SNYDER v. U.S. DEPARTMENT OF JUSTICE et al

Filing 1

COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-5530994) filed by DAVID L SNYDER. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)(Snyder, David)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

DAVID L. SNYDER
in his capacity as counsel for
Andrew G. McCabe

Civil Action No. 1:18-cv-1389

Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE
950 Pennsylvania Ave. NW
Washington, DC 20530-0001
and
U.S. DEPARTMENT OF JUSTICE
OFFICE OF THE INSPECTOR GENERAL
950 Pennsylvania Ave. NW, Suite 4706
Washington, DC 20530-0001
and
FEDERAL BUREAU OF INVESTIGATION
935 Pennsylvania Ave. NW
Washington, DC 20535-0001,
Defendants.

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
Request for expedited consideration
pursuant to 28 U.S.C. § 1657(a)

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INTRODUCTION
1.

On Friday, March 16, 2018, at approximately 10 p.m., Andrew G.

McCabe was terminated from his position as Deputy Director of the Federal Bureau
of Investigation (“FBI”)—just 26 hours before his planned retirement—following
proceedings that violated federal law and departed from applicable administrative
rules, standards, policies, and procedures.
2.

Because “secret law is an abomination,”1 the Freedom of Information

Act (“FOIA”) requires that the documents setting forth those rules, standards,
policies and procedures be proactively disclosed “for public inspection in an
electronic format.”2
3.

Defendants, however, have not disclosed those materials, whether

proactively or upon request from Plaintiff as counsel for Mr. McCabe. That failure is
contrary to law. It is also incongruous with Defendants’ public, and repeated,
representations to the effect that Mr. McCabe was dismissed from the FBI following
an “extensive and fair investigation” which was carried out “according to
Department of Justice procedure.”3
4.

Mr. McCabe served our country in various positions with the FBI for

over two decades, ascending to the position of Deputy Director in February 2016. As
the FBI’s second in command, Mr. McCabe oversaw the FBI’s operations and
Tax Analysts & Advocates v. IRS, 362 F. Supp. 1298, 1310 (D.D.C. 1973) (quotations
omitted).
2 5 U.S.C. § 552(a)(2).
3 Reuters Staff, Statement by Attorney General on firing of FBI’s McCabe, Reuters
(Mar. 17, 2018), https://www.reuters.com/article/us-usa-trump-sessionsstatement/statement-by-attorney-general-on-firing-of-fbis-mccabe-idUSKCN1T04O.
1

2

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investigations. Beginning in 2017, and as is publicly known, such investigations
examined the possibility of interference by the Russian government in the most
recent presidential election, as well as the conduct of high-ranking appointees in the
Executive branch. Prior to his dismissal, Mr. McCabe supported the appointment of
a special counsel to conduct a criminal investigation into matters relating to the
2016 presidential election.
5.

Mr. McCabe had planned to retire from the FBI on March 18, 2018.

This was publicly known, discussed, and reported in the media months in advance.
Roughly one day before Mr. McCabe’s retirement, the Associate Deputy Attorney
General recommended that Mr. McCabe be fired “As soon as possible.” The Attorney
General fired him that very evening. Mr. McCabe and his family were thus stripped
of their healthcare benefits and deprived of the pension to which he otherwise would
have been entitled for his many years of public service.
6.

Defendants claim they fired Mr. McCabe based on “findings” that he

had engaged in administrative misconduct. These alleged findings appear in a
report which, although dated “February 2018,” was not publicly issued until April
14, 2018—nearly one month after Mr. McCabe’s dismissal.4 Mr. McCabe denies that
he engaged in any misconduct and asserts that the report—which relies on nonpublic “evidence”—is premised on material misstatements, mischaracterizations,
and omissions.

OIG, Oversight & Review Division, A Report of Investigation of Certain Allegations
Relating to Former FBI Deputy Director Andrew McCabe, February 2018,
https://oig.justice.gov/reports/2018/o20180413.pdf.
4

3

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7.

Defendants have publicly claimed, again and again, that they complied

with all applicable law, policies, and procedures when they investigated,
adjudicated, and dismissed Mr. McCabe from the FBI. Plaintiff has repeatedly
requested that Defendants disclose those policies and procedures. Those requests
have been denied by some of the same high-ranking officials who were involved in,
or were responsible for, the investigation, adjudication, and/or dismissal of Mr.
McCabe.
8.

FOIA mandates that Defendants proactively disclose the applicable

policies and procedures in an electronic format without waiting for an affirmative
request. Defendants have failed to do so. When Plaintiff requested the pertinent
documents, Defendants variously refused to comply and failed to properly, timely,
or sufficiently respond. They even barred Plaintiff from accessing Defendants’
physical library, which contains some (or perhaps all) of the documents at issue
here.
9.

Because Defendants have refused to identify the policies or procedures

which applied to Mr. McCabe’s dismissal and the proceedings which led to it,
Plaintiff alleges, on information and belief, that documents reflecting those policies
and procedures include, at a minimum, the following:
a. OIG, Inspector General Manual
b. FBI, Policy Implementation Guide for Adjudication of Delegated
Disciplinary Matters
c. FBI, Senior Executive Service Policy Implementation Guide
d. FBI, Inspection Division Policy Implementation Guide

4

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10.

As counsel for Mr. McCabe, and as the submitter of the requests for

these documents, Plaintiff seeks their immediate disclosure. Plaintiff respectfully
requests expedited consideration of this Action under 28 U.S.C. § 1657(a) given the
irreparable harm and other consequences of Defendants’ continuing failure to
comply with their disclosure obligations.
11.

Defendants have been required for over 50 years to proactively disclose

the kinds of documents at issue here, and there is no just reason for either their
failure to do so now or for any further delay. Defendants’ breach of their disclosure
obligations have prejudiced Mr. McCabe and Plaintiff in fundamental ways, all of
which flow from one of FOIA’s core concerns: No citizen should “los[e] a controversy
with an agency because of some obscure and hidden [administrative material]
which the agency knows about but which has been unavailable to the citizen simply
because he had no way in which to discover it.”5
12.

