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Case TitleAmerican Civil Liberties Union of Northern California et al v. Drug Enforcement Administration
DistrictNorthern District of California
CitySan Francisco
Case Number3:2011cv01997
Date Filed2011-04-22
Date Closed2012-04-26
JudgeHon. Richard Seeborg
PlaintiffAmerican Civil Liberties Union of Northern California
PlaintiffSan Francisco Bay Guardian
DefendantDrug Enforcement Administration
Documents
Docket
Complaint
Complaint attachment 1
Opinion/Order [29]
Opinion/Order [39]
Opinion/Order [54]
Opinion/Order [56]
Opinion/Order [64]
FOIA Project Annotation: A federal court in California has awarded the ACLU of Northern California $178,000 in attorney's fees for its FOIA litigation against the DEA for records relating to state efforts to import, transfer, or purchase drugs commonly used in lethal injections. As a result of the litigation, at least one scheduled execution was temporarily halted when the DEA discovered Arizona had imported sodium thiopental in violation of the Controlled Substances Act. Sodium Thiopental is used by 30 states as part of their lethal injection protocol. In May 2010 thiopental was no longer available domestically and states began to look for foreign sources for the drug, which prompted the ACLU of Northern California and the San Francisco Bay Guardian to request records concerning such attempts to import thiopental. While the agency granted the request, it produced no documents because of its backlog. However, when the plaintiffs learned that two states had set execution dates in May and June 2011, they filed suit to force the agency to disclose the documents before the executions occurred. The DEA produced some documents in May 2011, but not any Form 236 import declarations. The court denied the plaintiffs' motion for a preliminary injunction on May 23, 2011 and the agency released four Form 236s the same day. The next day, the U.S. Attorney's Office notified the Arizona Attorney General that Arizona's supply of thiopental was imported in violation of the Controlled Substances Act and the Arizona Supreme Court stayed the execution. The parties stipulated a dismissal of the FOIA suit in April 2012 but were unable to reach an agreement on attorney's fees. The plaintiffs argued they had substantially prevailed because their litigation caused the agency to disclose the records when it did. In response, the agency contended the litigation was not necessary and "the timing of production was the result of unavoidable delay due to their backlog of FOIA requests." But Judge Richard Seeborg pointed out that "while the DEA may have eventually produced the documents requested by plaintiff under FOIA, the immediacy of the scheduled executions made the timing of production critical. Plaintiffs filed their request for expedited production on January 4, 2011. On March 9, 2011, plaintiffs were told they would be 'notified of [the DEA's] initial determination by correspondence at a later date.' This letter gave no guidance as to the progress of the production request, or when plaintiffs might expect to receive an answer. Plaintiffs heard nothing further from the DEA before filing suit in this Court on April 22, 2011." The agency argued that it started searching for records on February 8, 2011 before the complaint was filed. Seeborg noted that "defendant apparently failed, however, to notify plaintiffs that it had begun such a search. Plaintiffs were thus justified in believing that the filing of this lawsuit was necessary in light of the impending dates of execution." He added that "furthermore, the filing of this