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Case TitleCenter for Biological Diversity v. U.S. Fish and Wildlife Service et al
DistrictSouthern District of Florida
CityFt Pierce
Case Number2:2019cv14243
Date Filed2019-07-15
Date ClosedOpen
JudgeJudge Robin L. Rosenberg
PlaintiffCenter for Biological Diversity
Case DescriptionThe Center for Biological Diversity submitted a FOIA request to U.S. Fish and Wildlife Service for records concerning the agency's decision not to include the Florida Keys Mole Skunk on the endangered species list. The agency acknowledged receipt of the request and subsequently acknowledged CBD's request for an estimated completion date. However, after hearing nothing further from the agency, CBD filed suit.
Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Litigation - Vaughn index, Litigation - Attorney's fees

DefendantU.S. Fish and Wildlife Service
DefendantSecretary of the U.S. Department of the Interior David Bernhardt, in his official capacity
DefendantDavid Bernhardt
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [43]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2019-07-151COMPLAINT for Declaratory and Injunctive Relief against U.S. Fish and Wildlife Service. Filing fees $ 400.00 receipt number 113C-11811221, filed by Center for Biological Diversity. (Attachments: # 1 Civil Cover Sheet, # 2 Summon(s) U.S. Fish and Wildlife Service, # 3 Summon(s) Attorney General Barr, # 4 Summon(s) U.S. Attorney Fajardo Orshan)(Bennett, Elise) (Entered: 07/15/2019)
2019-07-152Clerks Notice of Judge Assignment to Judge Robin L. Rosenberg and Magistrate Judge Shaniek M. Maynard. Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Shaniek M. Maynard is available to handle any or all proceedings in this case. If agreed, parties should complete and file the Consent form found on our website. It is not necessary to file a document indicating lack of consent. (ebz) (Entered: 07/15/2019)
2019-07-153Summons Issued as to U.S. Fish and Wildlife Service, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summon(s), # 2 Summon(s))(ebz) (Entered: 07/15/2019)
2019-07-174Certificate of Other Affiliates/Corporate Disclosure Statement - NONE disclosed by Center for Biological Diversity (Bennett, Elise) (Entered: 07/17/2019)
2019-07-175Plaintiff's MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Brian Segee. Filing Fee $ 75.00 Receipt # 113C-11822219 by Center for Biological Diversity. Responses due by 7/31/2019 (Attachments: # 1 Certification for Special Admission of Brian Segee)(Bennett, Elise) (Entered: 07/17/2019)
2019-07-186ORDER ON MOTION TO APPEAR PRO HAC VICE, CONSENT TO DESIGNATION, AND REOUEST TO ELECTRONICALLY RECEIVE NOTICES OF ELECTRONIC FILING GRANTING re 5 Motion to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Attorney(s) Brian Segee. Signed by Magistrate Judge Shaniek M. Maynard on 7/18/2019. See attached document for full details. (ebz) (Entered: 07/19/2019)
2019-08-017ACKNOWLEDGMENT OF SERVICE filed by Center for Biological Diversity. (Attachments: # 1 Affidavit of Service, # 2 Exhibit to Affidavit of Service)(Bennett, Elise) (Entered: 08/01/2019)
2019-08-068ORDER SETTING STATUS CONFERENCE, CALENDAR CALL, AND TRIAL DATE, ORDER OFREQUIREMENTS, AND ORDER OF REFERENCE TO MAGISTRATE JUDGE. (Jury Trial set for 8/31/2020 09:00 AM in Fort Pierce Division before Judge Robin L. Rosenberg., Calendar Call set for 8/26/2020 09:00 AM before Judge Robin L. Rosenberg., Status Conference set for 6/17/2020 09:30 AM before Judge Robin L. Rosenberg.), ORDER REFERRING CASE to Magistrate Judge Shaniek M. Maynard for appropriate disposition of all pro hac vice motions, motions to substitute counsel and pretrial motions to discovery. Signed by Judge Robin L. Rosenberg on 8/6/2019. See attached document for full details. (ebz) Pattern Jury Instruction Builder - To access the latest, up to date changes to the 11th Circuit Pattern Jury Instructions go to https://pji.ca11.uscourts.gov or click here. (Entered: 08/07/2019)
