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Case TitleURBAN AIR INITIATIVE, INC. et al v. ENVIRONMENTAL PROTECTION AGENCY
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2015cv01333
Date Filed2015-08-17
Date ClosedOpen
JudgeJudge Amy Berman Jackson
PlaintiffURBAN AIR INITIATIVE, INC.
PlaintiffENERGY FUTURE COALITION
Case DescriptionThe Urban Air Initiative and the Energy Future Coalition submitted a FOIA request to the EPA for records concerning the EPAct Gasoline Fuel Effects Study. The EPA told the organizations that there were 83,000 potentially responsive records and that fees were estimated at $24,000. The agency encouraged the organizations to narrow their request. After narrowing their request, the agency still indicated that there were 36,000 potentially responsive records with a fee estimate of $18,000. The organization committed to paying legitimate costs, but the agency released only three documents and insisted that it could not respond entirely until 2016. The agency insisted that the organizations would not be given appeals rights until the completion of their request. The organizations then filed suit.
Complaint issues: Litigation - Attorney's fees, Adequacy - Search, Determination, Failure to respond within statutory time limit

DefendantGINA MCCARTHY
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [51]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2015-08-171COMPLAINT against ENERGY FUTURE COALITION ( Filing fee $ 400 receipt number 0090-4212240) filed by URBAN AIR INITIATIVE, INC.. (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet, # 3 Declaration, # 4 Summons)(White, Adam) (Entered: 08/17/2015)
2015-08-17Case Assigned to Judge Amy Berman Jackson. (sth) (Entered: 08/17/2015)
2015-08-172SUMMONS (3) Issued Electronically as to ENVIRONMENTAL PROTECTION AGENCY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons)(sth) (Entered: 08/17/2015)
2015-10-213NOTICE of Appearance by Adam R.F. Gustafson on behalf of All Plaintiffs (Gustafson, Adam) (Entered: 10/21/2015)
2015-10-234Consent MOTION for Extension of Time to Respond to Complaint by ENVIRONMENTAL PROTECTION AGENCY (Truong, John) (Entered: 10/23/2015)
2015-10-26MINUTE ORDER granting 4 Motion for Extension of Time. Defendant shall have until November 12, 2015 to respond to the complaint in this case. Signed by Judge Amy Berman Jackson on 10/26/2015. (lcabj2) (Entered: 10/26/2015)
2015-10-28Set/Reset Deadlines: Defendant's Response to the Complaint is now due by 11/12/2015. (jth) (Entered: 10/28/2015)
2015-11-125ANSWER to Complaint by ENVIRONMENTAL PROTECTION AGENCY.(Truong, John) (Entered: 11/12/2015)
2015-11-136ORDER. Defendant shall file a dispositive motion or, in the alternative, a report setting forth the schedule for the completion of its production of documents to plaintiffs on or before December 11, 2015. Signed by Judge Amy Berman Jackson on 11/13/2015. (lcabj2) (Entered: 11/13/2015)
2015-11-13Set/Reset Deadlines: Defendant's Dispositive Motion or, in the alternative, a report setting forth the schedule according to which it will complete its production of documents to Plaintiffs is due by 12/11/2015. (jth) (Entered: 11/13/2015)
2015-12-117STATUS REPORT and Document Production Schedule by ENVIRONMENTAL PROTECTION AGENCY. (Truong, John) (Entered: 12/11/2015)
2015-12-14MINUTE ORDER. In light of the representations contained in 7 defendant's status report and proposed production schedule, it is ORDERED that plaintiffs shall inform the Court of the grounds for their objections to the proposed schedule and provide specifics of what they would propose instead by noon on December 18, 2015. Signed by Judge Amy Berman Jackson on 12/14/2015. (lcabj2) (Entered: 12/14/2015)
2015-12-14Set/Reset Deadlines: Plaintiffs' shall inform the Court of the grounds for their objections to Defendant's proposed schedule and provide specifics of what they would propose instead by 12:00 Noon on 12/18/2015. (jth) (Entered: 12/14/2015)
2015-12-158RESPONSE re 7 Status Report and Document Production Schedule filed by ENERGY FUTURE COALITION, URBAN AIR INITIATIVE, INC.. (Attachments: # 1 Exhibit)(Gustafson, Adam) (Entered: 12/15/2015)
