2015-10-08 DOJ Answer To Amended Complaint (Flores V DOJ) - FOIA Lawsuit

Case 1:15-cv-02627-JG-RLM Document 17 Filed 10/08/15 Page 1 of 19 PageID #: 203
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
____________________________________
LOUIS FLORES,
)
)
Plaintiff,
)
)
v.
)
)
UNITED STATES DEPARTMENT OF
)
JUSTICE,
)
)
)
Defendant.
)
___________________________________ )
CIVIL ACTION NO. 15-CV-2627

(Gleeson, J.)
(Mann, M.J.)
ANSWER TO AMENDED COMPLAINT
Defendant UNITED STATES DEPARTMENT OF JUSTICE (DOJ or Defendant),

by its undersigned attorney, KELLY T. CURRIE, Acting United States Attorney for the Eastern
District of New York, RUKHSANAH L. SINGH, Assistant United States Attorney, of counsel,
hereby responds to the correspondingly numbered paragraphs of the Amended Complaint for
Injunctive Relief (Amended Complaint) of Plaintiff Louis Flores (Plaintiff) (Docket No.
15) upon information and belief as follows:
In Answer to the Section Titled Introduction
1.
Paragraph 1 of the Amended Complaint contains Plaintiffs characterization of
this action to which no response is required. To the extent that paragraph 1 of the Amended
Complaint is deemed to contain factual allegations to which a response is required, Defendant
denies each and every such allegation.
2.
Paragraph 2 of the Amended Complaint contains Plaintiffs characterizations of
denies each and every such allegation, except admits only that a memorandum dated January 21,
2009 is recorded at 74 Fed. Reg. 4683 and available at the website citation referenced in
paragraph 2 of the Amended Complaint and that the quoted language in paragraph 2 of the
Amended Complaint appears in that memorandum.
3.
denies each and every such allegation, except admits only that a memorandum dated March 19,
2009 is available at the website citation referenced in paragraph 3 of the Amended Complaint
and that the quoted language in paragraph 3 of the Amended Complaint appears in that
memorandum.
4.
Defendant denies knowledge or information sufficient to form a response to each
and every allegation made in the first, third, and fifth sentences of paragraph 4 of the Amended
Complaint, except admits only that Plaintiff sent email communications to DOJ personnel staff at
the U.S. Attorneys Office (USAO) for the District of Columbia (USAO-DC), including
emails dated March 27, 2013 and April 30, 2013 to Angela George, and that on April 17, 2013,
William Miller sent an email to Plaintiff, informing Plaintiff that a FOIA request for records of
an USAO should be sent to the Department of Justices Executive Office for United States
Attorneys (EOUSA).
Defendant denies knowledge or information sufficient to form a
response to the allegations made in the second and fourth sentences of paragraph 4 of the
Amended Complaint, and avers only that the websites referenced in paragraph 4 of the Amended
Complaint contain references to individuals not parties to this action.
5.
and every allegation made in the first sentence of paragraph 5 of the Amended Complaint, except
admits only that, upon information and belief, Plaintiff contacted the EOUSA at least once by
telephone. Defendant denies knowledge or information sufficient to form a response to each and
every allegation made in the second sentence of paragraph 5 of the Amended Complaint.
6.
Defendant denies knowledge or information sufficient to form a response as to
each and every allegation made in paragraph 6 of the Amended Complaint, except admits only
that the Office of Information Policy (OIP) received a letter dated December 6, 2013 from the
law firm of Willkie Farr & Gallagher LLP regarding Appeal of Constructive Denial of Freedom
of Information Act Request.
7.
Defendant denies knowledge or information sufficient to form a response as to
each and every allegation made in paragraph 7 of the Amended Complaint, except admits only
that the OIP responded on May 20, 2014 to communications from Willkie Farr & Gallagher LLP
regarding a FOIA request made by Plaintiff.
8.
Defendant denies the allegations made in the first, second, and third sentences of
paragraph 8 of the Amended Complaint, except admits only that, on or about August 17, 2015,
EOUSA provided a response to Plaintiffs FOIA request dated April 30, 2013, which stated that
no responsive records had been located upon searches conducted in the USAO-DC and that,
although they were not responsive to Plaintiffs FOIA Request, EOUSA was making a
discretionary release of publicly available documents relating to the prosecution of Daniel Choi.
Defendant denies knowledge or information sufficient to form a response as to each and every
allegation made in sentences four and five of paragraph 8 of the Amended Complaint, except
admits only that Plaintiff has raised various issues he perceived with the discretionary release,
and avers only that Plaintiff declined Defendants initial offer to provide him with the documents
referenced in the discretionary release that Plaintiff identified as missing. Defendant denies
each and every allegation made in the sixth sentence of paragraph 8 of the Amended Complaint.
9.
Defendant denies knowledge or information sufficient to form a response as to the
allegations in paragraph 9 of the Amended Complaint.

