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Case TitleCENTER FOR BIOLOGICAL DIVERSITY v. GUTIERREZ et al
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2005cv01045
Date Filed2005-05-24
Date Closed2006-08-28
JudgeJudge Rosemary M. Collyer
PlaintiffCENTER FOR BIOLOGICAL DIVERSITY
DefendantCARLOS GUTIERREZ Secretary of Commerce
DefendantWILLIAM T. HOGARTH Assistant Administrator for Fisheries, National Marine Fisheries Service
DefendantNATIONAL MARINE FISHERIES SERVICE
Documents
Docket
Complaint
Opinion/Order [23]
FOIA Project Annotation: Judge Rosemary Collyer has ruled that the National Marine Fisheries Service has not adequately described documents being withheld under Exemption 5 (privileges) and has sent the case back to the agency for further substantiation of its claims. She also ruled that the Center for Biological Diversity had failed to exhaust its administrative remedies for another request by submitting its appeal electronically to the agency 12 minutes late on the last day, meaning that by recently amended FOIA regulations the appeal was considered not to have arrived until the next business day. The Center had made several requests for information concerning three coral species for which the Center had petitioned for protection under the Endangered Species Act. The Center filed suit, alleging that the agency had missed the statutory deadlines and had improperly withheld some information. Meanwhile, the agency finished its study of the coral species and concluded that two of them warranted listing as threatened species. However, the Center pressed on with its FOIA suit in an attempt to learn more about the agency's decision-making. Collyer began by noting that the Department of Commerce, the parent agency of NMFS, had adopted a regulation in August 2004 allowing for electronic appeals, but requiring that all appeals be received no later than 5 p.m. Eastern Time on the 30th day after an initial FOIA determination. The Center's appeal arrived at 5:12 p.m. on the 30th day and was denied. Denying the Center's claim, Collyer observed that "the Center advances an argument only a lawyer could love: "The regulation states that the appeal must be received by 5 p.m. Eastern time, not 5:00 PM Eastern time. By failing to provide a specific minute, such ambiguity should be resolved in the Center's favor.' The Center goes on to suggest that if the Court 'rounds down, as should be the case, 5:12 falls within NMFS's 5 p.m. requirement, and therefore the appeal was not even 12 minutes late.' The Court is not persuaded. In this context, at least, '5 p.m.' and '5:00 PM' have the same meaning and are interchangeable, even if the latter is slightly more specific. There is no ambiguity to interpret." Somehow failing to appreciate the inanity of rejecting an appeal because it was 12 minutes late, Collyer played the straightman. She noted that because the agency told the Center that it could file its appeal electronically and cited its regulation, the Center should have inferred that the agency would not accept an appeal received minutes too late. She then indicated that "had the Center's appeal actually been filed mere days after NMFS published its new timeliness requirements for FOIA appeals, the Court might be more sympathetic. But under these circumstances, it finds that NMFS set a legitimate deadline, the Center failed to meet that deadline, and NMFS simply respected its regulations and declined to review the appeal. To now ignore that deadline would frustrate the purposes of exhaustion." Turning to the exemption claims, Collyer pointed out that "NMFS's repeated refrain that the withheld documents are 'predecisional and deliberative,' 'preliminary recommendations' that 'would discourage open, frank discussions' and 'do not represent a final agency decision' is nothing more than perfunctory legalese." She found many documents had no more description than "email," and noted that "this is insufficient to establish 'the role played by the documents in issue in the course of [the deliberative] process.'" She also indicated the agency had made no segregability findings. Referring the Vaughn index back to the agency for further substantiation, she observed that "the Court does not rule that any of the documents or portions of documents withheld in response to [the Center's] request are ineligible for protection under Exemption 5; rather, it finds the Vaughn Index inadequate for making that determination."