2015-12-219ORDER REFERRING CASE for Mediation to Magistrate Judge Alan Kay. In light of the issues raised in the parties' recent filings regarding defendant's proposed production schedule, it is ORDERED that this matter is referred to Magistrate Judge Alan Kay for mediation purposes to commence on December 21, 2015. The parties shall file a report advising the Court of the status of the mediation by January 29, 2016. See Order for details. Signed by Judge Amy Berman Jackson on 12/21/2015. (lcabj2) (Entered: 12/21/2015)
2015-12-21CASE DIRECTLY REFERRED to Magistrate Judge Alan Kay for Mediation. (sth) (Entered: 12/22/2015)
2015-12-23Set/Reset Deadlines: The parties shall file a report advising the Court of the Status of the Mediation by 1/29/2016. (jth) (Entered: 12/23/2015)
2015-12-23MINUTE ORDER: Settlement Conference set for 12/23/2015 at 02:00 PM in Chambers [room 2333] before Magistrate Judge Alan Kay. Signed by Magistrate Judge Alan Kay on 12/23/15. (DM) (Entered: 12/23/2015)
2015-12-23Minute Entry for proceedings held before Magistrate Judge Alan Kay: Settlement Conference held on 12/23/2015. (DM) (Entered: 01/05/2016)
2016-01-05Minute Entry for proceedings held before Magistrate Judge Alan Kay: Settlement Conference held on 1/5/2016. (DM) (Entered: 01/05/2016)
2016-01-0710STATUS REPORT and Renewed Proposal for FOIA Production Schedule by ENERGY FUTURE COALITION, URBAN AIR INITIATIVE, INC.. (Gustafson, Adam) (Entered: 01/07/2016)
2016-01-11MINUTE ORDER. On December 21, 2015, the Court referred this matter for mediation and ordered that a joint status report be filed by January 29, 2016. 9 Order (Dec. 21, 2015). On January 7, 2016, plaintiff unilaterally submitted its own 10 status report instead. It is therefore ORDERED that defendant shall provide the Court with its current proposed schedule for the production of responsive records by January 12, 2016. Signed by Judge Amy Berman Jackson on 1/11/2016. (lcabj2) (Entered: 01/11/2016)
2016-01-11Set/Reset Deadlines: Defendant shall provide the Court with its current proposed schedule for the production of responsive records by 1/12/2016. (jth) (Entered: 01/11/2016)
2016-01-1211STATUS REPORT Pursuant to The Court's January 11, 2016 Minute Order by GINA MCCARTHY. (Attachments: # 1 Exhibit A)(Truong, John) (Entered: 01/12/2016)
2016-01-1312REPLY re 11 Status Report filed by ENERGY FUTURE COALITION, URBAN AIR INITIATIVE, INC.. (Gustafson, Adam) (Entered: 01/13/2016)
2016-01-13MINUTE ORDER. After consideration of all of the matters set forth in all of the pleadings, the Court will exercise its authority to supervise and oversee production, see Citizens for Responsibility & Ethics in Washington v. FEC, 711 F.3d 180, 189 (D.C. Cir. 2013), by issuing the following schedule. It is ORDERED that defendant shall review and produce responsive, non-exempt, and non-CBI records to plaintiffs on a rolling basis on January 15, 2016, January 29, 2016, February 15, 2016, and February 29, 2016, and it shall produce all responsive CBI records not entitled to confidential treatment by May 31, 2016. It is FURTHER ORDERED that of the more than 15,000 records that have already been identified, defendant shall review and produce responsive emails first. The law is clear that it is not improper for a party to utilize FOIA to obtain records from the government for use in litigation. See, e.g., North v. Walsh, 881 F.2d 1088, 1096 (D.C. Cir. 1989) (rejecting agency's contention that the plaintiff was improperly using FOIA "as an adjunct discovery device" and emphasizing that "[t]he plaintiff's rights in a FOIA action do not depend on his or her identity" as a private litigant). But since the related matter pending before the D.C. Circuit is a challenge to administrative action that will be decided based upon the administrative record, and even plaintiffs' proposed schedule would provide for the completion of production after the date the oral argument in that case is scheduled, the Court does not believe that the February 11 date has a significant bearing upon what the schedule of production in this case should be. The complaint alleges that there was a delay in initiating any production at all, and that delay prompted this law suit, so given the time that plaintiffs have been waiting, the material that is of most importance to the