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Case TitleCOMPETITIVE ENTERPRISE INSTITUTE v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2015cv00215
Date Filed2015-02-11
Date Closed2017-02-09
JudgeJudge Rosemary M. Collyer
PlaintiffCOMPETITIVE ENTERPRISE INSTITUTE
Case DescriptionThe Competitive Enterprise Institute submitted a FOIA request to EPA for copies of emails or text messages to or from anyone in the Office of General Counsel that mention EPA Administrator Gina McCarthy and texting. The agency disclosed some emails, but denied access to hundreds of emails primarily under Exemption 5 (privileges) as well as Exemption 6 (invasion of privacy). CEI appealed the EPA's decision, but after hearing nothing further from the agency, CEI filed suit.
Complaint issues: Failure to respond within statutory time limit, Exemption 5 - Privileges, Segregability, Litigation - Attorney's fees

DefendantUNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Opinion/Order [11]
FOIA Project Annotation: Judge Rosemary Collyer has asked the EPA to provide more information about its FOIA-related IT technology to help settle a dispute between the agency and the Competitive Enterprise Institute over when CEI's emailed appeal was actually received by the agency. CEI requested emails or text messages sent by the Office of General Counsel concerning EPA Administrator Gina McCarthy's use of text messages. EPA eventually disclosed 1,702 documents, but withheld records under Exemption 5 (privileges). The agency told CEI that it could appeal and provided address information, including an email address at hq.foia@epa.gov. CEI sent its appeal to the email address on Thursday, January 8, 2015. EPA's FOIA Online tracking software issued an acknowledgement letter to CEI's counsel on Monday, January 12, 2015 informing him that the appeal had been received on that date. CEI filed suit on February 6, 2015 after the 20 working days deadline had expired by its calculation. On February 10, 2015, EPA notified CEI that it was taking a ten-day extension to process the appeal because of unusual circumstances. CEI then argued that EPA had missed the deadline for notifying CEI and that its request for an extension was invalid. EPA claimed CEI's suit was premature because the 20-day time limit had not yet expired. Collyer noted that while FOIA's exhaustion requirement was jurisprudential rather than jurisdictional, "the detailed structure of FOIA supports application of this jurisprudential doctrine, making prior exhaustion required before suit." CEI argued that the agency's claim that it took four days to receive an email was implausible and that the agency identified two different dates in its affidavits, suggesting the possibility of bad faith on the part of the agency. Adding to the agency's problem was that it misidentified the time limit for completing an appeal, relying instead on the 10-day time limit that requires an agency to respond to a request within ten days of its receipt. Collyer pointed out that the agency was confusing the time limits for responding to a request with those for responding to an appeal, which are not the same. She noted that "appeals are governed by clause (ii), not by clause (i). The date that EPA's 'appropriate component' received the appeal�"which it argues was January 12, 2015�"is immaterial for present purposes. What matters is the date that the Agency received the appeal." Collyer noted that "EPA directs FOIA appellants to send their appeals to an email address from which they are sorted and delivered internally. Notably, because EPA's argument does not distinguish between FOIA requests and FOIA appeals�"or explain whether an email to its FOIA website is maintained by EPA or an outside vendor�"the argument does not say when the Institute's appeal was received by EPA and, thus, whether the Institute's present lawsuit is premature." She indicated that the timeliness issue was not resolved by EPA's request for an extension because of unusual circumstances. She pointed out that Oglesby v. Dept of Army "concerned an agency's tardy response to a FOIA request, not a tardy response to an appeal." Oglesby, instead, stands for the proposition that once an agency has responded to a request before the plaintiff has filed suit, the requester is required to go through the appeals process before he or she can file suit. But the Oglesby decision specifically indicated that such a requester would then be eligible to file suit if the agency failed to respond to his or her appeal within the 20-day time limit. Collyer observed that "certainly, Oglesby did not erase an agency's ability to claim more time to handle an appeal due to unusual circumstances. Here, however, EPA may have notified the Institute too late. If so, under Oglesby the Institute's suit would not be premature." Sending the case back to EPA for further explanation, Collyer pointed out that "EPA does not explain the communications technology at work here, whereby a message emailed to a public address on a Thursday was somehow not delivered under the following Monday. Since there are possible explanations (outside contractors, technical limitations, etc.) for this seeming discrepancy but none is provided, the Court cannot determine on this record when the Institute's email was actually received by EPA. The threshold question of timeliness is therefore impossible to answer."
