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Case TitlePUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY et al v. U.S. ENVIRONMENTAL PROTECTION AGENCY
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2012cv00748
Date Filed2012-05-10
Date Closed2013-02-26
JudgeJudge Rosemary M. Collyer
PlaintiffPUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY
PlaintiffRICHARD DAVID HAMMER
DefendantU.S. ENVIRONMENTAL PROTECTION AGENCY
Documents
Docket
Complaint
Complaint attachment 1
Opinion/Order [16]
FOIA Project Annotation: In a ruling that provides some interesting observations concerning what rights under FOIA and the Privacy Act are transferrable to others, Judge Rosemary Collyer has affirmed the EPA's decision to invoke Exemption 5 (deliberative process privilege) to withhold the report of its investigation of Dr. Richard Hammer's complaints of a hostile work environment at the agency's Western Ecology Division in Corvallis, Oregon. Hammer joined the EPA in 2007 as a supervisory life scientist. In October 2009, he complained to Dr. Steven Hedtke, his second-line supervisor, of a hostile work environment that was affecting his health and asked for reassignment. EPA hired Dr. Peter Maida, a contractor, to conduct a fact-finding investigation into Hammer's complaint. In December 2009 while Hammer was on medical leave, Hedtke informed him of the results of Maida's investigation and indicated that he could not find support for the existence of a hostile work environment under EEOC guidelines but that there was evidence of communication and management style differences which had led to the breakdown of effective communications. Hedtke said he was considering such options as mediation, training, or job reassignment. Hammer made two FOIA requests and one Privacy Act request for Maida's contract and the report. The agency disclosed the contract, but withheld the report under Exemption 5. As to Hammer's Privacy Act request, the agency explained the report was not maintained in a system of records subject to the Privacy Act. Hammer filed an employment discrimination complaint with the agency in June 2011. He was terminated in November 2011. He then filed a complaint with the Merit Systems Protection Board. He settled both complaints in January 2012 and agreed not to pursue any further action. In return, EPA changed Hammer's discharge to resignation. Public Employees for Environmental Responsibility filed a FOIA and PA request with the agency for the Maida report in December 2011, indicating the request was made on behalf of both the organization and Hammer. The agency again withheld the report under Exemption 5. PEER then filed suit. Collyer first explained that Hammer's legal rights were severely curtailed by the agreement he had signed. She noted that "Dr. Hammer cannot sue EPA because he settled all claims against the agency on January 31, 2012"after PEER submitted the FOIA/PA request. . .Any claims advanced by Dr. Hammer must be dismissed, including all PA claims made by him or PEER. The only claim properly before the Court is PEER's FOIA request for the Maida Report." She pointed out that Hammer's settlement agreement with the EPA covered any actions "filed by Dr. Hammer in the past or future" and that "Dr. Hammer expressly promised not to institute any appeal, complaint, grievance, claim, or civil action in the future. Inasmuch as he had filed his own FOIA/PA requests for the Maida Report, there can be no doubt that an identical FOIA/PA claim or civil suit by Dr. Hammer was covered and precluded by the broad language of the settlement agreement. Dr. Hammer is a highly educated man, and he was represented by counsel. A settlement agreement is a contract, and Dr. Hammer is bound by the contract he signed. The court has no hesitancy in holding Dr. Hammer to the bargain he struck." Although Hammer had provided PEER a waiver so that the group could obtain his personal information, Collyer explained that "while Dr. Hammer may, and did, provide written consent allowing EPA to disclose records pertaining to him to a third party, such as PEER, only Dr. Hammer would have a