2019-08-089ORDER SETTING DISCOVERY PROCEDURES Signed by Magistrate Judge Shaniek M. Maynard on 8/7/2019. See attached document for full details. (ebz) (Entered: 08/08/2019)
2019-08-2010ANSWER and Affirmative Defenses to Complaint by U.S. Fish and Wildlife Service. Attorney Carlos Javier Raurell added to party U.S. Fish and Wildlife Service(pty:dft). (Raurell, Carlos) (Entered: 08/20/2019)
2019-08-3011Joint SCHEDULING REPORT - Rule 16.1 by Center for Biological Diversity (Bennett, Elise) (Entered: 08/30/2019)
2019-09-0312ORDER REQUIRING STATUS REPORT Status Report due by 12/6/2019. Signed by Judge Robin L. Rosenberg on 9/3/2019. See attached document for full details. (ebz) (Entered: 09/04/2019)
2019-09-2413PAPERLESS ORDER setting Telephonic Status Conference for 9/27/2019 at 11:00 AM. See page 3 of Docket Entry 8 for dial-in instructions. At the Status Conference, the Court will discuss the status of this case in light of the related case, Case No. 19-cv-14353, filed 9/23/2019. Signed by Judge Robin L. Rosenberg on 9/24/2019. (hhn) (Entered: 09/24/2019)
2019-09-2714PAPERLESS ORDER. The Court held a Status Conference on September 27, 2019. At the Status Conference, the parties agreed to the dismissal without prejudice of a related case before the Court, Case No. 19-cv-14353, in contemplation of amending the Complaint in this case to include the related claims from Case No. 19-cv-14353. As agreed between the parties at the Status Conference, the Court orders the following: Plaintiff shall file an Amended Complaint by 10/4/2019. Counsel for Defendant(s) shall file any Notices of Appearance by 10/11/2019. The parties shall file an Amended Joint Scheduling Report by 11/4/2019, which shall include: 1) the status of the FOIA production and any issues related to the production, 2) the anticipated needs for discovery, if any, and a proposed discovery deadline, and 3) the likelihood of resolution of the case on summary judgment and a proposed deadline for the filing of dispositive motions. Defendant shall file a response to Plaintiff's Amended Complaint by 12/2/2019. The Status Report due 12/6/2019, set at DE 12 , is terminated. Signed by Judge Robin L. Rosenberg on 9/27/2019. (hhn) (Entered: 09/27/2019)
2019-09-2715PAPERLESS Minute Entry for proceedings held before Judge Robin L. Rosenberg: Status Conference held on 9/27/2019. Total time in court: 30 minutes. Court Reporter: Pauline Stipes, 561-803-3434 / Pauline_Stipes@flsd.uscourts.gov. (mg) (Entered: 09/27/2019)
2019-09-30Set/Reset Deadlines/Hearings U.S. Fish and Wildlife Service answer/response due 12/2/2019. Amended Complaint due by 10/4/2019. Joint Scheduling Report due by 11/4/2019 Status Report due by 12/6/2019. (cqs) (Entered: 09/30/2019)
2019-10-0416First AMENDED COMPLAINT for Declaratory and Injunctive Relief against U.S. Fish and Wildlife Service, David Bernhardt filed in response to Order Granting Motion for Leave, filed by Center for Biological Diversity. (Attachments: # 1 Summon(s) as to Interior Secretary Bernhardt)(Bennett, Elise) (Entered: 10/04/2019)
2019-10-0917Summons Issued as to Secretary of the U.S. Department of the Interior. (ar2) (Entered: 10/09/2019)
2019-10-1118NOTICE of Attorney Appearance by Mark A. Brown on behalf of Secretary of the U.S. Department of the Interior, U.S. Fish and Wildlife Service. Attorney Mark A. Brown added to party Secretary of the U.S. Department of the Interior(pty:dft), Attorney Mark A. Brown added to party U.S. Fish and Wildlife Service(pty:dft). (Brown, Mark) (Entered: 10/11/2019)