matter prompted a supplemental search for records to take place, resulting in the discovery of documents held in the DEA Administrator's office, additional field division offices, and the unearthing of additional documents in offices already searched. Absent is any indication that this supplemental search would have taken place without the filing of plaintiffs' action in federal court. Indeed, this Court found that the DEA's initial search for records was inadequate, and ordered defendant to expand its search to meet the 'reasonableness' standard. Thus, plaintiffs' suit was at least a catalyst, if not the primary cause, for the disclosure of important public records." The DEA claimed the plaintiffs' preliminary injunction motion was unnecessary because the agency had already agreed to submit documents and had expended significant effort in complying with the request before suit was filed. But Seeborg indicated that "defendant fails to recognize that the fees inquiry looks at whether the 'filing of the action' was reasonably necessary to the production of documents, not whether each individual litigation step taken was efficacious. . .[T]he filing of this matter in federal court was the spur that incentivized defendant's thorough scouring of its records." The agency contended litigation could not be the catalyst when the agency was acting with due diligence in dealing with its backlog. But Seeborg pointed out that "defendant has provided insufficient evidence to support its claim of due diligence. Despite granting plaintiffs' request for expedited processing, defendant did not provide plaintiff with any meaningful updates on its intended production until after plaintiffs filed suit." He noted that "it was not until after suit was filed that defendant began to search its field divisions and send consultation requests to other agencies. These requests specifically referred to the pending preliminary injunction in requesting prompt responses. The intention to respond to a FOIA request after months of silence cannot evidence due diligence." Having found the plaintiffs were eligible for a fee award, Seeborg proceeded to find that they were entitled to one as well. He noted that "the documents produced reveal that several states procured foreign drugs in violation of federal drug laws for the purpose of executing prisoners, and that the DEA had ignored these violations. This revelation resulted in widespread media attention regarding the use of potentially illegal drugs for prisoner executions. . .Ultimately, the media's attention led the DEA to step in with information leading to the postponement of the scheduled Arizona execution. Thus, plaintiffs' actions not only widely informed the public, but resulted in the agency reacting to, and complying with, its disclosure obligations." He also found that the ACLU and the Bay Guardian did not have any personal or commercial interest in the records. Although Seeborg acknowledged that the agency's position was not unreasonable, he observed that "this factor is insufficient to outweigh the [other] factors that point in favor of plaintiffs." The agency argued that plaintiffs could not be compensated for review time. But Seeborg noted that "it is illogical to suggest that a lawyer's time spent reviewing documents cannot be compensated. Without review of the documents produced, plaintiffs would have been unable to ascertain whether defendant had complied fully with its FOIA request and thus unable to determine what issues needed to be litigated. No reasonable client would refuse to compensate a lawyer for this work."
