Case 1:08-cv-01535-RCL

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ CITIZENS FOR RESPONSIBILITY AND ) ETHICS IN WASHINGTON ) 1400 Eye Street, N.W., Suite 450, ) Washington, DC 20005 ) ) Plaintiff, ) ) CIVIL ACTION NO. v. ) 1:08-cv-01535-RCL ) U.S. DEPARTMENT OF HOMELAND ) SECURITY ) Washington, DC 20528 ) ) Defendant. ) __________________________________________) DEFENDANTS ANSWER TO PLAINTIFFS COMPLAINT The defendant U.S. Department of Homeland Security (DHS), by its undersigned counsel, hereby answers plaintiffs Complaint as follows: FIRST DEFENSE The Court lacks subject matter jurisdiction over this action. SECOND DEFENSE Plaintiffs Complaint fails to state a claim upon which relief can be granted. THIRD DEFENSE Plaintiff lacks standing to maintain some or all of the claims stated in the Complaint. FOURTH DEFENSE Defendant answers the numbered paragraphs of plaintiffs Complaint as follows, in correspondingly numbered paragraphs: 1. This paragraph sets forth plaintiffs characterization and summary of this action,

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to which no response by the defendant is required. 2. This paragraph sets forth plaintiffs characterization of the relief sought in this

action, to which no response by the defendant is required. JURISDICTION AND VENUE 3. This paragraph sets forth plaintiffs conclusions of law regarding jurisdiction and

venue, to which no response by the defendant is required. PARTIES 4-5. Defendant lacks knowledge or information sufficient to form a belief as to the

truth of the allegations in these paragraphs. 6. Defendant admits that it has not responded to plaintiffs FOIA request. Defendant

lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations in this paragraph. 7. Defendant admits the allegation in the first sentence of the paragraph that DHS is

an agency within the meaning of 5 U.S.C. 552(f) and 5 U.S.C. 702. The second sentence of this paragraph sets forth plaintiffs conclusions of law, to which no response by the defendant is required. To the extent a response to the second sentence is required, defendant can neither admit nor deny the existence of any records that may fall within plaintiffs request because acknowledging or denying the existence of records reflecting visits to the White House or the Vice Presidents Residence could reveal information protected by the presidential communications privilege.

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STATUTORY FRAMEWORK The Freedom Of Information Act 8-19. These paragraphs set forth plaintiffs characterizations and summaries of certain statutory provisions, regulatory provisions, and cases, to which the Court is respectfully referred for a full and accurate statement of their contents. Plaintiffs FOIA Request And Request For Expedited Processing 20. Defendant admits that plaintiffs FOIA request was dated July 15, 2008, but

denies that it received plaintiffs FOIA request on that date. Defendant admits the remaining allegations of this paragraph. 21. Denied, except that defendant admits that plaintiffs FOIA request sought a

waiver of fees associated with the processing of its FOIA request and that the paragraph accurately summarizes part of the fee waiver request contained in plaintiffs FOIA request. 22. Denied, except that defendant admits that plaintiffs FOIA request contained a

request for expedition and that the paragraph accurately summarizes part of the request for expedition contained in plaintiffs FOIA request. 23. 24. Defendant admits the allegations of this paragraph. Defendant admits that it has not responded to plaintiffs FOIA request. The

remainder of the paragraph sets forth plaintiffs conclusions of law, to which no response by defendant is required. 25. This paragraph sets forth plaintiffs conclusions of law, to which no response by

defendant is required. 26. Denied. 3

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CAUSE OF ACTION Violation Of The Freedom of Information Act For Wrongful Withholding Of Agency Records 27. 28. Defendant incorporates by reference all preceding paragraphs. Defendant admits that plaintiffs FOIA request contained a request for expedition,

but denies that plaintiff was entitled to such expedition. Further answering, defendant can neither admit nor deny the existence of any records that may fall within plaintiffs request because acknowledging or denying the existence of records reflecting visits to the White House or the Vice Presidents Residence could reveal information protected by the presidential communications privilege. 29. 30. Denied. This paragraph sets forth plaintiffs conclusions of law, to which no response by

defendant is required. 31. Denied. PRAYER FOR RELIEF This section of the Complaint sets forth plaintiffs prayer for relief, to which no response by the defendant is required. To the extent a response is deemed required, this section is denied.

Each and every allegation of the Complaint not heretofore expressly admitted or denied is hereby denied. WHEREFORE, having fully answered, defendant prays that: 1. This Court enter judgment for defendant and dismiss this action with prejudice;

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and 2. Defendant be granted such further relief as the Court may deem just and proper.

Dated: October 6, 2008

Respectfully submitted, GREGORY G. KATSAS Acting Assistant Attorney General JEFFREY A. TAYLOR United States Attorney ELIZABETH J. SHAPIRO (DC Bar 418925) Assistant Branch Director JOHN R. TYLER (DC Bar 297713) Senior Trial Counsel /s/ Brad P. Rosenberg Brad P. Rosenberg (DC Bar 467513) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch Tel: (202) 514-3374 Fax: (202) 616-8460 brad.rosenberg@usdoj.gov Mailing Address: Post Office Box 883 Washington, D.C. 20044 Courier Address: 20 Massachusetts Ave., N.W. Washington, D.C. 20001 Counsel for Defendant