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Case TitleEverytown for Gun Safety Support Fund v. Bureau of Alcohol, Tobacco, Firearms, and Explosives
DistrictSouthern District of New York
CityFoley Square
Case Number1:2018cv02296
Date Filed2018-03-15
Date Closed2019-08-21
JudgeJudge Alison J. Nathan
PlaintiffEverytown for Gun Safety Support Fund
Case DescriptionEverytown for Gun Safety Support Fund submitted a FOIA request to the Bureau of Alcohol, Tobacco and Firearms for statistical data on a national and state-by-state level pertaining to guns used in suicides or attempted suicides that were recovered by law enforcement and traced by ATF. ATF denied the request on the basis of 2012 Appropriations Act prohibiting the agency from spending funds to process FOIA requests pertaining to gun traces. Everytown filed an administrative appeal and the agency's decision was upheld by the Office of Information Policy. Everytown for Gun Safety Support Fund then filed suit.
Complaint issues: Litigation - Attorney's fees

DefendantBureau of Alcohol, Tobacco, Firearms, and Explosives
AppealSecond Circuit 19-3438
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Opinion/Order [38]
FOIA Project Annotation: Acknowledging that the case law was against her, District Court Judge Alison Nathan has ruled that the Tiahrt Rider, which prohibits the Bureau of Alcohol, Tobacco and Firearms from expending funds to process FOIA requests for gun trace data, does not qualify under Exemption 3 (other statutes) because it does not cite to FOIA as required under the 2009 OPEN FOIA Act. The case was brought by the Everytown for Gun Safety Support Fund after the agency refused to process its FOIA request for data pertaining to firearms used in suicides or attempted suicides that were recovered by law enforcement and traced by ATF because of the funding prohibition included in the Tiahrt Rider. Nathan started by explaining that the Tiahrt Rider was first passed in 2003 and continued to be reenacted with occasional changes through 2012. But Nathan observed that "here, the potential statutory bar to disclosure is the current provision of the Tiahrt Rider, which was passed in 2012 " three years after the 2009 OPEN FOIA Act. Yet, the 2012 Tiahrt Rider contains no specific citation to 552(b)(3). Without that, the 2012 Tiahrt Rider cannot qualify as an Exemption 3 statute." ATF argued that the pre-2009 version of the Tiahrt Rider continued to apply, meaning that because it pre-existed the OPEN FOIA Act, it was not required to cite to that revision. Nathan disagreed. She noted that "this argument by the government fails because Congress's subsequent acts, including the currently operative 2012 Rider, cover the whole subject of the earlier acts and are a substitute for the earlier acts. As a result, the pre-2009 versions of the Tiahrt Rider that the government seeks to rely upon are no longer operative." Nathan emphasized that "the Riders' text and structure makes clear that Congress intended to revise and replace the earlier statutes with the new ones." She added that allowing the Tiahrt Rider to be considered a pre-2009 statute for Exemption 3 purposes would run afoul of congressional intent in passing the OPEN FOIA Act. She observed that "if Congress intended to ensure that no citation to section 552(b)(3) was required for reenactment of new versions of earlier statutes, it could have clarified that Congress was not required to include a clear statement rule in such circumstances. It did not do so." Nathan explained that "ATF's argument. . .is that failing to identify the Tiahrt Rider as a qualifying Exemption 3 statute frustrates a competing statutory purpose: protecting Firearms Trace System database information from FOIA disclosure. But insofar as Congress wished to enact statutes that would exempt Firearms Trace System Database data from disclosure following the enactment of the OPEN FOIA Act, it gave itself explicit directions for how to do so." Acknowledging that other courts had found that Congress had renewed the pre-2009 Tiahrt Rider rather than enacting a new (b)(3) statute after passage of the OPEN FOIA Act, Nathan indicated that "the argument, which certainly has strong intuitive sway, fails to examine at all the persuasive evidence that Congress intended to comprehensively replace each prior version of the Tiahrt Rider. In particular, it does not examine how the pre-2009 enactments may remain in effect after Congress passed new, comprehensive versions altering the applicable evidence." Nathan also rejected ATF's argument that responding to Everytown's request would constitute creating a record by requiring the agency to clean up existing data to respond to the specific parameters of Everytown's request. Nathan pointed out that "ATF concedes that the search required to generate the raw data Everytown requests is required by FOIA and that producing equivalent data counts from a paper records system would not constitute record creation." She added that "that the agency might be required to compile the resulting information into a response is a standard feature of FOIA requests, not a basis for concluding that the request asks the agency to go beyond its FOIA obligations."
