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Case TitleCOMPETITIVE ENTERPRISE INSTITUTE v. UNITED STATES DEPARTMENT OF THE TREASURY
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2012cv01838
Date Filed2012-11-13
Date ClosedOpen
JudgeJudge Rosemary M. Collyer
PlaintiffCOMPETITIVE ENTERPRISE INSTITUTE
DefendantUNITED STATES DEPARTMENT OF THE TREASURY
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Opinion/Order [38]
FOIA Project Annotation: Judge Rosemary Collyer has ruled that the Department of the Treasury conducted an adequate search for records using keywords referring to a carbon tax and, except for a handful of emails, properly withheld records under Exemption 5 (privileges). The Competitive Enterprise Institute submitted two requests to Treasury for emails referring to a carbon tax, asking the agency to search the Office of Environment and Energy and the Office of Legislative Affairs. The agency searched Environment and Energy and located 4,163 pages of responsive records. Its search of Legislative Affairs returned no other non-duplicative records. The agency disclosed 2,464 pages and withheld 1,699 pages. CEI argued that it was unrealistic that Legislative Affairs had no records of its own. But Collyer noted that "CEI fails to present evidence sufficient to establish bad faith on the part of the agency. The operative question in not whether further records conceivably exist, or whether other possible search avenues were unavailable, but whether Treasury's searches were 'reasonably calculated to uncover all relevant documents.' CEI identifies no evidence that suggests that any records were intentionally withheld, that the files of likely records custodians were not searched, or that any responsive records held by Legislative Affairs were not duplicative of those found at Environment and Energy." In challenging the applicability of Exemption 5, CEI argued that since Treasury had no authority to tax carbon any discussions it had could not be covered by Exemption 5. Collyer disagreed, noting that "Treasury's authority vel non to impose a carbon tax is not nearly as clear. Agency deliberations may be necessary to determine whether it has authority to promulgate a particular tax or policy. Even if CEI correctly describes Treasury's authority, the need for staff to speak candidly and confidentially is perhaps more important when the discussion concerns unmapped and unexplored terrain at the border of agency authority." Collyer pointed out that "for the most part Treasury's Vaughn Index provided sufficient information to allow the Court to find that it properly claimed applicability of Exemption 5." She added that "the Court can determine that the records are appropriately withheld under Exemption 5 without further information about the particular policy proposals at issue." However, Collyer questioned the applicability of Exemption 5 to records referred to as "media-related withholdings." She indicated that "the lack of substantive detail in the Vaughn Index prevents the Court from assessing what 'deliberative process' was taking place. Not every discussion by agency staff that touches on agency matters is protected by Exemption 5; if that were the case, Exemption 5 could conceivably cover almost any internal agency communication."
Issues: Search - Reasonableness of search, Exemption 5 - Privileges - Deliberative process privilege - Deliberative
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2012-11-131COMPLAINT against All Defendants ( Filing fee $ 350 receipt number 0090-3130038) filed by COMPETITIVE ENTERPRISE INSTITUTE. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons AG summons, # 4 Summons USAO summons, # 5 Related Case form)(Bader, Hans) (Entered: 11/13/2012)
2012-11-132LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by COMPETITIVE ENTERPRISE INSTITUTE (Bader, Hans) (Entered: 11/13/2012)
