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Case TitleCITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, et al. v. U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2018cv00114
Date Filed2018-01-18
Date ClosedOpen
JudgeJudge Carl J. Nichols
PlaintiffCITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON
PlaintiffFREEDOM FROM RELIGION FOUNDATION
Case DescriptionCitizens for Responsibility and Ethics in Washington submitted a FOIA request to the Department of Housing and Urban Development for records concerning the involvement of Secretary Ben Carson's family in the department. CREW asked for a fee waiver and inclusion in the news media fee category. The agency denied CREW's request for a fee waiver. CREW filed an administrative appeal of the agency's denial of its fee waiver request. CREW submitted a second FOIA for records concerning Carson's travel expenses. CREW asked for a fee waiver, which was denied. CREW filed an administrative appeal of that decision to deny CREW's fee waiver request. The Freedom from Religion Foundation submitted a FOIA request to HUD for records concerning contacts with Capitol Ministries, an organization whose goal was to evangelize elected officials. FFRF also requested a fee waiver. The agency defined FFRF's fee waiver request. FFRF filed an administrative appeal of the decision to deny its fee waiver request. That appeal was also denied. FFRF then filed a second FOIA request for records concerning the Revive Us 2 event Carson had attended at the Museum of the Bible. FFRF requested a fee waiver for that request. The agency denied FFRF's request for a fee waiver. FFRF filed an administrative appeal of the denial of its fee waive request, which was denied. Both CREW and FFRF then filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees, Public Interest Fee Waiver

DefendantU.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [30]
FOIA Project Annotation: Judge Carl Nichols has ruled that a policy or practice claim made by CREW and the Freedom from Religion Foundation challenging the Department of Housing and Urban Development's policy of immediately rejecting fee waiver requests may continue but that because the agency did not charge fees for the two requests submitted by both CREW and FFRF those allegations are now moot. Since the Trump administration began, HUD has revised its fee waiver policy to routinely deny fee waivers with little or no analysis. Further, it routinely ignores requests for inclusion in the preferential fee category for news media or educational institutions. To challenge these policy changes, CREW and FFRF submitted a series of FOIA requests, asking for a fee waiver and indicating that they qualified for the news media fee category. CREW and FFRF told HUD that as frequent requesters, they were likely to continue to make requests to HUD. After the agency denied CREW's fee waiver requests, CREW filed administrative appeals. The agency denied its appeals and told CREW that its request for inclusion in the new media fee category was not ripe for appeal. The agency also denied requests from FFRF for fee waiver and inclusion in the news media fee category. FFRF also appealed those decisions. The agency subsequently denied the appeals, explaining that one request would not shed light on agency operations and that FFRF had failed to show how it intended to disseminate information from its second request to the general public. CREW and FFRF filed suit jointly, challenging the fee waiver decisions and including a policy or practice claim. In responding to the four requests, HUD decided to waive all the fees. HUD argued that because it had waived the fees for all the requests, the entire suit was moot. CREW and FFRF argued that their four FOIA requests were not moot because the agency had not yet competed processing them. Noting that "there is less to this dispute than the Parties contend," Nichols pointed out that "HUD is correct that the plain language of the counts alleges no FOIA violation beyond a wrongful denial of fees and a failure to address CREW's claimed news media status. The Complaint does not allege a failure to produce documents in a timely fashion or improper withholding of documents under FOIA's permitted exemptions. For this reason and because HUD waived fees for the requests, Courts II-IV are moot. If HUD were to change its mind and charge fees for these requests, Plaintiffs would be entitled to resurrect their claims." Nichols also decided to dismiss CREW's claim for inclusion in the news media fee category since "that request either is outside the scope of the Complaint or overlaps with the illegal policy-or-practice allegation contained in Count I." Nichols then observed that the D.C. Circuit had recently ruled in Judicial Watch v. Dept of Homeland Security, 895 F.3d 770 (D.C. Cir. 2018), that the policy or pattern cause of action first identified in Payne Enterprises v. United States, 837 F.2d 486 (D.C. Cir. 1988), extended to violations of the statutory times limits as well. He noted that "here, Count I states a claim under Payne. CREW and FFRF allege that HUD 'is engaged in a policy and practice of violating the FOIA's fee waiver provisions by intentionally refusing to grant fee waivers to non-profit, public interest organizations that satisfy all the statutory and regulatory criteria. . .where disclosure of the requested documents is likely to cast the agency or HUD Secretary Ben Carson in a negative light.'" HUD argued that CREW and FFRF had not shown that the agency was acting in bad faith in denying fee waiver requests. But Nichols observed that "once again, that is a question for summary judgment. It may be the case that HUD engages in a good faith effort to exercise its authority over fee waivers; or perhaps it has a practice of denying every waiver request in the hope that requesters will abandon their efforts. But on a motion to dismiss, the question is merely whether the Complaint adequately alleges a persistent, willful policy of violating FOIA's commands. It does."
