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Case TitleSouthern Environmental Law Center v. Mulvaney
DistrictWestern District of Virginia
CityCharlottesville
Case Number3:2018cv00037
Date Filed2018-05-30
Date ClosedOpen
JudgeSenior Judge Glen E. Conrad
PlaintiffSouthern Environmental Law Center
Case DescriptionThe Southern Environmental Law Center submitted a FOIA request to OMB for records concerning the implementation of a Trump administration Executive Order on management of federal lands. The agency acknowledged receipt of the request, but after hearing nothing further from the agency, SELC filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Vaughn index, Litigation - Attorney's fees

DefendantMick Mulvaney in his official capacity as Director of the Office of Management and Budget
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Opinion/Order [24]
FOIA Project Annotation: A federal court in Virginia has ruled OMB has not yet shown that it conducted an adequate search for records concerning agency reorganizational plans nor has it sufficiently justified its claims under Exemption 5 (privileges). As a result, the court granted the Southern Environmental Law Center limited discovery to take depositions of OMB staff involved in the agency's searches. SELC submitted a FOIA request to OMB for records pertaining to any agency responsible for managing federal public lands. While OMB told SELC that it had found responsive records during its search, the agency's final response referenced only two records. By the time the court ruled, five documents remained in dispute, all of which were withheld under the deliberative process privilege. Finding the agency had not provided sufficient justification for its searches, the court observed that the agency's affidavit "fails to explain why the defendant's initial search for documents responsive to the plaintiff's FOIA request did not include potential custodians who were involved at other stages of the government-wide reorganization efforts. Nor does it address why the search for responsive documents was not immediately broadened after the [Office of Performance and Personnel Management] custodian only identified two documents. Such information is particularly relevant, given that OMB's own evidence indicates that each of the agencies at issue was required to produce at least two documents relevant to the plaintiff's FOIA request." The court pointed out that "although portions of the requested documents may ultimately be held to fall within the privilege, OMB has failed to meet its burden of demonstrating that the documents are exempt from disclosure in their entirety." The court noted that "although [the agency's affidavit] includes several paragraphs that purport to establish the legal basis for invoking the deliberative process privilege, it also leaves unanswered questions which may be critically relevant to the propriety of withholding all of the identified documents in full." Sending the case back to give the agency a chance to supplement its original explanations, the court observed that "if OMB wishes to maintain its exemption claims, 'it must supplement its Vaughn index and declarations, adequately describing the records withheld and specifically detailing how the claimed exemptions apply to the withheld information.' Alternatively, OMB must produce the documents for in camera review."
Issues: Adequacy - Search, Litigation - Discovery, Exemption 5 - Privileges
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2018-05-301COMPLAINT against Mick Mulvaney (Filing & Administrative fee $ 400; 0423-2906462.), filed by Southern Environmental Law Center. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit 1)(jcj)
2018-05-302Negative Corporate Disclosure Statement by Southern Environmental Law Center (jcj)
2018-05-303Electronic Summons Issued as to Mick Mulvaney NOTICE TO COUNSEL: Please print copies of the electronically issued summons for each defendant as necessary to effectuate service under Fed. R. Civ. P. 4. (jcj)
2018-05-304MOTION for Kimberley Hunter to Appear Pro Hac Vice. by Southern Environmental Law Center. (Attachments: # 1 Text of Proposed Order)(Butler, Morgan)
2018-05-305MOTION for Sam Evans to Appear Pro Hac Vice. by Southern Environmental Law Center. (Attachments: # 1 Text of Proposed Order)(Butler, Morgan)
2018-05-306ORDER granting 4 MOTION for Kimberley C. Hunter to Appear Pro Hac Vice Attorney Kimberley Claire Hunter for Southern Environmental Law Center added. Signed by Senior Judge Glen E. Conrad on 5/30/18. (jcj)
2018-05-307ORDER granting 5 MOTION for Samuel E. Evans to Appear Pro Hac Vice Attorney Samuel E. Evans for Southern Environmental Law Center added. Signed by Senior Judge Glen E. Conrad on 5/30/18. (jcj)
2018-07-038Joint MOTION for Extension of Time to File Answer by Mick Mulvaney. (Attachments: # 1 Text of Proposed Order)(Winn, Sara)
2018-07-039ORDER granting Joint 8 Motion for Extension of Time to Answer re 1 Complaint Mick Mulvaney answer due 8/6/2018.. Signed by Senior Judge Glen E. Conrad on 7/3/18. (hnw)
2018-08-0610ANSWER to Complaint 1 by Mick Mulvaney.(Winn, Sara)
2018-08-0611Joint MOTION for Summary Judgment Briefing Schedule by Mick Mulvaney. (Attachments: # 1 Text of Proposed Order)(Winn, Sara)
2018-08-1712ORDER granting 11 Motion to adjust summary judgment filing deadlines as noted herein. Signed by Senior Judge Glen E. Conrad on 08/17/2018. (ssm) (ssm).
