Opposition to Defendant's Motions (ECF 17)

PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

Defendant asks the Court to end this case without any component of the Department of Justice ever having to say, after a search, what records it holds about 18 U.S.C. § 1389. Each of its three grounds avoids that question.

First, Defendant says Plaintiff may not sue on requests signed with a pseudonym, yet its own motion assumes the explanation is true (“[e]ven if true,” DOJ argues, it “does not cure the standing issue,” ECF 14 at 8), and its declarant acknowledges that this lawsuit “suggests the request actually was submitted by Plaintiff.” ECF 15 at 2 n.1. No third party is hidden behind the name. The requester, the recipient of every DOJ response, and the plaintiff are the same person. Isaac Decl. ¶¶ 2–3.

Second, Defendant says the National Security Division’s (“NSD”) claim is moot because NSD released one page after suit was filed. But the supporting declaration does not say where NSD looked or how, and a public federal complaint squarely within the request, United States v. McNeil, No. 5:15-cr-00446-DAP (N.D. Ohio), is not among the records produced. Ex. 6.

Third, Defendant says the Civil Rights Division’s (“CRT”) request was too vague to search, yet CRT’s own declarant swears he understood it well enough to state that CRT “does not have jurisdiction” over § 1389 and that he has “no reasonable basis to believe” CRT holds responsive records. ECF 15 ¶¶ 17–18. A belief about jurisdiction is not a search, and a request for records “received by” a division is not defeated because the division does not prosecute the statute.

Members of Congress have twice asked the Department’s leadership what DOJ does to enforce § 1389. Exs. 4, 5. Plaintiff is aware of no substantive answer. Isaac Decl. ¶ 9. FOIA exists so that an agency’s answer to that kind of question can be tested in court. The Court should deny the motion.

BACKGROUND

A. The requests. On March 19, 2026, Plaintiff emailed two FOIA requests, one to CRT and one to NSD, under the name “Abbie Casteel,” seeking records about 18 U.S.C. § 1389 from November 1, 2009, to the present. Compl. ¶¶ 3–5; ECF 15-1; ECF 16-1; Isaac Decl. ¶ 2 & Ex. 1. The CRT request sought (1) complaints, reports, or referrals “received by the Civil Rights Division” alleging violations of § 1389; (2) internal guidance addressing the Division’s “jurisdiction over or enforcement responsibilities under” § 1389; and (3) communications between the Division and other DOJ components “regarding enforcement responsibility.” ECF 15-1. The NSD request sought (1) cases “opened, prosecuted, or formally declined” in which § 1389 “was charged or considered as a charging vehicle,” and (2) internal guidance on NSD’s use of the statute. ECF 16-1.

B. DOJ’s responses. NSD acknowledged the request on March 27, 2026, and stated that any search would be “limited to the records of the National Security Division.” Compl. Ex. C. On April 14, 2026, CRT replied that the request did not “reasonably describe” the records and invited narrowing, adding: “We are not denying any records at this time.” ECF 15-3 at 1. The same day, Plaintiff declined to narrow, pointed out that the request names a single statute and a defined window, and asked CRT to say in writing whether it had found a large volume of records, could not search by statute, or expected to find none, in which case a no-records determination “would be appropriate” and acceptable. ECF 15-4. DOJ’s evidence does not show that CRT answered. It says only that CRT “closed the request.” ECF 15 ¶ 13. Isaac Decl. ¶ 5.

On September 23, 2026, NSD issued a final response releasing one page “in part” under Exemptions 5, 6, and 7(C), with no Vaughn index, and omitted its standard appeals paragraph because the request is the subject of this suit. ECF 16-2; Isaac Decl. ¶ 7 & Ex. 3. NSD’s declarant states that NSD “produced all non-exempt records responsive to the request,” ECF 16 ¶ 9, but does not state what systems, files, or search terms were used.

C. The McNeil record and Plaintiff’s search questions. Also on September 23, 2026, Plaintiff wrote to DOJ’s counsel identifying United States v. McNeil, No. 5:15-cr-00446-DAP (N.D. Ohio). The FBI affidavit supporting the November 11, 2015 complaint names § 1389 as one of the felonies McNeil allegedly solicited and finds probable cause that he solicited violations of “Section 1114, and/or . . . Section 1389.” Ex. 6 (ECF 1-1 ¶¶ 8(b), 99) The later indictments included several charges under 18 U.S.C. §§ 1114 and/or “1389(a).” Ex. 7. Plaintiff asked which NSD systems and files were searched and with what terms; whether the search would capture matters in which § 1389 appeared as an object offense of a § 373 or § 371 charge; whether the Counterterrorism Section’s case files for 2009 through 2020 were included; and whether NSD would run a supplemental search. Ex. 2. DOJ has not answered. Isaac Decl. ¶ 7. 

