Case 1:21-cv-01669-RDM Document 1 Filed 06/22/21 Page 1 of 8
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`AMERICAN ACCOUNTABILITY
`FOUNDATION,
`
`300 Independence Avenue SE
`Washington, DC 20003
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`
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`Plaintiff,
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`Defendant.
`_________________________________________ )
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`v.
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`Civil Action No.
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`U.S. BUREAU OF ALCOHOL, TOBACCO,
`FIREARMS, AND EXPLOSIVES,
`99 New York Avenue, NE
`Washington, DC 20226
`
`COMPLAINT
`
`The U.S. Bureau of Alcohol, Tobacco, and Firearms (“ATF”) has withheld rec-
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`ords that the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, requires it to re-
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`lease. Accordingly, Plaintiff American Accountability Foundation files this complaint
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`seeking declaratory and injunctive relief to compel ATF’s compliance with the re-
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`quirements of FOIA to release the requested records.
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`JURISDICTION AND VENUE
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`1.
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`This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B)
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`and 28 U.S.C. § 1331.
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`2.
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`Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 8 U.S.C.
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`§ 1391(e).
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`1
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`
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`
`AMERICAN ACCOUNTABILITY
`FOUNDATION,
`
`300 Independence Avenue SE
`Washington, DC 20003
`
`
`
`
`Plaintiff,
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Defendant.
`_________________________________________ )
`
`v.
`
`Civil Action No.
`
`U.S. BUREAU OF ALCOHOL, TOBACCO,
`FIREARMS, AND EXPLOSIVES,
`99 New York Avenue, NE
`Washington, DC 20226
`
`COMPLAINT
`
`The U.S. Bureau of Alcohol, Tobacco, and Firearms (“ATF”) has withheld rec-
`
`ords that the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, requires it to re-
`
`lease. Accordingly, Plaintiff American Accountability Foundation files this complaint
`
`seeking declaratory and injunctive relief to compel ATF’s compliance with the re-
`
`quirements of FOIA to release the requested records.
`
`JURISDICTION AND VENUE
`
`1.
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`This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B)
`
`and 28 U.S.C. § 1331.
`
`2.
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`Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 8 U.S.C.
`
`§ 1391(e).
`
`1
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`
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`Case 1:21-cv-01669-RDM Document 1 Filed 06/22/21 Page 2 of 8
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`PARTIES
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`3.
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`Plaintiff American Accountability Foundation is a public interest non-profit
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`organization, organized under the laws of Delaware with its principal place of busi-
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`ness at 300 Independence Ave. SE, Washington, DC 20003. Founded in 2020, Amer-
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`ican Accountability Foundation investigates and reports on bureaucratic overreach
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`that impacts constitutional liberties. American Accountability Foundation’s activities
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`include review of nominees for federal office.
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`4.
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`The ATF is an agency within the U.S. Department of Justice. The ATF has
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`possession, custody, and control of the requested records and is subject to the juris-
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`diction of 5 U.S.C. § 552(f).
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`STATEMENT OF FACTS
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`5.
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`6.
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`7.
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`David H. Chipman was nominated to become the director of ATF.
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`The nomination of a director of ATF requires Senate confirmation.
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`As part of that confirmation process, David H. Chipman provided testimony to
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`the United States Senate Committee on the Judiciary.
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`8.
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`In an answer to a question from Senator Ted Cruz, David H. Chipman admit-
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`ted that at least two Equal Employment Opportunity Commission complaints had
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`been filed against him while he was previously employed at ATF.
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`9.
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`David H. Chipman also admitted to Senator Ted Cruz that his personnel file
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`was still under the control of the federal government.
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`10. On information and belief, there were more than two Equal Employment Op-
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`portunity Commission complaints filed against David H. Chipman.
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`2
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`Case 1:21-cv-01669-RDM Document 1 Filed 06/22/21 Page 3 of 8
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`11. On information and belief, the ATF took several disciplinary actions against
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`David H. Chipman.
