought:
All communications or correspondence between ED and any nongovernmental party, including any calendar invitations or entries related to
meetings between ED and such parties, that mention the GE NPRM and/or
the GE rule and/or the GE rulemaking process sent on or after August 14,
2018.

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9.

Student Defense requested that, at a minimum, the following ED personnel be

included in the search for responsive records:
Betsy DeVos
Diane Auer Jones
Bob Eitel
Josh Venable
Lynn Mahaffie
Adam Kissel
Kathleen Smith
James Manning
Carlos Muniz
Elizabeth McFadden
Jeffrey (Justin) Riemer
Steve Finley

Brian Siegel
Caroline Hong
Cynthia Hammond
Jeff Appel
Julian Schmoke
Robin Minor
Barbara Hoblitzell
Annmarie Weisman
Brian Smith
John Kolotos
Ian Foss
Scott Filter

10.

ED assigned the request tracking number 19-00016-F.

11.

On or about October 23, 2018, ED sent a letter to Student Defense stating that the

request was assigned to “Multiple Offices” at ED to search for documents that may be
responsive. ED also informed Student Defense that its request for a waiver of all fees associated
with the processing of the request had been granted.
12.

On October 29, 2018, ED sent Student Defense a letter stating that the Gainful

Employment FOIA request presented unusual circumstances and acknowledging that ED would
not be able to respond within the 20-day statutory time period required by the FOIA. ED stated
that it could not provide an estimated completion date.
13.

Student Defense has not received any further communication from ED regarding

its request.
Exhaustion of Administrative Remedies
14.

As of the date of this complaint, ED has failed to (a) notify Student Defense 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

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requested records or demonstrate that the requested records are lawfully exempt from
production.
15.

Through ED’s failure to respond to Student Defense’s FOIA request within the

time period required by law, Student Defense 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
16.

Student Defense repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
17.

Student Defense properly requested records within the possession, custody, and

control of ED.
18.

ED is an agency subject to FOIA and must therefore make reasonable efforts to

search for requested records.
19.

ED has failed to promptly review agency records for the purpose of locating those

records which are responsive to Student Defense’s FOIA request.
20.

ED’s failure to conduct an adequate search for responsive records violates the

21.

Plaintiff Student Defense is therefore entitled to injunctive and declaratory relief

FOIA.

requiring Defendant to promptly make reasonable efforts to search for records responsive to
Student Defense’s FOIA request.

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COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
22.

Student Defense repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
23.

Student Defense properly requested records within the possession, custody, and

control of ED.
24.

ED is an agency subject to FOIA and must therefore release in response to a

FOIA request any non-exempt records and provide a lawful reason for withholding any
materials.
25.

ED is wrongfully withholding non-exempt agency records requested by Student

Defense by failing to produce non-exempt records responsive to Student Defense’s FOIA
request.
26.

ED is wrongfully withholding non-exempt agency records requested by Student

Defense by failing to segregate exempt information in otherwise non-exempt records responsive
to Student Defense’s FOIA request.
27.

ED’s failure to provide all non-exempt responsive records violates the FOIA.

28.

Plaintiff Student Defense is therefore entitled to declaratory and injunctive relief

requiring Defendant to promptly produce all non-exempt records responsive to Student
Defense’s FOIA request and provide indexes justifying the withholding of any responsive
records withheld under claim of exemption.

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REQUESTED RELIEF
WHEREFORE, Student Defense respectfully requests the Court to:
(1)

Order Defendant to conduct a search or searches reasonably calculated to uncover

all records responsive to Student Defense’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 Student
Defense’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 Student Defense’s FOIA request;
(4)

Award Student Defense 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 Student Defense such other relief as the Court deems just and proper.

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Dated: May 13, 2020

Respectfully submitted,
/s/ Emma Lewis
Emma Lewis
D.C. Bar No. 144574
/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
emma.lewis@americanoversight.org
john.bies@americanoversight.org
/s/ Robyn K. Bitner
Robyn K. Bitner
D.C. Bar No. 1617036
NATIONAL STUDENT LEGAL DEFENSE
NETWORK
1015 15th Street NW, Suite 600
Washington, DC 20005
(202) 734-7495
robyn@nsldn.org
Counsel for Plaintiff Student Defense

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