plaintiffs should be produced first. But since the defendant is now making diligent efforts to comply with its statutory obligations, and it has modified the schedule it originally proposed to set interim milestones that require two partial productions in January, the Court will not order the defendant to accelerate the pace of production further. Defendant shall submit reports to the Court updating it on the status of the rolling production on February 1, 2016, March 1, 2016, and June 1, 2016, and those reports should indicate the number of records reviewed, the number produced, and the number of any records withheld in full or in part. On June 13, 2016, the parties shall submit a joint status report identifying any issues that remain to be resolved and proposing a schedule for further proceedings, if any. The defendant is not obliged to prepare a Vaughn index or to submit materials related to the adequacy of the search pending further order of the Court. Finally, the mediation referral in this case is hereby terminated and the requirement of the January 29, 2016 status report set in the Court's January 11, 2016 Minute Order is vacated. SO ORDERED. Signed by Judge Amy Berman Jackson on 1/13/2016. (lcabj2) (Entered: 01/13/2016)
2016-01-13Set/Reset Deadlines: Defendant shall submit Reports, updating the Court on the status of the rolling production on 2/1/2016, 3/1/2016, and 6/1/2016. Those reports should indicate the number of records reviewed, the number produced, and the number of any records withheld in full or in part. On 6/13/2016, the parties shall submit a Joint Status Report identifying any issues that remain to be resolved and Proposing a Schedule for further proceedings, if any.(jth) (Entered: 01/13/2016)
2016-02-0113STATUS REPORT by GINA MCCARTHY. (Truong, John) (Entered: 02/01/2016)
2016-03-0114STATUS REPORT by GINA MCCARTHY. (Truong, John) (Entered: 03/01/2016)
2016-03-02MINUTE ORDER. Defendant shall submit a further status report on June 1, 2016, as outlined in the Court's Minute Order of January 13, 2016. Signed by Judge Amy Berman Jackson on 3/2/2016. (lcabj2) (Entered: 03/02/2016)
2016-03-02Set/Reset Deadlines: Status Report due by 6/1/2016. (tb) (Entered: 03/02/2016)
2016-05-2015Unopposed MOTION for Extension of Time to produce Plaintiff's records under the Freedom of Information Act by GINA MCCARTHY (Truong, John) (Entered: 05/20/2016)
2016-05-23MINUTE ORDER granting 15 Motion for Extension of Time. The schedule in place in this matter is hereby modified as follows: on or before May 25, 2016, defendant shall produce any records for which affected businesses have waived confidential treatment; on or before May 31, 2016, defendant shall complete its confidentiality business determinations associated with plaintiffs' FOIA request; on or before June 22, 2016, defendant shall produce any additional records not entitled to confidential treatment; on or before June 23, 2016, defendant shall submit a report to the Court updating it on the status of its production; and on or before July 5, 2016, the parties shall submit a joint status report identifying any issues that remain to be resolved. SO ORDERED. Signed by Judge Amy Berman Jackson on 5/23/2016. (lcabj2) (Entered: 05/23/2016)
2016-05-24Set/Reset Deadlines: By 6/23/2016, Defendant shall submit a Report to the Court updating it on the Status of its Production; by 7/5/2016, the parties shall submit a Joint Status Report identifying any issues that remain to be resolved. (jth) (Entered: 05/24/2016)
2016-06-2316STATUS REPORT by GINA MCCARTHY. (Truong, John) (Entered: 06/23/2016)
2016-07-0517Joint STATUS REPORT by ENERGY FUTURE COALITION, URBAN AIR INITIATIVE, INC.. (Gustafson, Adam) (Entered: 07/05/2016)
2016-07-05MINUTE ORDER. In consideration of 17 the parties' joint status report and their respective positions on the schedule to be imposed in this matter, it is ORDERED that defendant shall complete its review of the documents withheld pursuant to Exemption (b)(5) by July 15, 2016; defendant shall file its motion for summary judgment by August 19, 2016; plaintiffs shall file their combined opposition and cross-motion for summary judgment (with a single combined memorandum in support) by September 16, 2016; defendant shall file its combined reply and cross-opposition by October 14, 2016; and plaintiffs shall file their cross-reply by October 28, 2016. SO ORDERED. Signed by Judge Amy Berman Jackson on 7/5/2016. (lcabj2) (Entered: 07/05/2016)