Issues: Litigation - Jurisdiction - Failure to Exhaust, Determination - Appeal Rights, Exemption 5 - Privileges - Deliberative process privilege - Deliberative
Opinion/Order [24]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2005-05-241COMPLAINT against CARLOS GUTIERREZ, WILLIAM T. HOGARTH, NATIONAL MARINE FISHERIES SERVICE (Filing fee $ 250) filed by CENTER FOR BIOLOGICAL DIVERSITY.(jf, ) (Entered: 05/26/2005)
2005-05-242LCvR 7.1 - CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CENTER FOR BIOLOGICAL DIVERSITY (jf, ) (Entered: 05/26/2005)
2005-05-243MOTION for Leave to Appear pro have vice for Justin Augustine by CENTER FOR BIOLOGICAL DIVERSITY. (Attachments: # 1 Declaration of Justin Augustine# 2 Text of Proposed Order)(jf, ) (Entered: 05/26/2005)
2005-05-24SUMMONS (5) Issued as to CARLOS GUTIERREZ, WILLIAM T. HOGARTH, NATIONAL MARINE FISHERIES SERVICE, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 05/26/2005)
2005-05-31ORDER granting 3 Motion for Leave to Appear pro hac vice. Signed by Judge Rosemary M. Collyer on May 31, 2005. (ato) (Entered: 05/31/2005)
2005-06-154NOTICE of Appearance by John C. Truong on behalf of CARLOS GUTIERREZ, WILLIAM T. HOGARTH, NATIONAL MARINE FISHERIES SERVICE (Truong, John) (Entered: 06/15/2005)
2005-06-175RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 06/07/2005., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney. CARLOS GUTIERREZ served on 6/8/2005, answer due 8/8/2005; WILLIAM T. HOGARTH served on 6/3/2005, answer due 8/2/2005; NATIONAL MARINE FISHERIES SERVICE served on 6/3/2005, answer due 8/2/2005, SUMMONS Returned Executed by CENTER FOR BIOLOGICAL DIVERSITY. CARLOS GUTIERREZ served on 6/8/2005, answer due 8/8/2005; WILLIAM T. HOGARTH served on 6/3/2005, answer due 8/2/2005; NATIONAL MARINE FISHERIES SERVICE served on 6/3/2005, answer due 8/2/2005. (Attachments: # 1 Affidavit Justin Augustine)(Augustine, Justin) (Entered: 06/17/2005)
2005-07-016First MOTION for Extension of Time to Respond to Plaintiff's Complaint by CARLOS GUTIERREZ, WILLIAM T. HOGARTH, NATIONAL MARINE FISHERIES SERVICE. (Truong, John) (Entered: 07/01/2005)
2005-07-06MINUTE ENTRY ORDER. The 6 Motion for an Extension of Time is granted. A response to the complaint shall be filed by no later than August 8, 2005. Signed by Judge Henry H. Kennedy as Motions Judge on July 6, 2005. (ato) (Entered: 07/06/2005)
2005-07-06Set Deadlines/Hearings: Answer to complaint due by 8/8/2005. (cdw) (Entered: 07/12/2005)
2005-08-057FIRST AMENDED COMPLAINT against CARLOS GUTIERREZ, WILLIAM T. HOGARTH, NATIONAL MARINE FISHERIES SERVICEfiled by CENTER FOR BIOLOGICAL DIVERSITY.(nmw, ) (Entered: 08/08/2005)
2005-08-238Unopposed MOTION for Extension of Time to Respond to Amended Complaint by CARLOS GUTIERREZ, WILLIAM T. HOGARTH, NATIONAL MARINE FISHERIES SERVICE. (Truong, John) (Entered: 08/23/2005)
2005-09-01MINUTE ENTRY ORDER granting 8 Defendants' Unopposed Motion for Extension of Time to Answer. Defendants' Answer shall be filed no later than September 22, 2005. Signed by Judge Rosemary M. Collyer on 9/1/05. (ebb) (Entered: 09/01/2005)
2005-09-01Set Deadlines/Hearings: Answer to complaint due by 9/22/2005. (cdw) (Entered: 09/09/2005)
2005-09-209Consent MOTION for Extension of Time to Respond to Amended Complaint by CARLOS GUTIERREZ, WILLIAM T. HOGARTH, NATIONAL MARINE FISHERIES SERVICE. (Truong, John) (Entered: 09/20/2005)
2005-09-22MINUTE ENTRY ORDER granting 9 Defendants' Motion for Extension of Time to Answer. Defendants' Answer shall be filed no later than September 30, 2005. Signed by Judge Rosemary M. Collyer on 9/22/05. (ebb) (Entered: 09/22/2005)
2005-09-2810Unopposed MOTION for Extension of Time to Respond to Plaintiff's Amended Complaint by CARLOS GUTIERREZ, WILLIAM T. HOGARTH, NATIONAL MARINE FISHERIES SERVICE. (Truong, John) (Entered: 09/28/2005)
2005-10-04MINUTE ENTRY ORDER granting, nunc pro tunc to September 30, 2005, 10 Defendants' Unopposed Motion for Extension of Time to Answer. Defendants' Answer shall be filed no later than October 7, 2005. Signed by Judge Rosemary M. Collyer on 10/4/05. (ebb) (Entered: 10/04/2005)
2005-10-0711MOTION to Dismiss or, in the alternative , MOTION for Summary Judgment by CARLOS GUTIERREZ, WILLIAM T. HOGARTH, NATIONAL MARINE FISHERIES SERVICE. (Attachments: # 1 Statement of Facts # 2 Exhibit Gov. Exh. A# 3 Exhibit Gov. Exh. C-D# 4 Exhibit Gov. Exh E-F# 5 Exhibit Gov. Exh. G-H# 6 )(Truong, John) (Entered: 10/07/2005)
2005-10-0712Vaughn Index. (Truong, John) (Entered: 10/07/2005)
