American Oversight v. U.S. Department of Justice

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN OVERSIGHT,

Plaintiff,

v. Civil Action No. 25-383 (TJK)

U.S. DEPARTMENT OF JUSTICE,

Defendant.

MEMORANDUM OPINION

Earlier this year, then-Special Counsel Jack Smith delivered to the Department of Justice

a two-volume report about the investigations he conducted. Volume II, which has not been re-

leased to the public, focuses on his investigation into the presence of classified documents at Mar-

a-Lago following President Trump’s first term. Seeking to publicize Volume II, American Over-

sight submitted a Freedom of Information Act request for that report. Unsatisfied with DOJ’s

response, it sued and then moved for a preliminary injunction, seeking several forms of relief

geared towards making DOJ process its request faster so that the public could receive the report

before FBI Director Kash Patel’s Senate confirmation vote. The Court denied that motion, largely

because another federal judge has prohibited DOJ from disclosing Volume II.

With that status quo unchanged, DOJ now moves to dismiss American Oversight’s com-

plaint or, alternatively, for summary judgment. While American Oversight tries to wriggle around

the prohibition on disclosure, it still has not overcome its basic problem: DOJ lacks discretion to

release Volume II while subject to a court order prohibiting it from doing so. Of course, American

Oversight can argue—and is arguing now—to Judge Aileen Cannon that she should (or must) lift

her injunction. If the injunction is lifted—for whatever reason—American Oversight can make a new FOIA request for the records. And if it is unhappy with DOJ’s response, it may sue again.

But FOIA does not require DOJ or any other agency to violate a court order, so American Over-

sight’s use of it to collaterally attack another court’s injunction is misguided and unavailing. The

Court will thus construe DOJ’s motion as one for summary judgment, grant it, and enter judgment

for the agency.

I. Background

Under the Freedom of Information Act, agencies must make records available to any per-

son whose request “reasonably describes such records” and satisfies agency procedures. See 5

U.S.C. § 552(a)(3)(A). The statute requires an agency to determine “whether to comply with such

[a] request” within twenty business days of receiving it, plus an extra ten in “unusual circum-

stances.” Id. § 552(a)(6)(A), (B). If the agency decides to comply, it must make responsive, non-

exempt records “promptly available” to the requester. Id. § 552(a)(6)(C)(i).

American Oversight, a nonprofit organization aiming to promote “transparency in govern-

ment,” seeks to use this statutory process to obtain the report of then-Special Counsel Jack Smith’s

investigations of President Trump. ECF No. 1 (“Compl.”) ¶¶ 8, 5, 10. This January, Smith deliv-

ered his two-volume report to the Department of Justice. Id. ¶ 8. Volume I focuses on “President

Trump’s potential interference with the lawful transfer of power following the 2020 election,”

while Volume II addresses the alleged “mishandling” of “classified documents after” President

Trump “left office in 2021.” Id. The day after Smith handed over his report, American Oversight

submitted a FOIA request for both volumes to DOJ’s Office of Information Policy. Id. ¶¶ 8, 10.

And believing that the requested information was “urgently needed to inform the public” about the

investigation results, American Oversight asked for expedited processing. ECF No. 8-1 at 9.

Within a week of that request, DOJ released Volume I to the public. Compl. ¶ 16 & n.3.

The publication of Volume II, however, is the subject of ongoing dispute in the criminal

2 prosecution of Waltine Nauta and Carlos De Oliveira. See United States v. Nauta, No. 23-cr-

80101 (AMC), 2025 WL 45873 (S.D. Fla. Jan. 7, 2025). In that case, Judge Cannon dismissed the

superseding indictment against President Trump, Nauta, and De Oliveira in July 2024 after ruling

that Smith’s appointment as special counsel “violates the Appointments Clause of the United

States Constitution.” United States v. Trump, 740 F. Supp. 3d 1245, 1252 (S.D. Fla. 2024). With

the appeal of that decision pending before the Eleventh Circuit, Nauta and De Oliveira asked Judge

Cannon to enjoin DOJ from “releasing a redacted version of Volume II” for “in camera review by

the Chairmen and Ranking Members of the House and Senate Judiciary Committees.” 1 United

States v. Nauta, No. 23-cr-80101 (AMC), 2025 WL 252641, at *1 (S.D. Fla. Jan. 21, 2025).