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`12. On information and belief, complaints were filed against David H. Chipman
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`while he was an agent in Detroit and involved allegations of professionally impermis-
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`sible statements alleging inability of minority agents to succeed on standard exami-
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`nations without cheating.
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`13. On information and belief, ATF has retained records relating to these com-
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`plaints.
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`14. On information and belief, complaints were filed against David H. Chipman
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`that involved allegation of sexual harassment of ATF employees.
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`15. On information and belief, ATF has retained records relating to these com-
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`plaints.
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`Plaintiff’s First FOIA Request
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`16. On April 20, 2021, Plaintiff submitted to the ATF via email a FOIA request for:
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`Copies of all complaints, grievances, requests for investigation, or inves-
`tigatory documents related to employee misconduct, harassment, mal-
`feasance, or other violations of the standards of professional conduct by
`or regarding Mr. David H. Chipman. These records would include, but
`not be limited to, allegations of sexual harassment, racial discrimina-
`tion, denial of rights, profiling, excessive use of force, misconduct involv-
`ing abuse or violence, unauthorized use of ATF systems, equipment, or
`authority; governmental ethics violations; or other prohibited personnel
`practices.
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`17. The request authorized redaction of any personal identifying information of
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`complainants.
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`3
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`Case 1:21-cv-01669-RDM Document 1 Filed 06/22/21 Page 4 of 8
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`18. On May 4, 2021, ATF responded by stating that it had transferred the request
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`to the National Personnel Records Center at the National Archives.
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`19. On May 20, 2021, ATF responded to further questions from Plaintiff stating
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`that it had not located the files, but was making further inquiries with management
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`officials responsible for “EEO, Professional Responsibility, etc.”
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`20. On May 21, 2021, ATF sent an email to Plaintiff stating that it was working
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`with the EEO office examining records in the EEO office. The email went on to state
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`that the sender would talk to “the Office of Professional Responsibility on Monday
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`RE records of any other kinds of allegations of impropriety or misconduct.”
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`21. No further communication was received.
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`Plaintiff’s Second FOIA Request
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`22. On May 4, 2021, Plaintiff submitted a second request to ATF for “Copies of all
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`disciplinary records or records related to investigations of employee misconduct or
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`malfeasance by David H. Chipman, former ATF Agent.”
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`23. The request authorized redaction of any personal identifying information of
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`complainants.
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`24. The second request specifically stated that it sought records from 1988 through
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`2012.
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`25. The ATF acknowledged the second request on May 6, 2021, in a notice that
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`stated that the request had been forwarded to “ATF’s Office of Public and Govern-
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`mental Affairs (PGA) for processing on May 4, 2021. Even though my directorate may
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`4
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`Case 1:21-cv-01669-RDM Document 1 Filed 06/22/21 Page 5 of 8
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`be involved in the collection of information to respond to FOIA requests, all responses
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`to the requests will come from PGA.”
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`26. There has been no further correspondence from ATF on the second FOIA re-
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`quest.
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`The Defendant Fails to Comply with Either FOIA Request
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`27. To date, Plaintiff has received no responsive documents for either request.
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`28. The ATF has acknowledged the receipt of both FOIA requests more than
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`twenty working days ago, and it therefore appears to have failed to comply with 5
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`U.S.C. § 552(a)(6)(A)(i).
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`29. Even in the face of documents known to exist based on the testimony of Mr.
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`Chipman, ATF has failed to produce even a single page of responsive materials, either
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`because they are not looking in the right places or because they are refusing to turn
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`over what they have discovered.
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`30. Plaintiff has exhausted the applicable administrative remedies with respect to
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`its FOIA requests.
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`31. The ATF has wrongfully withheld the requested records from Plaintiff.
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`CLAIMS FOR RELIEF
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`First Cause of Action
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`Injunction Requiring a Formal Response
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`32. Plaintiff served two FOIA requests on ATF according to the requirements of 5
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`U.S.C. § 552(a)(6)(A).