D. The congressional inquiries. On November 22, 2019, six Members of the House of Representatives wrote to the Attorney General and the FBI Director asking what DOJ had done to collect anti-military hate-crime data, what guidance DOJ and the FBI had given law enforcement about § 1389 complaints, and how DOJ had informed service members of their rights under the statute. Ex. 4. On October 4, 2024, Senator Ron Wyden wrote to the Attorney General that “DOJ is responsible for enforcing” § 1389, asked how many cases DOJ has prosecuted under it and whether DOJ collects data on such crimes, and noted that DOJ’s Servicemembers and Veterans Initiative and hate-crime case-example pages did not mention it. Ex. 5. Plaintiff is aware of no substantive response to either letter. Isaac Decl. ¶ 9.  

E. Public prosecutions. DOJ’s own press releases describe at least one prosecution involving the statute: a November 18, 2021 release from the U.S. Attorney’s Office for the Eastern District of Wisconsin on the sentencing of a man for attacking a service member. Ex. 9. Plaintiff understands the “one (1) page of records” NSD released to relate to that matter. Ex. 3. The McNeil case and the other matters listed at Ex. 10 are discussed below.

ARGUMENT

I. The governing standards. 

DOJ’s jurisdictional challenge is factual, so the Court may consider evidence outside the complaint, and Plaintiff submits his own declaration and exhibits. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (cited at ECF 14 at 5). On summary judgment, the agency bears the burden of showing that its search was adequate and its withholdings justified, and the evidence is viewed in the light most favorable to Plaintiff. Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985). Pro se filings are construed liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

II. Plaintiff made the requests and may sue on them.

A. FOIA requires no legal name. FOIA directs agencies to make records available to “any person,” 5 U.S.C. § 552(a)(3)(A), and gives the district court jurisdiction over a suit by the complainant whose request was improperly refused, id. § 552(a)(4)(B). Neither provision requires a legal name. Defendant cites no statute or regulation that does. 28 C.F.R. § 16.3(a)(3) only requires identification in cases involving “records about himself or herself.”  Plaintiff wrote the requests, signed them with a pseudonym he disclosed in his complaint (Compl. ¶ 3), received DOJ’s responses at the address he used, and is the person whose requests DOJ says it has fully answered or need not answer. Isaac Decl. ¶¶ 2–3. DOJ does not contend that anyone other than Plaintiff wrote them; it argues that his explanation, “[e]ven if true,” does not cure the problem. ECF 14 at 8.

B. DOJ’s authorities address a different problem. As DOJ describes them, McDonnell, Unigard, Mahtesian, Burka, and Three Forks involved a client or principal standing behind an attorney or intermediary who made the request in another’s name, so that the agency could not know whose right was being asserted. ECF 14 at 7–9. That risk does not exist here. There is one person: the requester, the correspondent, and the plaintiff. DOJ’s own papers show it processed both requests, corresponded with the requester, and released a record under that name. ECF 16 ¶¶ 5–9; ECF 15 ¶¶ 6–13. The purpose of the name-on-the-request rule, knowing who has asserted the right administratively, is met.

C. The “alteration” contention does not change who made the requests. DOJ says Exhibits A and B to the complaint show Plaintiff’s name in the recipient line and redact the requester’s name, while the emails DOJ received did not. ECF 14 at 3–4 nn.1–2; ECF 16 ¶ 11. The exhibits filed with the Complaint were redacted to conceal a pseudonym Plaintiff used to avoid adverse action from an Executive agency refusing Congressionally-mandated federal protection. Plaintiff ’s attempt at “operational integrity” has been disclosed already. Compl. ¶ 3. Whatever the misunderstanding on Defendant’s part, Ex. 1 now supplies the as-sent messages with full headers.

D. At most, dismissal must be without prejudice. A dismissal for lack of subject-matter jurisdiction is not a ruling on the merits and should be without prejudice. Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004). DOJ’s request for dismissal “with prejudice,” ECF 14 at 13, is unavailable on its own theory. If the Court finds the pseudonym a defect, Plaintiff asks for leave to amend, Fed. R. Civ. P. 15(a)(2).