By failing to proactively and publicly disclose the documents at issue

here, and by failing to otherwise fulfill their statutory obligations, Defendants have
deprived Plaintiff of the opportunity he should have had to protect and to advance
the legal rights and interests of Mr. McCabe. Those documents constitute not just
Defendants’ “working law,” but also, on information and belief, material evidence.
Defendants’ failure to disclose these materials has deprived Plaintiff of the
opportunity he should have had to:
a. exhaust administrative remedies with respect to certain claims (to
the extent exhaustion is required);
5

111 Cong. Rec. 26820, 26822 (daily ed. Oct. 13, 1965) (stmt. of Sen. Mansfield).
5

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b. support applications to certain regulatory bodies for administrative
review and investigation of Defendants’ underlying conduct;
c. protect Mr. McCabe from waiving or forfeiting possible
administrative rights, remedies, or procedures which may be
discussed solely in the administrative materials (or others of which
Plaintiff has no notice);
d. evaluate and pursue—with all existing evidence—claims for relief
arising from the circumstances that led to Mr. McCabe’s
termination; and
e. seek to vindicate Mr. McCabe’s rights and restore his good name.
13.

The foregoing harm to Plaintiff is immediate and irreparable. For so

long as Defendants continue to obstruct Plaintiff from fully carrying out the duties
he owes to Mr. McCabe and to the Court, the harm to Plaintiff will continue. For the
same reasons, Defendants have caused, and continue to cause, enduring irreparable
harm to Mr. McCabe.
14.

To protect Mr. McCabe from further harm, to protect Plaintiff’s right

and ability to provide effective legal counsel to Mr. McCabe, and, indirectly, to
protect the public’s right to government transparency, Plaintiff files the instant
Action for, among other things, (a) expedited consideration of this Action, with good
cause therefor having been shown, and (b) expedited disclosure of those documents
which long should have been in the public domain.
PARTIES
15.

Plaintiff is an attorney and a partner of the law firm of Boies Schiller

Flexner LLP. He pursues this action in his capacity as counsel to Mr. McCabe, and
as the submitter of the requests and demands for the documents at issue here.

6

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16.

Defendant U.S. Department of Justice (“DOJ”) is an Executive

department,6 and is an “agency” within the meaning of 5 U.S.C. § 552(f)(1) and
5 U.S.C. § 701.
17.

Defendant Office of Inspector General (“OIG”) and Defendant Federal

Bureau of Investigation (“FBI”) are components, organizational units, bureaus, or
offices (collectively, “components”) of DOJ. Therefore, DOJ created, and at all times
material to this Action, controlled the documents at issue here.
18.

Defendant OIG is an “office” within the DOJ. OIG created and at all

times material to this Action had control over certain of the documents here at
issue.
19.

Defendant FBI is a law enforcement agency of the United States and

an organizational unit within the DOJ.7 The FBI created and at all times material
to this Action had control over certain of the records here at issue.
20.

As components of DOJ, the FBI and OIG may be sued in this Action in

their own capacities.8
JURISDICTION AND VENUE
21.

The Court has subject matter jurisdiction over this action and personal

jurisdiction over Defendants pursuant to 5 U.S.C. § 552(a)(4)(B).
22.

The Court also has subject matter jurisdiction over this action

pursuant to 28 U.S.C. §§ 2201-02 and 28 U.S.C. § 1331.

5 U.S.C. § 101.
28 C.F.R. § 0.1.
8 Brown v. FBI, 793 F. Supp. 2d 368, 384-5 (D.D.C. 2011) (citing cases).
6
7

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23.

Venue lies in this District under 5 U.S.C. § 552(a)(4)(B).
STATUTORY BACKGROUND

24.

FOIA imposes on Defendants “both reactive and affirmative

obligations to make information available to the public.”9 Defendants’ “reactive”
disclosure obligations are set forth in § 552(a)(3) of FOIA, which provides that
agencies must “make . . . records promptly available” in response to specific
requests.”10 Defendants’ “affirmative” disclosure obligations are, as relevant, set
forth in § 552(a)(2) of FOIA and as otherwise provided by law.
25.

Section 552(a)(2) provides in part that Defendants “shall make

available for public inspection in an electronic format” the following categories of
records:
a. “statements of policy and interpretations which have been adopted
by the agency and are not published in the Federal Register”;11
b. “administrative staff manuals and instructions to staff that affect a
member of the public”;12 and
c. “copies of all records, regardless of form or format . . . that have
been requested 3 or more times.”13
26.

DOJ summarizes its “Proactive Disclosure” obligations under

§ 552(a)(2) as follows:
[FOIA’s] “public inspection” requirement is satisfied by providing the public
with access to the designated documents automatically and without waiting
for a FOIA request. The proactive disclosure provision of the FOIA imposes
Cit. for Resp. & Ethics in Wash. v. DOJ, 846 F.3d 1235, 1240 (D.C. Cir. 2017).
5 U.S.C. § 552(a)(3)(A).
11 Id. § 552(a)(2)(B).
12 Id. § 552(a)(2)(C).
13 Id. § 552(a)(2)(D)(ii)(II).
9

10

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an affirmative disclosure obligation that requires agencies to not only
maintain, but also to continuously update, the records in each of the four
categories designated by subsection (a)(2) of the FOIA.14
FACTS
27.

Defendants departed from, among other things, applicable law and

administrative policies and procedures in connection with the proceedings which led
to Mr. McCabe’s dismissal.
28.

At all times material to this Action, Defendants were and remain in

violation of FOIA due to, among other things, (a) their continued failure to make the
documents that embody the above-referenced policies and procedures proactively
available for inspection in an electronic format without request, and (b) their failure
to make these documents promptly available upon Plaintiff’s requests.
29.

The documents at issue in this Action are “records” within the meaning

of FOIA.15 They are not exempt from disclosure, either in part or in whole. But even
assuming, for the sake of argument, that any parts of the documents are exempt
from disclosure, Defendants do not have the right to withhold any document in its
entirety on the grounds that it allegedly contains “some” exempt material.16
30.

