Skip to content

Case Detail

[Subscribe to updates]
Case TitleWhitaker et al v. Department of Commerce
DistrictDistrict of Vermont
CityRutland
Case Number5:2017cv00192
Date Filed2017-10-06
Date ClosedOpen
JudgeChief Judge Geoffrey W. Crawford
PlaintiffStephen Whitaker all other similarly situated individuals
PlaintiffDavid Gram all other similarly situated individuals
Case DescriptionStephen Whitaker and David Gram submitted a FOIA request to the Department of Commerce for comments about the use of FirstNet, an independent authority within the National Telecommunications and Information Administration created to construct a nationwide interoperable broadband communications network for first responders. The agency claimed that FirstNet was exempt from the Administrative Procedure Act, which meant it was also exempt from FOIA. The agency did not provide any appeals rights. Whitaker and Gram then filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantDepartment of Commerce
Documents
Docket
Complaint
Complaint attachment 1
Opinion/Order [32]
FOIA Project Annotation: A federal court in Vermont has ruled that the First Responder Network Authority, created by Congress in 2012 to develop a national wireless broadband network and operate the national network, is not subject to FOIA because its authorizing statute specifically exempts it from the Administrative Procedure Act, of which FOIA is a part. Stephen Whitaker and David Gram made a series of FOIA requests to FirstNet, which is run by AT&T by contract, and the National Telecommunications and Information Administration and the Department of Commerce, which oversees FirstNet, for records about public comments pertaining to its state-by-state operation. FirstNet responded by telling Whitaker and Gram that it was exempt from FOIA, while NTIA and Commerce referred the requests to FirstNet to respond. Under 47 U.S.C. § 1426(d)(2), FirstNet is exempt from "chapter 5 of title 5 (commonly referred to as the Administrative Procedures Act)." Whitaker and Gram argued that reference was not intended to include FOIA as well. The court disagreed, noting that "the location of FOIA within Title 5, Chapter 5 of the United States Code is undisputed. . .[T]he common usage of 'APA' to refer to the more familiar elements of the statute does not alter the fact that FOIA is codified in company with the more familiar provisions of the APA within Title 5." Whitaker and Gram argued that the Open FOIA Act of 2009, which amended Exemption 3 to require future exempting provisions to include a statutory reference to FOIA to qualify as an Exemption 3 statute and a vague reference to the APA was not specific enough. The court noted that § 1426(d)(2) was "not a specific exemption of matters from disclosure, but rather a general exemption of an entire administrative agency from all of the obligations of FOIA. A government entity utterly excused from FOIA obligations by statute need not comply with subsections of FOIA that define subclasses of specific information that can be shielded from disclosure. . . [Instead,] it rests on statutory authority located outside the APA which removes FirstNet entirely from the requirements of FOIA." Whitaker and Gram argued that NTIA and Commerce were required to search for records they might have responsive to their requests. But the court agreed with the government that "the unifying principle that emerges from [case law] is that when an agency reasonably determines, based on the nature of the request and the scope of the agency's operations, that it is unlikely to have responsive records and that a search is likely to be futile, it need not proceed with a search." Whitaker and Gram also contended that the government had not prepared privacy impact statements as required by the E-Government Act. The court found this was a separate issue that needed more briefing before reaching the merits.
Issues: Agency, Agency Record
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2017-10-061COMPLAINT-Class Action against Department of Commerce filed by Stephen Whitaker, David Gram. Summons issued. (Attachments: # 1 Civil Cover Sheet)(esb) (Entered: 10/06/2017)
2017-10-102MOTION for Leave to Appear pro hac vice filed by All Plaintiffs. (Attachments: # 1 Affidavit of applicant, # 2 Affidavit of good standing, # 3 Proposed Order)(Appel, Robert) (Entered: 10/10/2017)