2019-10-2119NOTICE by Center for Biological Diversity re 16 Amended Complaint, 14 Order,,,, of filing Affidavit of Service (Attachments: # 1 Affidavit of Service, # 2 Exhibit to Affidavit of Service) (Bennett, Elise) (Entered: 10/21/2019)
2019-10-2120SUMMONS (Affidavit) Returned Executed by Center for Biological Diversity. Secretary of the U.S. Department of the Interior served on 10/9/2019, answer due 12/9/2019. (For image See DE# 19 ). (jas) (Entered: 10/21/2019)
2019-10-2121Clerks Notice to Filer re 19 Notice (Other). Wrong Event Selected ; ERROR - The Filer selected the wrong event. The document was re-docketed by the Clerk, see DE# 20 . It is not necessary to refile this document. (jas) (Entered: 10/21/2019)
2019-11-0422Amended SCHEDULING REPORT - Rule 16.1 by Center for Biological Diversity (Bennett, Elise) (Entered: 11/04/2019)
2019-11-0723SCHEDULING ORDER. (Dispositive Motions due by 3/18/2020.) Signed by Judge Robin L. Rosenberg on 11/7/2019. See attached document for full details. (kpe) Pattern Jury Instruction Builder - To access the latest, up to date changes to the 11th Circuit Pattern Jury Instructions go to https://pji.ca11.uscourts.gov or click here. (Entered: 11/07/2019)
2019-12-0224ANSWER and Affirmative Defenses to Amended Complaint by Secretary of the U.S. Department of the Interior, U.S. Fish and Wildlife Service. (Brown, Mark) (Entered: 12/02/2019)
2019-12-2025STATUS REPORT Regarding FOIA Request by U.S. Fish and Wildlife Service (Raurell, Carlos) (Entered: 12/20/2019)
2020-01-1526Defendant's MOTION for Leave to File Administrative Record Conventionally by Secretary of the U.S. Department of the Interior, U.S. Fish and Wildlife Service. Attorney Carlos Javier Raurell added to party Secretary of the U.S. Department of the Interior(pty:dft). (Raurell, Carlos) (Entered: 01/15/2020)
2020-01-1527NOTICE by Secretary of the U.S. Department of the Interior, U.S. Fish and Wildlife Service of Filing Certification of Administrative Record and Index of Administrative Record (Attachments: # 1 Exhibit Certification of Administrative Record, # 2 Exhibit Index of Administrative Record) (Raurell, Carlos) (Entered: 01/15/2020)
2020-01-1528NOTICE OF CONVENTIONAL FILING Certified Administrative Record and Index Thereto (DVD attached) by Secretary of the U.S. Department of the Interior, U.S. Fish and Wildlife Service. (mc) (Entered: 01/15/2020)
2020-01-1729PAPERLESS ORDER granting 26 Motion for Leave to File Administrative Record Conventionally. Signed by Judge Robin L. Rosenberg on 1/17/2020. (hhn) (Entered: 01/17/2020)
2020-02-2430Joint MOTION for Extension of Time modify scheduling order re 23 Scheduling Order, by Center for Biological Diversity. Responses due by 3/9/2020 (Bennett, Elise) (Entered: 02/24/2020)
2020-02-2531AMENDED SCHEDULING ORDER: Joint Motion to Modify Scheduling Order. DE# 30 is GRANTED IN PART AND DENIED IN PART, and the Courts Scheduling Order DE# 23 is amended as follows: (Dispositive Motions due by 4/27/2020) Signed by Judge Robin L. Rosenberg on 2/25/2020. See attached document for full details. (ebz) (Entered: 02/25/2020)
2020-03-0632NOTICE Of Filing Supplemental Administrative Record and Index thereto by Secretary of the U.S. Department of the Interior, U.S. Fish and Wildlife Service (cqs) (Entered: 03/09/2020)