Issues: Litigation - Attorney's fees - Prevailing party, Litigation - Attorney's fees - Eligibility - Causal effect, Litigation - Attorney's fees - Entitlement - Public benefit
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2011-04-221COMPLAINT against Drug Enforcement Administration ( Filing fee $ 350, receipt number 34611059033.) filed by San Francisco Bay Guardian, American Civil Liberties Union of Northern California. (vlk, COURT STAFF) (Filed on 4/22/2011) (Additional attachment(s) added on 4/27/2011: # 1 Civil Cover Sheet) (vlk, COURT STAFF). (Entered: 04/26/2011)
2011-04-22CASE DESIGNATED for Electronic Filing. (vlk, COURT STAFF) (Filed on 4/22/2011) (Entered: 04/26/2011)
2011-04-222ADR SCHEDULING ORDER: Case Management Statement due by 7/27/2011. Case Management Conference set for 8/3/2011 01:30 PM. (Attachments: # 1 Standing Order)(vlk, COURT STAFF) (Filed on 4/22/2011) (Entered: 04/26/2011)
2011-04-223Summons Issued as to Drug Enforcement Administration. (vlk, COURT STAFF) (Filed on 4/22/2011) (vlk, COURT STAFF). (Entered: 04/26/2011)
2011-04-224Certificate of Interested Entities by American Civil Liberties Union of Northern California, San Francisco Bay Guardian (vlk, COURT STAFF) (Filed on 4/22/2011) (vlk, COURT STAFF). (Entered: 04/26/2011)
2011-04-265Declination to Proceed Before a U.S. Magistrate Judge by Drug Enforcement Administration. (Deiss, Ila) (Filed on 4/26/2011) (Entered: 04/26/2011)
2011-04-266CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (ig, COURT STAFF) (Filed on 4/26/2011) (Entered: 04/27/2011)
2011-04-277ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Richard Seeborg for all further proceedings. Magistrate Judge Donna M. Ryu no longer assigned to the case. Signed by Executive Committee on 4/27/2011. (cjl, COURT STAFF) (Filed on 4/27/2011) (Entered: 04/27/2011)
2011-04-288MOTION for Preliminary Injunction filed by American Civil Liberties Union of Northern California, San Francisco Bay Guardian. Motion Hearing set for 5/12/2011 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. (Lye, Linda) (Filed on 4/28/2011) (Entered: 04/28/2011)
2011-04-289Declaration of Tim Redmond in Support re 8 MOTION for Preliminary Injunction filed by American Civil Liberties Union of Northern California, San Francisco Bay Guardian. . (Lye, Linda) (Filed on 4/28/2011) Modified on 4/29/2011 (slh, COURT STAFF). (Entered: 04/28/2011)
2011-04-2810Declaration of Natasha Minsker ISO Prel. Inj. filed byAmerican Civil Liberties Union of Northern California, San Francisco Bay Guardian. (Attachments: # 1 Exhibit Exhibits 1-2, # 2 Exhibit Exhibit 3, # 3 Exhibit Exhibits 4-6, # 4 Exhibit Exhibits 7-9, # 5 Exhibit Exhibits 10-11, # 6 Exhibit Exhibits 12-18)(Lye, Linda) (Filed on 4/28/2011) (Entered: 04/28/2011)
2011-04-2811Proposed Order Granting Pltfs' Mot. for Prel. Inj. by American Civil Liberties Union of Northern California, San Francisco Bay Guardian. (Lye, Linda) (Filed on 4/28/2011) (Entered: 04/28/2011)
2011-04-2812Ex Parte Application to Shorten Time on Pltfs' Mot. for Prel. Inj. filed by American Civil Liberties Union of Northern California, San Francisco Bay Guardian. (Lye, Linda) (Filed on 4/28/2011) (Entered: 04/28/2011)
2011-04-2813Declaration of Linda Lye ISO Ex Parte Application filed byAmerican Civil Liberties Union of Northern California, San Francisco Bay Guardian. (Lye, Linda) (Filed on 4/28/2011) (Entered: 04/28/2011)
2011-04-2814Proposed Order Granting Ex Parte Application to Shorten Time by American Civil Liberties Union of Northern California, San Francisco Bay Guardian. (Lye, Linda) (Filed on 4/28/2011) (Entered: 04/28/2011)
