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Case TitleHUNTINGTON v. U.S. DEPARTMENT OF COMMERCE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2015cv02249
Date Filed2015-12-24
Date ClosedOpen
JudgeJudge James E. Boasberg
PlaintiffR. DANNY HUNTINGTON
Case DescriptionDanny Huntington submitted two FOIA requests to the Patent and Trademark Office for records concerning its Sensitive Application Warning System program. The agency responded to the first request by indicating that it located 118 pages of records and that it was withholding portions under Exemption 5 (privileges). Huntington appealed the agency denial, which was upheld. His second request was for considerably more items. The agency responded to several items and provided records, some of which again were denied under Exemption 5. He appealed those portions of the denial, which was upheld. Huntington then filed suit.
Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Litigation - Attorney's fees

DefendantU.S. DEPARTMENT OF COMMERCE
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Opinion/Order [20]
FOIA Project Annotation: Judge James Boasberg has ruled that the U.S. Patent and Trademark Office has not yet shown that it conducted an adequate search for records concerning its recently retired Sensitive Application Warning System program, which flagged patent applications based on subject, but that the agency's Exemption 5 (privileges) claims are appropriate. Patent attorney Danny Huntington requested records about the SAWS program, which flagged patent applications based on criteria such as the likelihood that they would cause media controversy; were pioneering or frivolous; posed a danger to individuals, the environment, or national security; or involved controversial or illegal subject matter. After several months of back and forth discussions yielded no response, Huntington filed suit. The agency ultimately disclosed 4,114 pages and five spreadsheets, withholding information under Exemption 3 (other statutes), Exemption 6 (invasion of privacy), and Exemption 5. By the time Boasberg ruled on the case, Huntington was only challenging the agency's search and its Exemption 5 withholdings. Boasberg noted that the agency had not indicated that it had searched all locations likely to contain responsive records. He pointed out that "Defendant has failed to invoke 'the magic words' concerning the adequacy of the searchâ€"namely, the assertion that [the Department] searched all locations likely to contain responsive records.' It has stated only that it 'identified offices reasonably likely to have responsive information and those offices conducted a reasonable search for responsive records.'" Huntington argued that because SAWS had begun in 1994 the agency had failed to digitize all responsive records. But Boasberg observed that "without any evidence that the USPTO's current electronic systems do not contain older records, the Court will not require the agency to describe documents, systems, or equipment that may or may not have once existed and their status now, nor will it infer inadequacy from the absence of such information in Defendant's declarations." Boasberg agreed with Huntington that the agency's description of its search of laptops for responsive records was too vague. He noted that the agency's affidavit "leaves open to question how many work laptops were searched, why those locations but not others were thought to be reasonably likely to contain responsive records, and how the agency concluded that no paper files contain responsive records." Boasberg rejected Huntington's claim that the agency's decision to flag applications was not deliberative because it did not affect whether or not patents were granted. Boasberg indicated that "that view of the privilege is too narrow. Although flagging an application for the SAWS program is not dispositive as to whether the patent will be allowed, it can trigger an additional internal quality-assurance check, the result of which 'could have an impact on the ultimate decision by the patent examiner.'"
Issues: Search - Detailed description of search, Exemption 5 - Privileges
Opinion/Order [30]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2015-12-241COMPLAINT against U.S. DEPARTMENT OF COMMERCE ( Filing fee $ 400 receipt number 0090-4360863) filed by R. DANNY HUNTINGTON. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Hodes, Scott) (Entered: 12/24/2015)