2017-10-103FIRST AMENDED COMPLAINT-Class Action against Department of Commerce filed by Stephen Whitaker, David Gram. (Attachments: # 1 Red-lined Amended Complaint)(esb) (Entered: 10/10/2017)
2017-10-114ORDER granting 2 MOTION for Leave to Appear Pro Hac Vice of Kelly (Kel) McClanahan. Signed by Judge Geoffrey W. Crawford on 10/11/2017. (This is a text-only Order. (jal) (Entered: 10/11/2017)
2017-10-125NOTICE OF APPEARANCE by Kelly (Kel) McClanahan, Esq on behalf of David Gram, Stephen Whitaker.(McClanahan, Kelly) (Entered: 10/12/2017)
2017-10-166SUMMONS Returned Executed. Department of Commerce served on 10/13/2017, answer due 12/12/2017.(McClanahan, Kelly) (Entered: 10/16/2017)
2017-10-277STIPULATION of Briefing Schedule (Joint) by David Gram, Stephen Whitaker (McClanahan, Kelly) (Entered: 10/27/2017)
2017-10-278PARTIALLY UNOPPOSED MOTION to Expedite this Case filed by David Gram, Stephen Whitaker. (Attachments: # 1 Proposed Order)(McClanahan, Kelly) Text clarified on 10/30/2017 (law). (Entered: 10/27/2017)
2017-10-279NOTICE OF APPEARANCE by Nikolas P. Kerest, AUSA on behalf of Department of Commerce.(Kerest, Nikolas) (Entered: 10/27/2017)
2017-10-3010MOTION for Partial Summary Judgment filed by David Gram, Stephen Whitaker. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Proposed Order)(McClanahan, Kelly) Attachment descriptions clarified on 10/30/2017 (law). (Main Document 10 replaced on 10/30/2017) (law). (Additional attachment(s) added on 10/30/2017: # 9 Memorandum in Support, # 10 Statement of Facts as to Which There is No Genuine Dispute) (law). (Entered: 10/30/2017)
2017-10-3011NOTICE OF DOCKET ENTRY CORRECTION re: 10 MOTION for Partial Summary Judgment filed by Stephen Whitaker, David Gram. The motion, memorandum in support and statement of facts were combined. The images have been broken apart and replaced on the docket. The images are now separately attached to 10 and this entry. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts as to Which There is No Genuine Dispute) (law) (Entered: 10/30/2017)
2017-10-3112RESPONSE in Opposition re 8 PARTIALLY UNOPPOSED MOTION to Expedite this Case filed by Department of Commerce. (Attachments: # 1 Certificate of Service)(Kerest, Nikolas) (Entered: 10/31/2017)
2017-11-0213ORDER granting 8 PARTIALLY UNOPPOSED MOTION to Expedite this Case. The Court shall expedite this case pursuant to 28 U.S.C. §1857(a). Signed by Judge Geoffrey W. Crawford on 11/2/2017. (esb) (Entered: 11/02/2017)
2017-11-0214STIPULATED BRIEFING SCHEDULE. Defendant's Motion to Dismiss or in the alternative Cross-Motion for Judgment, along with Opposition Brief to 10 MOTION for Partial Summary Judgment due by 11/14/2017. Plaintiff's reply due 11/21/2017. Signed by Judge Geoffrey W. Crawford on 11/2/2017. (esb) (Entered: 11/02/2017)
2017-11-1415MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment filed by Department of Commerce. (Attachments: # 1 Memorandum in Support, # 2 Statement of Disputed Material Facts, # 3 Statement of Undisputed Facts, # 4 Declaration of N. Robinson Coates, # 5 Exhibit 1, # 6 Exhibit 2, # 7 Exhibit 3, # 8 Exhibit 4, # 9 Exhibit 5, # 10 Exhibit 6, # 11 Exhibit 7, # 12 Exhibit 8, # 13 Exhibit 9, # 14 Exhibit 10, # 15 Declaration of Kathy Smith, # 16 Exhibit 1, # 17 Exhibit 2, # 18 Exhibit 3, # 19 Exhibit 4, # 20 Exhibit 5, # 21 Exhibit 6, # 22 Exhibit 7, # 23 Exhibit 8, # 24 Exhibit 9, # 25 Exhibit 10, # 26 Declaration of Michael J. Toland, Ph.D., # 27 Exhibit 1, # 28 Exhibit 2, # 29 Exhibit 3, # 30 Exhibit 4, # 31 Exhibit 5, # 32 Exhibit 6, # 33 Exhibit 7, # 34 Exhibit 8, # 35 Exhibit 9, # 36 Exhibit 10, # 37 Declaration of Brian Hobson, # 38 Exhibit 1, # 39 Declaration of Andrew Katsaros, # 40 Certificate of Service) (same images as 16 ) (Kerest, Nikolas). Added MOTION for Summary Judgment on 11/15/2017 (law). Text clarified on 11/16/2017 (jlh) (Entered: 11/14/2017)