On information and belief, Defendants fear that disclosure to Plaintiff

of the documents at issue will place Defendants and others at risk in any
proceedings brought against them by Mr. McCabe. Based on these fears,

DOJ, “Proactive Disclosures,” Guide to the Freedom of Information Act, 12 (2009),
https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/proactivedisclosures-2009.pdf.
15 Id. § 552(f)(2).
16 Mead Data Cent. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).
14

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Defendants appear to have preemptively decided not to disclose the documents to
Plaintiff. Any further administrative review would be futile. Defendants have also
failed to comply with the applicable time limit provisions of FOIA. Accordingly, all
administrative remedies, to the extent otherwise applicable, have been or are
deemed to be exhausted.
A.

DOJ-OIG: Improper Withholding of the Inspector General Manual
i.

Background
31.

OIG claims that its “mission is to detect and deter fraud, waste, and

abuse . . . and misconduct by [DOJ] personnel.”17 In pursuit of its mission, OIG
allegedly conducts “investigations of sensitive allegations involving [DOJ]
employees.”18 OIG claims that, “To ensure transparency” in respect of these
investigations, “OIG regularly posts summaries of employee misconduct findings on
its website.”19
32.

The head of OIG, Michael E. Horowitz, has complained to Congress

when, in his view, DOJ components allegedly withheld materials from OIG in
violation of applicable law. For example, Mr. Horowitz told Congress that “The
Attorney General should not have to order [DOJ] components to provide [OIG] with

DOJ, Organization, Mission and Functions Manual: OIG,
https://www.justice.gov/jmd/organization-mission-and-functions-manual-officeinspector-general.
18 OIG, About the Office (May 2018), https://oig.justice.gov/about/.
19 OIG, Top Management and Performance Challenges – 2016, at 24 (Nov. 10, 2016)
(“OIG Performance Challenges”), https://oig.justice.gov/challenges/2016.pdf.
17

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access to records that Congress has made clear we are entitled to review.”20 In a
hearing titled “Obstructing Oversight,” Mr. Horowitz complained about the
“substantial consequences” OIG faced due to actions that obstructed OIG’s “access
to information”:
Actions that limit, condition, or delay access to information have substantial
consequences for our work and lead to incomplete, inaccurate, or significantly
delayed findings or recommendations. In order to avoid these consequences,
the pending access issues need to be resolved promptly, hopefully through a
. . . finding that Section 6(a) of the IG Act means what it says, namely that
the OIG is entitled “to have access to all records . . . or other material
available to the” [DOJ], which must be construed as timely, complete, and
independent access to information in the [DOJ’s] possession.21
ii.

The IG Manual Must Be Proactively Disclosed
33.

OIG’s Inspector General Manual (“IG Manual” or “Manual”) sets forth

the guidelines, standards, rules, policies, and procedures that govern OIG, its
employees, and their work.
34.

OIG’s FOIA log and other evidence establish that OIG has received at

least three requests for the IG Manual from members of the public. For this reason
alone, Defendants were required to make the IG Manual available for public
inspection in an electronic format without request. In addition, the Manual
constitutes (a) an “administrative staff manual” and “instructions to staff that affect

Access to Justice?: Does DOJ’s Office of Inspector General Have Access to
Information Needed to Conduct Proper Oversight? Before the H. of Rep., Comm. on
the Judiciary (Sept. 9, 2014) (Testimony of Michael E. Horowitz),
https://oig.justice.gov/testimony/t140909.pdf.
21 Obstructing Oversight: Concerns from Inspectors General, Before the H. of Rep.,
Comm. on Oversight and Gov’t Reform (Sept. 10, 2014) (Testimony of Michael E.
Horowitz), https://oig.justice.gov/testimony/t140910.pdf.
20

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a member of the public” within the meaning of FOIA,22 and (b) “statements of policy
and interpretations which have been adopted by [OIG] and are not published in the
Federal Register.”23
35.

The statutory grant of authority to OIG includes the authority to

create and implement policies and procedures to guide the work of OIG and its
employees. OIG’s policies and procedures must “adhere to professional standards
developed by” the Council of the Inspectors General on Integrity and Efficiency
(“CIGIE”),24 an independent entity established within the executive branch, whose
mission includes addressing “integrity, economy, and effectiveness issues” in respect
of OIG and other offices of the Inspectors General.25 OIG must incorporate CIGIE’s
“standards and principles . . . into an operations manual or handbook.”26 CIGIE
instructs OIG “to monitor changes in the laws, regulations, and other guidance,”
and to revise OIG policies “as necessary.”27
36.

OIG created the Manual to facilitate the discharge of its obligations

under federal law and applicable regulations. In addition, OIG created the Manual
in an attempt to, among other things, direct, instruct, and educate OIG employees
in the performance of their duties and to enable them to work effectively on behalf
of the public.

5 U.S.C. § 552(a)(2)(C).
Id. § 552(a)(2)(B).
24 5 U.S.C. App. § 11(c)(2).
25 Id. App. § 11(a)(2).
26 CIGIE, Quality Standards for Investigations, 1 (Nov. 15, 2011),
https://www.ignet.gov/sites/default/files/files/invprg1211appi.pdf.
27 Id.
22
23

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37.

OIG seeks to instill public confidence in the alleged independence and

integrity of OIG. To that end, Mr. Horowitz has repeatedly made public comments
claiming that OIG abides by a “usual process . . . to ensure the accuracy,
completeness, and appropriate classification of” its reports.28 In a publicly available
letter, Mr. Horowitz claimed—twice in the same paragraph—that OIG’s
investigation of Mr. McCabe was “consistent with [OIG’s] usual practice.”29 On
information and belief, the “usual” “process” and “practice” to which Mr. Horowitz
referred are set forth in the IG Manual.
38.

At all times material to this Action, OIG has controlled, maintained,

revised, and/or updated the Manual, and has made the Manual available to OIG
employees in its various offices across the country. In particular, OIG makes the
Manual electronically available to its employees on OIG’s internal, non-public
intranet site.
39.

OIG makes the IG Manual available to OIG employees so as to cause

them to review it, to rely on it, and to abide by its terms. During all times material
to this Action, OIG employees have reviewed and/or relied on the IG Manual or
portions thereof in connection with their employment.
40.