In late January, Judge Cannon granted that request and imposed clear limitations on what

DOJ could do with the second volume. See Nauta, 2025 WL 252641, at *1. Specifically, she

“enjoined” the Attorney General and DOJ—including all “its officers, agents, officials, and em-

ployees”—“from (a) releasing, sharing, or transmitting Volume II . . . outside the Department of

Justice, or (b) otherwise releasing, distributing, conveying, or sharing with anyone outside the

Department . . . any information or conclusions in Volume II.” Id. at *6. This injunction does not

automatically expire; instead, it “remains in effect pending further Court order.” Id. After Judge

Cannon issued that order, the government moved to voluntarily dismiss its appeal of the dismissal

of the superseding indictment. See United States v. Trump, No. 24-12311 (11th Cir. Jan. 29, 2025),

ECF No. 111. The Eleventh Circuit granted that motion on February 11. See id., ECF No. 113.

On February 10, American Oversight sued DOJ for its handling of the FOIA request. See

1 By that time, after the 2024 presidential election, the Eleventh Circuit had granted the government’s motion to dismiss the appeal of Judge Cannon’s decision as to President Trump. See United States v. Trump, No. 23-cr-80101 (AMC), ECF No. 677 (S.D. Fla. Nov. 26, 2024). So President Trump was no longer a defendant when Nauta and De Oliveira moved to prevent disclo- sure of Volume II.

3 generally Compl. Moving for a preliminary injunction the same day, American Oversight asked

the Court to “order[] DOJ to provide” a “determination” on the FOIA request, “to process the

request,” and to “produce non-exempt, responsive records” by February 21. ECF No. 2 at 1. That

date was critical, according to American Oversight, because Patel’s nomination for FBI Director

was pending before the Senate. See ECF No. 2-2 at 5. And American Oversight argued that

Volume II would “shed light on” Patel’s “truthfulness, trustworthiness, and regard for protecting

classified information.” Id. at 5, 12. The day after American Oversight filed its motion, DOJ

responded to the FOIA request. See ECF No. 8-1 at 17–18. Volume I, DOJ explained, is publicly

available on its website. See id. at 17. And DOJ “determined” to withhold Volume II “in full

because it is protected from disclosure by” Judge Cannon’s “injunction.” Id. So DOJ explained

that it “lack[ed] authority to consider” Volume II’s “releasability.” Id. (citing GTE Sylvania, Inc.

v. Consumers Union of U.S., Inc., 445 U.S. 375, 384–86 (1980)).

The Court denied American Oversight’s motion on February 20. The main problem was

that the relief sought would not remedy an irreparable harm. That harm, American Oversight

argued, was tethered to the non-disclosure of Volume II before Patel’s confirmation vote. But

even if the Court gave American Oversight the order it wanted, Judge Cannon’s injunction barring

DOJ from releasing Volume II would continue to prohibit the thing that would remedy the claimed

harm: prompt disclosure of the records. See ECF No. 11 at 8–10. And American Oversight’s most

aggressive argument—that the Court should find that DOJ was improperly withholding Volume

II and order its release—was likely a loser on the merits. Put simply, DOJ lacked discretion to

disclose Volume II because Judge Cannon ordered the agency not to do that, and her order re-

mained binding. See id. at 12–13. And no matter how wrong American Oversight thought that

order was, a FOIA proceeding in this Court was not a way to challenge it. See id. at 14–15.

4 In proceedings before Judge Cannon, American Oversight is also trying to modify or dis-

solve the injunction. Judge Cannon had directed the government and remaining defendants to

“submit a status report advising of their position on” the injunction “[n]o later than thirty days after

full conclusion of all appellate proceedings . . . and/or any continued proceeding in th[at] Court.”

Nauta, 2025 WL 252641, at *6. Days after moving for preliminary relief in this Court, American

Oversight filed an “Expedited Motion to Intervene and For Clarification or, Alternatively, Disso-

lution” of Judge Cannon’s order. United States v. Trump, No. 23-cr-80101 (AMC), ECF No. 717

(S.D. Fla. Feb. 14, 2025). Because the “clear terms of th[e] Order” showed that it “remains in

effect pending further Court order,” Judge Cannon denied the motion to the extent it sought an

emergency ruling. Id., ECF No. 718 (S.D. Fla. Feb. 18, 2025). But she did not decide “the merits

of the intervention or dissolution requests.” Id. Instead, Judge Cannon consolidated American

Oversight’s motion with that of another would-be intervenor seeking rescission of the injunction.