Issues: Exemption 3 - Provision must cite to FOIA
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2018-03-151COMPLAINT against Bureau of Alcohol, Tobacco, Firearms, and Explosives. (Filing Fee $ 400.00, Receipt Number 0208-14815331)Document filed by Everytown for Gun Safety Support Fund. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Lefkowitz, Alla) (Entered: 03/15/2018)
2018-03-152CIVIL COVER SHEET filed. (Lefkowitz, Alla) (Entered: 03/15/2018)
2018-03-153REQUEST FOR ISSUANCE OF SUMMONS as to Bureau of Alcohol, Tobacco, Firearms, and Explosives, re: 1 Complaint,. Document filed by Everytown for Gun Safety Support Fund. (Lefkowitz, Alla) (Entered: 03/15/2018)
2018-03-154RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Everytown for Gun Safety Support Fund.(Lefkowitz, Alla) (Entered: 03/15/2018)
2018-03-155NOTICE OF APPEARANCE by Eric Anders Tirschwell on behalf of Everytown for Gun Safety Support Fund. (Tirschwell, Eric) (Entered: 03/15/2018)
2018-03-156NOTICE OF APPEARANCE by Lawrence S. Lustberg on behalf of Everytown for Gun Safety Support Fund. (Lustberg, Lawrence) (Entered: 03/15/2018)
2018-03-16***NOTICE TO ATTORNEY REGARDING CIVIL CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Alla Lefkowitz. The following case opening statistical information was erroneously selected/entered: Fee Status code due (due). The following correction has been made to your case entry: the Fee Status code has been modified to pd (paid). (pne) (Entered: 03/16/2018)
2018-03-16CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Alison J. Nathan. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District . Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php . (pne) (Entered: 03/16/2018)
2018-03-16Magistrate Judge Robert W. Lehrburger is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php . (pne) (Entered: 03/16/2018)
2018-03-16Case Designated ECF. (pne) (Entered: 03/16/2018)
2018-03-167ELECTRONIC SUMMONS ISSUED as to Bureau of Alcohol, Tobacco, Firearms, and Explosives. (pne) (Entered: 03/16/2018)
2018-03-198NOTICE OF INITIAL PRETRIAL CONFERENCE: This case has been assigned to me for all purposes. It is hereby ORDERED that counsel for all parties appear for an initial pretrial conference with the Court on Friday, July 20th, 2018 at 3:00 pm in Courtroom 906 of the United States District Court for the Southern District of New York, Thurgood Marshall U.S. Courthouse at 40 Foley Square, New York, New York. Initial Conference set for 7/20/2018 at 3:00 PM in Courtroom 906, 40 Centre Street, New York, NY 10007 before Judge Alison J. Nathan. (Signed by Judge Alison J. Nathan on 3/19/2018) (js) (Entered: 03/19/2018)
2018-04-049NOTICE OF APPEARANCE by Tomoko Onozawa on behalf of Bureau of Alcohol, Tobacco, Firearms, and Explosives. (Onozawa, Tomoko) (Entered: 04/04/2018)
2018-04-2010CERTIFICATE OF SERVICE. Bureau of Alcohol, Tobacco, Firearms, and Explosives served on 3/28/2018, answer due 4/18/2018. Service was made by Mail. Document filed by Everytown for Gun Safety Support Fund. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Lustberg, Lawrence) (Entered: 04/20/2018)
2018-04-2311ANSWER to 1 Complaint,. Document filed by Bureau of Alcohol, Tobacco, Firearms, and Explosives.(Onozawa, Tomoko) (Entered: 04/23/2018)
2018-06-2112NOTICE OF APPEARANCE by Avram David Frey on behalf of Everytown for Gun Safety Support Fund. (Frey, Avram) (Entered: 06/21/2018)
2018-07-1213LETTER MOTION to Adjourn Conference and Concerning Case Management Plan and Summary Judgment Briefing Schedule addressed to Judge Alison J. Nathan from Lawrence S. Lustberg dated July 12, 2018. Document filed by Everytown for Gun Safety Support Fund. (Attachments: # 1 Exhibit)(Lustberg, Lawrence) (Entered: 07/12/2018)
2018-07-1314ORDER granting 13 Letter Motion to Adjourn Conference. The parties' joint request to be relieved of their obligation to submit a proposed Case Management Plan is GRANTED. The Court also SO ORDERS the parties' proposed briefing schedule for summary judgment practice. Accordingly, the initial pretrial conference previously scheduled for July 20, 2018 is hereby adjourned sine die. (Signed by Judge Alison J. Nathan on 7/13/2018) (cf) (Entered: 07/13/2018)