On information and belief, violation of certain of the Manual’s

provisions by OIG employees constitutes “misconduct” within the meaning of
applicable law and regulations. Violation of certain provisions contained in the IG
Michael E. Horowitz, OIG, Letter to Charles E. Grassley, U.S. Senate (Apr. 13,
2018), https://www.judiciary.senate.gov/imo/media/doc/2018-0413%20DOJ%20OIG%20to%20CEG%20-%20McCabe.pdf.
29 Id.
28

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Manual by OIG employees may also, among other things, (a) give rise to civil or
criminal liability, (b) constitute violations of applicable rules of professional
responsibility, or (c) constitute violations of applicable CIGIE standards. According
to OIG, misconduct by DOJ employees threatens to “erode[ ] public confidence in the
integrity of” DOJ.30 OIG reportedly believes that disciplinary systems “play a
significant role in ensuring the efficiency of government services.”31
41.

OIG must submit to “peer reviews” by other offices of Inspectors

General. These reviews assess, among other things, whether OIG has created and
implemented “adequate policies, procedures and practices,” and whether OIG is in
compliance with CIGIE’s various standards. In connection with the peer review
process, the IG Manual must be examined in detail so as to assess OIG’s “level of
conformity with [CIGIE’s] standards.”32
42.

OIG’s public website suggests that, in accordance with federal law,

OIG’s “staff manuals/instructions to staff” are electronically available in OIG’s
“FOIA Library.”33 Below is a recent screenshot from OIG’s public website:34

OIG Performance Challenges, at 24.
Id.
32 CIGIE, Qualitative Assessment of Compliance, App. C–1, 1 (July 2017),
https://www.ignet.gov/sites/default/files/files/QAR%20INV%20Appendix%20C1%20July%202017.pdf.
33 OIG, Freedom of Information Act, https://oig.justice.gov/foia/.
34 Id.
30
31

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43.

But OIG’s electronic FOIA Library does not in fact include any “Final

Opinions and Orders,” “Policy Statements,” or “Staff Manuals and Instructions to
Staff.”35 Nor does it include the IG Manual. The following recent screenshot reveals
that OIG’s electronic FOIA Library contains none of the Materials at issue in this
Action:36

iii.

Improper Withholding and Exhaustion
44.

As of the date of the filing of this Complaint, Defendants (a) have not

made the IG Manual available for public inspection in an electronic format, or in
any other format, without request, (b) have not made the IG Manual promptly
available to Plaintiff upon request, and (c) have not made any “determination” on
Plaintiff’s request within the time limits required under FOIA.
45.

Because Defendants have not made the IG Manual available for public

inspection in any format, Plaintiff made numerous attempts—from the week of
April 9, 2018 through May 21, 2018—to convince OIG to comply with the law.

35
36

OIG, FOIA Library, https://oig.justice.gov/foia/eroom.htm.
Id.
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46.

In email correspondence with OIG’s General Counsel and Deputy

Inspector General, William M. Blier, Plaintiff requested the release of the Manual
and submitted that request in writing on April 19, 2018. Plaintiff repeatedly
requested in writing that OIG grant expedited processing of his request, and
certified the reasons for such relief.
47.

In particular, Plaintiff explained in writing to Mr. Blier that, by

improperly withholding the Manual, OIG (a) deprived Plaintiff of a meaningful
opportunity (i) to protect his client from waiving or forfeiting applicable rights,
remedies, or procedures, and (ii) to vindicate his client’s constitutional and other
rights; and (b) deprived Plaintiff’s client of corresponding rights.37 Plaintiff further
explained in writing that OIG’s improper withholding of the Manual related to “A
matter of widespread and exceptional media interest in which there exist possible
questions about the government’s integrity which affect public confidence.”38 Mr.
Blier, acting on behalf of OIG, denied Plaintiff’s request for expedited processing by
emails dated April 25, 2018 and April 26, 2018.
48.

By email dated April 25, 2018, Plaintiff attempted to compromise by

offering to review the Manual in paper form at OIG’s office and to “flag relevant
pages for copying at [Plaintiff’s] expense.” Mr. Blier rejected Plaintiff’s offer by
email dated April 26, 2018.

37
38

See 28 C.F.R. § 16.5(e)(1)(iii).
See id. § 16.5(e)(1)(iv).
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49.

OIG sent a letter to Plaintiff via email on May 2, 2018 (“May 2

Letter”). The May 2 Letter, which OIG incorrectly dated as May 1, 2018, claimed
that OIG was “processing” Plaintiff’s request for the Manual. OIG also stated that
Plaintiff’s request for the Manual required OIG to “conduct[ ] a search of OIG
records.” OIG claimed to “have already located a voluminous amount of records that
may be responsive to [Plaintiff’s] request.”
50.

OIG’s representations cannot have been accurate. OIG did not need to

conduct a “search of OIG records” to find the IG Manual, which is electronically
available to all OIG employees on OIG’s intranet site, and which OIG uses on a
daily basis. OIG also could not have “located” a “voluminous amount of records” that
“may” be “responsive” to Plaintiff’s request. OIG publicly represents that the IG
Manual is a single document. Plaintiff requested only that document. The only
document that is “responsive” to Plaintiff’s request for the IG Manual is the IG
Manual.
51.

OIG nevertheless claimed in its May 2 Letter that, “Due to the need to

examine this voluminous amount of records to determine which are responsive and
may be subject to release, [Plaintiff’s] request falls within ‘unusual circumstances’
provisions of the FOIA.”39 OIG claimed that,
Because of these unusual circumstances, we need to extend the time limit to
respond to your request beyond the ten additional days provided by the
statute. The time needed to process your request will necessarily depend on
the volume of all potentially responsive records that are located and the
complexity of issues presented by the records. . . . Simple requests usually

39

In support of this proposition, OIG cited to “5 U.S.C. § 552(a)(6)(B)(i)-(iii).”
17

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receive a response in about a month, whereas complex requests necessarily
take longer.
At this time, your request has been assigned to the complex track. You may
narrow the scope of your request, thereby limiting the volume of potentially
responsive records, to obtain quicker processing in your currently-assigned
track.
52.

OIG’s May 2, 2018 response is deficient in numerous ways. For

example, OIG does not meet the “unusual circumstances” provision of FOIA, and it
failed to properly, accurately, or sufficiently “set[ ] forth the unusual circumstances
for [the] extension” to which it claimed to be entitled.40 In addition, OIG failed to set
forth “the date on which a determination is expected to be dispatched” in respect of
Plaintiff’s demand for the Manual.41
53.