Both the government and the remaining defendants opposed that relief. Id., ECF Nos. 739, 740

(S.D. Fla. Mar. 14 and 24, 2025). In doing so, the government urged the Court to “not order the

release of Volume II.” Id., ECF No. 740 at 1. And “the decision to release Volume II outside the

Department of Justice should rest solely with the Attorney General”—even if Judge Cannon lifts

the injunction. Id. That position generally tracked the parties’ status report, in which the govern-

ment told Judge Cannon that it “does not object to the Court keeping its” injunction “in place.”

Id., ECF No. 738 at 1 (S.D. Fla. Mar. 14, 2025).

Back in this Court, DOJ moved to dismiss American Oversight’s complaint (or, alterna-

tively, for summary judgment). See ECF No. 12. American Oversight opposed that motion, ar-

guing that it should be construed as one for summary judgment, see ECF No. 17 at 5, and denied.

II. Legal Standards

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint

5 must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). A plaintiff states a facially plausible claim when he pleads “factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court accepts as true “all well-pleaded

factual allegations” and “construes reasonable inferences from those allegations in the plaintiff’s

favor.” Sissel v. HHS, 760 F.3d 1, 4 (D.C. Cir. 2014). But “mere conclusory statements” are not

enough to establish a plausible claim, and courts “are not bound to accept as true a legal conclusion

couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

Rule 12(b)(6) motions are typically limited to the pleadings. So when “matters outside

th[ose] pleadings are presented to” but “not excluded by” the Court, the motion to dismiss becomes

one for summary judgment. Fed. R. Civ. P. 12(d). That conversion may happen only if “[a]ll

parties” are “given a reasonable opportunity to present all the material that is pertinent to the mo-

tion.” Id.; see also U.S. ex rel. Shea v. Cellco P’ship, 863 F.3d 923, 936 (D.C. Cir. 2017). But

when, as here, “the defendant expressly moves for summary judgment in the alternative to a motion

to dismiss before discovery has been conducted”—and “relies upon extra-pleading material” that

the plaintiff has had “an opportunity to respond” to—“the Court need not issue separate prior no-

tice of the conversion.” López Bello v. Smith, 651 F. Supp. 3d 20, 30 (D.D.C. 2022) (citation

omitted).

Summary judgment must be granted “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A dispute is “genuine” if the evidence is such that a reasonable factfinder could return a

verdict for the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007). A fact is “material”

if it could affect the outcome of the litigation under the applicable substantive law. Anderson v.

6 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment,

the Court must “view the evidence in the light most favorable to the [nonmovant]”—here, Amer-

ican Oversight—“draw all reasonable inferences in that party’s favor, and avoid weighing the ev-

idence or making credibility determinations.” Thompson v. District of Columbia, 967 F.3d 804,

812–13 (D.C. Cir. 2020) (citation omitted). But in opposing summary judgment, the nonmovant

“must do more than simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted).

So if the evidence that the nonmovant relies on is “‘merely colorable’ or ‘not significantly proba-

tive’” such that no reasonable factfinder could rule in that party’s favor based on that evidence,

then “summary judgment may be granted.” Bradley v. D.C. Pub. Schs., 222 F. Supp. 3d 24, 28

(D.D.C. 2016) (quoting Anderson, 477 U.S. at 249–50). Thus, although at summary judgment the

Court does not weigh the evidence or find the facts, the Court must decide whether the non-

movant’s evidence is probative enough that there is a genuine issue for trial. See Anderson, 477

U.S. at 249; Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016).

III. Analysis

Before turning to the merits, the Court must decide whether to construe DOJ’s motion as

one to dismiss under Rule 12(b)(6) or as one for summary judgment under Rule 56. Information

about the proceedings before Judge Cannon is not beyond the pleadings for purposes of Rule 12(d).