Issues: Public Interest Fee Waiver
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2018-01-181COMPLAINT against U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT ( Filing fee $ 400 receipt number 0090-5292251) filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Civil Cover Sheet, # 2 Summons HUD, # 3 Summons Attorney General, # 4 Summons U.S. Attorney)(Weismann, Anne) (Entered: 01/18/2018)
2018-01-182LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Weismann, Anne) (Entered: 01/18/2018)
2018-01-183LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by FREEDOM FROM RELIGION FOUNDATION (Weismann, Anne) (Entered: 01/18/2018)
2018-01-18Case Assigned to Judge Ketanji Brown Jackson. (jd) (Entered: 01/18/2018)
2018-01-194SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(jd) (Entered: 01/19/2018)
2018-02-015RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 01/26/2018. (Weismann, Anne) (Entered: 02/01/2018)
2018-02-016RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 1/26/2018. Answer due for ALL FEDERAL DEFENDANTS by 2/25/2018. (Weismann, Anne) (Entered: 02/01/2018)
2018-02-017RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT served on 1/26/2018 (Weismann, Anne) Modified party served on 2/2/2018 (znmw). (Entered: 02/01/2018)
2018-02-068GENERAL 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 and filing exhibits. 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 2/6/2018. (lckbj1) (Entered: 02/06/2018)
2018-02-129NOTICE of Appearance by Jeremy S. Simon on behalf of U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (Simon, Jeremy) (Entered: 02/12/2018)
2018-02-2210Unopposed MOTION for Extension of Time to Answer or Otherwise Respond to the Complaint by U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 02/22/2018)
2018-02-22MINUTE ORDER granting, for good cause shown, 10 Unopposed Motion for Extension of Time to Respond to Complaint. It is hereby ORDERED that Defendant shall answer or otherwise respond to the complaint on or before 3/29/2018. Signed by Judge Ketanji Brown Jackson on 02/22/2018. (lckbj1) (Entered: 02/22/2018)
2018-02-2311MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Patrick C. Elliott, :Firm- Freedom From Religion Foundation, :Address- 10 N. Henry St., Madison, WI 53703. Phone No. - 608-256-8900. Fax No. - 608-204-0422 Fee Status: No Fee Paid. by FREEDOM FROM RELIGION FOUNDATION (Attachments: # 1 Exhibit Index of Exhibits, # 2 Declaration Decl. of Patrick Elliott, # 3 Exhibit Application to Proceed Pro Hoc Vice, # 4 Exhibit Receipt, # 5 Text of Proposed Order)(Weismann, Anne) (Entered: 02/23/2018)
2018-02-27MINUTE ORDER granting 11 Motion for Leave to Appear Pro Hac Vice. It is hereby ORDERED that Patrick C. Elliott is admitted pro hac vice in this matter as counsel for Freedom From Religion Foundation. Signed by Judge Ketanji Brown Jackson on 02/27/2018. (lckbj1) (Entered: 02/27/2018)
2018-03-0612NOTICE of Appearance by Patrick C. Elliott on behalf of FREEDOM FROM RELIGION FOUNDATION (Elliott, Patrick) (Entered: 03/06/2018)
2018-03-2913MOTION to Dismiss and Supporting Memorandum by U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (Attachments: # 1 Supporting Memorandum, # 2 Proposed Order, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhbit 15, # 18 Exhibit 16)(Simon, Jeremy) (Entered: 03/29/2018)
2018-04-0214Unopposed MOTION for Extension of Time to File Response/Reply as to 13 MOTION to Dismiss and Supporting Memorandum by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, FREEDOM FROM RELIGION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Weismann, Anne) (Entered: 04/02/2018)