OIG also violated FOIA by failing to provide Plaintiff with an

opportunity to limit the scope of his request. OIG’s May 2 Letter supposedly invited
Plaintiff to “narrow the scope of [his] request, thereby limiting the volume of
potentially responsive records, to obtain quicker processing in your currentlyassigned track.” This alleged invitation was similar to one Mr. Blier made in an
April 26, 2018 email to Plaintiff. In that email, Mr. Blier suggested that if Plaintiff
were “able to narrow [his] request to specific topics of interest . . ., it may facilitate
our identification of that subset of records and, therefore, the time needed for our
processing of [Plaintiff’s] request.”
54.

In reliance on these suggestions, Plaintiff endeavored to “narrow” his

request for the Manual by offering to review the Manual’s table of contents. In
40
41

5 U.S.C. § 552(a)(6)(B)(i).
Id.
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Plaintiff’s view, this exercise would allow Plaintiff to responsibly and intelligently
“narrow [his] request to specific topics of interest” in accordance with Mr. Blier’s
instruction.
55.

OIG nevertheless rejected Plaintiff’s proposal. By email dated May 21,

2018, Counsel for OIG advised as follows: “OIG has decided that it would not be
appropriate to provide you with any table of contents because some of the
information is likely privileged and providing it is unlikely to resolve your concerns
given the nature of your demands.” Counsel further wrote that he did not “think
that continuing discussions will lead us to agreement. Thus, recognizing these facts,
and in the interest of the orderly administration of the government, we do not
intend to provide you with any” of the Materials at issue in this Action, “other than .
. . those that you may receive in response to your FOIA request.”
56.

Plaintiff had also undertaken separate efforts to access the Manual in

accordance with OIG’s instructions. These efforts, too, were unsuccessful.
57.

Agencies historically satisfied the proactive disclosure requirements of

FOIA by making documents like the Manual “available to the public in paper-based
collections known as ‘Reading Rooms,’ thereby compelling citizens to visit an
agency’s records collection in person.”42 On its website, OIG claims it has such a

DOJ, “Proactive Disclosures,” Guide to the Freedom of Information Act, 12–13
(2009) (formatting altered),
https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/proactivedisclosures-2009.pdf.
42

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“Conventional Reading Room” and invites citizens to “Call [phone] for access
instructions.”43 A recent screenshot of OIG’s representation is below:

58.

On May 3, 2018, Plaintiff called [phone] and requested “access

instructions” to the Conventional Reading Room. OIG refused to provide those
instructions to Plaintiff. According to OIG, Plaintiff was not entitled to access the
physical FOIA Library because Plaintiff’s request for the Manual was “being
processed” under FOIA. By email of the same date, Plaintiff advised Mr. Blier that
his staff had impermissibly refused to allow Plaintiff access to OIG’s FOIA Library.
Plaintiff requested that Mr. Blier “facilitate [Plaintiff’s] access” to the library by
May 4, 2018 so that Plaintiff could “review the IG Manual.”
59.

As of the date of the filing of this Action,
a. Plaintiff has not received any response from Mr. Blier;
b. Defendants have not made the Manual available for public
inspection in any format—electronic or otherwise;
c. Defendants have not provided Plaintiff with the Manual;
d. Defendants have not provided Plaintiff with access to any
Conventional Reading Room or physical library;

43

OIG, Freedom of Information Act, https://oig.justice.gov/foia/.
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e. Defendants have not provided Plaintiff with “access instructions” to
any Conventional Reading Room or physical library; and
f. Defendants have not timely provided Plaintiff with any
determination on his request for the Manual.
60.

On information and belief, Defendants fear that disclosure of the

Manual to Plaintiff will place Defendants and others at risk in any proceedings
brought against them by Mr. McCabe. Based on these fears, Defendants appear to
have preemptively decided not to disclose the documents to Plaintiff. Any further
administrative review would be futile.
61.

The IG Manual is not exempt from disclosure, whether in part or in

whole. But even assuming, for the sake of argument, that any part of the Manual is
exempt from disclosure, Defendants do not have the right to withhold the entire
document even if it contains some exempt material.
B.

FBI: Improper Withholding of the FBI Materials
i.

Background
62.

The FBI’s Office of Professional Responsibility (“FBI-OPR”) is

“responsible for investigating and adjudicating allegations of misconduct by FBI
employees.”44 Candice M. Will is the head of FBI-OPR. According to Defendants,
Ms. Will proposed that Mr. McCabe be dismissed from the FBI based on alleged
findings of misconduct.
63.

On information and belief, the FBI-created documents at issue in this

Action (“FBI Materials”) include the following:

U.S. Gen. Accounting Office, GAO-03-759T, FBI Reorganization: Progress Made
in Efforts to Transform, 58 (2004) (“GAO-FBI Report”).
44

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a. FBI, Policy Implementation Guide for Adjudication of Delegated
Disciplinary Matters
b. FBI, Senior Executive Service Policy Implementation Guide
c. FBI, Inspection Division Policy Implementation Guide
64.

Defendants have precluded Plaintiff from knowing whether other

materials not referenced in this Complaint applied to or governed any of the
proceedings or related activities which led to Mr. McCabe’s dismissal.
65.

The FBI Materials reportedly set forth the guidelines, standards, rules,

policies, and procedures that govern the FBI, its relevant divisions, its employees,
and their work. The FBI Materials contain statements of general applicability.
Those statements reflect the standards which FBI employees allegedly use and
apply in accordance with applicable law and FBI authority. For practical purposes,
they impact and/or determine the substantive rights and/or liabilities of individuals.
66.

The documents titled Policy Implementation Guide for Adjudication of

Delegated Disciplinary Matters and Senior Executive Service Policy Implementation
Guide reportedly set forth the guidelines, standards, rules, policies, and procedures
that may have governed and/or applied to, among other things, Ms. Will’s alleged
administrative inquiry of Mr. McCabe—a former member of the Senior Executive
Service—and his subsequent, unlawful dismissal.
67.