2016-07-06Set/Reset Deadlines: Defendant shall complete its review of the documents withheld pursuant to Exemption (b)(5) by 7/15/2016; Defendants Motion for Summary Judgment is due by 8/19/2016; Plaintiffs Combined Opposition and Cross-Motion for Summary Judgment (with a single combined memorandum in support) is due by 9/16/2016; Defendants Combined Reply and Cross-Opposition is due by 10/14/2016; Plaintiffs Cross-Reply is due by 10/28/2016. (jth) (Entered: 07/06/2016)
2016-08-1418Consent MOTION to Modify July 5, 2016 Scheduling Order by GINA MCCARTHY (Truong, John) (Entered: 08/14/2016)
2016-08-15MINUTE ORDER granting 18 Motion to Modify. Defendant shall file its motion for summary judgment by September 2, 2016; plaintiffs shall file their combined opposition and cross-motion for summary judgment (with a single combined memorandum in support) by September 30, 2016; defendant shall file its combined reply and cross-opposition by October 28, 2016; and plaintiffs shall file their cross-reply by November 11, 2016. SO ORDERED. Signed by Judge Amy Berman Jackson on 8/15/2016. (lcabj2) (Entered: 08/15/2016)
2016-08-15Set/Reset Deadlines: Defendants Motion for Summary Judgment is due by 9/2/2016; Plaintiffs Combined Opposition and Cross-Motion for Summary Judgment (with a single combined memorandum in support) is due by 9/30/2016; Defendants Combined Reply and Cross-Opposition is due by 10/28/2016; Plaintiffs Cross-Reply is due by 11/11/2016. (jth) (Entered: 08/15/2016)
2016-09-0219MOTION for Summary Judgment by GINA MCCARTHY (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Declaration of Kathryn Sargeant, # 4 Exhs A to I, # 5 Exhs J to T, # 6 Exhs U to II, # 7 Exhs JJ to KK, # 8 Exhs LL to RR, # 9 Exh SS to WW, # 10 Exh XX, # 11 Vaughn Index (Exh HH), # 12 Declaration of Ronald Kalmbach)(Truong, John) (Entered: 09/02/2016)
2016-09-2220Consent MOTION for Extension of Time to File a Combined Opposition to Defendant's Motion for Summary Judgment and Cross-Motion for Summary Judgment by ENERGY FUTURE COALITION, URBAN AIR INITIATIVE, INC. (Gustafson, Adam) (Entered: 09/22/2016)
2016-09-23MINUTE ORDER granting 20 Motion for Extension of Time. Plaintiffs shall file their combined opposition and cross-motion for summary judgment (with a single combined memorandum in support) by October 14, 2016; defendant shall file its combined reply and cross-opposition by November 17, 2016; and plaintiffs shall file their cross-reply by December 1, 2016. SO ORDERED. Signed by Judge Amy Berman Jackson on 9/23/2016. (lcabj2) (Entered: 09/23/2016)
2016-09-23Set/Reset Deadlines: Plaintiffs shall file their combined Opposition and Cross-Motion for Summary Judgment (with a single combined memorandum in support) by 10/14/2016; Defendant shall file its combined Reply and Cross-Opposition by 11/17/2016; Plaintiffs shall file their Cross-Reply by 12/1/2016. (jth) (Entered: 09/23/2016)
2016-10-1421Cross MOTION for Partial Summary Judgment , by ENERGY FUTURE COALITION, URBAN AIR INITIATIVE, INC. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration)(Gustafson, Adam) Modified on 10/17/2016 (jf). (Entered: 10/14/2016)
2016-10-1423Memorandum in opposition to re 19 MOTION for Summary Judgment filed by ENERGY FUTURE COALITION, URBAN AIR INITIATIVE, INC.. (See Docket Entry 21 to view document). (znmw) (Entered: 10/17/2016)
2016-10-1522NOTICE of Filing of Exhibits by ENERGY FUTURE COALITION, URBAN AIR INITIATIVE, INC. re 21 MOTION for Leave to Appeal in forma pauperis MOTION to Appoint Counsel MOTION for Briefing Schedule MOTION to Permit Cross MOTION for Partial Summary Judgment MOTION for Limited Admission (Attachments: # 1 Exhibit Exhibits A-Q to Declaration of James R. Conde, # 2 Exhibit Exhibits R-BB to Declaration of James R. Conde)(Gustafson, Adam) (Entered: 10/15/2016)
2016-11-0224Unopposed MOTION for Extension of Time to File Reply and Cross-Opposition by GINA MCCARTHY (Truong, John) (Entered: 11/02/2016)
