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Case TitleYANOFSKY v. DEPARTMENT OF COMMERCE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2016cv00951
Date Filed2016-05-19
Date Closed2018-03-30
JudgeJudge Ketanji Brown Jackson
PlaintiffDAVID YANOFSKY
Case DescriptionJournalist Daniel Yanofsky submitted a FOIA request to the Department of Commerce for data related to Form I-92 and Form I-94, which contains statistical information about the number of travelers from abroad to the U.S and air traffic between the U.S. and other countries. The agency denied Yanofsky's request because the records were available for purchase from the National Travel and Tourism Office, which the agency contended was a superseding fee statute that displaced FOIA access. Yanofsky appealed that decision, but after hearing nothing further from the agency, Yanofsky filed suit.
Complaint issues: Public Interest Fee Waiver, Fee Category - Media or Educational, Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantDEPARTMENT OF COMMERCE
Documents
Docket
Complaint
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Complaint attachment 16
Opinion/Order [28]
FOIA Project Annotation: Judge Ketanji Brown Jackson has ruled that the Department of Commerce failed to show that a combination of the Mutual Educational and Cultural Exchange Act of 1961 and the Consolidated Appropriations Act of 2016 established an independent fee-setting mechanism that supersedes the fee provisions in FOIA under § 552(a)(4)(A)(vi). David Yanofsky, a journalist with Quartz, an online publication of the Atlantic Monthly Group, requested records from Commerce concerning the number of visitors and international flights to the United States. The agency told Yanoksky the information was available as part of a subscription service used by a number of institutional clients which had its own fee structure under the MECEA and the annual appropriations acts. As a result, the agency told Yanofsky that the data would cost $173,775. The agency denied Yanoksky's request for a fee waiver and Yanoksky filed suit. Because the agency did not flesh out its argument pertaining to the statutory basis for its claim that the MECEA constituted a superseding fee-setting mechanism until after Yanoksky filed suit, he argued that the agency was now prohibited from amplifying its claim because it was restricted to the administrative record before the agency at the time of the decision. But Jackson noted that "this Court disagrees with Yanofsky's analysis of the implication of section 552(a)(4)(A)(vii) for one simple reason: while it is certainly true that a court's review 'is limited' to the facts submitted to the agency, and that 'the agency must stand on whatever reasons for denial it gave in the administrative proceeding,' there is a world of difference between providing new reasons for the agency's decision at the district court stage and merely refining the same legal arguments that the parties advanced in the proceedings below." She indicated that "any fair reading of the arguments that DOC now makes compel the conclusion that its current position is a mere refinement of the legal argument that DOC has advanced ever since Yanofsky filed suit." She added that "the DOC 's present assertion that the MECEA and the Appropriations Act qualify as the pertinent superseding statute implicates considerations of law that this Court must evaluate by virtue of DOC's persistent contention that the FOIA's displacement provision applies. It makes little sense for this Court to be stuck analyzing the legal effect of a statutory provision that the DOC has long since abandoned, and while any such analysis is necessarily substantively different than the one conducted during the administrative process, the Court is still evaluating displacement as a matter of law " not a new or different reason for the denial of Yanoksky's fee waiver in violation of 5 U.S.C. § 552(a)(4)(A)(vii)." Having decided that the agency was able to make its claim that the MECEA and the Consolidated Appropriations Act superseded the FOIA fee provisions, Jackson concluded that the statute did not qualify under the D.C. Circuit's holding in Oglesby v. Dept of Army, 79 F.3d 1172 (D.C. Cir. 1996). In Oglesby, the National Archives claimed that 44 U.S.C. § 2116(c) displaced FOIA's fee provisions. The D.C. Circuit agreed, finding that it both set "the level of fees" and described "particular types of records." By contrast, the MECEA only encouraged foreign governments, international organizations, and other identified groups to make contributions, including the assessment of fees. Jackson pointed out that "this silence regarding how the fees are to be calculated stands in stark contrast to the statutes that the D.C. Circuit and Congress have acknowledged as superseding fee-setting statutes within the meaning of the FOIA." She explained that those statutes "demonstrate that a proper superseding fee statute reflects Congress's intent as it relates specifically to the agency's task of setting the level of fees for records. Neither the MECEA nor the Appropriations Act speaks to how the DOC's fees with respect to its data need to be determined, and thus this Court concludes that those statutes do not qualify as laws that supersede the fees provided for in the FOIA."