cause of action under the PA." She observed that PEER "has no rights under the Privacy Act to records concerning Dr. Hammer." This was because, she explained, "an 'individual' under the PA is 'a citizen of the United States or an alien lawfully admitted for permanent residence.' Unlike FOIA, the PA extends no rights to organizations or corporations. Corporations and organizations lack standing to sue under the PA, which creates a cause of action for 'individuals' as defined in [the statute]." After reviewing the report in camera, Collyer indicated that Exemption 5 applied to the entire report except for the first three sections, which she said "represent 'purely factual material' that can be severed 'without compromising' the rest of the report." As to the rest of the report, Collyer noted that "there is no 'factual summary' discussed regarding Dr. Hammer's allegations, they are considered in more analytical contexts, tied inextricably to Dr. Maida's opinions and discussions." She pointed out that "the lack of a final decision is not dispositive when an agency can establish that there was a deliberative process of which the withheld material was a part. EPA has clearly established in this record that it was considering options to reduce the hostility and other problems Dr. Hammer perceived in his workplace and that Dr. Maida's Report contributed to that process." PEER argued that there were no internal discussions between subordinates and superiors. Collyer dismissed the claim, observing that "this argument ignores reality: Dr. Maida interviewed employees [at the WED], subordinates and superiors alike, as a direct agent of Dr. Hedtke and as a non-EPA person to elicit more candor. Dr. Hedtke used this procedure for the protection of Dr. Hammer, who had alleged that subordinates and superiors were complicit in creating that alleged hostile work environment."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Litigation - Jurisdiction - Standing
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2012-05-101COMPLAINT against U.S. ENVIRONMENTAL PROTECTION AGENCY ( Filing fee $ 350, receipt number 4616048043) filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, RICHARD DAVID HAMMER. (Attachments: # 1 Civil Cover Sheet)(rdj) (Entered: 05/11/2012)
2012-05-10SUMMONS (3) Issued as to U.S. ENVIRONMENTAL PROTECTION AGENCY, U.S. Attorney and U.S. Attorney General (rdj) (Entered: 05/11/2012)
2012-06-012NOTICE of Appearance by Alan R. Burch on behalf of U.S. ENVIRONMENTAL PROTECTION AGENCY (Burch, Alan) (Entered: 06/01/2012)
2012-06-013Consent MOTION for Extension of Time to File Answer re 1 Complaint or Otherwise Respond to Complaint by U.S. ENVIRONMENTAL PROTECTION AGENCY (Burch, Alan) (Entered: 06/01/2012)
2012-06-04MINUTE ORDER granting 3 Motion for Extension of Time to Answer. Defendant shall answer or otherwise respond to the Complaint by July 11, 2012. Signed by Judge Rosemary M. Collyer on 6/4/2012. (lcrmc2) (Entered: 06/04/2012)
2012-06-04Set/Reset Deadlines/Hearings: Answer to the Complaint due by 7/11/2012. (cdw) (Entered: 06/04/2012)
2012-07-094Consent MOTION for Extension of Time to File Answer re 1 Complaint or Otherwise Respond to Complaint , Consent MOTION for Order to Set Briefing Schedule for Summary Judgment by U.S. ENVIRONMENTAL PROTECTION AGENCY (Burch, Alan) (Entered: 07/09/2012)
2012-07-10MINUTE ORDER granting 4 Defendant's consent Motion for Extension of Time to Answer; and granting 4 Defendant's consent Motion for Order regarding briefing schedule; Set/Reset Deadlines: Answer or other response to complaint is due by 7/18/2012. Defendant's motion for summary judgment is due by July 18, 2012; Plaintiffs' Opposition and cross motion (if desired) is due August 20, 2012; Defendant's reply and cross opposition is due September 10, 2012; Plaintiffs' cross reply is due September 24, 2012. Signed by Judge Rosemary M. Collyer on 7/10/12. (KD) (Entered: 07/10/2012)
2012-07-185MOTION for Summary Judgment , Supporting Memorandum of Law, and Statement of Material Facts by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Declaration of Amy Battaglia and Attachments thereto)(Burch, Alan) (Entered: 07/18/2012)