2015-12-28Case Assigned to Judge James E. Boasberg. (md) (Entered: 12/28/2015)
2015-12-282SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF COMMERCE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 12/28/2015)
2016-01-123RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 1/7/2016. Answer due for ALL FEDERAL DEFENDANTS by 2/6/2016. (Hodes, Scott) (Entered: 01/12/2016)
2016-01-124RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 01/07/2016. (Hodes, Scott) (Entered: 01/12/2016)
2016-01-125RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF COMMERCE served on 1/7/2016 (Hodes, Scott) (Entered: 01/12/2016)
2016-02-086ANSWER to Complaint by U.S. DEPARTMENT OF COMMERCE.(Simon, Jeremy) (Entered: 02/08/2016)
2016-02-08MINUTE ORDER: The Court ORDERS that the parties shall meet, confer, and jointly submit a proposed briefing schedule by February 22, 2016. Signed by Judge James E. Boasberg on 02/08/2016. (lcjeb2) (Entered: 02/08/2016)
2016-02-09Set/Reset Deadline: The parties shall meet, confer, and jointly submit a proposed briefing schedule by 2/22/2016. (ad) (Entered: 02/09/2016)
2016-02-227Joint STATUS REPORT and Proposed Schedule by U.S. DEPARTMENT OF COMMERCE. (Simon, Jeremy) (Entered: 02/22/2016)
2016-02-22MINUTE ORDER: In accord with the parties' 7 Report, the Court ORDERS that the parties shall submit a further Joint Status Report by April 21, 2016. Signed by Judge James E. Boasberg on 02/22/2016. (lcjeb2) (Entered: 02/22/2016)
2016-02-23Set/Reset Deadline: The parties shall submit a further Joint Status Report by 4/21/2016. (ad) (Entered: 02/23/2016)
2016-04-218Joint STATUS REPORT by U.S. DEPARTMENT OF COMMERCE. (Simon, Jeremy) (Entered: 04/21/2016)
2016-04-22MINUTE ORDER: Per the parties' 8 Joint Status Report, the Court ORDERS that the parties shall submit a further Report by July 19, 2016. Signed by Judge James E. Boasberg on 04/22/2016. (lcjeb2) (Entered: 04/22/2016)
2016-04-22Set/Reset Deadline: The parties shall submit a further Report by 7/19/2016. (ad) (Entered: 04/22/2016)
2016-07-199Joint STATUS REPORT and Proposed Schedule by U.S. DEPARTMENT OF COMMERCE. (Simon, Jeremy) (Entered: 07/19/2016)
2016-07-19MINUTE ORDER: Pursuant to the 9 Joint Status Report and Proposed Schedule, the Court ORDERS that: (1) Plaintiff shall file his motion for summary judgment on or before August 19, 2016; (2) Defendant shall file its cross-motion for summary judgment and its opposition to Plaintiff's motion on or before September 20, 2016; (3) Plaintiff shall file his opposition to Defendant's cross-motion and his reply in support of his motion on or before October 20, 2016; and (4) Defendant shall file its reply in support of its cross-motion on or before November 17, 2016. Signed by Judge James E. Boasberg on 7/19/16. (lcjeb2) (Entered: 07/19/2016)
2016-07-20Set/Reset Deadlines: Plaintiff shall file his motion for summary judgment on or before 8/19/2016; Defendant shall file its cross-motion for summary judgment and its opposition to Plaintiff's motion on or before 9/20/2016; Plaintiff shall file his opposition to Defendant's cross-motion and his reply in support of his motion on or before 10/20/2016; and Defendant shall file its reply in support of its cross-motion on or before 11/17/2016. (ad) (Entered: 07/20/2016)
2016-08-1710First MOTION for Extension of Time to File Motion for Summary Judgment by R. DANNY HUNTINGTON (Attachments: # 1 Text of Proposed Order)(Hodes, Scott) (Entered: 08/17/2016)
2016-08-17MINUTE ORDER granting Plaintiff's 10 Motion for Extension of Time to File. The Court ORDERS that: (1) Plaintiff shall file his motion for summary judgment on or before August 24, 2016; (2) Defendant shall file its cross-motion for summary judgment and its opposition to Plaintiff's motion on or before September 27, 2016; (3) Plaintiff shall file his opposition to Defendant's cross-motion and his reply in support of his motion on or before October 27, 2016; and (4) Defendant shall file its reply in support of its cross-motion on or before November 28, 2016. Signed by Judge James E. Boasberg on 8/17/16. (lcjeb2) (Entered: 08/17/2016)
2016-08-18Set/Reset Deadlines: Plaintiff shall file his motion for summary judgment on or before 8/24/2016; Defendant shall file its cross-motion for summary judgment and its opposition to Plaintiff's motion on or before 9/27/2016; Plaintiff shall file his opposition to Defendant's cross-motion and his reply in support of his motion on or before 10/27/2016; and Defendant shall file its reply in support of its cross-motion on or before 11/28/2016. (ad) (Entered: 08/18/2016)