10.
Paragraph
10
of
the
Amended
Complaint
contains
arguments
and
characterizations of Plaintiffs legal arguments to which no response is required. To the extent

that paragraph 10 of the Amended Complaint is deemed to contain factual allegations to which a
response is required, Defendant denies each and every such allegation.
11.
Paragraph 11 of the Amended Complaint constitutes Plaintiffs characterization of
this action and a prayer for relief to which no response is required. To the extent that paragraph
11 of the Amended Complaint is deemed to contain factual allegations to which a response is
required, Defendant denies each and every such allegation.
In Answer to the Section Titled Jurisdiction and Venue
12.
Paragraph 12 of the Amended Complaint contains conclusions of law to which no
response is required. To the extent paragraph 12 of the Amended Complaint is deemed to

contain factual allegations to which a response is required, Defendant denies each and every such
allegation.
13.
The first sentence of paragraph 13 of the Amended Complaint contains
conclusions of law to which no response is required; to the extent that this sentence is deemed to
allegation. Defendant denies knowledge or information sufficient to form a response to each and
every allegation made in the second sentence of paragraph 13 of the Amended Complaint.
In Answer to the Section Titled Parties

14.
and every allegation made in paragraph 14 of the Amended Complaint.

15.
Defendant denies each and every allegation made in the first sentence of
paragraph 15 of the Amended Complaint, except admits only that DOJ is an agency of the
United States Government. Defendant denies each and every allegation made in the second
sentence of paragraph 15 of the Amended Complaint, except admits only that DOJs
headquarters is located in Washington, DC.
16.
Defendant admits the allegations made in the first sentence of paragraph 16 of the
Amended Complaint. Defendant denies each and every allegation made in the second sentence
of paragraph 16 of the Amended Complaint, except admits only that USAO-DC is one of 94
USAO districts. Defendant denies each and every allegation made in the fourth sentence of
paragraph 16 of the Amended Complaint, except admits only that, on April 17, 2013, William
Miller sent an email to Plaintiff that included the quoted language. Defendant denies each and
every allegation made in the remaining sentences of paragraph 16 of the Amended Complaint,
except admits only that the quoted language appears on the webpages cited in that paragraph.
In Answer to the Section Titled Factual Background, The Governments
Prosecution of Activists
17.
alleged activities unrelated to this action and arguments to which no response is required, and
does not comply with Rule 8(d)(1) of the Federal Rules of Civil Procedure. To the extent that
paragraph 17 of the Amended Complaint is deemed to contain factual allegations to which a
response is required, Defendant denies each and every such allegation.
18.
response is required, Defendant denies each and every such allegation and further denies
knowledge or information sufficient to form a response as to the allegations involving non-party
websites referenced in paragraph 18 of the Amended Complaint.
19.
knowledge or information sufficient to form a response as to the allegations involving the nonparty website referenced in paragraph 19 of the Amended Complaint.
20.
knowledge or information sufficient to form a response as to the allegations involving the nonparty website referenced in paragraph 20 of the Amended Complaint.
21.
alleged activities of individuals and events that are unrelated to the instant action and presents
arguments to which no response is required, and does not comply with Rule 8(d)(1) of the
Federal Rules of Civil Procedure. To the extent that paragraph 21 of the Amended Complaint is
deemed to contain factual allegations to which a response is required, Defendant denies each and
every such allegation and further denies knowledge or information sufficient to form a response
as to the allegations involving non-party websites referenced in paragraph 21 of the Amended
Complaint.
22.
Complaint.
23.
Complaint.
24.
Complaint.
In Answer to the Section Titled The Governments Pattern and Practice of
Denying FOIA Requests
25.
legal arguments to which no response is required, and does not comply with Rule 8(d)(1) of the
Complaint.
26.
legal arguments to which no response is required, and does not comply with Rule 8(d)(1) of the
8