III. NSD’s claim is not moot, and DOJ has not shown an adequate search.

A. A one-page partial release does not give the relief sought. A claim is moot only when the court can grant no effectual relief. City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000) (cited at ECF 14 at 9). A post-suit release moots a FOIA claim only where the agency has produced everything it was required to produce after an adequate search. See Papa v. United States, 281 F.3d 1004, 1013 (9th Cir. 2002). The complaint asks for “adequate searches” and a Vaughn index, Compl., Prayer ¶¶ B–C. NSD’s single page, released in part under three exemptions without an index, provides neither. ECF 16-2.

B. The O’Dowd declaration does not describe a search. An agency seeking judgment on a FOIA search must submit reasonably detailed, nonconclusory declarations that identify the search terms and the type of search performed and show that the places likely to hold responsive records were searched. Zemansky, 767 F.2d at 571; Hamdan v. DOJ, 797 F.3d 759, 770–71 (9th Cir. 2015). The presumption of good faith attaches to declarations that supply that detail. See SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). The O’Dowd declaration says NSD “produced all non-exempt records responsive to the request” and nothing more about the search. ECF 16 ¶ 9. It names no system, custodian, file, date range, or search term. It does not say whether the search reached matters in which § 1389 appears as an object or predicate offense, which the request’s words “considered as a charging vehicle” reach. ECF 16-1.

C. McNeil shows the gap is not hypothetical. McNeil is a public federal prosecution in which a sworn FBI affidavit names § 1389 as an offense the defendant solicited and finds probable cause as to it. Ex. 6. That is a case in which § 1389 was “considered as a charging vehicle,” the request’s own language. NSD produced one page, and Plaintiff understands that page to concern a different matter. Plaintiff does not argue that a single missed record always makes a search inadequate. His point is narrower: where a requester identifies a specific, public matter within the request, and the agency’s declaration says nothing about how its search could have missed it, the agency has not carried its burden, and the question cannot be resolved on this declaration. Plaintiff raised McNeil with DOJ’s counsel on the day NSD responded and asked four specific questions, Ex. 2. DOJ’s motion papers, filed more than two weeks later, answer none of them. Isaac Decl. ¶ 7.

D. DOJ cannot answer by saying McNeil was a U.S. Attorney’s case. DOJ may respond that McNeil was prosecuted in the Northern District of Ohio, not by NSD. That is the question the declaration must answer, not a reason to skip it. NSD’s acknowledgment limited the search to NSD records, but DOJ has not said whether NSD’s Counterterrorism Section files were searched. DOJ’s own release credits NSD with the investigation or prosecution of McNeil. Ex. 8. 

IV. The CRT claim should not be dismissed, or decided for DOJ, on this record.

A. The request reasonably describes the records. A request satisfies § 552(a)(3)(A) if a professional employee familiar with the subject area could locate the records with reasonable effort. Hudgins v. IRS, 620 F. Supp. 19, 21 (D.D.C. 1985) (cited at ECF 14 at 10). This request names one statute, one date range, and three discrete categories of records. It is not a request for “all” records on a broad subject, as in the authorities DOJ cites. ECF 14 at 10–11. DOJ’s own declarant proves the point. Mr. Buchko identified the statute, described what it prohibits, and compared it with the statutes within CRT’s jurisdiction. ECF 15 ¶¶ 15–16. A division that can do that has understood what was asked. What his declaration does not describe is a search.

B. DOJ cannot claim both that a search would be unreasonably burdensome and that it expects no records. CRT’s April 14 letter invoked AFGE and Power the Future for the proposition that review and redaction of “a vast quantity of material” would be unreasonably burdensome. ECF 15-3 at 1. Six months later, CRT’s declarant swears he has “no reasonable basis to believe” CRT holds any responsive record. ECF 15 ¶ 18. Both cannot be true. If CRT holds a vast quantity of records, it must say so and show it. If it expects none, a search is inexpensive, and CRT has never explained why it was not run. Plaintiff asked exactly that on April 14. ECF 15-4.