2016-08-2411MOTION for Partial Summary Judgment by R. DANNY HUNTINGTON (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Statement of Facts, # 15 Text of Proposed Order)(Hodes, Scott) Modified on 8/25/2016 (znmw). (Entered: 08/24/2016)
2016-09-2212Consent MOTION for Extension of Time to Answer or Otherwise Respond to Complaint by U.S. DEPARTMENT OF COMMERCE (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 09/22/2016)
2016-09-22MINUTE ORDER granting Consent 12 Motion for Extension of Time to File. The Court ORDERS that: (1) Defendant shall file its cross-motion for summary judgment and its opposition to Plaintiff's motion on or before October 11, 2016; (2) Plaintiff shall file his opposition to Defendant's cross-motion and his reply in support of his motion on or before November 18, 2016; and (3) Defendant shall file its reply in support of its cross-motion on or before December 19, 2016. Signed by Judge James E. Boasberg on 9/22/16. (lcjeb2) (Entered: 09/22/2016)
2016-09-23Set/Reset Deadlines: Defendant shall file its cross-motion for summary judgment and its opposition to Plaintiff's motion on or before 10/11/2016; Plaintiff shall file his opposition to Defendant's cross-motion and his reply in support of his motion on or before 11/18/2016; Defendant shall file its reply in support of its cross-motion on or before 12/19/2016. (ad) (Entered: 09/23/2016)
2016-10-1113Memorandum in opposition to re 11 MOTION for Partial Summary Judgment filed by U.S. DEPARTMENT OF COMMERCE. (Attachments: # 1 Defendant's Response to Plaintiff's Local Rule 7(h) Statement, # 2 Declaration of John Ricou Heaton, # 3 Proposed Order)(Simon, Jeremy) (Entered: 10/11/2016)
2016-10-1114MOTION for Summary Judgment (combined with opposition to Plaintiff's Motion for Partial Summary Judgment - see ECF No. 13) by U.S. DEPARTMENT OF COMMERCE (Attachments: # 1 Defendant's Local Rule 7(h) Statement, # 2 Supporting Memorandum, # 3 Proposed Order, # 4 Declaration of John Ricou Heaton)(Simon, Jeremy) (Entered: 10/11/2016)
2016-11-1815Memorandum in opposition to re 14 MOTION for Summary Judgment (combined with opposition to Plaintiff's Motion for Partial Summary Judgment - see ECF No. 13) filed by R. DANNY HUNTINGTON. (Attachments: # 1 Statement of Facts, # 2 Exhibit, # 3 Text of Proposed Order)(Hodes, Scott) (Entered: 11/18/2016)
2016-11-1816REPLY to opposition to motion re 14 MOTION for Summary Judgment (combined with opposition to Plaintiff's Motion for Partial Summary Judgment - see ECF No. 13) filed by R. DANNY HUNTINGTON. (Attachments: # 1 Exhibit, # 2 Statement of Facts, # 3 Text of Proposed Order)(Hodes, Scott) (Entered: 11/18/2016)
2016-12-1417Unopposed MOTION for Extension of Time to File Reply in Support of Cross-Motion for Summary Judgment by U.S. DEPARTMENT OF COMMERCE (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 12/14/2016)
2016-12-15MINUTE ORDER granting 17 Motion for Extension of Time to File. The Court ORDERS that Defendant shall file its Reply on or before January 4, 2017. Signed by Judge James E. Boasberg on 12/15/2016. (lcjeb3) (Entered: 12/15/2016)
2016-12-15Set/Reset Deadlines: Defendant Reply due by 1/4/2017. (nbn) (Entered: 12/15/2016)
2017-01-0418REPLY to opposition to motion re 14 MOTION for Summary Judgment (combined with opposition to Plaintiff's Motion for Partial Summary Judgment - see ECF No. 13) filed by U.S. DEPARTMENT OF COMMERCE. (Attachments: # 1 Supplemental Declaration of John Ricou Heaton)(Simon, Jeremy) (Entered: 01/04/2017)
2017-01-1819ORDER: The Court ORDERS that (1) Plaintiff's 11 Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART; (2) Defendant's 14 Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART; and (3) the parties shall submit a joint status report by February 1, 2017, setting forth a proposed schedule for further proceedings in this case. Signed by Judge James E. Boasberg on 1/18/2017. (lcjeb3) (Entered: 01/18/2017)
2017-01-1820MEMORANDUM OPINION re 19 Order on 11 , 14 Cross-Motions for Summary Judgment. Signed by Judge James E. Boasberg on 1/18/2017. (lcjeb3) (Entered: 01/18/2017)
2017-01-18Set/Reset Deadlines: Joint Status Report due by 2/1/2017. (zlsj) (Entered: 01/18/2017)
2017-02-0121Joint STATUS REPORT and Proposed Briefing Schedule by U.S. DEPARTMENT OF COMMERCE. (Simon, Jeremy) (Entered: 02/01/2017)