Issues: Administrative appeal - 20-day response time
Opinion/Order [18]
FOIA Project Annotation: Judge Rosemary Collyer has ruled that the EPA conducted an adequate search for records concerning emails or text messages sent to or from the Office of the General Counsel that was either to or from former EPA administrator Gina McCarthy and referred to text messaging. She also found the agency had properly invoked Exemption 5 (privileges) and Exemption 6 (invasion of privacy) to withhold 380 pages in full and 384 pages in part out of a total of 1702 pages. Although CEI had filed an administrative appeal, EPA had rejected the appeal because it arrived late. CEI argued that it had filed its appeal by email on Thursday, January 8, 2015, within the time for appealing, and that the agency had received it at that time. However, the EPA's records indicated that the appeal was not logged into its system until Monday, January 12, 2015, several days after the deadline. EPA explained to Collyer that CEI's appeal was sent through FOIAonline on Thursday evening and because the staff member who would normally have logged the appeal on Friday was on medical leave, the appeal was not logged into the agency's system until Monday morning. EPA argued that receipt of the appeal occurred when the agency actually opened the email for the first time and logged CEI's request into the agency's system, while CEI contended receipt meant when the appeal arrived at the agency. Collyer noted that she had previously "distinguished the law governing FOIA requests versus FOIA appeals, explaining that in the context of an appeal the relevant question is 'when the Institute's appeal was received by EPA.' FOIA requests, on the other hand, may be appealed within twenty days of receipt by 'the appropriate component of the agency.' EPA clearly received the Institute's appeal on January 8 and thus failed to respond in a timely basis." Finding the search was adequate, she observed that the agency's affidavit "describes a search reasonably calculated to uncover responsive documents and the Institute provides nothing to challenge the presumption of good faith afforded the declaration." CEI questioned whether emails shared with a contractor and two non-lawyers qualified for the attorney-client privilege. She found the contractor had been acting within the scope of the contract on matters related to CEI's litigation. As to emails involving the two non-attorneys, she pointed out that "the challenged emails between [the two non-attorneys] were exchanged at the request of attorneys and to provide information to attorneys for the purpose of obtaining legal advice." Collyer also found that emails discussing a media strategy qualified for protection under the deliberative process privilege. She indicated that "emails 'generated as part of a continuous process of agency decision-making regarding how to respond to' a press inquiry are protected by the deliberative process privilege. The documents in Categories B and C were clearly generated as part of a media strategy in response to FOIA litigation."
Issues: Adequacy - Search, Litigation - Jurisdiction - Failure to Exhaust, Exemption 5 - Privileges
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2015-02-111COMPLAINT by the only plaintiff against All Defendants ( Filing fee $ 400 receipt number 0090-3991217) filed by COMPETITIVE ENTERPRISE INSTITUTE. (Attachments: # 1 Civil Cover Sheet, # 2 Notice to Counsel/Party Related Case Form, # 3 Summons for the U.S. Attorney, # 4 Summons for the EPA, # 5 Summons for the Attorney General)(Bader, Hans) (Entered: 02/11/2015)
2015-02-11Case Assigned to Judge Rosemary M. Collyer. (sth, ) (Entered: 02/12/2015)
2015-02-122SUMMONS (3) Issued Electronically as to UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(sth, ) (Entered: 02/12/2015)
2015-02-123LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by COMPETITIVE ENTERPRISE INSTITUTE (Bader, Hans) (Entered: 02/12/2015)
2015-02-204RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 2/18/2015. ( Answer due for ALL FEDERAL DEFENDANTS by 3/20/2015.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. All Defendants, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 2/18/2015. (Bader, Hans) (Entered: 02/20/2015)
2015-03-205ANSWER to Complaint by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.(LaCour, Alice) (Entered: 03/20/2015)
2015-03-23MINUTE ORDER directing that the parties submit a joint proposed briefing schedule no later than April 13, 2015. Signed by Judge Rosemary M. Collyer on March 23, 2015. (lcrmc3) (Entered: 03/23/2015)
2015-03-23Set/Reset Deadlines/Hearings: Joint proposed briefing schedule due by 4/13/2015. (cdw) (Entered: 03/24/2015)