As noted above, the FBI Materials also include the Inspection Division

Policy Implementation Guide. The FBI’s Inspection Division is reportedly
“responsible for reviewing FBI field offices and program divisions to ensure

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compliance with applicable laws and regulations.”45 Defendants claim that the
Inspection Division investigated Mr. McCabe in connection with the underlying
proceedings.
68.

The FBI Materials constitute “administrative staff manuals” and

“instructions to staff that affect a member of the public” within the meaning of
FOIA.46 In addition, the FBI Materials constitute “statements of policy and
interpretations which have been adopted by [the FBI] and are not published in the
Federal Register.”47
69.

The FBI has the authority to create and implement policies and

procedures, including the FBI Materials at issue here, to guide the work of the FBI
and its employees. The FBI’s policies and procedures, including the FBI Materials,
must be consistent with, among other things, applicable law, regulations, and
Attorney General Guidelines. At all times material to this Action, the FBI Materials
have remained under the control of the FBI.
70.

The FBI maintains an electronic FOIA Library on its publicly-

accessible website. As of the date of the filing of this Action, the FBI Materials have
not been made publicly available, whether in the FBI’s electronic FOIA Library or
otherwise.
71.

The FBI has maintained the FBI Materials during all times material

to this Action. The FBI has revised or updated the FBI Materials, and has made

Id. at 56.
5 U.S.C. § 552(a)(2)(C).
47 Id. § 552(a)(2)(B).
45
46

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such revisions or updates available to FBI employees in its various offices across the
country, including on the FBI’s internal, non-public intranet site. The FBI makes
the FBI Materials available so that its employees review them, rely on them, and
abide by their terms. On information and belief, during all times material to this
Action, FBI employees have reviewed and/or relied on the FBI Materials or portions
thereof in connection with their employment.
72.

Violation of certain of the provisions contained in the FBI Materials by

FBI employees constitutes “misconduct” within the meaning of applicable rules,
regulations, policies, or administrative staff manuals, including the FBI Materials
themselves. In addition, violation of certain provisions contained in the FBI
Materials by FBI employees may, among other things, (a) give rise to civil or
criminal liability, (b) constitute violations of applicable rules of professional
responsibility, or (c) constitute violations of applicable regulations.
73.

The FBI endeavors to deter, to investigate, and to punish misconduct,

including the misconduct that results from violating the FBI Materials, because
such misconduct jeopardizes public confidence in the FBI. To that end, the FBI
claims that it imposes disciplinary penalties with respect to such misconduct so as
“to correct behavior and send the message to our workforce, our Congressional
overseers, and the general public that misconduct will not be tolerated . . . . The
FBI’s disciplinary process serves to ensure adherence to the Bureau’s rigorous
standards of conduct.”48

48

FBI, Offense Codes and Penalty Guidelines, at 2.
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74.

On information and belief, the FBI granted OIG and others access to

the FBI Materials and similar materials, and authorized OIG and others to cite,
quote from, and incorporate by reference the FBI Materials and similar materials
for public release.
ii.

Improper Withholding of the FBI Materials
75.

As of the date of the filing of this Complaint, Defendants have failed to

make the FBI Materials available for public inspection in an electronic format, or in
any other format, without request. This constitutes an improper withholding of
records in violation of applicable law.
76.

On information and belief, the FBI Materials are not exempt from

disclosure in part or in whole. But even assuming, for the sake of argument, that
any part of the FBI Materials are exempt from disclosure, neither the FBI nor DOJ
can justify withholding the documents in their entirety simply by showing that they
contain some exempt material.
77.

On May 3, 2018, Plaintiff emailed Ms. Will of FBI-OPR a request for

various records, which, on information and belief, encompassed the FBI Materials.
As relevant, Plaintiff requested the following items:
a. “For the relevant time period, the FBI’s Offense Codes and any
related policies, procedures, policy guidance, interpretations,
orders, staff instructions, etc.”
b. “For the relevant time period, the FBI’s Media Relations Policy and
any related policies, procedures, policy guidance, interpretations,
orders, staff instructions, etc.”

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c. “The FBI’s current Media Relations Policy and any related policies,
procedures, policy guidance, interpretations, orders, staff
instructions, etc.”
d. “For the relevant time period, the FBI’s Manual of Administrative
Operations and Procedures.”
e. “For the relevant time period, the FBI’s Domestic Investigations
and Operations Guide.”
f. “For the relevant time period, any other FBI or DOJ manuals,
policies, procedures, orders, memoranda of understanding, etc
which govern any administrative inquiries, investigations,
disciplinary processes, adverse actions, proposals, approvals, etc
relating to Mr. McCabe’s termination.”
78.

In his email, Plaintiff advised that the FBI’s failure to make the FBI

Materials (among others) available violated FOIA and could deprive Mr. McCabe of
due process rights in connection with the proceedings leading to his termination.
Plaintiff also explained that his “requests concern a matter that’s of widespread and
exceptional interest to the public and to the media given the numerous questions
about the government’s integrity which affect public confidence.”
79.

By email dated May 4, 2018, Ms. Will stated that she was “unable to

provide the documents [Plaintiff] request[ed].” Ms. Will advised Plaintiff that he
could seek to “obtain[ ] official FBI information” via “discovery in pending litigation;
or . . . in response to a FOIA demand.”
80.

Ms. Will’s email response copied various individuals, including: “Scott

Schools, ADAG, ODAG, DOJ[;] Bill Blier, Counsel, OIG, DOJ[;] Dave Hardy, Section
Chief, Records Management Division, FBI[;] Jeff Good, Attorney, Human Resource

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Section, FBI” (formatting altered). Ms. Will stated that the foregoing individuals
“may be of further assistance or have a different take on the matter.”
81.

Pursuant to Ms. Will’s suggestion, Plaintiff emailed Mr. Schools the

same day—May 4, 2018.
82.

At all times material to this Action, Mr. Schools served as Associate

Deputy Attorney General of DOJ. Mr. Schools reportedly recommended to Mr.
Sessions, the Attorney General, that Mr. Sessions accept Ms. Will’s proposal to
terminate Mr. McCabe’s employment. Mr. Schools made this recommendation to
Mr. Sessions on Friday, March 16, 2018, roughly a day before Mr. McCabe’s
planned retirement. Mr. Schools’ recommended timetable for the dismissal was “As
soon as possible.” Mr. Sessions dismissed Mr. McCabe that same day.
83.