2005-10-1113MOTION for Extension of Time to File Response/Reply as to 11 MOTION to Dismiss or, in the alternative MOTION for Summary Judgment MOTION for Summary Judgment, 12 Vaughn Index by CENTER FOR BIOLOGICAL DIVERSITY. (Attachments: # 1 Text of Proposed Order)(Augustine, Justin) (Entered: 10/11/2005)
2005-10-12MINUTE ENTRY ORDER granting 13 Plaintiff's Unopposed Motion for Extension of Time to File Response. Plaintiff's Response shall be filed no later than October 25, 2005. Signed by Judge Rosemary M. Collyer on 10/12/05. (ebb) (Entered: 10/12/2005)
2005-10-12Set/Reset Deadlines: Plaintiff's response to 11 due by 10/25/2005. (cdw) (Entered: 10/17/2005)
2005-10-2514Cross MOTION for Summary Judgment by CENTER FOR BIOLOGICAL DIVERSITY. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Augustine, Justin) Modified on 11/16/2005 (jf, ). (Entered: 10/25/2005)
2005-10-2516Memorandum in opposition to MOTION to Dismiss or, in the alternative, MOTION for Summary Judgment re 11 filed by CENTER FOR BIOLOGICAL DIVERSITY. (to view document, see image #14) (jf, ) (Entered: 11/16/2005)
2005-11-0215Unopposed MOTION for Extension of Time to File Response/Reply as to 14 Cross MOTION for Summary Judgment and Opposition to Defendants' Motion to Dismiss or in the Alternative, for Summary Judgment by CARLOS GUTIERREZ, WILLIAM T. HOGARTH, NATIONAL MARINE FISHERIES SERVICE. (Truong, John) (Entered: 11/02/2005)
2005-11-04MINUTE ENTRY ORDER granting 15 Defendants' Motion for Extension of Time to File Response/Reply. Defendants' Response/Reply shall be filed no later than November 21, 2005. Signed by Judge Rosemary M. Collyer on 11/4/05. (ebb) (Entered: 11/04/2005)
2005-11-04Set/Reset Deadlines: Defendant's response to Cross Motions and reply to Motion for Summary Judgment due by 11/21/2005. (cdw) (Entered: 11/08/2005)
2005-11-2117ENTERED IN ERROR.....REPLY in support 11 Motion to dismiss or, for Summary Judgment filed by CARLOS GUTIERREZ, WILLIAM T. HOGARTH, NATIONAL MARINE FISHERIES SERVICE. (Attachments: # 1 Statement of Facts Response to Plaintiff's Statement of Facts)(Truong, John) Modified on 11/30/2005 (jf, ). . (Entered: 11/21/2005)
2005-11-2120RESPONSE to Cross MOTION for Summary Judgment 14 filed by CARLOS GUTIERREZ, WILLIAM T. HOGARTH, NATIONAL MARINE FISHERIES SERVICE. (jf, ) (Entered: 11/30/2005)
2005-11-2121REPLY to MOTION to Dismiss or, in the alternative, for Summary Judgment 11 filed by CARLOS GUTIERREZ, WILLIAM T. HOGARTH, NATIONAL MARINE FISHERIES SERVICE. (to view document, see image #20)(jf, ) (Entered: 11/30/2005)
2005-11-2918REPLY in support of 14 Cross-Motion for summary judgment filed by CENTER FOR BIOLOGICAL DIVERSITY. (Attachments: # 1 Text of Proposed Order)(Augustine, Justin) Modified on 11/30/2005 (jf, ). (Entered: 11/29/2005)
2005-11-2919ENTERED IN ERROR.....Memorandum in opposition to MOTION to Dismiss or, in the alternative, for Summary Judgment re 11 filed by CENTER FOR BIOLOGICAL DIVERSITY. (to view document, see image #18) (jf, ) Modified on 11/30/2005 (jf, ). (Entered: 11/30/2005)
2005-11-30NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 19 Memorandum in Opposition was entered in error due to Attorney's mis-labeling document # 18 (jf, ) (Entered: 11/30/2005)
2005-11-30NOTICE OF CORRECTED DOCKET ENTRY: DOCUMENT NO. re 17 Reply to opposition to Motion, was entered in error and counsel was instructed to refile said pleading with corrected title page. (jf, ) (Entered: 11/30/2005)
2005-11-3022ERRATA by CENTER FOR BIOLOGICAL DIVERSITY. (Attachments: # 1 Plaintiff's Reply With Corrected Title Page)(Augustine, Justin) (Entered: 11/30/2005)
2006-08-1023MEMORANDUM OPINION. Signed by Judge Rosemary M. Collyer on 8/10/06. (ebb) (Entered: 08/10/2006)
2006-08-1024ORDER granting 11 Defendants' Motion to Dismiss; granting in part and denying without prejudice in part 11 Defendants' Motion for Summary Judgment; denying without prejudice 14 Plaintiff's Motion for Summary Judgment; and dismissing Counts I, IV, and V of Plaintiff's First Amended Complaint. See attached Order for further details. Signed by Judge Rosemary M. Collyer on 8/10/06. (ebb) (Entered: 08/10/2006)
2006-08-2525STIPULATION of Dismissal by CENTER FOR BIOLOGICAL DIVERSITY, CARLOS GUTIERREZ, WILLIAM T. HOGARTH, NATIONAL MARINE FISHERIES SERVICE. (Smith, Peter) (Entered: 08/25/2006)
2006-08-28MINUTE ENTRY ORDER approving 25 the parties' stipulation of dismissal. Accordingly, this case will be closed. Signed by Judge Rosemary M. Collyer on 8/28/06. (KD) (Entered: 08/28/2006)
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