Those “facts” are “in the public record,” so the Court may “evaluat[e]” them when deciding “a

motion to dismiss.” Precision Contracting Sols., LP v. ANGI Homeservices, Inc., 415 F. Supp. 3d

113, 117 n.4 (D.D.C. 2019) (quoting Covad Commc’ns Co. v Bell Atl. Corp., 407 F.3d 1220, 1222

(D.C. Cir. 2005) (assessing a filing on another court’s docket)). The true “extra-pleading” mate-

rial, then, is limited to a declaration from DOJ’s Office of Information Policy counsel. See ECF

No. 12-1. That declaration offers details about American Oversight’s FOIA request and the

7 response that DOJ issued on February 11. See id. ¶¶ 1–9. For its part, American Oversight asks

the Court to construe DOJ’s motion “as one for summary judgment.” ECF No. 17 at 5. And

finding that American Oversight had “a reasonably opportunity to present all the material that is

pertinent to the motion,” Fed. R. Civ. P. 12(d), the Court will do just that.

That threshold issue aside, DOJ makes the straightforward argument that it is entitled to

summary judgment because Volume I of Smith’s report is public and Volume II is protected from

disclosure by Judge Cannon’s injunction under GTE Sylvania. In response, American Oversight

argues that DOJ’s motion falters for three reasons. First, it argues that genuine factual disputes

“remain as to whether” DOJ “is withholding any” parts of “Volume II” under FOIA’s statutory

exemptions that permit non-disclosure. ECF No. 17 at 11. Second, DOJ has allegedly made “in-

consistent statements regarding disclosure of Volume II”—a sleight of hand that American Over-

sight urges this Court to avoid “endors[ing].” Id. Third, American Oversight continues to believe

that Judge Cannon’s injunction is improper. Id. If this Court were to respect that injunction,

American Oversight contends, it would “cede” to Judge Cannon the “ability to adjudicate a plain-

tiff’s rights under FOIA.” Id. But none of these arguments helps American Oversight overcome

its main problem: another court has prohibited DOJ from doing what American Oversight wants,

and that Court has not (at least not yet) lifted that bar to disclosure. Thus, and as explained further

below, DOJ is entitled to summary judgment.

First, reiterating an argument from its preliminary-injunction briefing, American Oversight

contends that DOJ needed to—but did not—“specify[] which FOIA exemption(s)” applied when

responding to the FOIA request. ECF No. 17 at 12. Recall the gist of DOJ’s response: Volume II

would be “withheld in full because it is protected from disclosure by a court injunction issued by”

Judge Cannon. ECF No. 12-1 ¶ 9. American Oversight’s theory, then, is that an agency must do

8 more than say what records it will (or will not) produce and explain why it is withholding any of

them. Instead, the agency must apparently identify statutory exemptions even when—as here—

the agency refuses to disclose the records for another reason.

For good reason, no authority cited by American Oversight or found by this Court supports

that understanding of FOIA. No one disputes the general rule: “In enacting FOIA, Congress pro-

vided that agencies may only withhold information that falls within one of the Act’s nine enumer-

ated exemptions from disclosure.” Reps. Comm. for Freedom of the Press v. FBI, 3 F.4th 350, 357

(D.C. Cir. 2021) (emphasis added). But the Supreme Court’s GTE Sylvania decision created “a

slight departure . . . from FOIA’s self-contained exemption scheme.” Sikes v. U.S. Dep’t of the

Navy, 896 F.3d 1227, 1235 (11th Cir. 2018) (internal quotation marks and brackets omitted) (quot-

ing DOJ v. Tax Analysts, 492 U.S. 136, 155 (1989)). That departure recognizes that an agency

“simply [has] no discretion” to “exercise” when “a court has enjoined” it from “disclos[ing]” a

record. Jud. Watch, Inc. v. DOJ, 813 F.3d 380, 383 (D.C. Cir. 2016) (quoting GTE Sylvania, 445

U.S. at 386). In other words, the GTE Sylvania exception is for situations where the agency is an

“enjoined party” and has “lost the discretion” to disclose the records, whether or not the enumer-

ated statutory exemptions apply. Alley v. HHS, 590 F.3d 1195, 1203 (11th Cir. 2009) (citation

omitted); see also, e.g., Nat’l Res. Def. Council v. Leavitt, No. 04-cv-1295 (HHK), 2006 WL

667327, at *5 (D.D.C. Mar. 14, 2006) (explaining that the “danger targeted by FOIA . . . is not

implicated because the agency has not chosen to withhold information” but rather “has been in-

structed to do so”). And while limited, that exception is necessary to avoid placing “contradictory

legal commands” on agencies: “either violate FOIA or commit contempt of court.” Sikes, 896

F.3d at 1235.