2012-11-13Case Assigned to Judge Rosemary M. Collyer. (ls, ) (Entered: 11/14/2012)
2012-11-143NOTICE of filing of corrected summonses by COMPETITIVE ENTERPRISE INSTITUTE re 1 Complaint, (Attachments: # 1 Summons Corrected Summons for service on Attorney General, # 2 Summons Corrected Summons for service on U.S. Attorney)(Bader, Hans) (Entered: 11/14/2012)
2012-11-144NOTICE OF RELATED CASE by All Plaintiffs. Case related to Case No. 12-1483. (Bader, Hans) (Entered: 11/14/2012)
2012-11-145ELECTRONIC SUMMONS (2) Issued as to U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Consent Notice)(ls, ) (Entered: 11/14/2012)
2012-11-146Electronic Summons (1) Issued as to UNITED STATES DEPARTMENT OF THE TREASURY. (td, ) (Entered: 11/14/2012)
2012-11-157ELECTRONIC SUMMONS (1) Issued as to the U.S. Attorney General (dr) (Entered: 11/15/2012)
2012-11-278AMENDED COMPLAINT against UNITED STATES DEPARTMENT OF THE TREASURY filed by COMPETITIVE ENTERPRISE INSTITUTE.(jf, ) (Entered: 11/27/2012)
2012-11-279NOTICE of summonses being filed for amended complaint by COMPETITIVE ENTERPRISE INSTITUTE re 8 Amended Complaint (Bader, Hans) (Entered: 11/27/2012)
2012-11-2810ELECTRONIC SUMMONS (3) REISSUED as to UNITED STATES DEPARTMENT OF THE TREASURY, US Attorney and US Attorney General. (dr) (Entered: 11/28/2012)
2012-12-1711RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF THE TREASURY served on 12/12/2012, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 12/03/2012., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 12/12/2012. ( Answer due for ALL FEDERAL DEFENDANTS by 1/11/2013.) (Bader, Hans) (Entered: 12/17/2012)
2013-01-0812RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 1/3/2013. Answer due for ALL FEDERAL DEFENDANTS by 2/2/2013. (Bader, Hans) (Entered: 01/08/2013)
2013-02-0413ANSWER to 8 Amended Complaint by UNITED STATES DEPARTMENT OF THE TREASURY. Related document: 8 Amended Complaint filed by COMPETITIVE ENTERPRISE INSTITUTE.(Voltaire, Jean-Michel) (Entered: 02/04/2013)
2013-02-1314ORDER for Initial Scheduling Conference. The Initial Scheduling Conference is set for March 22, 2013 at 10:15 a.m. Signed by Judge Rosemary M. Collyer on 2/13/2013. (lcrmc3) (Entered: 02/13/2013)
2013-02-13Set/Reset Deadlines/Hearings: Initial Scheduling Conference set for 3/22/2013 at 10:15 AM in Courtroom 8 before Judge Rosemary M. Collyer. (cdw) (Entered: 02/15/2013)
2013-02-27MINUTE ORDER vacating the 14 Order for Initial Scheduling Conference. The Initial Scheduling Conference set for March 22, 2013 is CANCELLED. It is FURTHER ORDERED that the parties shall file a joint proposed dispositive motion briefing schedule no later than March 22, 2013. Signed by Judge Rosemary M. Collyer on 2/27/2013. (lcrmc3) (Entered: 02/27/2013)
2013-02-27Set/Reset Deadlines/Hearings: Joint proposed dispositive motion briefing schedule due by 3/22/2013. (cdw) (Entered: 02/28/2013)
2013-03-2215STATUS REPORT and Proposed Briefing Schedule by UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Text of Proposed Order)(Voltaire, Jean-Michel) (Entered: 03/22/2013)
2013-03-28MINUTE ORDER requiring the parties to file a joint status report no later than August 1, 2013. Signed by Judge Rosemary M. Collyer on 3/28/2013. (lcrmc3) (Entered: 03/28/2013)
2013-03-28Set/Reset Deadlines/Hearings: Joint Status Report due by 8/1/2013. (cdw) (Entered: 03/28/2013)
2013-08-0116ENTERED IN ERROR.....STATUS REPORT by UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Defendant's Proposed Order, # 2 Plaintiff's Proposed Order)(Voltaire, Jean-Michel) Modified on 8/2/2013 pursuant to 18 (rdj). (Entered: 08/01/2013)
2013-08-0117STATUS REPORT by UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Defendant's Proposed Order, # 2 Plaintiff's Proposed Order)(Voltaire, Jean-Michel) (Entered: 08/01/2013)
2013-08-0118NOTICE that Document 17, not Document 16, is the correct version of the parties' Joint Status Report by COMPETITIVE ENTERPRISE INSTITUTE re 16 Status Report, 17 Status Report (Bader, Hans) (Entered: 08/01/2013)