2018-04-03MINUTE ORDER granting, for good cause shown, 14 Unopposed Motion for Extension of Time to File Response re 13 Motion to Dismiss. It is hereby ORDERED that Plaintiffs' response re 13 is due on or before 4/30/2018. Signed by Judge Ketanji Brown Jackson on 04/03/2018. (lckbj1) (Entered: 04/03/2018)
2018-04-3015Memorandum in opposition to re 13 MOTION to Dismiss and Supporting Memorandum filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, FREEDOM FROM RELIGION FOUNDATION. (Attachments: # 1 Appendix, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Text of Proposed Order)(Weismann, Anne) (Entered: 04/30/2018)
2018-05-0116Consent MOTION for Extension of Time to File Reply in Support of Motion to Dismiss by U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 05/01/2018)
2018-05-02MINUTE ORDER granting, for good cause shown, 16 Consent Motion for Extension of Time to File Reply re 13 Motion to Dismiss. It is hereby ORDERED that Defendant's Reply is due on or before 5/24/2018. Signed by Judge Ketanji Brown Jackson on 5/2/2018. (lckbj1) (Entered: 05/02/2018)
2018-05-2317REPLY to opposition to motion re 13 MOTION to Dismiss and Supporting Memorandum filed by U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT. (Simon, Jeremy) (Entered: 05/23/2018)
2018-10-1218MOTION for Leave to File Surreply by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, FREEDOM FROM RELIGION FOUNDATION (Attachments: # 1 Exhibit Index, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Weismann, Anne) Modified on 10/15/2018 to correct docket event/text (jf). (Entered: 10/12/2018)
2018-10-2419Memorandum in opposition to re 18 MOTION for Leave to File Surreply filed by U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT. (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 10/24/2018)
2018-10-2620REPLY to opposition to motion re 18 MOTION for Leave to File Surreply filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, FREEDOM FROM RELIGION FOUNDATION. (Weismann, Anne) (Entered: 10/26/2018)
2018-11-1321NOTICE of Change of Address by Anne L. Weismann (Weismann, Anne) (Entered: 11/13/2018)
2019-01-09MINUTE ORDER. Per this Court's Minute Order in Citizens for Responsibility and Ethics in Washington v. U.S. Department of Housing and Urban Development, 18-cv-2737, that case has been consolidated with the instant case. As a result, it is hereby ORDERED that any further filings in either case shall be filed in this case, No. 18-cv-114. In light of this consolidation, it is FURTHER ORDERED that the pending 13 Motion to Dismiss and 18 Motion for Leave to File Surreply are DENIED without prejudice, and that within 14 days of the restoration of appropriations to Defendant, the parties shall promptly confer and file a joint proposed schedule for further proceedings in this consolidated action. Signed by Judge Ketanji Brown Jackson on 1/9/2019. (lckbj1) (Entered: 01/09/2019)
2019-02-0722Joint STATUS REPORT by U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT. (Simon, Jeremy) (Entered: 02/07/2019)
2019-03-0523MOTION to Dismiss by U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20)(Simon, Jeremy) (Entered: 03/05/2019)
2019-03-2224Memorandum in opposition to re 23 MOTION to Dismiss filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, FREEDOM FROM RELIGION FOUNDATION. (Attachments: # 1 Exhibit Index, # 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 Text of Proposed Order)(Weismann, Anne) (Entered: 03/22/2019)