2018-09-0513MOTION for Summary Judgment by Southern Environmental Law Center. (Attachments: # 1 Memorandum in Support, # 2 Exhibit Exhibits 1-7)(Hunter, Kimberley)
2018-09-0614Magistrate Consent Notice to Parties. (hnw)
2018-10-0115MOTION for Extension of Time to File Response/Reply to Plaintiff's Motion for Summary Judgment by Mick Mulvaney. (Attachments: # 1 Text of Proposed Order)(Winn, Sara)
2018-10-0216ORDER granting 15 Unopposed Motion to Modify Briefing Schedule. Signed by Senior Judge Glen E. Conrad on 10/2/18. (hnw)
2018-10-1717MOTION for Extension of Time to File by Mick Mulvaney. (Attachments: # 1 Text of Proposed Order)(Winn, Sara)
2018-10-1718RESPONSE in Opposition re 17 MOTION for Extension of Time to File . filed by Southern Environmental Law Center. (Hunter, Kimberley)
2018-10-2419Order Referring Case to Magistrate Judge Joel C. HoppeMotion to Extend Time referred to Joel C. Hoppe. Signed by Senior Judge Glen E. Conrad on 10/24/2018. (ssm)
2018-10-2520ORDER granting in part and denying in part 17 Motion for Extension of Time. The briefing schedule is MODIFIED as follows: Defendant's brief in opposition/cross motion due November 5, 2018; Plaintiff's reply/response to cross motion due November 19, 2018; and Defendant's reply to his cross motion due November 26, 2018. Signed by Magistrate Judge Joel C. Hoppe on 10/25/18. (hnw)
2018-11-0521Brief / Memorandum in Opposition re 13 MOTION for Summary Judgment . filed by Mick Mulvaney. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Winn, Sara)
2018-11-1922REPLY to Response to Motion re 13 MOTION for Summary Judgment and Response to Defendant's Cross Motion for Summary Judgment . filed by Southern Environmental Law Center. (Hunter, Kimberley)
2018-11-2623REPLY to Response to Motion re 13 MOTION for Summary Judgment . filed by Mick Mulvaney. (Winn, Sara)
2019-09-2524MEMORANDUM OPINION. Signed by Senior Judge Glen E. Conrad on 9/25/19. (jcj)
2019-09-2525ORDER denying without prejudice cross motions at MOTION for Summary Judgment 13 filed by Southern Environmental Law Center, Brief / Memorandum in Opposition 21 filed by Mick Mulvaney; GRANTING plaintiff's alternative request to engage in limited discovery; DIRECTING the parties to confer within 14 days regarding the identification of deponents, or as set forth in the order; and within 14 days thereof, DIRECTING the parties to file a joint report summarizing their respective positions, and including any deadlines for briefing, with the understanding that the parties shall conclude discovery within 45 days, of entry of this order and Cross SJ Motions refilled 21 days thereafter, unless both sides agree to a different schedule. Signed by Senior Judge Glen E. Conrad on 09/25/2019. (ssm)
2019-10-2126STATUS REPORT by Southern Environmental Law Center (Attachments: # 1 Text of Proposed Order Plaintiff's Proposed Order, # 2 Text of Proposed Order Defendant's Proposed Order)(Hunter, Kimberley)
2019-11-0727SCHEDULING ORDER Cross Motions for Summary Judgment Deadline due by 2/3/2020. Briefs in opposition to Motions due by 2/17/2020. Reply to briefs due by 2/24/2020, and further relief as set forth in said scheduling order. Signed by Magistrate Judge Joel C. Hoppe on 11/7/19(hnw)
2019-11-1828STATUS REPORT and Motion to Extend Deadline by Mick Mulvaney (Attachments: # 1 Text of Proposed Order)(Winn, Sara)
2019-11-1929ORDER granting Status Report 28 /Joint Motion of the parties to modify the scheduling deadlines set out in the Court's Order dated 9/25/19 (ECF 24), and the Court's Order dated 11/7/19 (ECF 27). Signed by Magistrate Judge Joel C. Hoppe on 11/18/19. (hnw)
2019-12-1630MOTION Extend Deadline re 29 Order, by Mick Mulvaney. Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order Proposed Order)(Winn, Sara)
2019-12-1731ORDER granting 30 Motion to Modify the Scheduling Deadline set out in Part 2 of the Court's Order dated 11/19/19. Signed by Magistrate Judge Joel C. Hoppe on 12/17/19. (hnw)
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