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`5
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`Case 1:21-cv-01669-RDM Document 1 Filed 06/22/21 Page 6 of 8
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`33. ATF responded to both requests, but failed to comply with the statutory re-
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`quirement that ATF formally state whether it would comply with or deny the
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`requests.
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`34. ATF claimed to refer both requests to other agencies or other offices within
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`ATF as potential sources of information, but did not specifically request an
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`extension for unusual circumstances.
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`35. Even treating ATF’s response as a request for extension under unusual cir-
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`cumstances ATF failed to comply with the deadline for a formal response under
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`unusual circumstances under 5 U.S.C. § 552(a)(6)(B)(i).
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`36. ATF has currently not issued a final response to either FOIA request and has
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`not produced any documents responsive to either FOIA request.
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`37. Thus, Plaintiff is entitled to injunctive relief ordering ATF to provide a formal
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`response either agreeing to comply with each respective request or denying
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`each request, along with the legal basis for such a denial if any.
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`Second Cause of Action
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`Injunction Requiring Production of Responsive Documents
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`38. On information and belief, ATF is in possession of responsive documents
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`which it is legally obligated to turn over in response to Plaintiff’s FOIA re-
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`quests.
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`39. ATF has not provided any legal justification for failing to turn over these re-
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`sponsive documents.
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`6
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`Case 1:21-cv-01669-RDM Document 1 Filed 06/22/21 Page 7 of 8
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`40. Plaintiff is entitled to receive copies of these documents under 5 U.S.C. §
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`552(a)(4)(B).
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`41. Thus, Plaintiff is entitled to injunctive relief ordering ATF to turn over copies
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`of responsive documents.
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`Third Cause of Action
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`Attorney Fees
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`42.
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`5 U.S.C. § 552(a)(4)(E) authorizes the Court to award attorney fees and other
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`litigation costs incurred in any case brought under this section if the com-
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`plainant substantially prevails.
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`43. Plaintiff is entitled to be a prevailing party under the controlling law and on
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`that basis requests an award of attorney fees and other costs associated with
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`this action.
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`DEMAND FOR RELIEF
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`
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`Plaintiff respectfully asks that this Court:
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`A. Order the Defendants to issue a final decision on both FOIA requests at issue
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`here.
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`B. To the degree that responsive documents are in the possession of Defendant,
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`order the Defendant to disclose by a date certain the requested records in their
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`entireties, with redactions for sensitive information of victims per the original
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`request, and make copies available to Plaintiff.
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`C. Enjoin Defendant from continuing to withhold all non-exempt records respon-
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`sive to Plaintiff’s FOIA requests.
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`7
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`Case 1:21-cv-01669-RDM Document 1 Filed 06/22/21 Page 8 of 8
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`D. Award Plaintiff its costs and reasonable attorney fees incurred in this action
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`pursuant to 5 U.S.C. § 552(a)(4)(E); and
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`E. Grant such other relief as the Court may deem just and proper.
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`Dated: June 22, 2021
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`Respectfully submitted,
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`/s/ Michael Buschbacher
`Michael Buschbacher
`D.D.C. Bar No. 1048432
`Boyden Gray & Associates
`801 17th Street NW, Suite 350
`Washington, DC 20006
`(317) 513-0622
`buschbacher@boydengrayassociates.com
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`Attorney for the Plaintiff
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`/s/ Blake W. Meadows_______
`Blake W. Meadows
` Georgia Bar No. 569729
`Travis W. Smith
` Georgia Bar No. 153045
`Foster, Foster, & Smith, LLC
`118 S. Main St.
`Jonesboro, GA 30236
`Phone: (770) 478-4000
`bmeadows@fostersmith.law
`tsmith@fostersmith.law
`Appearing Pro Hac Vice,
`Applications submitted herewith.
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`8
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