2017-11-1416RESPONSE in Opposition to 10 MOTION for Partial Summary Judgment filed by Department of Commerce. (Attachments: # 1 Statement of Disputed Material Facts in Response to Plaintiffs' Statement of Material Facts as to Which There is No Genuine Dispute, # 2 Statement of Undisputed Facts, # 3 Declaration of Natasha Robinson Coates, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10, # 14 Declaration of Kathy Smith, # 15 Exhibit 1, # 16 Exhibit 2, # 17 Exhibit 3, # 18 Exhibit 4, # 19 Exhibit 5, # 20 Exhibit 6, # 21 Exhibit 7, # 22 Exhibit 8, # 23 Exhibit 9, # 24 Exhibit 10, # 25 Declaration of Michael J. Toland, Ph.D., # 26 Exhibit 1, # 27 Exhibit 2, # 28 Exhibit 3, # 29 Exhibit 4, # 30 Exhibit 5, # 31 Exhibit 6, # 32 Exhibit 7, # 33 Exhibit 8, # 34 Exhibit 9, # 35 Exhibit 10, # 36 Declaration of Brian Hobson, # 37 Exhibit 1, # 38 Declaration of Andrew Katsaros, # 39 Certificate of Service) (same images as 15 ) (law) (Entered: 11/15/2017)
2017-11-2117STIPULATED MOTION to Modify 14 STIPULATED BRIEFING SCHEDULE filed by David Gram, Stephen Whitaker. (Attachments: # 1 Proposed Order)(McClanahan, Kelly) Link corrected on 11/22/2017 (jlh). (Entered: 11/21/2017)
2017-11-2218NOTICE OF APPEARANCE by Marcia Sowles, Esq on behalf of Department of Commerce. (Attachments: # 1 Certificate of Service)(Sowles, Marcia) (Entered: 11/22/2017)
2017-11-2219ORDER granting 17 STIPULATED MOTION to Modify 14 STIPULATED BRIEFING SCHEDULE. Signed by Judge Geoffrey W. Crawford on 11/22/2017. (esb) (Entered: 11/22/2017)
2017-11-2420MOTION for Extension of Time to File Response/Reply as to 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment, 10 MOTION for Partial Summary Judgment filed by David Gram, Stephen Whitaker. (Attachments: # 1 Proposed Order)(McClanahan, Kelly) (Entered: 11/25/2017)
2017-11-2621REPLY to Response to 10 MOTION for Partial Summary Judgment filed by David Gram, Stephen Whitaker. (Attachments: # 1 Exhibit H)(McClanahan, Kelly) (Same image as 22 ) (Entered: 11/26/2017)
2017-11-2622RESPONSE in Opposition to 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment filed by David Gram, Stephen Whitaker. (Attachments: # 1 Exhibit H, # 2 Proposed Order)(McClanahan, Kelly) (Same image as 21 ) (Entered: 11/26/2017)
2017-11-2823NOTICE of Hearing re: 10 MOTION for Partial Summary Judgment, 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment. Hearing set for 12/15/2017 at 1:00 PM in Burlington Courtroom 110 before Judge Geoffrey W. Crawford. (pjl) (Entered: 11/28/2017)
2017-11-3024ORDER granting 20 MOTION for Extension of Time to File Reply re 10 MOTION for Partial Summary Judgment and re 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment. Reply due 11/25/17. Signed by Judge Geoffrey W. Crawford on 11/30/2017. (This is a text-only Order.) (jal) (Entered: 11/30/2017)
2017-12-0125STIPULATED MOTION for Leave to Exceed Page Limit for Reply Brief re 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment filed by Department of Commerce. (Attachments: # 1 Certificate of Service)(Kerest, Nikolas) Text clarified on 12/4/2017 (jlh). (Entered: 12/01/2017)
2017-12-0326STIPULATED MOTION to Waive Local Civil Rule 83.1(b)(4)(B) re hearing on 10 Motion for Partial Summary Judgment and 15 Motion to dismiss for Failure to State a Claim and Motion for Summary Judgment filed by David Gram, Stephen Whitaker. (Attachments: # 1 Proposed Order)(McClanahan, Kelly) Links corrected on 12/4/2017 (jlh). (Entered: 12/03/2017)
2017-12-0427ORDER granting 26 MOTION to Waive Local Civil Rule 83.1(b)(4)(B). Signed by Judge Geoffrey W. Crawford on 12/4/2017. (This is a text-only Order.) (jal) (Entered: 12/04/2017)
2017-12-0428ORDER granting 25 MOTION to Exceed Page Limit. Signed by Judge Geoffrey W. Crawford on 12/4/2017. (This is a text-only Order.) (jal) (Entered: 12/04/2017)
2017-12-0629REPLY to Response to 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment filed by Department of Commerce. (Attachments: # 1 Declaration of Stacy Cheney, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Certificate of Service)(Sowles, Marcia) Attachment names clarified on 12/7/2017 (jlh). (Entered: 12/06/2017)
2017-12-1530MINUTE ENTRY for proceedings held before Judge Geoffrey W. Crawford: Motion Hearing held on 12/15/2017 re: 10 MOTION for Partial Summary Judgment, 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment. K. McClanahan, Esq. present for pltfs. M. Sowles, Esq. & N. Kerest, AUSA present for dft. Court makes inquiries and counsel make statements. ORDERED: 10 MOTION for Partial Summary Judgment, 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment are taken under advisement. (Court Reporter: Anne Henry) (pjl) (Entered: 12/15/2017)