2011-04-2815CLERKS NOTICE SCHEDULING A CASE MANAGEMENT CONFERENCE Case Management Conference set for 8/4/2011 10:00 AM before the Honorable Richard Seeborg in Courtroom 3, 17th Floor, San Francisco. (fj, COURT STAFF) (Filed on 4/28/2011) (Entered: 04/28/2011)
2011-04-2916SUMMONS Returned Executed (FOIA) by San Francisco Bay Guardian, American Civil Liberties Union of Northern California. Drug Enforcement Administration served on 4/22/2011, answer due 5/23/2011. (Lye, Linda) (Filed on 4/29/2011) (Entered: 04/29/2011)
2011-04-2917CERTIFICATE OF SERVICE by American Civil Liberties Union of Northern California, San Francisco Bay Guardian of Supplemental Materials on US Attorney (Lye, Linda) (Filed on 4/29/2011) (Entered: 04/29/2011)
2011-04-2918CERTIFICATE OF SERVICE by American Civil Liberties Union of Northern California, San Francisco Bay Guardian of Supplemental Materials on US Attorney General and DEA (Lye, Linda) (Filed on 4/29/2011) (Entered: 04/29/2011)
2011-05-0319ORDER GRANTING PLAINTIFFS' APPLICATION TO SHORTEN TIME ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION AS MODIFIED BY THE COURT. by Judge Richard Seeborg (cl, COURT STAFF) (Filed on 5/3/2011) (Entered: 05/03/2011)
2011-05-0620RESPONSE (re 8 MOTION for Preliminary Injunction ) Defendant's Opposition to Motion for Preliminary Injunction; and Declaration of Katherine L. Myrick filed byDrug Enforcement Administration. (Attachments: # 1 Declaration of Katherine L. Myrick, # 2 Exhibit A - E)(Deiss, Ila) (Filed on 5/6/2011) (Entered: 05/06/2011)
2011-05-1021REPLY (re 8 MOTION for Preliminary Injunction ) filed byAmerican Civil Liberties Union of Northern California, San Francisco Bay Guardian. (Lye, Linda) (Filed on 5/10/2011) (Entered: 05/10/2011)
2011-05-1022Declaration of Natasha Minsker in Support of 21 Reply to Opposition/Response to Motion for Preliminary Injunction filed byAmerican Civil Liberties Union of Northern California, San Francisco Bay Guardian. (Attachments: # 1 Exhibit Exhibits 1-4, # 2 Exhibit Exhibit 5-7)(Related document(s) 21 ) (Lye, Linda) (Filed on 5/10/2011) (Entered: 05/10/2011)
2011-05-1023Proposed Order (Amended) re Preliminary Injunction by American Civil Liberties Union of Northern California, San Francisco Bay Guardian. (Lye, Linda) (Filed on 5/10/2011) (Entered: 05/10/2011)
2011-05-1224Minute Entry: Motion Hearing held on 5/12/2011 before Judge Richard Seeborg; MATTER TAKEN UNDER SUBMISSION. (Date Filed: 5/12/2011) re 8 MOTION for Preliminary Injunction filed by San Francisco Bay Guardian, American Civil Liberties Union of Northern California. (Court Reporter Sarah Goekler.) (cl, COURT STAFF) (Date Filed: 5/12/2011) (Entered: 05/12/2011)
2011-05-1825STATUS REPORT (JOINT) FOLLOWING PRELIMINARY INJUNCTION HEARING by American Civil Liberties Union of Northern California, San Francisco Bay Guardian. (Attachments: # 1 Affidavit Minsker Declaration, # 2 Affidavit Myrick Declaration, # 3 Proposed Order Second Amended Proposed Order)(Lye, Linda) (Filed on 5/18/2011) (Entered: 05/18/2011)
2011-05-2326ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION. by Judge Richard Seeborg (cl, COURT STAFF) (Filed on 5/23/2011) (Entered: 05/23/2011)
2011-05-2327Defendant's Answer to Plaintiff's Complaint for Injunctive Relief Under the Freedom of Information Act ANSWER to Complaint byDrug Enforcement Administration. (Deiss, Ila) (Filed on 5/23/2011) (Entered: 05/23/2011)
2011-07-1128STIPULATION to Extend Dates; and [Proposed] Order by Drug Enforcement Administration. (Deiss, Ila) (Filed on 7/11/2011) (Entered: 07/11/2011)