2016-11-03MINUTE ORDER granting 24 Motion for Extension of Time. Defendant shall file its combined reply and cross-opposition by December 5, 2016, and plaintiffs shall file their cross-reply by December 20, 2016. SO ORDERED. Signed by Judge Amy Berman Jackson on 11/3/16. (lcabj2) (Entered: 11/03/2016)
2016-11-04Set/Reset Deadlines: Defendant's Combined Reply and Cross-Opposition is due by 12/5/2016; Plaintiffs Cross-Reply is due by 12/20/2016. (jth) (Entered: 11/04/2016)
2016-12-0125Consent MOTION for Extension of Time to File Response/Reply re November 3, 2016 Minute Order by GINA MCCARTHY (Truong, John) Modified event title on 12/2/2016 (znmw). (Entered: 12/01/2016)
2016-12-01MINUTE ORDER granting 25 Motion to Modify. Defendant shall file its combined reply and cross-opposition by December 22, 2016, and plaintiffs shall file their cross-reply by January 26, 2017. SO ORDERED. Signed by Judge Amy Berman Jackson on 12/1/16. (lcabj2) (Entered: 12/01/2016)
2016-12-2026Consent MOTION to Modify December 1, 2016 Minute Order by GINA MCCARTHY (Truong, John) (Entered: 12/20/2016)
2016-12-20MINUTE ORDER granting 26 Motion to Modify. Defendant shall file its combined reply and cross-opposition by January 12, 2017, and plaintiffs shall file their cross-reply by February 16, 2017. SO ORDERED. Signed by Judge Amy Berman Jackson on 12/20/2016. (lcabj2) (Entered: 12/20/2016)
2016-12-20Set/Reset Deadlines: Defendant's Combined Reply and Cross-Opposition is due by 1/12/2017; Plaintiffs Cross-Reply is due by 2/16/2017. (jth) (Entered: 12/20/2016)
2017-01-1027Unopposed MOTION to Modify Dec. 20, 2016 Minute Order by GINA MCCARTHY (Truong, John) (Entered: 01/10/2017)
2017-01-11MINUTE ORDER granting 27 Motion to Modify. Defendant shall file its combined reply and cross-opposition by January 17, 2017, and plaintiffs shall file their cross-reply by February 21, 2017. SO ORDERED. Signed by Judge Amy Berman Jackson on 1/11/2017. (lcabj2) (Entered: 01/11/2017)
2017-01-11Set/Reset Deadlines: Defendant's Combined Reply and Cross-Opposition is due by 1/17/2017; Plaintiffs Cross-Reply is due by 2/21/2017. (jth) (Entered: 01/11/2017)
2017-01-1728Memorandum in opposition to re 21 MOTION for Leave to Appeal in forma pauperis MOTION to Appoint Counsel MOTION for Briefing Schedule MOTION to Permit Cross MOTION for Partial Summary Judgment MOTION for Limited Admission filed by GINA MCCARTHY. (Attachments: # 1 Statement of Facts, # 2 Supplemental Declaration of Kathryn Sargeant, # 3 Sargeant Supp. Decl. Exhs 1-4)(Truong, John) (Entered: 01/17/2017)
2017-01-1729NOTICE re 28 of Filing of Defendant's Response to Plaintiffs' Statement of Material Facts by GINA MCCARTHY (Truong, John) Modified to add link on 1/18/2017 (znmw). (Entered: 01/17/2017)
2017-01-1730REPLY to opposition to motion re 19 MOTION for Summary Judgment (See ECF Nos. 28 and 29 for supporting documentations) filed by GINA MCCARTHY. (Truong, John) (Entered: 01/17/2017)
2017-01-2631NOTICE OF WITHDRAWAL OF APPEARANCE as to ENERGY FUTURE COALITION, URBAN AIR INITIATIVE, INC.. Attorney Adam Jeffrey White terminated. (White, Adam) (Entered: 01/26/2017)
2017-02-1532Consent MOTION for Extension of Time to File Response/Reply to Defendant's Opposition to Plaintiffs' Cross-Motion For Summary Judgment by ENERGY FUTURE COALITION, URBAN AIR INITIATIVE, INC. (Gustafson, Adam) (Entered: 02/15/2017)
2017-02-16MINUTE ORDER granting 32 Motion for Extension of Time to File Response/Reply. Plaintiffs shall file their cross-reply by March 31, 2017. SO ORDERED. Signed by Judge Amy Berman Jackson on 2/16/2017. (lcabj2) (Entered: 02/16/2017)
2017-03-3133NOTICE OF ERRATA REGARDING THE DECLARATION OF JAMES R. CONDE SUBMITTED IN SUPPORT OF PLAINTIFFS OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT by ENERGY FUTURE COALITION, URBAN AIR INITIATIVE, INC. re 21 MOTION for Leave to Appeal in forma pauperis MOTION to Appoint Counsel MOTION for Briefing Schedule MOTION to Permit Cross MOTION for Partial Summary Judgment MOTION for Limited Admission (Gustafson, Adam) (Entered: 03/31/2017)
2017-03-3134REPLY to opposition to motion re 21 MOTION for Leave to Appeal in forma pauperis MOTION to Appoint Counsel MOTION for Briefing Schedule MOTION to Permit Cross MOTION for Partial Summary Judgment MOTION for Limited Admission filed by ENERGY FUTURE COALITION, URBAN AIR INITIATIVE, INC.. (Attachments: # 1 Plaintiffs' Response to EPA's Second Statement of Material Facts as to Which There Are No Genuine Issues, # 2 Exhibits, # 3 Text of Proposed Order Granting Plaintiffs' Motion for Leave to File a Surreply)(Gustafson, Adam) (Entered: 03/31/2017)