2017-12-2031TRANSCRIPT of Motions Hearing held on 12/15/2017 before Judge Geoffrey W. Crawford. Court Reporter Anne Henry, telephone number 802-747-9193. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/16/2018. Redacted Transcript Deadline set for 1/25/2018. Release of Transcript Restriction set for 3/23/2018. (pjl) (Entered: 12/20/2017)
2017-12-2032DECISION denying 10 Motion for Partial Summary Judgment; granting in part and denying in part 15 Motion to Dismiss for Failure to State a Claim and Motion for Summary Judgment. Counts 1-5 and 16 of the complaint are DISMISSED for failure to state a claim. Summary judgment is granted in favor of the Defendant on Counts 6-15 and 17 and those counts are DISMISSED. The court's decision on Count 18 is RESERVED. Supplemental memorandum re: count 18 is due by defendant no later than 1/19/2018 and by plaintiff no later than 2/3/2018. Signed by Judge Geoffrey W. Crawford on 12/20/2017. (esb) (Entered: 12/20/2017)
2017-12-2233MOTION for Certificate of Appealability (Interlocatory) re: 32 Decision filed by David Gram, Stephen Whitaker. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(McClanahan, Kelly) Event/text clarified, link added on 12/27/2017 (law). (Entered: 12/22/2017)
2018-01-0434RESPONSE in Opposition re 33 MOTION for Certificate of Appealability (Interlocatory) re: 32 Decision filed by Department of Commerce. (Attachments: # 1 Certificate of Service)(Kerest, Nikolas) (Entered: 01/04/2018)
2018-01-1835REPLY to Response to 33 MOTION for Certificate of Appealability (Interlocatory) re: 32 Decision filed by David Gram, Stephen Whitaker. (McClanahan, Kelly) (Entered: 01/18/2018)
2018-01-1936SUPPLEMENTAL MEMORANDUM by Department of Commerce re: 15 MOTION for Summary Judgment. (Attachments: # 1 Certificate of Service)(Sowles, Marcia) Text clarified, link removed on 2/2/2018 (law). (Entered: 01/19/2018)
2018-02-0137STIPULATED DISCOVERY LETTER SENT re: no stipulated discovery schedule filed; case may be placed on the master calendar unless stipulated schedule is filed. (pjl) (Entered: 02/01/2018)
2018-02-0538JOINT MOTION to Stay Local Rule 26(a) filed by Department of Commerce. (Attachments: # 1 Certificate of Service)(Kerest, Nikolas) (Entered: 02/05/2018)
2018-02-0539STIPULATED MOTION for Extension of Time to File Response/Reply re: 15 MOTION for Summary Judgment filed by David Gram, Stephen Whitaker. (Attachments: # 1 Proposed Order)(McClanahan, Kelly) Event/text clarified, link added on 2/6/2018 (jlh). (Entered: 02/05/2018)
2018-02-0640ORDER granting 38 MOTION to Stay Local Rule 26(a). Signed by Chief Judge Geoffrey W. Crawford on 2/6/2018. (This is a text-only Order.) (jal) (Entered: 02/06/2018)
2018-02-0641ORDER granting 39 STIPULATED MOTION for Extension of Time to File Response/Reply re: 15 MOTION for Summary Judgment. Supplemental memorandum re: 15 Motion for Summary Judgment re: count 18 is due 2/7/2018. Signed by Chief Judge Geoffrey W. Crawford on 2/6/2018. (esb) (Entered: 02/06/2018)
2018-02-0742SUPPLEMENTAL MEMORANDUM by David Gram, Stephen Whitaker re: 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment. (McClanahan, Kelly) Link corrected on 2/8/2018 (jlh). (Entered: 02/08/2018)
2018-02-1543MOTION for Leave to File A Reply Brief In Response To Supplemental Brief re: 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment filed by Department of Commerce. (Attachments: # 1 Certificate of Service)(Kerest, Nikolas) Event/text clarified, link added on 2/16/2018 (law). (Entered: 02/15/2018)
2018-02-2144REPLY to Supplemental Brief re: 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment by Department of Commerce. (Attachments: # 1 Declaration of Paul Madison, # 2 Certificate of Service)(Sowles, Marcia) Text/link clarified on 2/22/2018 (law). (Entered: 02/21/2018)
2018-02-2145RESPONSE in Opposition re 43 MOTION for Leave to File A Reply Brief In Response To Supplemental Brief re: 15 MOTION to Dismiss for Failure to State a Claim and MOTION for Summary Judgment filed by David Gram, Stephen Whitaker. (Attachments: # 1 Proposed Order)(McClanahan, Kelly) (Entered: 02/21/2018)
Hide Docket Events
by FOIA Project Staff