C. Mr. Buchko conflates authority to prosecute with possession of records. Item 1 asks for complaints “received by” CRT. Item 3 asks for communications with other components “regarding enforcement responsibility.” Item 2 asks for guidance “addressing” CRT’s jurisdiction over the statute. ECF 15-1. A division without prosecutorial authority can still receive complaints and refer them elsewhere, and a document explaining that CRT lacks jurisdiction, or routing a complaint to another component, is itself responsive to Items 2 and 3. CRT’s public complaint channels accept hate-crime reports from the public at https://civilrights.justice.gov/report. Mr. Buchko does not say that anyone looked for such records. He states a belief grounded in the statutes CRT enforces, ECF 15 ¶¶ 16–18, and a belief about jurisdiction is not a search. Zemansky, 767 F.2d at 571.

D. The congressional inquiries show why a bare belief is not enough. Plaintiff does not contend the Trone and Wyden letters prove that CRT holds records. They show that the Department’s leadership was asked in writing, in 2019 and again in 2024, what guidance, data, and enforcement exist under § 1389, and that Senator Wyden wrote that DOJ is responsible for enforcing it. Exs. 4, 5. As far as Plaintiff is aware, no substantive answer was given. Isaac Decl. ¶ 9. A Department that received such inquiries would ordinarily be expected to generate internal communications about how to answer them, and Item 3 covers communications between CRT and other components about enforcement responsibility. Whether any exist can be learned only by searching. Mr. Buchko’s statement that he has “no reasonable basis to believe” otherwise, ECF 15 ¶ 18, does not mention the inquiries, and DOJ has not said whether the Division was consulted about them.

E. Exhaustion does not bar the CRT claim.

1. Exhaustion is prudential, not jurisdictional. Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003). DOJ raises it under Rule 56, ECF 14 at 2, which is consistent with that.
2. Exhaustion is triggered by a determination, and CRT made none. FOIA requires an agency, within twenty working days, to determine whether to comply and to notify the requester of that determination and the reasons for it, 5 U.S.C. § 552(a)(6)(A)(i), and deems a requester to have exhausted administrative remedies if the agency misses that deadline, id. § 552(a)(6)(C)(i). CREW v. FEC, 711 F.3d 180, 188 (D.C. Cir. 2013) (cited at ECF 14 at 10), explains that a determination requires the agency to gather and review the documents and to tell the requester what it will produce and withhold and why. CRT’s April 14 letter did none of that. It ran no search, stated that CRT was “not denying any records,” and said it would “continue processing” once the request was narrowed. ECF 15-3 at 1. It invited narrowing; it did not decide. The appeal clock on which DOJ relies therefore never started, and Plaintiff was deemed to have exhausted when twenty working days passed without a determination. A form paragraph via litigation cannot turn a non-decision into a decision.
3. Any failure to exhaust should be excused. Exhaustion lets an agency correct its own errors and build a record. Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 64–65 (D.C. Cir. 1990) (cited at ECF 14 at 12). Plaintiff gave CRT that opportunity the same day by asking it to explain its burden claim or issue a no-records determination he said he would accept, and CRT did not respond. ECF 15-4; ECF 15 ¶ 13. DOJ now states under oath that it expects to find no records, ECF 15 ¶ 18, so an appeal asking the Office of Information Policy to review a request to narrow would have added nothing this litigation has not. 

V. Procedure: Rule 12(d) and Rule 56(d). 

DOJ combined Rule 12(b)(1), Rule 12(b)(6), and Rule 56 in one motion and rests its CRT arguments on declarations outside the pleadings. Plaintiff asks the Court to treat the CRT claims under Rule 56 only, Fed. R. Civ. P. 12(d), and to consider Plaintiff’s declaration and exhibits. If the Court finds the record insufficient to deny the motion outright, Plaintiff requests relief under Rule 56(d). As his declaration states (Isaac Decl. ¶ 10), he cannot presently present facts about (1) which NSD systems, files, and terms were searched; (2) whether CRT ran any search before Mr. Buchko made his statement, and on what basis he made it; and (3) whether the 2019 and 2024 inquiries were routed to or discussed with CRT or NSD. Plaintiff asks the Court to order DOJ to file supplemental declarations on those points or, alternatively, to allow limited discovery.

VI. Alternative relief. 

The Court should deny the motion. In the alternative: (1) any dismissal for lack of jurisdiction should be without prejudice and with leave to amend; (2) NSD and CRT should be ordered to file declarations describing the searches conducted or, if none were conducted, to conduct them and state their determinations; and (3) NSD should be ordered to provide a Vaughn index for its withholdings.

CONCLUSION

For these reasons, Plaintiff respectfully requests that the Court deny Defendant’s Motion to Dismiss and Motion for Summary Judgment (ECF 14), or grant the alternative relief described above.