2017-06-0535MOTION for Leave to File Sur-Reply by GINA MCCARTHY (Attachments: # 1 Sur-Reply Exh. 1)(Truong, John) (Entered: 06/05/2017)
2017-06-05MINUTE ORDER granting 35 defendant's motion for leave to file sur-reply. The Clerk of Court is directed to docket defendant's 35 sur-reply. No further briefing from any party is required unless it is called for by the Court. SO ORDERED. Signed by Judge Amy Berman Jackson on 6/5/2017. (lcabj2) (Entered: 06/05/2017)
2017-06-0536SURREPLY to re 21 MOTION for Leave to Appeal in forma pauperis MOTION to Appoint Counsel MOTION for Briefing Schedule MOTION to Permit Cross MOTION for Partial Summary Judgment MOTION for Limited Admission filed by GINA MCCARTHY. (Attachments: # 1 Exhibit)(td) (Entered: 06/06/2017)
2017-06-06MINUTE ORDER. The parties have informed chambers of a dispute that has arisen in the context of this FOIA case, which may also implicate ethical rules, related to a potentially privileged document. If they cannot resolve the matter among themselves, the parties may each file submissions outlining their respective positions by June 9, 2017. The submissions may not exceed five pages, and the Court will call for responses or a hearing if it deems either to be necessary. Signed by Judge Amy Berman Jackson on 6/6/17. (DMK) (Entered: 06/06/2017)
2017-06-06Set/Reset Deadlines: Parties' submissions due by 6/9/2017. (kt) (Entered: 06/06/2017)
2017-06-0937SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by GINA MCCARTHY (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Govt. Ex. 1)(Truong, John) (Entered: 06/09/2017)
2017-06-0938MOTION for "Claw Back" Inadvertently Disclosed Privileged Documents by GINA MCCARTHY (Attachments: # 1 Declaration of John C. Truong, # 2 Gov. Exh. 2, # 3 Gov. Exh. 3)(Truong, John) (Entered: 06/09/2017)
2017-06-0939RESPONSE re 38 MOTION for "Claw Back" Inadvertently Disclosed Privileged Documents filed by ENERGY FUTURE COALITION, URBAN AIR INITIATIVE, INC.. (Gustafson, Adam) (Entered: 06/09/2017)
2017-06-12MINUTE ORDER granting 37 Sealed Motion for Leave to File Document Under Seal. The Clerk of Court is directed to file defendant's exhibit 1 [37-1] UNDER SEAL. SO ORDERED. Signed by Judge Amy Berman Jackson on 6/12/2017. (lcabj2) (Entered: 06/12/2017)
2017-06-1240SEALED DOCUMENT filed by GINA MCCARTHY. re Order on Sealed Motion for Leave to File defendant's exhibit 1 [37-1] Document Under Seal. (This document is SEALED and only available to authorized persons.)(ztd) (Entered: 06/12/2017)
2017-06-2341ORDER granting 38 defendant's motion for "claw back" of inadvertently disclosed privileged e-mail chain. It is hereby ORDERED that plaintiffs take the following steps: (1) destroy all copies of the inadvertently disclosed privileged documents, (2) make no use of the information contained in the April 19, 2017 email chain in this proceeding or otherwise, and (3) certify to the Court by July 5, 2017 that they have complied with this order. See Order for details. SO ORDERED. Signed by Judge Amy Berman Jackson on 6/23/2017. (lcabj2) (Entered: 06/23/2017)
2017-06-27MINUTE ORDER. In order to assist the Court in making a responsible de novo determination, defendant is directed to deliver to chambers for in camera inspection, on or before July 11, 2017, a representative sample of documents it has withheld or redacted pursuant to Exemption 5. See Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). Defendant is ordered to provide the Court with five representative documents from each category identified in the declaration of James R. Conde, or all documents identified in the category if the category includes five or fewer documents. See Decl. of James R. Conde [Dkt. # 21-3] at 11-17. SO ORDERED. Signed by Judge Amy Berman Jackson on 6/27/2017. (lcabj2) (Entered: 06/27/2017)
2017-07-0542RESPONSE TO ORDER OF THE COURT re 41 Order on Motion for Miscellaneous Relief,,, Set/Reset Deadlines,, CERTIFICATE OF COMPLIANCE WITH CLAW BACK ORDER filed by ENERGY FUTURE COALITION, URBAN AIR INITIATIVE, INC.. (Gustafson, Adam) (Entered: 07/05/2017)