2013-08-06MINUTE ORDER revising dispositive motion briefing schedule. After considering the parties' 17 Joint Status Report and Plaintiff's opposition to Defendant's proposed briefing schedule, the Court will adopt Defendant's proposed briefing scheduling. The briefing schedule is revised as follows: Defendant shall complete its production no later than September 22, 2013, and will act diligently to ensure inter-agency documents are processed no later than October 22, 2013; Defendant shall file its Motion for Summary Judgment no later than November 29, 2013; Plaintiff shall file its Opposition and Cross-Motion no later than December 30, 2013; Defendant shall file its Reply and Opposition no later than January 21, 2014; Plaintiff shall file its Reply no later than February 11, 2014. Signed by Judge Rosemary M. Collyer on August 6, 2013. (lcrmc3) (Entered: 08/06/2013)
2013-08-06Set/Reset Deadlines/Hearings: Defendant's Summary Judgment motion due by 11/29/2013. Response to Motion for Summary Judgment due by 12/30/2013. Reply to Motion for Summary Judgment due by 1/21/2014. Plaintiff's Cross Motion due by 12/30/2013. Response to Cross Motion due by 1/21/2014. Reply to Cross Motion due by 2/11/2014. (cdw) (Entered: 08/07/2013)
2013-10-0419MOTION to Stay by UNITED STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Text of Proposed Order)(Voltaire, Jean-Michel) (Entered: 10/04/2013)
2013-10-04MINUTE ORDER granting Defendant's 19 Motion to Stay. All current deadlines for the parties in this matter are stayed indefinitely. The parties shall submit a new Joint Briefing Schedule no later than October 18, 2013. Signed by Judge Rosemary M. Collyer on October 4, 2013. (lcrmc3) (Entered: 10/04/2013)
2013-10-04Set/Reset Deadlines/Hearings: Joint Briefing Schedule due by 10/18/2013. (cdw) (Entered: 10/07/2013)
2013-10-08MINUTE ORDER staying case due to lack of government appropriations. No later than seven days after the government shutdown ends, the parties shall file a joint proposed schedule for all deadlines. The stay will be automatically lifted without further court order upon the end of the shutdown. Signed by Judge Rosemary M. Collyer on October 8, 2013. (lcrmc3) (Entered: 10/08/2013)
2013-10-08Case Stayed. (cdw) (Entered: 10/08/2013)
2013-10-2320STATUS REPORT by UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Defendant's Proposed Order, # 2 Plaintiff's Proposed Order)(Voltaire, Jean-Michel) (Entered: 10/23/2013)
2013-10-24MINUTE ORDER VACATING stay in this matter in light of the parties' 20 Joint Status Report. Defendant shall exercise due diligence to complete its production of documents no later than November 22, 2013. Defendant shall file its Motion for Summary Judgment no later than January 3, 2014. Plaintiff shall file its Opposition no later than February 3, 2014. Defendant shall file its Reply no later than February 24, 2014. Signed by Judge Rosemary M. Collyer on October 24, 2013. (lcrmc3) (Entered: 10/24/2013)
2013-10-24Set/Reset Deadlines/Hearings: Defendant's Summary Judgment motion due by 1/3/2014. Response to Motion for Summary Judgment due by 2/3/2014. Reply to Motion for Summary Judgment due by 2/24/2014. (cdw) (Entered: 10/25/2013)
2013-12-2721Joint MOTION for Extension of Time to Modify Briefing Schedule by UNITED STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Text of Proposed Order)(Voltaire, Jean-Michel) (Entered: 12/27/2013)
2013-12-27MINUTE ORDER granting 21 joint Motion for Extension of Time. Defendant's motion for summary judgment is due January 17, 2014; Plaintiff's opposition is due February 18, 2014; Defendant's reply is due March 21, 2014. Signed by Judge Rosemary M. Collyer on 12/27/2013. (KD) (Entered: 12/27/2013)
2013-12-27MINUTE ORDER correcting 12/27/13 minute order: Defendant's reply is due March 11, 2014. Signed by Judge Rosemary M. Collyer on 12/27/2013. (KD) (Entered: 12/27/2013)