2018-09-1215LETTER MOTION for Extension of Time to File Cross-Motions for Summary Judgment addressed to Judge Alison J. Nathan from AUSA Tomoko Onozawa dated 9/12/2018. Document filed by Bureau of Alcohol, Tobacco, Firearms, and Explosives.(Onozawa, Tomoko) (Entered: 09/12/2018)
2018-09-1316ORDER granting 15 Letter Motion for Extension of Time to File: SO ORDERED. (Signed by Judge Alison J. Nathan on 9/12/2018) (jwh) (Entered: 09/14/2018)
2018-09-13Set/Reset Deadlines: Motions due by 9/28/2018. Cross Motions due by 11/2/2018. Responses due by 11/16/2018. Replies due by 11/30/2018. (jwh) (Entered: 09/14/2018)
2018-09-2817MOTION for Summary Judgment . Document filed by Bureau of Alcohol, Tobacco, Firearms, and Explosives. Responses due by 11/2/2018(Onozawa, Tomoko) (Entered: 09/28/2018)
2018-09-2818MEMORANDUM OF LAW in Support re: 17 MOTION for Summary Judgment . . Document filed by Bureau of Alcohol, Tobacco, Firearms, and Explosives. (Onozawa, Tomoko) (Entered: 09/28/2018)
2018-09-2819DECLARATION of Charles J. Houser in Support re: 17 MOTION for Summary Judgment .. Document filed by Bureau of Alcohol, Tobacco, Firearms, and Explosives. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Onozawa, Tomoko) (Entered: 09/28/2018)
2018-09-2820LETTER MOTION for Leave to File Signed Declaration of Charles J. Houser, previously filed as ECF No. 19 addressed to Judge Alison J. Nathan from AUSA Tomoko Onozawa dated 9/28/2018. Document filed by Bureau of Alcohol, Tobacco, Firearms, and Explosives.(Onozawa, Tomoko) (Entered: 09/28/2018)
2018-10-0121DECLARATION of Charles J. Houser in Support re: 17 MOTION for Summary Judgment .. Document filed by Bureau of Alcohol, Tobacco, Firearms, and Explosives. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Onozawa, Tomoko) (Entered: 10/01/2018)
2018-10-0222ORDER granting 20 Letter Motion for Leave to File Document. The ATF may submit the declaration described below on October 1, 2018. This resolves Dkt. No. 20. (Signed by Judge Alison J. Nathan on 10/2/2018) (tro) (Entered: 10/02/2018)
2018-11-0223NOTICE OF APPEARANCE by James E. Miller on behalf of Everytown for Gun Safety Support Fund. (Miller, James) (Entered: 11/02/2018)
2018-11-0224FILING ERROR - DEFICIENT DOCKET ENTRY - CROSS MOTION for Summary Judgment . Document filed by Everytown for Gun Safety Support Fund. Responses due by 11/16/2018 (Attachments: # 1 Brief in Support of Cross Motion for Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment, # 2 Affidavit Attorney Alla Lefkowitz, # 3 Exhibit Exhibits A-H)(Lustberg, Lawrence) Modified on 12/18/2018 (ldi). (Entered: 11/02/2018)
2018-11-0225LETTER MOTION for Oral Argument regarding Cross Motions for Summary Judgment addressed to Judge Alison J. Nathan from Lawrence S. Lustberg, Esq. dated 11/2/2018. Document filed by Everytown for Gun Safety Support Fund.(Lustberg, Lawrence) (Entered: 11/02/2018)
2018-11-1626REPLY MEMORANDUM OF LAW in Support re: 17 MOTION for Summary Judgment . and in Opposition to Plaintiff's Cross-Motion for Summary Judgment . Document filed by Bureau of Alcohol, Tobacco, Firearms, and Explosives. (Onozawa, Tomoko) (Entered: 11/16/2018)
2018-11-1627DECLARATION of Charles J. Houser (Supplemental Declaration) in Support re: 17 MOTION for Summary Judgment .. Document filed by Bureau of Alcohol, Tobacco, Firearms, and Explosives. (Attachments: # 1 Exhibit D, # 2 Exhibit E)(Onozawa, Tomoko) (Entered: 11/16/2018)
2018-11-3028FILING ERROR - DEFICIENT DOCKET ENTRY - REPLY MEMORANDUM OF LAW in Support re: 24 CROSS MOTION for Summary Judgment . . Document filed by Everytown for Gun Safety Support Fund. (Attachments: # 1 Affidavit Alla Lefkowitz, Esq., # 2 Exhibit Exhs. A-D)(Lustberg, Lawrence) Modified on 12/18/2018 (ldi). (Entered: 11/30/2018)
2018-12-18***NOTICE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Notice to Attorney Lawrence S. Lustberg to RE-FILE Document 24 CROSS MOTION for Summary Judgment . ERROR(S): Supporting documents must be filed separately, each receiving their own document number. Declaration in Support of Motion and Memorandum of Law in Support of Motion are both found under the event list Replies, Opposition and Supporting Documents. (ldi) (Entered: 12/18/2018)