In his May 4, 2018 email to Mr. Schools, Plaintiff asked whether Mr.

Schools might be available to speak over the phone to resolve the dispute over
access to the Documents, including the FBI Materials.
84.

As of the date of the filing of this Action, Plaintiff has received no

response from Mr. Schools. Nor has Plaintiff received any correspondence or
communications from the other officials whom Ms. Will copied on her May 4, 2018
email to Plaintiff.
85.

Plaintiff subsequently engaged in several meet-and-confer sessions

with the Federal Programs Branch of DOJ (“Counsel”), which informed Plaintiff
that it serves as Defendants’ legal counsel in connection with matters relating to
this Action. By email dated May 21, 2018, Counsel advised Plaintiff that “in the

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interest of the orderly administration of the government, we do not intend to
provide you with” the FBI records. Counsel further advised that, “in the absence of
actual litigation, [Plaintiff’s] demands are not constrained by the normal rules of
discovery, which exist, in part, to protect defendants from burdensome or otherwise
unreasonable requests.”
86.

On information and belief, Defendants fear that disclosure of the FBI

Materials to Plaintiff will place Defendants and others at risk in any proceedings
brought against them by Mr. McCabe. Based on these fears, Defendants appear to
have preemptively decided not to disclose the documents to Plaintiff. Any further
administrative review would be futile.
87.

Other than Ms. Will’s May 4, 2018 email, and Counsel’s May 21, 2018

email, Plaintiff has not received any other notice or determination relating to the
FBI Materials.
88.

The FBI Materials are not exempt from disclosure, whether in part or

in whole. But even assuming, for the sake of argument, that any part of the FBI
Materials are exempt from disclosure, Defendants do not have the right to withhold
the FBI Materials in their entirety even if they contain some exempt material.
CAUSES OF ACTION
FIRST CAUSE OF ACTION
Violation of FOIA, 5 U.S.C. § 552(a)(2)
Public Inspection Without Request
89.

The allegations of the preceding paragraphs are incorporated by

reference as if fully set forth herein.
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90.

Plaintiff, as a member of the public, has a right under 5 U.S.C.

§ 552(a)(2) and applicable regulations to inspect, in an electronic format, and
without request, all of the documents at issue in this Action, including (a) OIG, IG
Manual, (b) FBI, Policy Implementation Guide for Adjudication of Delegated
Disciplinary Matters, (c) FBI, Senior Executive Service Policy Implementation
Guide, (d) FBI, Inspection Division Policy Implementation Guide, (collectively,
“Documents”).
91.

Plaintiff, as a member of the public, has a right under 5 U.S.C.

§ 552(a)(2) and applicable regulations to inspect, in an electronic format, and
without request, any other information, documents, or materials (“Other
Materials”) which:
a. allegedly were, or as a matter of law and fact should have been,
applicable to the investigation, adjudication, and dismissal of Mr.
McCabe, including any administrative inquiries, adverse action
proposals, recommendations, or approvals, or any other
proceedings, and
b. Defendants are required to proactively disclose under 5 U.S.C.
§ 552(a)(2).
92.

On information and belief, all of the Documents and Other Materials

constitute “statements of policy and interpretations which have been adopted by
[Defendants] and are not published in the Federal Register.” Accordingly,
Defendants were required to make these Documents and Other Materials available
for public inspection in an electronic format without request.
93.

On information and belief, all of the Documents and Other Materials

also constitute “administrative staff manuals and instructions to staff that affect a

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member of the public.”49 In addition, the IG Manual has been requested “3 or more
times.”50 Accordingly, Defendants were required to make these Documents and
Other Materials available for public inspection in an electronic format without
request.
94.

Defendants have failed to make any of the Documents or Other

Materials available for public inspection in an electronic format—or in any other
format—without request. Defendants have thus improperly withheld those
Documents and Other Materials in violation of 5 U.S.C. § 552(a)(2) and applicable
regulations.
95.

Defendants’ failure to make the Documents and Other Materials

available for public inspection without request constitutes a continuing pattern and
practice of violating the proactive disclosure requirements of FOIA and applicable
regulations.
96.

Plaintiff has been, and will continue to be, immediately and

irreparably harmed by Defendants’ failure to make the Documents and Other
Materials available for public inspection without request.
97.

Plaintiff is entitled to, among other things, an injunction prohibiting

Defendants from withholding the Documents and Other Materials, and to an order
requiring Defendants to immediately produce to Plaintiff true and correct copies of
those Documents and Other Materials.

49
50

Id. § 552(a)(2)(C).
Id. § 552(a)(2)(D).
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SECOND CAUSE OF ACTION
Violation of FOIA, 5 U.S.C. § 552(a)(2), (a)(6)(A)
Requests for Reading Room Materials
98.

The allegations of the preceding paragraphs are incorporated by

reference as if fully set forth herein.
99.

Because Defendants unlawfully failed to make any of the Documents

and Other Materials available for public inspection in an electronic format without
request, Plaintiff made requests and/or demands for those Documents and Other
Materials in accordance with 5 U.S.C. § 552(a)(2) and (a)(6)(A).
100.

Following Plaintiff’s requests and/or demands for the IG Manual,

Defendants unlawfully failed to timely, properly, or sufficiently provide Plaintiff
with the determination to which he was entitled under FOIA. Defendants also
unlawfully and improperly withheld the IG Manual from Plaintiff. Plaintiff has
exhausted any and all applicable administrative remedies.
101.

By email dated May 4, 2018, Ms. Will, on behalf of Defendants,

including Defendant FBI, stated that she was “unable” to provide Plaintiff with the
Documents and Other Materials. This constituted a notification of denial of
Plaintiff’s request for the Documents and Other Materials, including the FBI
Materials. Ms. Will’s notification of denial set forth the names and titles or positions
of each person responsible for the denial of Plaintiff’s request.
102.

Defendants had no lawful basis for their May 4, 2018 notification of

denial of Plaintiff’s request for the Documents or Other Materials. Defendants have
thus unlawfully and improperly withheld those Documents and Other Materials
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from Plaintiff in violation of applicable law and regulations. Plaintiff has exhausted
any and all applicable administrative remedies.
103.