2013-12-30Set/Reset Deadlines: Summary Judgment motions due by 1/17/2014. Responses to Motion for Summary Judgment due by 2/18/2014. Replies to Motion for Summary Judgment due by 3/21/2014. (zmm, ) (Entered: 12/30/2013)
2013-12-30Set/Reset Deadlines: Reply to Motion for Summary Judgment due by 3/11/2014. (zmm, ) (Entered: 12/30/2013)
2014-01-1622Joint MOTION for Extension of Time to Modify Briefing Schedule by UNITED STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Text of Proposed Order)(Voltaire, Jean-Michel) (Entered: 01/16/2014)
2014-01-16MINUTE ORDER granting 22 Joint Motion for Modification of Briefing Schedule. Defendant shall file its Motion for Summary Judgment no later than February 7, 2014. Plaintiff shall file its Opposition no later than March 7, 2014. Defendant shall file its Reply no later than March 22, 2014. Signed by Judge Rosemary M. Collyer on Janaury 16, 2014. (lcrmc3) (Entered: 01/16/2014)
2014-01-16Set/Reset Deadlines/Hearings: Defendant's Summary Judgment motion due by 2/7/2014. Response to Motion for Summary Judgment due by 3/7/2014. Reply to Motion for Summary Judgment due by 3/22/2014. (cdw) (Entered: 01/17/2014)
2014-02-0723MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration, # 4 Declaration, # 5 Vaughn Index Part I, # 6 Vaughn Index Part II)(Voltaire, Jean-Michel) (Entered: 02/07/2014)
2014-03-0724Memorandum in opposition to re 23 MOTION for Summary Judgment filed by COMPETITIVE ENTERPRISE INSTITUTE. (Attachments: # 1 Statement of Facts Statement of Genuine Issues, # 2 Declaration of Hans Bader, # 3 Declaration of Christopher C. Horner, # 4 Text of Proposed Order)(Bader, Hans) (Entered: 03/07/2014)
2014-03-2125REPLY to opposition to motion re 23 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF THE TREASURY. (Voltaire, Jean-Michel) (Entered: 03/21/2014)
2014-03-2526NOTICE OF SUPPLEMENTAL AUTHORITY by COMPETITIVE ENTERPRISE INSTITUTE (Bader, Hans) (Entered: 03/25/2014)
2014-03-2727MOTION for Leave to File Surreply In Opposition to Defendant's Motion for Summary Judgment by COMPETITIVE ENTERPRISE INSTITUTE (Attachments: # 1 Exhibit Proposed Surreply by Plaintiff in opposition to summary judgment, # 2 Text of Proposed Order)(Bader, Hans) (Entered: 03/27/2014)
2015-07-01MINUTE ORDER denying without prejudice 23 Defendant's Motion for Summary Judgment due to an insufficiently detailed Vaughn Index; and denying 27 Plaintiff's Motion for Leave to File surreply. The parties shall meet and confer and file, no later than July 15, 2015, a proposed schedule for filing a revised Vaughn Index and a renewed motion for summary judgment, opposition, and reply. A status conference is scheduled for July 17, 2015 at 11:45 a.m. in Courtroom 8. Signed by Judge Rosemary M. Collyer on 7/1/2015. (KD) (Entered: 07/01/2015)
2015-07-01Set/Reset Deadlines/Hearings: Proposed Briefing Schedule due by 7/15/2015. Status Conference set for 7/17/2015 11:45 AM in Courtroom 8 before Judge Rosemary M. Collyer. (cdw) (Entered: 07/01/2015)
2015-07-0828STATUS REPORT and Request to Postpone Status Conference by UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Text of Proposed Order)(Voltaire, Jean-Michel) (Entered: 07/08/2015)
2015-07-08MINUTE ORDER. In light of 28 the Parties' Joint Status Report, Defendant shall file the revised Vaughn Index no later than October 1, 2015. Defendant shall file its Motion for Summary Judgment no later than November 2, 2015; Plaintiff shall file its Opposition no later than November 23, 2015; and Defendant shall file its Reply no later than December 7, 2015. The status conference scheduled for July 17, 2015 is vacated. The Court finds that there is no need for cross-motions or a further status conference. Signed by Judge Rosemary M. Collyer on July 8, 2015. (lcrmc1) (Entered: 07/08/2015)