Issues: Fees - Commitment to pay
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2016-05-191COMPLAINT against DEPARTMENT OF COMMERCE ( Filing fee $ 400 receipt number 0090-4535543) filed by DAVID YANOFSKY. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Summons to Department of Commerce, # 15 Summons to U.S. Attorney, # 16 Summons to Attorney General)(Townsend, KatieLynn) (Entered: 05/19/2016)
2016-05-19Case Assigned to Judge Ketanji Brown Jackson. (sth) (Entered: 05/20/2016)
2016-05-202SUMMONS (3) Issued Electronically as to DEPARTMENT OF COMMERCE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(sth) (Entered: 05/20/2016)
2016-05-203GENERAL ORDER AND GUIDELINES FOR CIVIL CASES BEFORE JUDGE KETANJI BROWN JACKSON. The Court will hold the parties and counsel responsible for following these directives, and parties and counsel should pay particular attention to the Courts instructions for briefing motions. Failure to adhere to this Order may, when appropriate, result the imposition of sanctions and/or sua sponte denial of non-conforming motions. Signed by Judge Ketanji Brown Jackson on 5/20/2016. (lckbj1) (Entered: 05/20/2016)
2016-05-314RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/23/2016. Answer due for ALL FEDERAL DEFENDANTS by 6/22/2016. (Attachments: # 1 Affidavit)(Townsend, KatieLynn) (Entered: 05/31/2016)
2016-05-315RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 5/23/2016. (Attachments: # 1 Affidavit)(Townsend, KatieLynn) (Entered: 05/31/2016)
2016-05-316RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF COMMERCE served on 5/23/2016 (Attachments: # 1 Affidavit)(Townsend, KatieLynn) (Entered: 05/31/2016)
2016-06-037NOTICE of Appearance by April Denise Seabrook on behalf of DEPARTMENT OF COMMERCE (Seabrook, April) (Entered: 06/03/2016)
2016-06-218MOTION for Extension of Time to File Answer re 1 Complaint,, by DEPARTMENT OF COMMERCE (Attachments: # 1 Text of Proposed Order)(Seabrook, April) (Entered: 06/21/2016)
2016-06-219RESPONSE re 8 MOTION for Extension of Time to File Answer re 1 Complaint,, filed by DAVID YANOFSKY. (Attachments: # 1 Text of Proposed Order)(Townsend, KatieLynn) (Entered: 06/21/2016)
2016-06-2310WITHDRAWN PURSUANT TO 10 NOTICE OF WITHDRAWAL.....MOTION for Status Conference by DAVID YANOFSKY (Attachments: # 1 Text of Proposed Order)(Townsend, KatieLynn) Modified on 6/24/2016 (jf). (Entered: 06/23/2016)
2016-06-23MINUTE ORDER denying Defendant's 8 Motion for Extension of Time to Answer. It is hereby ORDERED that Defendant's Answer shall be due on July 15, 2016. It is FURTHER ORDERED that the parties are required to meet, confer, and submit a proposed schedule for further proceedings on or before July 27, 2016. Signed by Judge Ketanji Brown Jackson on June 23, 2016. (lckbj3, ) (Entered: 06/23/2016)
2016-06-2311NOTICE OF WITHDRAWAL OF MOTION by DAVID YANOFSKY re 10 MOTION for Status Conference (Townsend, KatieLynn) (Entered: 06/23/2016)
2016-06-2712NOTICE of Appearance by Adam Alexander Marshall on behalf of DAVID YANOFSKY (Marshall, Adam) (Entered: 06/27/2016)
2016-07-1613Consent MOTION FOR AN EXTENSION OF TIME TO FILE RESPONSIVE PLEADING TO FILE RESPONSIVE PLEADING by DEPARTMENT OF COMMERCE (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A - Defendant's Answer)(Seabrook, April) Modified on 7/18/2016 (jf). (Entered: 07/16/2016)
2016-07-22MINUTE ORDER granting 13 Motion for Leave to File Answer Out Of Time. It is hereby ORDERED that the Answer that Defendant has lodged (ECF No. [13-2]) is accepted for filing. Signed by Judge Ketanji Brown Jackson on 07/22/2016. (lckbj1) (Entered: 07/22/2016)
2016-07-2214ANSWER to Complaint by DEPARTMENT OF COMMERCE.(jf) (Entered: 07/25/2016)
2016-07-2515Joint MOTION for Scheduling Order by DAVID YANOFSKY (Attachments: # 1 Text of Proposed Order)(Townsend, KatieLynn) (Entered: 07/25/2016)
2016-08-2416Consent MOTION for Leave to File Amended Joint Motion For Scheduling Order by DEPARTMENT OF COMMERCE (Seabrook, April) (Entered: 08/24/2016)
2016-08-26MINUTE ORDER finding as moot 15 Motion for Scheduling Order; granting 16 Motion for Leave to File Amended Joint Motion for Scheduling Order. It is hereby ORDERED that the parties shall file a joint proposed schedule for further proceedings on or before 8/29/2016. Signed by Judge Ketanji Brown Jackson on 08/26/2016. (lckbj1) (Entered: 08/26/2016)