2017-02-02MINUTE ORDER: Pursuant to the parties 21 Joint Status Report, the Court ORDERS that (1) Defendant shall file its renewed motion for summary judgment on or before March 31, 2017, (2) Plaintiff shall file his opposition on or before April 28, 2017, and (3) Defendant shall file its reply on or before May 22, 2017. Signed by Judge James E. Boasberg on 2/2/17. (lcjeb2) (Entered: 02/02/2017)
2017-02-02Set/Reset Deadlines: Summary Judgment motions due by 3/31/2017. Response to Motion for Summary Judgment due by 4/28/2017. Reply to Motion for Summary Judgment due by 5/22/2017. (nbn) (Entered: 02/02/2017)
2017-03-3122MOTION for Summary Judgment (Renewed Motion for Summary Judgment, Local Rule 7(h) Statement and Supporting Memorandum) by U.S. DEPARTMENT OF COMMERCE (Attachments: # 1 Proposed Order, # 2 Second Supplemental Declaration of John Ricou Heaton)(Simon, Jeremy) (Entered: 03/31/2017)
2017-04-2823Cross MOTION for Summary Judgment by R. DANNY HUNTINGTON (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Statement of Facts, # 4 Text of Proposed Order)(Hodes, Scott) (Entered: 04/28/2017)
2017-04-2824Memorandum in opposition to re 22 MOTION for Summary Judgment (Renewed Motion for Summary Judgment, Local Rule 7(h) Statement and Supporting Memorandum) filed by R. DANNY HUNTINGTON. (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Statement of Facts, # 4 Text of Proposed Order)(Hodes, Scott) (Entered: 04/28/2017)
2017-04-2825ERRATA by R. DANNY HUNTINGTON 23 Cross MOTION for Summary Judgment filed by R. DANNY HUNTINGTON, 22 MOTION for Summary Judgment (Renewed Motion for Summary Judgment, Local Rule 7(h) Statement and Supporting Memorandum) filed by U.S. DEPARTMENT OF COMMERCE. (Attachments: # 1 Statement of Facts)(Hodes, Scott) (Entered: 04/28/2017)
2017-05-2226Memorandum in opposition to re 23 Cross MOTION for Summary Judgment filed by U.S. DEPARTMENT OF COMMERCE. (Attachments: # 1 Response to Plaintiff's Statement of Additional Facts, # 2 Third Supplemental Declaration of John Ricou Heaton, # 3 Proposed Order)(Simon, Jeremy) (Entered: 05/22/2017)
2017-05-2227REPLY to opposition to motion re 22 MOTION for Summary Judgment (Renewed Motion for Summary Judgment, Local Rule 7(h) Statement and Supporting Memorandum) (Duplicate of Docket Entry No. 26) filed by U.S. DEPARTMENT OF COMMERCE. (Attachments: # 1 Response to Plaintiff's Statement of Additional Facts, # 2 Third Supplemental Declaration of John Ricou Heaton, # 3 Proposed Order)(Simon, Jeremy) (Entered: 05/22/2017)
2017-05-22MINUTE ORDER: The Court ORDERS that Plaintiff may file his Reply to Defendant's 26 Opposition by May 30, 2017. Signed by Judge James E. Boasberg on 5/22/17. (lcjeb2) (Entered: 05/22/2017)
2017-05-22Set/Reset Deadlines: Opposition due by 5/30/2017. (nbn) (Entered: 05/23/2017)
2017-05-3028REPLY to opposition to motion re 23 Cross MOTION for Summary Judgment filed by R. DANNY HUNTINGTON. (Attachments: # 1 Exhibit)(Hodes, Scott) (Entered: 05/30/2017)
2017-07-2129ORDER GRANTING IN PART and DENYING IN PART Defendant's 22 Motion for Summary Judgment and GRANTING IN PART and DENYING IN PART Plaintiff's 23 Motion for Summary Judgment. The parties shall meet, confer, and propose a further joint briefing schedule on the APJ issue by August 4, 2017. Signed by Judge James E. Boasberg on 7/21/17. (lcjeb2) (Entered: 07/21/2017)
2017-07-2130MEMORANDUM OPINION re 29 Order on Motions for Summary Judgment. Signed by Judge James E. Boasberg on 7/21/17. (lcjeb2) (Entered: 07/21/2017)
2017-07-21Set/Reset Deadlines: Joint Briefing Schedule due by 8/4/2017. (nbn) (Entered: 07/21/2017)
2017-08-0431Joint STATUS REPORT and Proposed Schedule by U.S. DEPARTMENT OF COMMERCE. (Simon, Jeremy) (Entered: 08/04/2017)
2017-08-07MINUTE ORDER: Per the 31 Joint Status Report, the Court ORDERS that: (1) Defendant's motion for summary judgment shall be filed on or before November 2, 2017; (2) Plaintiff's opposition to Defendant's motion and cross-motion shall be filed on or before December 4, 2017; (3) Defendant's reply and opposition to Plaintiff's cross-motion shall be filed on or before December 20, 2017; and (4) Plaintiff's reply shall be filed on or before January 12, 2018. Signed by Judge James E. Boasberg on 8/7/17. (lcjeb2) (Entered: 08/07/2017)
2017-08-07Set/Reset Deadlines: Summary Judgment motions due by 11/2/2017. Response to Motion for Summary Judgment due by 12/4/2017. Reply to Motion for Summary Judgment due by 12/20/2017. Replies due by 1/12/2017. (nbn) (Entered: 08/07/2017)
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by FOIA Project Staff