This carveout, though not tethered to the specified exemptions, still has statutory roots.

9 FOIA authorizes courts to compel production of records when an agency has “(1) improperly (2)

withheld (3) agency records.” GTE Sylvania, 445 U.S. at 384 (describing 5 U.S.C. § 552(a)(4)(B)).

But when an agency complies with a court order barring disclosure, it has not improperly withheld

anything. See id. at 384–87. Even American Oversight—after leading with an argument that

proceeds as though GTE Sylvania does not exist—eventually acknowledges this well-established

exception. Compare ECF No. 17 at 12 (“The only grounds by which agencies may withhold in-

formation otherwise subject to FOIA are the statute’s nine exemptions.”), with id. at 15 (recogniz-

ing the “exception to that rule set forth in GTE Sylvania”).

Given this settled rule, an agency does not flout its FOIA obligations by pointing to that

exception rather than listing exemptions under § 552(b) that are irrelevant when a court has re-

moved the agency’s discretion to release records. Section 552(a)(6)(A)(i) requires agencies to

“determine” within 20 days “whether to comply with” a proper FOIA request and to provide the

“reasons” for its “determination.” That directive, translated to concrete tasks, tells the agency to

“(i) gather and review the documents; (ii) determine and communicate the scope of the documents

it intends to produce and withhold, and the reasons for withholding any documents; and (iii) inform

the requester that it can appeal whatever portion of the ‘determination’ is adverse.” Citizens for

Resp. & Ethics in Wash. v. FEC (CREW), 711 F.3d 180, 188 (D.C. Cir. 2013). 2

True, those “reasons for withholding” are often tied to the enumerated statutory exemptions

under § 552(b). But nothing about the statutory requirement of providing the “reasons” for a de-

termination suggests that DOJ needed to do anything more than what it did here: tell American

2 The “penalty” for not complying with these requirements is just “that the agency cannot rely on the administrative exhaustion requirement to keep” the “case[] from getting into court.” CREW, 711 F.3d at 189. DOJ has not invoked exhaustion but has litigated this case on the merits, so it is unclear what relief American Oversight would be entitled to for this alleged FOIA violation.

10 Oversight what records it would produce (as far as Volume II goes, none) and why it would not

produce them (because another court told the agency not to). To repeat, what matters is whether

the agency “communicate[s] . . . the reasons for withholding any documents,” Khine v. DHS, 943

F.3d 959, 967 (D.C. Cir. 2019) (emphasis added) (citation omitted), not whether it identifies

§ 552(b) exemptions that are not implicated when the GTE Sylvania exception applies. Thus, for

example, an agency satisfies the determination requirement when it tells the requester “the scope

of the documents it intend[s] to produce—none—and the reason therefor—[it] could not locate

responsive documents”—even though that reason is not one of the nine listed exemptions in

§ 552(b). Machado Amadis v. DOJ, 388 F. Supp. 3d 1, 12 (D.D.C. 2019) (citation omitted). Just

because agencies are more likely to invoke those exemptions than they are GTE Sylvania does not

mean that the latter is inadequate. Rather, this scenario reflects how rare it is for a party to request

records under FOIA when a different court has ordered the agency not to disclose them. 3 In sum,

DOJ’s failure to specify statutory exemptions that it did not rely on when withholding records is

no basis for a FOIA claim.

Second, American Oversight says that DOJ has taken “strategically inconsistent positions”

about Volume II—and that granting DOJ’s motion would “endorse” that conduct. ECF No. 17 at

14. DOJ, in other words, impermissibly wants to have it both ways—by arguing to this Court that

Judge Cannon’s injunction bars disclosure while arguing before her that she should keep the order

in place. See id. at 15. And DOJ’s “underlying motivations” are apparently clear: it “wants to

retain full discretion to withhold the entire report with impunity, which” is why it supports the

injunction. Id. at 15–16. Add all that together, American Oversight insists, and the result is that

3 American Oversight was, of course, within its rights to bring this suit despite Judge Can- non’s injunction. But its decision to do so before even asking for relief from Judge Cannon makes its concerns about “judicial economy” ring hollow. ECF No. 17 at 13 n.4.