2018-12-18***NOTICE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Notice to Attorney Lawrence S. Lustberg to RE-FILE Document 28 Reply Memorandum of Law in Support of Motion. ERROR(S): Supporting documents must be filed separately, each receiving their own document number. Declaration in Support of Motion is found under the event list Replies, Opposition and Supporting Documents. (ldi) (Entered: 12/18/2018)
2018-12-1829CROSS MOTION for Summary Judgment . Document filed by Everytown for Gun Safety Support Fund.(Lustberg, Lawrence) (Entered: 12/18/2018)
2018-12-1830MEMORANDUM OF LAW in Support re: 29 CROSS MOTION for Summary Judgment . . Document filed by Everytown for Gun Safety Support Fund. (Lustberg, Lawrence) (Entered: 12/18/2018)
2018-12-1831DECLARATION of Alla Lefkowitz, Esq. in Support re: 29 CROSS MOTION for Summary Judgment .. Document filed by Everytown for Gun Safety Support Fund. (Attachments: # 1 Exhibit A-H)(Lustberg, Lawrence) (Entered: 12/18/2018)
2018-12-1832REPLY MEMORANDUM OF LAW in Support re: 29 CROSS MOTION for Summary Judgment . . Document filed by Everytown for Gun Safety Support Fund. (Lustberg, Lawrence) (Entered: 12/18/2018)
2018-12-1833DECLARATION of Alla Lefkowitz, Esq. in Support re: 29 CROSS MOTION for Summary Judgment .. Document filed by Everytown for Gun Safety Support Fund. (Attachments: # 1 Exhibit A-D)(Lustberg, Lawrence) (Entered: 12/18/2018)
2018-12-2734STANDING ORDER M10-468: The United States Attorney's Office shall notify the Court immediately upon the restoration of Department of Justice funding. (As further set forth in this Order.) (Signed by Judge Colleen McMahon on 12/27/2018) (mro) (Entered: 01/02/2019)
2018-12-27Case Stayed (mro) (Entered: 01/14/2019)
2019-01-2535NOTICE OF CHANGE OF ADDRESS by James E. Miller on behalf of Everytown for Gun Safety Support Fund. New Address: Everytown Law, 450 Lexington Ave, #4184, New York, NY, United States 10017,. (Miller, James) (Entered: 01/25/2019)
2019-03-0536LETTER addressed to Judge Alison J. Nathan from AUSA Tomoko Onozawa dated 3/5/2019 re: the parties' cross-motions for summary judgment. Document filed by Bureau of Alcohol, Tobacco, Firearms, and Explosives.(Onozawa, Tomoko) (Entered: 03/05/2019)
2019-08-0637ORDER granting 25 Letter Motion for Oral Argument. The Court will hold oral argument on the cross-motions for summary judgment currently pending in the above-captioned matter on Monday, August 12, 2019 at 10 a.m. This resolves Dkt. No. 25. So Ordered. (Signed by Judge Alison J. Nathan on 8/6/2019) (js) Modified on 8/7/2019 (js). (Entered: 08/07/2019)
2019-08-06Set/Reset Hearings: Oral Argument set for 8/12/2019 at 10:00 AM before Judge Alison J. Nathan. (js) (Entered: 08/07/2019)
2019-08-12Minute Entry for proceedings held before Judge Alison J. Nathan. Oral Argument held. Decision reserved. See transcript for complete details. (Court Reporter Raquel Robles) (qs) (Entered: 08/12/2019)
2019-08-1938OPINION & ORDER re: 29 CROSS MOTION for Summary Judgment . filed by Everytown for Gun Safety Support Fund, 17 MOTION for Summary Judgment . filed by Bureau of Alcohol, Tobacco, Firearms, and Explosives. For the foregoing reasons, ATF's motion for summary judgment is DENIED, and Everytown's motion for summary judgment is GRANTED. The ATF is hereby ordered to produce the requested records. The Clerk of Court is respectfully requested to enter judgment and close this case. This resolves Dkt. Nos. 17 and 29. SO ORDERED. (Signed by Judge Alison J. Nathan on 8/19/2019) (kv) Transmission to Orders and Judgments Clerk for processing. (Entered: 08/19/2019)
2019-08-2139CLERK'S JUDGMENT re: 38 Memorandum & Opinion. in favor of Everytown for Gun Safety Support Fund against Bureau of Alcohol, Tobacco, Firearms, and Explosives. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion and Order dated August 19, 2019, ATF's motion for summary judgment is denied, and Everytown's motion for summary judgment is granted; the ATF is hereby ordered to produce the requested records; accordingly, this case is closed. (Signed by Clerk of Court Ruby Krajick on 08/21/2019) (Attachments: # 1 Notice of Right to Appeal)(dt) (Entered: 08/21/2019)
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