2012-08-206MOTION for Summary Judgment by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY (Attachments: # 1 Exhibit, # 2 Statement of Facts, # 3 Supplement, # 4 Text of Proposed Order)(Douglass, Kathryn) (Entered: 08/20/2012)
2012-08-207Memorandum in opposition to re 5 MOTION for Summary Judgment , Supporting Memorandum of Law, and Statement of Material Facts filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Attachments: # 1 Exhibit, # 2 Statement of Facts, # 3 Supplement, # 4 Text of Proposed Order)(Douglass, Kathryn) (Entered: 08/20/2012)
2012-08-308Consent MOTION for Extension of Time to File Response/Reply as to 5 MOTION for Summary Judgment , Supporting Memorandum of Law, and Statement of Material Facts by U.S. ENVIRONMENTAL PROTECTION AGENCY (Burch, Alan) (Entered: 08/30/2012)
2012-08-31MINUTE ORDER granting 8 Motion for Extension of Time to File Response/Reply. Defendant's Response and Reply are due September 24, 2012. Plaintiff's Reply is due October 16, 2012. Signed by Judge Rosemary M. Collyer on 8/31/2012. (lcrmc2) (Entered: 08/31/2012)
2012-08-31Set/Reset Deadlines/Hearings: Defendant's Response/Reply due by 9/24/2012. Plaintiff's Reply due by 10/16/2012. (cdw) (Entered: 09/04/2012)
2012-09-249REPLY to opposition to motion re 5 MOTION for Summary Judgment , Supporting Memorandum of Law, and Statement of Material Facts and Reply to Plaintiffs' Opposition to EPA's Statement of Material Facts filed by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Declaration Supplemental of Amy Battaglia)(Burch, Alan) (Entered: 09/24/2012)
2012-09-2410Memorandum in opposition to re 6 MOTION for Summary Judgment filed by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Declaration Supplemental of Amy Battaglia, # 2 Opposition to Plaintiffs' Statement of Material Facts)(Burch, Alan) (Entered: 09/24/2012)
2012-10-1611REPLY to opposition to motion re 6 MOTION for Summary Judgment filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Attachments: # 1 Declaration)(Douglass, Kathryn) (Entered: 10/16/2012)
2012-10-2512MOTION for Leave to File Surreply by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 EPA's Surreply)(Burch, Alan) (Entered: 10/25/2012)
2012-10-2514SURREPLY to re 6 MOTION for Summary Judgment filed by U.S. ENVIRONMENTAL PROTECTION AGENCY. (rdj) (Entered: 11/16/2012)
2012-11-0113Memorandum in opposition to re 12 MOTION for Leave to File Surreply filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Attachments: # 1 Text of Proposed Order)(Douglass, Kathryn) (Entered: 11/01/2012)
2012-11-09MINUTE ORDER granting 12 Motion for Leave to File. Defendant's Surreply is deemed filed nunc pro tunc to October 25, 2012. Plaintiffs' request to file a response to the surreply is denied. The matter is submitted. Signed by Judge Rosemary M. Collyer on 11/9/2012.(lcrmc2) (Entered: 11/09/2012)
2013-02-10MINUTE ORDER. The EPA shall submit the Maida Report for ex parte, in camera review no later than February 15, 2013. The report shall be sent to the Court in chambers and shall not be filed on ECF. Signed by Judge Rosemary M. Collyer on 2/10/2013. (lcrmc2) (Entered: 02/10/2013)
2013-02-1415NOTICE of Filing In Camera by U.S. ENVIRONMENTAL PROTECTION AGENCY re Order, (Burch, Alan) (Entered: 02/14/2013)
2013-02-2616MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 2/26/2013. (lcrmc2) (Entered: 02/26/2013)
2013-02-2617ORDER granting in part and denying in part 5 EPA's Motion for Summary Judgment; granting in part and denying in part 6 PEER's Motion for Summary Judgment. PEER's motion is granted in part, and EPA's motion is denied in part, as follows: EPA shall produce to PEER no later than April 1, 2013, a copy of the first three sections of the Maida Report, with all personal identifying information (including names and titles) of all persons in the "Methodology" section redacted. PEER's motion is denied in all other respects, and EPA's motion is granted in all other respects. This case is closed. Signed by Judge Rosemary M. Collyer on 2/26/2013. (lcrmc2) (Entered: 02/26/2013)
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