Complaint.
27.
arguments to which no response is required. To the extent that paragraph 27 of the Amended
denies each and every such allegation, except admits only that, on or about August 17, 2015,
EOUSA provided a response to Plaintiffs FOIA request dated April 30, 2013, which stated that
no responsive records had been located upon searches conducted in the USAO-DC and that
EOUSA was making a discretionary release of publicly available documents, although they were
not responsive to Plaintiffs FOIA request.
28.
press coverage of alleged activities of individuals and events that are unrelated to the instant
action and presents legal arguments to which no response is required, and does not comply with
Rule 8(d)(1) of the Federal Rules of Civil Procedure. To the extent that paragraph 28 of the
Amended Complaint is deemed to contain factual allegations to which a response is required,
Defendant denies each and every such allegation and further denies knowledge or information
sufficient to form a response as to the allegations involving non-party websites referenced in
paragraph 28 of the Amended Complaint.
In Answer to the Section Titled The E-Mail Request
29.
Defendant denies each and every allegation made in paragraph 29 of the
Amended Complaint, except admits only that, on March 27, 2013, Plaintiff sent an email to
Angela George, asking for certain information regarding the prosecution of Daniel Choi.
30.
Amended Complaint, except admits only that Plaintiff copied on his email dated March 27, 2013
other individuals, including individuals at USAO-DC, as well as non-parties to this action.
31.
Amended Complaint, except avers only that Plaintiff sent an email dated April 10, 2013 to
Angela George.
32.
Amended Complaint, except admits only that Plaintiff sent an email dated April 16, 2013 to an
ASKDOJ email account.
33.
Amended Complaint, except admits only that William Miller sent an email dated April 17, 2013
to Plaintiff, informing Plaintiff that a FOIA request for records from an USAO should be sent to
EOUSA.
In Answer to the Section Titled The FOIA Request
34.
and every allegation made in paragraph 34 of the Amended Complaint, except avers only that a
log maintained by EOUSA indicates that EOUSA received a request from Plaintiff, and despite
searching its records, EOUSA was unable to find Plaintiffs April 30, 2013 FOIA request in its
files.
35.
Defendant denies each and every allegation made in the first sentence of
paragraph 35 of the Amended Complaint, except avers only that the FOIA request dated April
30, 2013 was addressed to EOUSA/FOIA/PA Staff. Defendant denies each and every allegation
made in the second sentence of paragraph 35 of the Amended Complaint, except avers only that,
10
in his email dated March 27, 2013, Plaintiff requested from an Assistant United States Attorney
in USAO-DC information required to submit a formal FOIL request if an official FOIL
request was required; that, in his email dated April 16, 2013, Plaintiff stated that he requested
information on the process for submitting requests for information; and that, in an email dated
April 17, 2013, the Public Information Officer of the USAO-DC notified Plaintiff that a FOIA
request for records from a USAO should be sent to EOUSA. Defendant admits the allegations of
the third sentence of paragraph 35 of the Amended Complaint.
36.
and every allegation made in paragraph 36 of the Amended Complaint, except admits only that
Plaintiff requested expedited processing of his April 30, 2013 FOIA request.
37.
Plaintiff sought a waiver of fees associated with the April 30, 2013 FOIA request, and avers only
that EOUSA did not assess any fees in connection with the April 30, 2013 FOIA request.
38.
Plaintiff sought a waiver of fees associated with the April 30, 2013 FOIA request, and avers only
that EOUSA did not assess Plaintiff with any fees in connection with the April 30, 2013 FOIA
request.
In Answer to the Section Titled The U.S. Attorneys Offices Response to the EMail Request
39.
Amended Complaint, except admits only that William Miller sent an email dated April 17, 2013
11
to Plaintiff, informing Plaintiff that a FOIA request for records from a USAO should be sent to
EOUSA.
40.
Paragraph 40 of the Amended Complaint contains a conclusion of law to which
no response is required. To the extent that paragraph 40 of the Amended Complaint is deemed to
allegation.
41.
Amended Complaint, except avers only that, on or about August 17, 2015, EOUSA provided a
response to Plaintiffs FOIA request dated April 30, 2013, which stated that no responsive
records had been located upon searches conducted in the USAO-DC and that EOUSA was
making a discretionary release of publicly available documents, although they were not
responsive to Plaintiffs FOIA request.
42.
his claims to which no response is required. To the extent that paragraph 42 of the Amended
43.
Amended Complaint, except admits only that, on or about August 17, 2015, EOUSA provided a
12
In Answer to the Section Titled The Executive Office for the United States
Attorneys
44.
and every allegation made in paragraph 44 of the Amended Complaint, except admits only that,
upon information and belief, Plaintiff has contacted EOUSA at least once by telephone.
45.