2017-07-0543MOTION to Modify the In Camera Review Order by ENERGY FUTURE COALITION, URBAN AIR INITIATIVE, INC. (Gustafson, Adam) (Entered: 07/05/2017)
2017-07-06MINUTE ORDER granting 43 Motion to Modify. The Court encourages the parties to attempt to agree upon five representative documents in each category that contains more than five documents. However, if the parties cannot agree, then plaintiffs may identify three additional documents in each category. SO ORDERED. Signed by Judge Amy Berman Jackson on 7/6/2017. (lcabj2) (Entered: 07/06/2017)
2017-07-1144NOTICE of Compliance of June 27, 2017 Order by GINA MCCARTHY (Attachments: # 1 Exhibit)(Truong, John) (Entered: 07/11/2017)
2017-08-29MINUTE ORDER. After reviewing defendant's Vaughn Index, plaintiffs discovered that EPA had not produced "some email attachments as non-responsive." See Pls.' Statement of Facts [Dkt. # 21-2] para. 40. On December 21, 2016, defendant justified not producing these email attachments on the grounds that it considered the attachments and emails to be separate "records" for FOIA purposes. Ex. 3 to Sargeant Suppl. Decl. [Dkt. # 28-3]; Am. Immigration Lawyers Assn v. Exec. Office for Immigration Review, 830 F.3d 667, 677 (D.C. Cir. 2016) ("Under FOIA, agencies instead in effect define a 'record' when they undertake the process of identifying records that are responsive to a request."). But, the parties acknowledge that on December 21, 2016, defendant produced 180 non-responsive documents to plaintiffs. See Pls.' Cross-Reply [Dkt. # 34] at 4; Def.'s Sur-Reply [Dkt # 36]; Ex. 3 to Sargeant Suppl. Decl. [Dkt. # 28-3]. These documents are allegedly email attachments that are non-responsive to plaintiffs' FOIA request, but were attached to emails that are responsive to the request. In their cross-reply, plaintiffs still seek summary judgment on "all remaining email attachments redacted as non-responsive." Cross-Reply at 5. In its sur-reply, defendant does not address whether its December 21 production included all allegedly non-responsive email attachments or just a sub-set. See generally Def.'s Sur-Reply. Because the Court has an obligation to determine if a live controversy exists before it, defendant must inform the Court whether its production consisted of all allegedly non-responsive email attachments, making this portion of plaintiffs' motion moot, by September 1, 2017. See Transwestern Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C. Cir. 1990) ("A case is moot if events have so transpired that the decision will neither presently affect the parties' rights nor have a more-than-speculative change of affecting them in the future."). If the December production only included a sub-set of the set of email attachments originally not produced on the grounds that they were not responsive, defendant must provide a supplemental declaration stating the number of email attachments that have not been produced because they are non-responsive, and the basis for any differentiation between the attachments that were released and those that have not been produced. SO ORDERED. Signed by Judge Amy Berman Jackson on 8/29/2017. (lcabj2) (Entered: 08/29/2017)
2017-09-0145RESPONSE TO ORDER OF THE COURT Response to the Court's August 29, 2017 Order by GINA MCCARTHY (Truong, John) Modified event title on 9/5/2017 (znmw). (Entered: 09/01/2017)
2017-09-0146REPLY re 45 Response to Order of the Court re Minute Order Reply Concerning the Court's August 29, 2017 Minute Order filed by ENERGY FUTURE COALITION, URBAN AIR INITIATIVE, INC.. (Gustafson, Adam) Modified to add link on 9/5/2017 (znmw). (Entered: 09/01/2017)
2017-09-01MINUTE ORDER. Given defendant's stated intention to process any email attachments previously withheld as non-responsive, the agency has to produce any remaining documents, or identify an exemption justifying their withholding, by September 8, 2017. SO ORDERED. Signed by Judge Amy Berman Jackson on 9/1/2017. (lcabj2) (Entered: 09/01/2017)
2017-09-0747Consent MOTION for Extension of Time to Respond to the Court's September 1, 2017 Order by GINA MCCARTHY (Truong, John) (Entered: 09/07/2017)