11 this case—unlike GTE Sylvania—involves the “unjustified suppression of information.” Id. at 15

(quoting GTE Sylvania, 445 U.S. at 385). Not so.

For one thing, American Oversight is wrong to say that the “only” way for the agency to

“retain full discretion to withhold the entire report” is if Judge Cannon maintains the injunction.

ECF No. 17 at 15–16. Her order removes discretion from DOJ by prohibiting it from “releasing,

sharing, or transmitting Volume II” or, more broadly, from “otherwise releasing, distributing, con-

veying, or sharing . . . any information or conclusions in Volume II.” Nauta, 2025 WL 252641, at

*6. And in this way, the injunction is the paradigm of the GTE Sylvania exception because it is “a

court order” that eliminates DOJ’s “discretion” by “specifically enjoining the[] release” of the

records that American Oversight seeks. Agility Pub. Warehousing Co. K.S.C. v. NSA, 113 F. Supp.

3d 313, 335 (D.D.C. 2015).

For another, even assuming it matters, American Oversight overstates the tension between

DOJ’s positions in each court. DOJ is consistent on the key issue for this FOIA case: it lacks

discretion to disclose Volume II because of Judge Cannon’s order. That has been DOJ’s stance

throughout this litigation. See ECF No. 8 at 12–13; ECF No. 12 at 11–13; ECF No. 17 at 1. And

DOJ recognizes in the proceedings before Judge Cannon that her order currently “enjoin[s]” it

“from releasing Volume II.” Trump, No. 23-cr-80101 (AMC), ECF No. 738 at 1 (S.D. Fla. Mar.

14, 2025). True, DOJ does not object to maintaining that status quo. See id. And if Judge Cannon

lifts the injunction, the agency would prefer that the Attorney General possess discretion to make

decisions about releasing Volume II. See id. at 2. But those positions are hardly inconsistent with

DOJ’s argument before this Court—i.e., that the agency currently lacks discretion to disclose Vol-

ume II under FOIA. Consider a restaurant that tells customers it cannot serve them after 9:00 p.m.

because the mayor has imposed a curfew. Such a position is not “inconsistent” with the restaurant

12 owner telling the mayor that she is fine with the curfew remaining in place. Here, DOJ’s views on

whether Judge Cannon should maintain the injunction and what should happen if she lifts it do not

speak to the issues before this Court about whether the agency has violated FOIA. Instead, DOJ

has understandably—and appropriately—taken a limited position in this Court about FOIA dis-

closure while explaining to Judge Cannon what the agency believes she should do.

More to the point, this case fits within the GTE Sylvania exception despite American Over-

sight’s insistence that DOJ’s conduct renders it inapplicable. That exception turns on whether the

agency from which a FOIA plaintiff seeks records has “discretion” to release them. GTE Sylvania,

445 U.S. at 386. When an injunction removes that discretion, “it is not the [agency’s] decision to

withhold the documents at all.” Id. That is the “distinctly different context” in which the agency

does not violate FOIA by refusing to disclose documents that a court has said it may not release.

Id. And this case fits that context hand in glove. Indeed, American Oversight never says that DOJ

has discretion to violate Judge Cannon’s order. Nor could it.

Rather, American Oversight faults DOJ for not trying to persuade Judge Cannon to lift the

injunction. But that kind of discretion—whether to make a particular argument in separate litiga-

tion—is not the discretion that matters under GTE Sylvania. DOJ, after all, would still lack dis-

cretion to release the documents even if the agency took American Oversight’s preferred position

before Judge Cannon. Put differently, “[e]ven if [DOJ] disagreed with” Judge Cannon’s “imposi-

tion of the[] order[],” the agency would remain “subject to an injunctive order issued by a court

with jurisdiction” and thus would be “expected to obey that decree until it is modified or reversed.”

Paramedics Electromedicina Comercial, Ltda v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645,

656 (2d Cir. 2004) (quoting GTE Sylvania, 445 U.S. at 386). And that obligation would persist

“even if [DOJ] ha[d] proper grounds to object to the order.” Id. (quoting GTE Sylvania, 445 U.S.