2011-07-1229STIPULATION AND ORDER RE 28 TO EXTEND DATES. Stipulation filed by Drug Enforcement Administration. Case Management Conference set for 9/1/2011 10:00 AM in Courtroom 3, 17th Floor, San Francisco. Signed by Judge Richard Seeborg on 7/11/11. (cl, COURT STAFF) (Filed on 7/12/2011) (Entered: 07/12/2011)
2011-08-1530ADR Clerks Notice re: Non-Compliance with Court Order. (tjs, COURT STAFF) (Filed on 8/15/2011) (Entered: 08/15/2011)
2011-08-1631ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Deiss, Ila) (Filed on 8/16/2011) (Entered: 08/16/2011)
2011-08-1632NOTICE of need for ADR Phone Conference (ADR L.R. 3-5 d) (Deiss, Ila) (Filed on 8/16/2011) (Entered: 08/16/2011)
2011-08-2233ADR Clerks Notice Setting ADR Phone Conference on 8/30/11 at 11:30 a.m. Pacific time. Please take note that at the appointed time, all parties shall call 424-203-8400 and use access code 865637 to join the call. (sgd, COURT STAFF) (Filed on 8/22/2011) (Entered: 08/22/2011)
2011-08-23ADR Remark: The ADR Phone Conference scheduled for 8/30/11 is now set for 2:00 p.m. and not 11:30 a.m. Pacific time. Please take note that at the appointed time, all parties shall call 424-203-8400 and use access code 865637 to join the call. (sgd, COURT STAFF) (Filed on 8/23/2011) (Entered: 08/23/2011)
2011-08-2534JOINT CASE MANAGEMENT STATEMENT ; AND [PROPOSED] ORDER filed by Drug Enforcement Administration. (Deiss, Ila) (Filed on 8/25/2011) (Entered: 08/25/2011)
2011-08-2535MOTION for Summary Judgment Defendant's Notice of Motion; Motion for Summary Judgment with Memorandum of Points and Authorities and Declarations of Katherine L. Myrick filed by Drug Enforcement Administration. Motion Hearing set for 10/20/2011 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 9/8/2011. Replies due by 9/15/2011. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Deiss, Ila) (Filed on 8/25/2011) (Entered: 08/25/2011)
2011-08-2636MOTION to Relate Case Federal Defendant's Administrative Motion to Consider Whether Cases Should Be Related filed by Drug Enforcement Administration. (Deiss, Ila) (Filed on 8/26/2011) (Entered: 08/26/2011)
2011-08-2637Proposed Order re 36 MOTION to Relate Case Federal Defendant's Administrative Motion to Consider Whether Cases Should Be Related by Drug Enforcement Administration. (Deiss, Ila) (Filed on 8/26/2011) (Entered: 08/26/2011)
2011-08-2938Statement of Non-Opposition re 36 MOTION to Relate Case Federal Defendant's Administrative Motion to Consider Whether Cases Should Be Related filed byAmerican Civil Liberties Union of Northern California, San Francisco Bay Guardian. (Related document(s) 36 ) (Lye, Linda) (Filed on 8/29/2011) (Entered: 08/29/2011)
2011-08-30ADR Remark: ADR Phone Conference held by RWS on 8/30/11. (sgd, COURT STAFF) (Filed on 8/30/2011) (Entered: 08/30/2011)
2011-08-3139ORDER RE 34 AS MODIFIED BY THE COURT. Signed by Judge Richard Seeborg on 8/31/11. (cl, COURT STAFF) (Filed on 8/31/2011) (Entered: 08/31/2011)
2011-09-0740CLERKS NOTICE re Motion to Relate Cases: The Court has reviewed the motion and has determined that no cases are related and no reassignments shall occur. (cl, COURT STAFF) (Filed on 9/7/2011) (Entered: 09/07/2011)
2011-09-0841Cross MOTION for Summary Judgment and Opposition filed by American Civil Liberties Union of Northern California, San Francisco Bay Guardian. Motion Hearing set for 10/20/2011 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 9/22/2011. Replies due by 10/6/2011. (Lye, Linda) (Filed on 9/8/2011) (Entered: 09/08/2011)
2011-09-0842Declaration of Natasha Minsker in Support of 41 Cross MOTION for Summary Judgment and Opposition filed byAmerican Civil Liberties Union of Northern California, San Francisco Bay Guardian. (Related document(s) 41 ) (Lye, Linda) (Filed on 9/8/2011) (Entered: 09/08/2011)