Defendants additionally violated FOIA by failing to grant expedited

processing to Plaintiff under 5 U.S.C. § 552(a)(6)(E) and applicable regulations.
104.

Plaintiff has been, and will continue to be, immediately and

irreparably harmed by Defendants’ failure to comply with applicable law.
105.

Plaintiff is entitled to, among other things, an injunction prohibiting

Defendants from withholding the Documents and Other Materials, and to an order
requiring Defendants to immediately produce to Plaintiff true and correct copies of
those Documents and Other Materials.
THIRD CAUSE OF ACTION
Violation of FOIA, 5 U.S.C. § 552(a)(3)
Requests for Identified Records
106.

The allegations of the preceding paragraphs are incorporated by

reference as if fully set forth herein.
107.

Defendants have violated FOIA by failing to make promptly available

the Documents as required by 5 U.S.C. § 552(a)(3)(A) and applicable regulations.
Defendants have unlawfully and improperly withheld those Documents and Other
Materials from Plaintiff.
108.

Defendants unlawfully failed to timely, properly, or sufficiently provide

Plaintiff with the determination to which he was entitled under FOIA in respect of
his request for disclosure of the IG Manual.

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109.

Defendants additionally violated FOIA by failing to grant expedited

processing to Plaintiff under 5 U.S.C. § 552(a)(6)(E) and applicable regulations.
110.

Plaintiff has exhausted any and all applicable administrative

remedies.
111.

Plaintiff has been, and will continue to be, immediately and

irreparably harmed by Defendants’ failure to comply with applicable law.
112.

Plaintiff is entitled to, among other things, an injunction prohibiting

Defendants from withholding the Documents and Other Materials, and to an order
requiring Defendants to immediately produce to Plaintiff true and correct copies of
those Documents and Other Materials.
FOURTH CAUSE OF ACTION
Administrative Procedure Act (“APA”), 5 U.S.C. § 706
Violation of FOIA, 5 U.S.C. § 552(a)(2)
Public Inspection Without Request
113.

The allegations of the preceding paragraphs are incorporated by

reference as if fully set forth herein.
114.

Defendants have violated Plaintiff’s statutory right, under 5 U.S.C.

§ 552(a)(2), to inspect, in an electronic format, and without request, the Documents
and Other Materials. Defendants have thus improperly and unlawfully withheld
those Documents and Other Materials.
115.

Defendants’ failure to make the Documents and Other Materials

available for inspection in an electronic format without request is reviewable by
statute and constitutes final agency action. Defendants have acted and/or failed to

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act so as to refuse to make the Documents and Other Materials available for
inspection in an electronic format without request. Defendants have done so despite
knowing that their acts and/or failure to act violate the proactive disclosure
requirements of FOIA. Defendants have completed their decision-making processes
regarding whether to comply with FOIA’s proactive disclosure requirements in
respect of the Documents and Other Materials. The direct and immediate effects of
the foregoing include the immediate and irreparable harm to Plaintiff described in
this Complaint.
116.

Defendants’ failure to make the Documents and Other Materials

available for inspection in an electronic format without request constitutes agency
action (a) unlawfully withheld and/or unreasonably delayed, (b) that is arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law, (c) that
is in excess of statutory jurisdiction, authority, or limitations, or short of statutory
right, and/or (d) that is without observance of procedure required by law.
117.

To the extent FOIA does not provide a remedy for Defendants’ failure

to make the Documents and Other Materials available for inspection in an
electronic format without request, there is “no other adequate remedy in a court.”51
118.

Under the APA, Plaintiff is entitled to (a) judicial relief compelling the

action Defendants have unlawfully withheld or unreasonably delayed, and
(b) judicial relief holding unlawful and setting aside Defendants’ above-described
actions.

51

5 U.S.C. § 704.
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119.

In particular, Plaintiff is entitled to, among other things, (a) an

injunction prohibiting Defendants from withholding from Plaintiff the Documents
and Other Materials, and (b) an order requiring Defendants to immediately produce
to Plaintiff, without request, true and correct copies of those Documents and Other
Materials.
REQUESTED RELIEF
WHEREFORE, Plaintiff respectfully requests that the Court:
(1)

Expedite the consideration of this action pursuant to 28 U.S.C.

§ 1657(a);
(2)

Enjoin Defendants
(a)

(b)

(3)

from withholding from Plaintiff the Documents at issue in this
Action, including: (i) OIG, Inspector General Manual, (ii) FBI,
Policy Implementation Guide for Adjudication of Delegated
Disciplinary Matters, (iii) FBI, Senior Executive Service Policy
Implementation Guide, and (iv) FBI, Inspection Division Policy
Implementation Guide; and
from withholding from Plaintiff any other information,
documents, or materials (“Other Materials”) that Defendants are
required—but have failed—to proactively disclose under
5 U.S.C. § 552(a)(2) and that applied to, or which Defendants
should have applied to, the dismissal of Mr. McCabe, including
any investigation, adjudication, administrative inquiry, adverse
action recommendation and approval, and any other related
proceedings.

Order Defendants to electronically produce, via email to the

undersigned, and within one week of the Court’s Order (or by such date as the
Court deems appropriate), all Documents, Other Materials, and a Vaughn index of
all responsive information withheld under any claim of exemption;

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(4)

Award reasonable costs and attorneys’ fees pursuant to 5 U.S.C.

§ 552(a)(4)(E), 28 U.S.C. § 2412(d), this Court’s inherent authority, and any other
applicable law; and
(5)

Grant such other relief as the Court may deem just and proper.

Dated: June 12, 2018

Respectfully submitted,
BOIES SCHILLER FLEXNER LLP
By: /s/ David L. Snyder
David L. Snyder (D.C. Bar No. 888303946)
Richard A. Feinstein (D.C. Bar No. 324848)
Samuel C. Kaplan (D.C. Bar No. 463350)
BOIES SCHILLER FLEXNER LLP
1401 New York Ave., NW
Washington, D.C. 20005
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Attorneys for Plaintiff in his capacity as
counsel for Andrew G. McCabe

36