46.

47.
and every allegation made in the first through eleventh sentences of paragraph 47 of the
Amended Complaint. The twelfth (final) sentence of paragraph 47 of the Amended Complaint
contains Plaintiffs argument and conclusions of law to which no response is required. To the
extent that the twelfth (final) sentence of paragraph 47 of the Amended Complaint is deemed to
allegation.
48.

49.
and every allegation made in the first and second sentences of paragraph 49 of the Amended
Complaint, except admits only that Plaintiff has presented a letter dated February 10, 2014 from
the office of the Honorable Joseph Crowley regarding FOIA Request regarding Lt. Dan Choi.
The third sentence of paragraph 49 of the Amended Complaint contains Plaintiffs argument and
conclusions of law to which no response is required. To the extent that the third sentence of
13
paragraph 49 is deemed to contain factual allegations to which a response is required, Defendant

50.
Amended Complaint, except admits only that, on or about August 17, 2015, EOUSA provided a
records had been located upon searches conducted in the USAO-DC and that EOUSA made a
discretionary release of publicly available documents, although they were not responsive to
Plaintiffs FOIA request.
In Answer to the Section Titled The Office of Information Policy
51.
the law firm of Willkie Farr & Gallagher LLP sent a letter dated December 6, 2013 to the OIP on
Plaintiffs behalf. Defendant respectfully refers the Court to that letter for its complete and
accurate contents.
52.
Defendant admits the allegations made in paragraph 52 of the Amended
Complaint, and avers that the quoted language contains a typographical error and that the
referenced letter states that OIP was remanding the administrative appeal because the EOUSA
could not locate Plaintiffs FOIA request.
53.
Amended Complaint, except avers only that OIP is not the proper DOJ component to release a
response to Plaintiffs FOIA request and that, on or about August 17, 2015, EOUSA provided a
14
In Answer to the Section Titled The Department of Justice
54.
and every allegation made in paragraph 54 of the Amended Complaint, which does not comply
with Rule 8(d)(1) of the Federal Rules of Civil Procedure.
55.
56.
57.
Amended Complaint, except avers only that, on or about August 17, 2015, EOUSA provided a
records had been located upon searches conducted in the USAO-DC and EOUSA made a
discretionary release of publicly available documents, although they were not responsive to
Plaintiffs FOIA request; and that EOUSA is not the proper DOJ component to release records
for DOJ components other than EOUSA and the USAOs.
58.
The first sentence of paragraph 58 of the Amended Complaint contains Plaintiffs
characterizations of his FOIA request to which no response is required; to the extent that this
sentence is deemed to contain factual allegations to which a response is required, Defendant
denies each and every such allegation. As to the remaining allegations made in paragraph 58 of
15
the Amended Complaint, Defendant denies knowledge or information sufficient to form a

response to each and every such allegation.
59.