2011-09-2243RESPONSE (re 41 Cross MOTION for Summary Judgment and Opposition , 35 MOTION for Summary Judgment Defendant's Notice of Motion; Motion for Summary Judgment with Memorandum of Points and Authorities and Declarations of Katherine L. Myrick ) Defendant's Opposition to Plaintiffs' Cross-Motion for Summary Judgment and Reply filed byDrug Enforcement Administration. (Deiss, Ila) (Filed on 9/22/2011) (Entered: 09/22/2011)
2011-10-0644REPLY (re 41 Cross MOTION for Summary Judgment and Opposition ) filed byAmerican Civil Liberties Union of Northern California, San Francisco Bay Guardian. (Lye, Linda) (Filed on 10/6/2011) (Entered: 10/06/2011)
2011-10-0645Declaration of Natasha Minsker in Support of 44 Reply to Opposition/Response re Cross Motion for Summary Judgment filed byAmerican Civil Liberties Union of Northern California, San Francisco Bay Guardian. (Related document(s) 44 ) (Lye, Linda) (Filed on 10/6/2011) (Entered: 10/06/2011)
2011-10-1946NOTICE of Appearance by Ila Casy Deiss (Deiss, Ila) (Filed on 10/19/2011) (Entered: 10/19/2011)
2011-10-2047Minute Entry: Motion Hearing held on 10/20/2011 before Judge Richard Seeborg; MATTER TAKEN UNDER SUBMISSION (Date Filed: 10/20/2011) re 41 Cross MOTION for Summary Judgment and Opposition filed by San Francisco Bay Guardian, American Civil Liberties Union of Northern California, 35 MOTION for Summary Judgment Defendant's Notice of Motion; Motion for Summary Judgment with Memorandum of Points and Authorities and Declarations of Katherine L. Myrick filed by Drug Enforcement Administration. (Court Reporter Kathy Wyatt.) (cl, COURT STAFF) (Date Filed: 10/20/2011) (Entered: 10/20/2011)
2011-10-2848ORDER GRANTING IN PART AND DENYING IN PART CROSS MOTIONS FOR SUMMARY JUDGMENT. by Judge Richard Seeborg (cl, COURT STAFF) (Filed on 10/28/2011) (Entered: 10/28/2011)
2011-11-2249MOTION Under Civil L.R. 7-11; and [Proposed] Order re 48 Order on Motion for Summary Judgment, filed by Drug Enforcement Administration. Responses due by 12/6/2011. Replies due by 12/13/2011. (Attachments: # 1 Declaration of Kathryn L. Myrick)(Deiss, Ila) (Filed on 11/22/2011) (Entered: 11/22/2011)
2011-11-2350ORDER granting 49 Motion. by Judge Richard Seeborg (cl, COURT STAFF) (Filed on 11/23/2011) (Entered: 11/23/2011)
2011-12-3051CLERKS NOTICE SCHEDULING A CASE MANAGEMENT CONFERENCE. Case Management Conference set for 3/1/2012 10:00 AM in Courtroom 3, 17th Floor, San Francisco. (cl, COURT STAFF) (Filed on 12/30/2011) (Entered: 12/30/2011)
2011-12-3052STATUS REPORT ; and Fifth Declaration of Katherine L. Myrick by Drug Enforcement Administration. (Attachments: # 1 Declaration of Katherine L. Myrick)(Deiss, Ila) (Filed on 12/30/2011) (Entered: 12/30/2011)
2012-02-2253JOINT CASE MANAGEMENT STATEMENT Joint Further Case Management Conference Statement; and [Proposed] Order filed by Drug Enforcement Administration. (Deiss, Ila) (Filed on 2/22/2012) (Entered: 02/22/2012)
2012-02-2254ORDER AS MODIFIED BY THE COURT. Order to Show Cause Hearing set for 4/26/2012 01:30 PM. Signed by Judge Richard Seeborg on 2/22/12. (cl, COURT STAFF) (Filed on 2/22/2012) (Entered: 02/22/2012)
2012-04-2655STIPULATION WITH PROPOSED ORDER Dismissing Plaintiffs' Claims (Joint) filed by American Civil Liberties Union of Northern California, Drug Enforcement Administration, San Francisco Bay Guardian. (Lye, Linda) (Filed on 4/26/2012) (Entered: 04/26/2012)
2012-04-2656STIPULATION AND ORDER RR 55 DISMISSING PLAINTIFFS' CLAIMS. Signed by Judge Richard Seeborg on 4/26/12. (cl, COURT STAFF) (Filed on 4/26/2012) (Entered: 04/26/2012)
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