2015-07-08Set/Reset Deadlines/Hearings: Revised Vaughn Index due by 10/1/2015. Defendant's Summary Judgment motion due by 11/2/2015. Response to Motion for Summary Judgment due by 11/23/2015. Reply to Motion for Summary Judgment due by 12/7/2015. (cdw) (Entered: 07/09/2015)
2015-10-0129NOTICE OF FILING Vaughn Index (Revised) . (Attachments: # 1 Revised Vaughn Index)(Voltaire, Jean-Michel) Modified on 10/2/2015 (zrdj). (Entered: 10/01/2015)
2015-11-0230MOTION for Summary Judgment (Renewed) by UNITED STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration, # 4 Declaration, # 5 Exhibit Revised Vaughn Index, # 6 Text of Proposed Order)(Voltaire, Jean-Michel) (Entered: 11/02/2015)
2015-11-2331Memorandum in opposition to re 30 MOTION for Summary Judgment (Renewed) filed by COMPETITIVE ENTERPRISE INSTITUTE. (Attachments: # 1 Statement of Facts Statement of Genuine Issues of Material Fact, # 2 Text of Proposed Order)(Bader, Hans) (Entered: 11/23/2015)
2015-12-0432Unopposed MOTION for Extension of Time to File Response/Reply by UNITED STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Text of Proposed Order)(Voltaire, Jean-Michel) (Entered: 12/04/2015)
2015-12-04MINUTE ORDER granting 32 Consent Motion for Extension of Time. Defendant shall file by December 11, 2015 any reply in support of its 30 Renewed Motion for Summary Judgment. Signed by Judge Rosemary M. Collyer on 12/4/2015. (lcrmc3) (Entered: 12/04/2015)
2015-12-04Set/Reset Deadlines/Hearings: Reply to 30 renewed Motion for Summary Judgment due by 12/11/2015. (cdw) (Entered: 12/07/2015)
2015-12-1133REPLY to opposition to motion re 30 MOTION for Summary Judgment (Renewed) filed by UNITED STATES DEPARTMENT OF THE TREASURY. (Voltaire, Jean-Michel) (Entered: 12/11/2015)
2017-02-0934NOTICE OF SUPPLEMENTAL AUTHORITY by COMPETITIVE ENTERPRISE INSTITUTE (Bader, Hans) (Entered: 02/09/2017)
2017-08-1035NOTICE OF SUPPLEMENTAL AUTHORITY by COMPETITIVE ENTERPRISE INSTITUTE (Bader, Hans) (Entered: 08/10/2017)
2017-10-1236NOTICE OF WITHDRAWAL OF APPEARANCE as to COMPETITIVE ENTERPRISE INSTITUTE. Attorney Hans Frank Bader terminated. (Bader, Hans) (Entered: 10/12/2017)
2017-12-1137NOTICE of Appearance by Charles Devin Watkins on behalf of COMPETITIVE ENTERPRISE INSTITUTE (Watkins, Charles) (Entered: 12/11/2017)
2018-04-0238MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 4/2/2018. (lcrmc1) (Entered: 04/02/2018)
2018-04-0239ORDER granting in part and denying in part 30 Motion for Summary Judgment. Defendant is ordered to provide supplemental information for certain records as detailed in the Order. Parties are further ordered to meet and confer and file, no later than May 1, 2018, a proposed schedule for filing the supplemental information and a renewed motion for summary judgment, opposition, and reply. See Order for further details. Signed by Judge Rosemary M. Collyer on 4/2/2018. (lcrmc1) (Entered: 04/02/2018)
2018-04-02Set/Reset Deadlines: Meet & Confer Statement due by 5/1/2018. (mac) (Entered: 04/02/2018)
2018-05-0140Joint STATUS REPORT by COMPETITIVE ENTERPRISE INSTITUTE. (Attachments: # 1 Text of Proposed Order)(Watkins, Charles) (Entered: 05/01/2018)
2018-05-02MINUTE ORDER requiring the parties to submit a joint status report no later than July 16, 2018. Signed by Judge Rosemary M. Collyer on 5/2/2018. (lcrmc1) (Entered: 05/02/2018)
2018-05-02Set/Reset Deadlines/Hearings: Joint Status Report due by 7/16/2018. (zcdw) (Entered: 05/04/2018)
2018-07-1641Joint STATUS REPORT by COMPETITIVE ENTERPRISE INSTITUTE. (Attachments: # 1 Text of Proposed Order)(Watkins, Charles) (Entered: 07/16/2018)
2018-07-16MINUTE ORDER requiring parties to submit a joint status report on or before September 17, 2018. The status report should include, if necessary, a proposed schedule for further briefing. Signed by Judge Rosemary M. Collyer on 7/16/2018. (lcrmc1) (Entered: 07/16/2018)
2018-07-16Set/Reset Deadlines/Hearings: Joint Status Report due by 9/17/2018. (zcdw) (Entered: 07/16/2018)
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