2015-04-136STATUS REPORT of Joint Proposed Briefing Schedule by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Text of Proposed Order)(LaCour, Alice) (Entered: 04/13/2015)
2015-04-13MINUTE ORDER. Upon consideration of 6 Joint Proposed Briefing Schedule, it is hereby ORDERED that Defendant shall file any dispositive motion no later than July 24, 2015; Plaintiff shall file any opposition to the dispositive motion no later than August 24, 2015; and Defendant shall file any reply to the opposition no later than September 8, 2015. Signed by Judge Rosemary M. Collyer on April 13, 2015. (lcrmc3) (Entered: 04/13/2015)
2015-04-13Set/Reset Deadlines/Hearings: Dispositive Motion due by 7/24/2015. Response to Dispositive Motion due by 8/24/2015. Reply to Dispositive Motion due by 9/8/2015. (cdw) (Entered: 04/14/2015)
2015-07-147Joint MOTION for Extension of Time to File Dispositive Motion by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(LaCour, Alice) (Entered: 07/14/2015)
2015-07-15MINUTE ORDER granting 7 Joint Motion for Extension of Time. Defendant shall file any dispositive motion by August 24, 2015. Plaintiff shall file any opposition to said motion by September 30, 2015. Defendant shall file any reply in support of said motion by October 15, 2015. Signed by Judge Rosemary M. Collyer on 7/15/2015. (lcrmc3) (Entered: 07/15/2015)
2015-07-15Set/Reset Deadlines/Hearings: Defendant's Dispositive Motion due by 8/24/2015. Response to Dispositive Motions due by 9/30/2015. Reply to Dispositive Motions due by 10/15/2015. (cdw) (Entered: 07/16/2015)
2015-08-248MOTION for Summary Judgment by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibit 1, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Text of Proposed Order)(LaCour, Alice) (Entered: 08/24/2015)
2015-09-309Memorandum in opposition to re 8 MOTION for Summary Judgment filed by COMPETITIVE ENTERPRISE INSTITUTE. (Attachments: # 1 Statement of Facts Statement of Genuine Issues of Material Fact, # 2 Declaration of Christopher C. Horner, # 3 Declaration of Hans Bader, # 4 Text of Proposed Order denying summary judgment)(Bader, Hans) (Entered: 09/30/2015)
2015-10-1510REPLY to opposition to motion re 8 MOTION for Summary Judgment filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(LaCour, Alice) (Entered: 10/15/2015)
2016-03-0411MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 3/4/2016. (lcrmc3) (Entered: 03/04/2016)
2016-03-0412ORDER denying without prejudice 8 Motion for Summary Judgment. Defendant's explanation is due March 25, 2016. Plaintiff may file a response on or before April 8, 2016. Signed by Judge Rosemary M. Collyer on 3/4/2016. (lcrmc3) (Entered: 03/04/2016)
2016-03-04Set/Reset Deadlines/Hearings: Defendant's explanation due by 3/25/2016. Plaintiff's response due by 4/8/2016. (zcdw) (Entered: 03/07/2016)
2016-03-2513NOTICE of Appearance by Deepthy Kishore on behalf of UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Kishore, Deepthy) (Entered: 03/25/2016)
2016-03-2514Consent MOTION for Extension of Time to File Response to Court's Order of March 4 by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Kishore, Deepthy) (Entered: 03/25/2016)
2016-03-29MINUTE ORDER granting 14 Consent Motion for Extension of Time. Defendant shall file by March 30, 2016 its response to the Court's 12 Order. Plaintiff's response is due April 13, 2016. Signed by Judge Rosemary M. Collyer on 3/29/2016. (lcrmc3) (Entered: 03/29/2016)
2016-03-29Set/Reset Deadlines/Hearings: Defendant's response to 12 due by 3/30/2016. Plaintiff's response due by 4/13/2016. (cdw) (Entered: 03/31/2016)
2016-03-3015MOTION for Summary Judgment Supplemental Memorandum and Declaration and RENEWED Motion for Summary Judgment by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Declaration Exhibit 1, Declaration of Larry F. Gottesman, # 2 Text of Proposed Order)(Kishore, Deepthy) (Entered: 03/30/2016)
2016-04-1316RESPONSE to Defendant's Supplemental Memorandum in response to this Court's March 4, 2016 Order filed by COMPETITIVE ENTERPRISE INSTITUTE. (Bader, Hans) (Entered: 04/13/2016)
2017-01-1117NOTICE of Withdrawal of Christopher C. Horner as one of plaintiff's co-counsel by COMPETITIVE ENTERPRISE INSTITUTE (Bader, Hans) (Entered: 01/11/2017)
2017-02-0818MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 2/8/17. (lcrmc3) (Entered: 02/08/2017)
2017-02-0819ORDER granting 15 Defendant's Motion for Summary Judgment. Judgment is entered in favor of the Defendant. This case is closed. Signed by Judge Rosemary M. Collyer on 2/8/2017. (lcrmc3) (Entered: 02/08/2017)
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by FOIA Project Staff