2019-03-2725Consent MOTION for Extension of Time to File Reply in Support of Motion to Dismiss by U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 03/27/2019)
2019-04-05MINUTE ORDER granting, for good cause shown, 25 Consent Motion for Extension of Time to File Reply in Support of 23 Motion to Dismiss. It is hereby ORDERED that Defendant's reply re 23 is due on or before 4/23/2019. Signed by Judge Ketanji Brown Jackson on 4/5/2019. (lckbj1) (Entered: 04/05/2019)
2019-04-09Set/Reset Deadlines: Replies due by 4/23/2019. (tj) (Entered: 04/09/2019)
2019-04-2326REPLY to opposition to motion re 23 MOTION to Dismiss filed by U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT. (Simon, Jeremy) (Entered: 04/23/2019)
2019-06-24Case directly reassigned to Judge Carl J. Nichols. Judge Ketanji Brown Jackson is no longer assigned to the case. (ztnr) (Entered: 06/24/2019)
2019-10-0727ORDER directing the Parties to file a Joint Status Report. Signed by Judge Carl J. Nichols on October 7, 2019. (lccjn2) (Entered: 10/07/2019)
2019-10-07Set/Reset Deadlines/Hearings: Joint Status Report due by 10/21/2019. (zcdw) (Entered: 10/08/2019)
2019-10-2128Joint STATUS REPORT by U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT. (Simon, Jeremy) (Entered: 10/21/2019)
2019-11-2529ORDER granting in part and denying in part Defendant's 23 Motion to Dismiss. Signed by Judge Carl J. Nichols on November 25, 2019. (lccjn2) (Entered: 11/25/2019)
2019-11-2530MEMORANDUM AND OPINION. Signed by Judge Carl J. Nichols on November 25, 2019. (lccjn2) (Entered: 11/25/2019)
2019-11-25Set/Reset Deadlines: Joint Motion For A Proposed Scheduling Order due by 12/23/2019. (mac) (Entered: 11/25/2019)
2019-12-1631Consent MOTION for Extension of Time to File Answer and for Parties to File Joint Motion for Proposed Scheduling Order by U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 12/16/2019)
2019-12-17MINUTE ORDER. Upon review of Defendant's 31 Motion for Extension of Time to Answer, it is hereby ORDERED that the Motion is GRANTED. Defendant shall answer the consolidated Complaints by January 13, 2020. It is further ORDERED that the Parties' deadline to file a proposed scheduling order is reset to January 30, 2020. Signed by Judge Carl J. Nichols on December 17, 2019. (lccjn2) (Entered: 12/17/2019)
2019-12-17Set/Reset Deadlines/Hearings: Answer to consolidated Complaints due by 1/13/2020. Proposed scheduling order due by 1/30/2020. (zcdw) (Entered: 12/19/2019)
2020-01-1332ANSWER to Complaint in Case No. 0114 by U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT.(Simon, Jeremy) (Entered: 01/13/2020)
2020-01-1333ANSWER to Complaint in 18-2737 by U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT.(Simon, Jeremy) (Entered: 01/13/2020)
2020-01-3034Joint MOTION for Scheduling Order (Joint Motion Proposing a Schedule for Further Proceedings) by U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 01/30/2020)
2020-01-3035ERRATA (Defendant's Errata Re: Joint Motion Proposing a Schedule for Further Proceedings) by U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 34 Joint MOTION for Scheduling Order (Joint Motion Proposing a Schedule for Further Proceedings) filed by U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT. (Attachments: # 1 Proposed Order (corrected))(Simon, Jeremy) (Entered: 01/30/2020)
2020-02-0336SCHEDULING ORDER. Signed by Judge Carl J. Nichols on February 3, 2020. (lccjn2) (Entered: 02/03/2020)
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