2016-08-2917MOTION for Scheduling Order by DAVID YANOFSKY (Attachments: # 1 Text of Proposed Order)(Townsend, KatieLynn) (Entered: 08/29/2016)
2016-08-2918NOTICE OF SUBSTITUTION OF COUNSEL by Joshua M. Kolsky on behalf of DEPARTMENT OF COMMERCE Substituting for attorney April Seabrook (Kolsky, Joshua) (Entered: 08/29/2016)
2016-08-2919MOTION for Briefing Schedule by DEPARTMENT OF COMMERCE (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 08/29/2016)
2016-09-02MINUTE ORDER denying 17 Motion for Scheduling Order; granting 19 Motion for Briefing Schedule. It is hereby ORDERED that the following briefing schedule is set in this matter: Defendant shall file its motion for summary judgment on or before 9/29/2016; Plaintiff shall file his opposition and any cross-motion on or before 10/31/2106; Defendant shall file its reply in support of its motion and opposition to any cross-motion on or before 11/30/2016; and Plaintiff shall file its reply in support of any cross-motion on or before 12/19/2016. Signed by Judge Ketanji Brown Jackson on 09/02/2016. (lckbj1) (Entered: 09/02/2016)
2016-09-2920MOTION for Summary Judgment by DEPARTMENT OF COMMERCE (Attachments: # 1 Declaration (and exhibits), # 2 Text of Proposed Order)(Kolsky, Joshua) (Entered: 09/29/2016)
2016-10-3121Cross MOTION for Summary Judgment by DAVID YANOFSKY (Attachments: # 1 Memorandum in Support of Plaintiff's Cross Motion for Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment, # 2 Statement of Facts in Support of Plaintiff's Cross Motion for Summary Judgment and in Response to Defendant's Statement of Material Facts, # 3 Declaration of David Yanofsky, # 4 Exhibit A to the Yanofsky Declaration, # 5 Exhibit B to the Yanofsky Declaration, # 6 Exhibit C to the Yanofsky Declaration, # 7 Exhibit D to the Yanofsky Declaration, # 8 Exhibit E to the Yanofsky Declaration, # 9 Exhibit F to the Yanofsky Declaration, # 10 Exhibit G to the Yanofsky Declaration, # 11 Index of Exhibits to Yanofsky Declaration, # 12 Text of Proposed Order, # 13 Certificate of Service)(Townsend, KatieLynn) (Entered: 10/31/2016)
2016-10-3122Memorandum in opposition to re 20 MOTION for Summary Judgment filed by DAVID YANOFSKY. (See Docket Entry 21 to view document). (znmw) (Entered: 11/01/2016)
2016-11-3023REPLY to opposition to motion re 20 MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment filed by DEPARTMENT OF COMMERCE. (Attachments: # 1 Statement of Facts (Response))(Kolsky, Joshua) (Entered: 11/30/2016)
2016-11-3024Memorandum in opposition to re 21 Cross MOTION for Summary Judgment and Reply in Support of Defendant's Motion for Summary Judgment filed by DEPARTMENT OF COMMERCE. (Attachments: # 1 Statement of Facts (Response))(Kolsky, Joshua) (Entered: 11/30/2016)
2016-12-1925REPLY to opposition to motion re 21 Cross MOTION for Summary Judgment filed by DAVID YANOFSKY. (Townsend, KatieLynn) (Entered: 12/19/2016)
2017-01-1026NOTICE OF SUBSTITUTION OF COUNSEL by April Denise Seabrook on behalf of All Defendants Substituting for attorney Joshua Kolsky (Seabrook, April) (Entered: 01/10/2017)
2017-02-0627NOTICE of Appearance by Scott Leeson Sroka on behalf of DEPARTMENT OF COMMERCE (Sroka, Scott) (Entered: 02/06/2017)
2017-02-08MINUTE ORDER setting Motions Hearing on Defendant's 20 Motion for Summary Judgment and Plaintiff's 21 Cross-Motion for Summary Judgment for May 16, 2017 at 10:30 AM in Courtroom 17 before Judge Ketanji Brown Jackson. Signed by Judge Ketanji Brown Jackson on 2/8/2017. (lckbj3) (Entered: 02/08/2017)
2017-05-16Minute Entry for proceedings held before Judge Ketanji Brown Jackson: Motion Hearing held on 5/16/2017, re 20 MOTION for Summary Judgment and 21 Cross MOTION for Summary Judgment. Oral arguments heard and motions taken under advisement. (Court Reporter: Barbara DeVico) (gdf) (Entered: 05/16/2017)
2018-03-3028MEMORANDUM AND OPINION. Signed by Judge Ketanji Brown Jackson on 3/30/2018. (lckbj2) (Entered: 03/30/2018)
2018-03-3029ORDER denying 20 Defendant's Motion for Summary Judgment and granting 21 Plaintiff's Motion for Summary Judgment. Signed by Judge Ketanji Brown Jackson on 3/30/2018. (lckbj2) (Entered: 03/30/2018)
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by FOIA Project Staff