13 at 386). In the end, American Oversight’s qualms with DOJ’s litigating positions are no basis for

finding that the agency has violated FOIA.

Third, American Oversight again frames the pertinent issue incorrectly by arguing that the

Court will improperly “cede its ability to adjudicate . . . FOIA claims” if it grants DOJ’s motion.

ECF No. 17 at 16. But adjudicating American Oversight’s FOIA claims is what this Court is doing

by resolving the motion and entering judgment in its favor. FOIA is meant “to correct improper

denials of requests for public information by various federal agencies, not by courts.” FDIC v.

Ernst & Ernst, 677 F.2d 230, 232 (2d Cir. 1982) (emphasis added). Tracking the statute, the Court

has assessed whether the agency—DOJ—incorrectly withheld records from American Oversight,

not whether a different court should modify its injunction. And the Court has found that DOJ did

not incorrectly withhold Volume II, which is subject to a non-disclosure injunction and thus trig-

gers the long-recognized GTE Sylvania exception. American Oversight may disagree with how

the Court adjudicated its FOIA claims. But that disagreement does not mean that the Court refused

to adjudicate them. Nor, for that matter, does it show that the Court improperly took “direction

from” Judge Cannon by declining to hold that DOJ’s compliance with her order amounts to a FOIA

violation. ECF No. 17 at 16.

American Oversight’s unyielding focus on Judge Cannon’s alleged mistakes in the crimi-

nal case before her underscores why FOIA litigation in this Court is not a way to correct those

purported errors. If American Oversight “believe[s]” that Judge Cannon’s “[i]njunction [is] im-

proper,” it should try to “challenge[] it in” the Southern District of Florida—just as it is doing now.

Celotex Corp. v. Edwards, 514 U.S. 300, 313 (1995) (citation omitted). But “[i]t is for the court

of first instance”—that is, Judge Cannon—rather than this Court “to determine the question of the

validity of” the injunction. Id. And “until [her] decision is reversed for error by orderly review,

14 either by” herself “or by a higher court,” the “order[]” is “to be respected.” Id. (emphasis added)

(citation omitted) (directing respondents to challenge a bankruptcy court’s injunction “in the Bank-

ruptcy Court,” and then to “appeal” that decision if “dissatisfied” with the ruling). This bedrock

principle explains why “the Supreme Court did not express any opinion on the soundness of the

underlying injunction in GTE Sylvania.” Alley, 590 F.3d at 1203. It just didn’t “matter” then—

and doesn’t matter now—whether “the injunction prohibiting disclosure was unsound, unwise, or

otherwise in need of being modified or vacated.” Id. Those issues, of course, would matter in a

“proceeding to modify or vacate an injunction.” Id. But because “a FOIA case” is “not” such a

“proceeding,” a “FOIA lawsuit” is an impermissible “collateral[] attack[]” on an “injunction issued

by” a different court “against the disclosure of information.” Id. (describing this “principle” as

“[p]art and parcel of the GTE Sylvania decision”). Instead, American Oversight’s path to Volume

II requires first that Judge Cannon lift the injunction. If that happens, American Oversight may

request the records under FOIA again. And if dissatisfied with DOJ’s response, it may file another

FOIA suit.

American Oversight suggests that this case is different because Judge Cannon “has no case

or controversy before her.” ECF No. 17 at 17. In doing so, American Oversight might be invoking

language in GTE Sylvania noting that there was “no doubt” that the federal district court “had

jurisdiction” to issue the injunction at issue, and that the injunction there did not have “only a

frivolous pretense to validity.” GTE Sylvania, 445 U.S. at 386 (citation omitted). American Over-

sight appears to argue that Judge Cannon no longer has jurisdiction to maintain the injunction over

criminal proceedings that are purportedly “defunct” given the Eleventh Circuit’s dismissal of the

government’s appeal and DOJ’s statement that it does “not intend to revive the charges” against

the defendants. See ECF No. 17 at 16–17 (citation omitted). So, it contends, this Court should

15 declare that she lacks authority to continue prohibiting disclosure and tell DOJ that her order im-

poses no obstacle to disclosing Volume II—even though neither Judge Cannon nor a court with

the power to review her decisions has said that.