60.
arguments to which no response is required. To the extent that paragraph 60 of the Amended
denies knowledge and information sufficient to form a response to each and every such
allegation.
61.
(a). The first and sentences of paragraph 61 of the Amended Complaint contain
legal conclusions and Plaintiffs legal arguments to which no response is required. To the extent
that the first and second sentences of paragraph 61 of the Amended Complaint are deemed to
allegation. (b). Defendant denies each and every allegation made in the third sentence of
paragraph 61 of the Amended Complaint, except avers only that EOUSA could not locate a copy
of Plaintiffs April 30, 2013 FOIA request in its files and, thus, could not confirm that Plaintiff
properly submitted a FOIA request; and that a FOIA request sent by email to a USAO is not
properly submitted under the FOIA. (c) (f). The remaining sentences of paragraph 61 contain
legal conclusions and Plaintiffs arguments to which no response is required. To the extent that
the remaining sentences of paragraph 61 of the Amended Complaint are deemed to contain
factual allegations to which a response is required, Defendant denies each and every such
allegation.
16
In Answer to the Section Titled Causes of Action

62.
Amended Complaint.
63.
Amended Complaint.
64.
Amended Complaint.
65.
Amended Complaint.
66.
Amended Complaint.
67.
Amended Complaint.
68.
Amended Complaint.
In Answer to the Section Titled Requested Relief
69.
The final unnumbered WHEREFORE paragraph constitutes Plaintiffs prayer
for relief to which no response is required. To the extent that this paragraph may be deemed to
contain factual allegations to which a response may be required, they are denied.
17
DEFENSES
FIRST DEFENSE
This Court lacks subject matter jurisdiction as to some or all of the claims asserted in this
action.
SECOND DEFENSE
Any relief is limited to that provided for in 5 U.S.C. 552(a)(4)(B) and limited to
Plaintiffs April 30, 2013 FOIA request.
THIRD DEFENSE
One or more of Plaintiffs claims are barred by the doctrine of mootness.
FOURTH DEFENSE
Plaintiff is not entitled to compel the production of responsive records protected from
disclosure by one or more of the exemptions or exclusions to the FOIA, 5 U.S.C. 552, or the
Privacy Act (PA), 5 U.S.C. 552a.
FIFTH DEFENSE
To the extent Plaintiff did not properly submit a FOIA request to EOUSA, Plaintiff has
failed to exhaust his administrative remedies.
SIXTH DEFENSE
As to some or all of the claims asserted in this action, Plaintiff has failed to state a claim
upon which relief may be granted under FOIA.
SEVENTH DEFENSE
The search of USAO-DCs records did not locate any documents that are responsive to
Plaintiffs FOIA request.
18
EIGHTH DEFENSE
Plaintiff is not entitled to relief in the form of the imposition sanctions and/or penalties.
NINTH DEFENSE
The Amended Complaint fails to state a claim upon which the Court may appoint a
monitor in this action.
TENTH DEFENSE
Plaintiff is not entitled to attorneys fees or costs.
WHEREFORE,
Defendant
demands
judgment
dismissing Plaintiffs
Amended
Complaint, and for any such further and other relief as this Court may deem just and proper.
Dated: Brooklyn, New York

October 8, 2015
Respectfully submitted,
KELLY T. CURRIE
Acting United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201
By:
To:
s/Rukhsanah L. Singh
RUKHSANAH L. SINGH
Assistant United States Attorney
(718) 254-6498
[via CM/ECF and first-class mail]

Louis Flores
34-21 77th Street, Apt. #406
Jackson Heights, New York 11372
Plaintiff, Pro se
19

2015-10-08 DOJ Answer To Amended Complaint (Flores V DOJ) - FOIA Lawsuit

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Case 1:15-cv-02627-JG-RLM Document 17 Filed 10/08/15 Page 1 of 19 PageID #: 203

UNITED STATES DISTRICT COURT

CIVIL ACTION NO. 15-CV-2627

Defendant UNITED STATES DEPARTMENT OF JUSTICE (DOJ or Defendant),

Paragraph 1 of the Amended Complaint contains Plaintiffs characterization of

Paragraph 2 of the Amended Complaint contains Plaintiffs characterizations of

Case 1:15-cv-02627-JG-RLM Document 17 Filed 10/08/15 Page 2 of 19 PageID #: 204

Paragraph 3 of the Amended Complaint contains Plaintiffs characterizations of

Defendant denies knowledge or information sufficient to form a response to each

Defendant denies knowledge or information sufficient to form a

Defendant denies knowledge or information sufficient to form a response to each

Case 1:15-cv-02627-JG-RLM Document 17 Filed 10/08/15 Page 3 of 19 PageID #: 205

Defendant denies knowledge or information sufficient to form a response as to

Defendant denies knowledge or information sufficient to form a response as to

Case 1:15-cv-02627-JG-RLM Document 17 Filed 10/08/15 Page 4 of 19 PageID #: 206

Defendant denies knowledge or information sufficient to form a response as to the

allegations in paragraph 9 of the Amended Complaint.