2017-09-08MINUTE ORDER granting 47 Motion for Extension of Time. Given defendant's stated intention to process any email attachments previously withheld as non-responsive, the agency has to produce any remaining documents, or identify an exemption justifying their withholding, by September 15, 2017. SO ORDERED. Signed by Judge Amy Berman Jackson on 9/8/2017. (lcabj2) (Entered: 09/08/2017)
2017-09-1548RESPONSE TO ORDER OF THE COURT re Order on Motion for Extension of Time to,, Set/Reset Deadlines, filed by GINA MCCARTHY. (Attachments: # 1 Gov. Exh. A, # 2 Gov. Exh. B)(Truong, John) (Entered: 09/15/2017)
2017-09-2049REPLY re Order on Motion for Extension of Time to,, Set/Reset Deadlines, Reply Concerning the Court's September 8, 2017 Minute Order filed by ENERGY FUTURE COALITION, URBAN AIR INITIATIVE, INC.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Gustafson, Adam) (Entered: 09/20/2017)
2017-09-2550ORDER. Pursuant to Federal Rule of Civil Procedure 56, and for the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that defendant's 19 motion for summary judgment is GRANTED IN PART AND DENIED IN PART, and plaintiffs' 21 cross-motion for partial summary judgment is DENIED. Because EPA's declaration does not describe an adequate search in response to plaintiffs' FOIA request, the matter is remanded to the agency to conduct a further search for responsive records, to provide a more detailed justification for the adequacy of the searches, and to release any reasonably segregable non-exempt material to plaintiffs consistent with FOIA. The parties shall file a joint status report by November 27, 2017, to update the Court on whether further proceedings are necessary in this matter. While the matter is on remand, the parties are ORDERED to meet and confer in an effort to respond to plaintiffs' contention that EPA "is still withholding 17 attachments that it erroneously claims to have previously released in full or in part." Resp. to Court's Order [Dkt. # 48] at 1. The agency is hereby ORDERED to produce any of the e-mail attachments it has yet to produce, and it must provide the Court with an updated declaration indicating that it has done so when it reports to the Court on the status of the renewed search. See Order for details. SO ORDERED. Signed by Judge Amy Berman Jackson on 9/25/2017. (lcabj2) (Entered: 09/25/2017)
2017-09-2551MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 9/25/2017. (lcabj2) (Main Document 51 replaced on 9/25/2017) (zjth). (Entered: 09/25/2017)
2017-10-0352MOTION to Clarify the Court's September 25, 2017 Order by ENERGY FUTURE COALITION, URBAN AIR INITIATIVE, INC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Gustafson, Adam) (Entered: 10/03/2017)
2017-10-04MINUTE ORDER denying 52 Motion to Clarify. The Vaughn index prepared by defendant EPA revealed that the agency had withheld attachments to responsive emails, and it characterized those attachments in the index as "non-responsive." See Pls.' Statement of Facts [Dkt. # 21-2] para. 40. On December 21, 2016, defendant justified its failure to produce these email attachments with the explanation that it considered the attachments and emails to be separate "records" for FOIA purposes. Ex. 3 to Sargeant Suppl. Decl. [Dkt. # 28-3]. In the course of the summary judgment briefing, plaintiffs pressed their position that the records should be produced, see Pls.' Cross-Mem. [Dkt. # 21] at 27-28; Pls.' Cross-Reply [Dkt. # 34] at 20-22, but since defendant agreed to produce the material, see Def.'s Consent Mot. for Extension of Time [Dkt. # 47]; Resp. to Court's Order [Dkt. # 48], the Court ruled that the issue was moot. Mem. Op. [Dkt. # 51] at 11 n.6. Plaintiffs dedicated only one page of their combined memorandum to this issue, but they have since filed three additional submissions on the matter, including the instant motion. In the absence of a live controversy, there is no basis for the Court to issue an advisory opinion concerning the manner in which the records were originally labelled, and there is nothing ambiguous about the Court's order that the records be produced. SO ORDERED. Signed by Judge Amy Berman Jackson on 10/4/2017. (lcabj2) (Entered: 10/04/2017)
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by FOIA Project Staff