The above-cited language in GTE Sylvania does not authorize this Court to undertake the

kind of roving jurisdictional inquiry into the matters before Judge Cannon that American Oversight

would like. To begin, even American Oversight does not contest that Judge Cannon “had juris-

diction to issue” the “injunction[]” when she did in January. GTE Sylvania, 445 U.S. at 386 (em-

phasis added). The appeal of her order dismissing the indictment was still live then, so “this is not

a case where the injunction was transparently invalid”—for jurisdictional or other reasons—when

Judge Cannon entered it. Walker v. City of Birmingham, 388 U.S. 307, 315 (1967) (explaining

that the “court that issued the injunction had . . . jurisdiction” (emphasis added)).

Beyond that, the Court has no reason to doubt Judge Cannon’s authority to decide whether

and to what extent the injunction should remain in place. Federal courts may “consider collateral

issues after an action is no longer pending,” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395

(1990), and “employ injunctive remedies to protect the integrity of the courts and the orderly and

expeditious administration of justice,” Urban v. United Nations, 768 F.2d 1497, 1500 (D.C. Cir.

1985). “[A] court” that “enters an injunction,” moreover, “retains jurisdiction to enforce its order

in the future.” Inmates’ Councilmatic Voice v. Wilkinson, 989 F.2d 499, 1993 WL 87431, at *3

(6th Cir. 1993) (Table) (“[A] district court can terminate supervision of a lawsuit without vacating

injunctive orders previously entered in the suit.”). And a federal court’s “subject matter jurisdic-

tion over a criminal case does not necessarily end at the close of the proceedings”—i.e., “upon the

dismissal of an indictment.” In re Stabile, 436 F. Supp. 2d 406, 412 (E.D.N.Y. 2006); cf. id. at

413 (discussing how federal courts have “long exercised ancillary jurisdiction in criminal matters”

16 to, among other things, “return seized property” (citation omitted)); United States v. Smith, 467

F.3d 785, 788 (D.C. Cir. 2006) (“[D]istrict courts retain some reservoir of jurisdiction—distinct

from the rules of criminal procedure themselves—to entertain motions after final judgment.”).

Against that backdrop, Judge Cannon has before her the question of how the current posture of the

criminal case and the facts affect the injunction she entered. 4 The Court sees no reason—described

in GTE Sylvania or otherwise—to short-circuit the process unfolding before Judge Cannon. In the

end, American Oversight cites no case in which a FOIA court probed the jurisdiction of another

court as it suggests here.

Indeed, if GTE Sylvania mandated that move, it would risk imposing the problem that it

seeks to avoid: “requir[ing] an agency to commit contempt of court in order to” comply with FOIA.

GTE Sylvania, 445 U.S. at 387. A decision by this Court about Judge Cannon’s jurisdiction would

not bind her as a matter of precedent. Nor would the doctrine of issue preclusion prevent relitiga-

tion of that jurisdictional point. “[F]undamental” in “nature,” the “general rule” is “that a litigant

is not bound by a judgment to which she was not a party.” Taylor v. Sturgell, 553 U.S. 880, 898

(2008). And this Court sees no reason why its decision in a FOIA case about Judge Cannon’s

jurisdiction would stop Nauta and De Oliveira—neither of whom is a party here—from arguing

the opposite. Judge Cannon, then, could disagree on this jurisdictional issue and find that her

injunction still prohibits DOJ from disclosing Volume II.

American Oversight is no doubt frustrated that Judge Cannon has barred DOJ from

4 Nauta and De Oliveira, for example, contend that “jeopardy arguably remains for all three former co-defendants.” Trump, No. 23-cr-80101 (AMC), ECF No. 738 at 5–6 (S.D. Fla. Mar. 14, 2025). And just because DOJ says that it “does not intend to revive the charges” “[a]t this junc- ture,” see id. at 2, does not mean that it never will. So the concerns about how the “public dissem- ination of Volume II” could harm the defendants’ rights have not necessarily disappeared. Nauta, 2025 WL 252641, at *5 (explaining basis for prohibiting such disclosure).

17 releasing Volume II. But FOIA litigation is not a way to challenge that decision. The statute

provides remedies for when agencies improperly hold records, not when they comply with alleg-

edly mistaken court orders.

IV. Conclusion

For all the above reasons, the Court will construe Defendant’s motion as one for summary

judgment and will grant it. A separate order will issue.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: April 22, 2025