characterizations of Plaintiffs legal arguments to which no response is required. To the extent

Paragraph 11 of the Amended Complaint constitutes Plaintiffs characterization of

Paragraph 12 of the Amended Complaint contains conclusions of law to which no

response is required. To the extent paragraph 12 of the Amended Complaint is deemed to

The first sentence of paragraph 13 of the Amended Complaint contains

Case 1:15-cv-02627-JG-RLM Document 17 Filed 10/08/15 Page 5 of 19 PageID #: 207

In Answer to the Section Titled Parties

Defendant denies knowledge or information sufficient to form a response to each

and every allegation made in paragraph 14 of the Amended Complaint.

Paragraph 17 of the Amended Complaint contains Plaintiffs characterizations of

Case 1:15-cv-02627-JG-RLM Document 17 Filed 10/08/15 Page 6 of 19 PageID #: 208

Paragraph 18 of the Amended Complaint contains Plaintiffs characterizations of

Paragraph 19 of the Amended Complaint contains Plaintiffs characterizations of

Paragraph 20 of the Amended Complaint contains Plaintiffs characterizations of

Paragraph 21 of the Amended Complaint contains Plaintiffs characterizations of

Case 1:15-cv-02627-JG-RLM Document 17 Filed 10/08/15 Page 7 of 19 PageID #: 209

Paragraph 22 of the Amended Complaint contains Plaintiffs characterizations of

Paragraph 23 of the Amended Complaint contains Plaintiffs characterizations of

Case 1:15-cv-02627-JG-RLM Document 17 Filed 10/08/15 Page 8 of 19 PageID #: 210

Paragraph 24 of the Amended Complaint contains Plaintiffs characterizations of

Paragraph 25 of the Amended Complaint contains Plaintiffs characterizations of

Paragraph 26 of the Amended Complaint contains Plaintiffs characterizations of

Case 1:15-cv-02627-JG-RLM Document 17 Filed 10/08/15 Page 9 of 19 PageID #: 211

as to the allegations involving non-party websites referenced in paragraph 26 of the Amended

Paragraph 27 of the Amended Complaint contains Plaintiffs characterizations of

Paragraph 28 of the Amended Complaint contains Plaintiffs characterizations of

Defendant denies each and every allegation made in paragraph 29 of the

Case 1:15-cv-02627-JG-RLM Document 17 Filed 10/08/15 Page 10 of 19 PageID #: 212

Defendant denies each and every allegation made in paragraph 30 of the

Defendant denies each and every allegation made in paragraph 31 of the

Defendant denies each and every allegation made in paragraph 32 of the

Defendant denies each and every allegation made in paragraph 33 of the

Defendant denies knowledge or information sufficient to form a response to each

Case 1:15-cv-02627-JG-RLM Document 17 Filed 10/08/15 Page 11 of 19 PageID #: 213

Defendant denies knowledge or information sufficient to form a response to each

Defendant denies knowledge or information sufficient to form a response to each

Defendant denies knowledge or information sufficient to form a response to each

Defendant denies each and every allegation made in paragraph 39 of the

Case 1:15-cv-02627-JG-RLM Document 17 Filed 10/08/15 Page 12 of 19 PageID #: 214

Paragraph 40 of the Amended Complaint contains a conclusion of law to which

Defendant denies each and every allegation made in paragraph 41 of the

Paragraph 42 of the Amended Complaint contains Plaintiffs characterizations of

Defendant denies each and every allegation made in paragraph 43 of the

Case 1:15-cv-02627-JG-RLM Document 17 Filed 10/08/15 Page 13 of 19 PageID #: 215

Defendant denies knowledge or information sufficient to form a response to each

Defendant denies knowledge or information sufficient to form a response to each