2020-03-3033Plaintiff's MOTION to Compel Completion of the Administrative Record and Memorandum in Support by Center for Biological Diversity. Responses due by 4/13/2020 (Attachments: # 1 Exhibit Exhibit 1 - Table of Records Omitted from the Administrative Record, # 2 Exhibit Exhibit 2 - October 11, 2017 Freedom of Information Act Request from Center for Biological Diversity to U.S. Fish and Wildlife Service, # 3 Exhibit Exhibit 3 - October 18, 2019 Response from U.S. Fish and Wildlife Service to Center for Biological Diversitys Freedom of Information Act Request, # 4 Exhibit Exhibit 4 - November 14, 2019 U.S. Fish and Wildlife Service Vaughn Index of Information Redacted from Production, # 5 Exhibit Exhibit 5 - January 13, 2020 U.S. Fish and Wildlife Service Revised Vaughn Index, # 6 Exhibit Exhibit 6 - February 25, 2020 U.S. Fish and Wildlife Service Supplemental Vaughn Index of Information Redacted from Production, # 7 Exhibit Exhibit 7 - February 12, 2020 Letter from Center for Biological Diversity to U.S. Fish and Wildlife Service Regarding the Incomplete Administrative Record, # 8 Exhibit Exhibit 8 - March 13, 2020 Letter from U.S. Fish and Wildlife Service to Center for Biological Diversity Regarding the Administrative Record, # 9 Exhibit Exhibit 9 - March 19, 2020 Letter from U.S. Fish and Wildlife Service to Center for Biological Diversity Regarding the Administrative Record, # 10 Exhibit Exhibit 10 - March 20, 2020 Email from Mark Brown, Representing U.S. Fish and Wildlife Service, to Elise Bennett, Representing Center for Biological Diversity, Regarding the Administrative Record, # 11 Exhibit Exhibit 11 - Emails Between U.S. Fish and Wildlife Service Staff Analyzing Skinks Viability Against Sea Level Rise and Other Threats, dated February 1315, 2017 (Filename: 100_Skink - ok, i think i am getting closer, bear with me!.pdf), # 12 Exhibit Exhibit 12 - Emails between U.S. Fish and Wildlife Service Staff and Independent Expert Regarding Skink Genetics and Skinks Ability to Move Between Islands, dated May 25, 2017 (Filename: 12_genetics thought.pdf), # 13 Exhibit Exhibit 13 - Emails between U.S. Fish and Wildlife Service Staff Regarding Availability and Use of Current Sea Level Rise Data in Agency Modeling, dated June 2829, 2017 (Filename: 29_two paragraphs excluded from future scenrios.pdf), # 14 Exhibit Exhibit 14 - Emails between U.S. Fish and Wildlife Service Staff Transmitting Florida Keys Mole Skink Survey Data, dated March 1415, 2017 (Filename: 55_Key Largo.pdf), # 15 Exhibit Exhibit 15 - Emails between U.S. Fish and Wildlife Service Staff Transmitting Florida Keys Mole Skink Survey Data, dated June 29, 2017 (Filename: 27_coverboards Ohio Key.pdf), # 16 Exhibit Exhibit 16 - March 16, 2017 Draft Florida Keys Mole Skink Species Status Assessment Report (Filename: 1.1 2017March16_Skinks_DRAFTSSAReport.docx), # 17 Exhibit Exhibit 17 - May 25, 2017 Excerpt from Draft Florida Keys Mole Skink Species Status Assessment Report with Edits and Comments from U.S. Fish and Wildlife Service Biologist Adam Emerick (Filename: 1.1 Excerpt from Draft FL Keys mole skink SSA.docx), # 18 Exhibit Exhibit 18 - April 11, 2017 Draft Florida Keys Mole Skink Species Status Assessment Report (Filename: 1.1 2017April11_FLKeysmoleskinks_DRAFTSSA_LN.docx), # 19 Exhibit Exhibit 19 - April 18, 2017 Draft Florida Keys Mole Skink Species Status Assessment Report (Filename: 1.1 2017April18_FLKeysmoleskinks_DRAFTSSA.docx), # 20 Exhibit Exhibit 20 - Emails between U.S. Fish and Wildlife Service Staff Coordinating Florida Keys Mole Skink Species Status Assessment Report and Presentation for Decisionmakers, dated July 710, 2017 (Filename: 17_latest FLKeys mole skink.pdf), # 21 Exhibit Exhibit 21 - October 20, 2017 Memorandum from Acting Assistant Attorney General Jeffrey H. Wood Regarding Administrative Record Compilation in light of In re Thomas E. Price, Ninth Cir. No. 17-71121, # 22 Exhibit Exhibit 22 - June 27, 2006 Memorandum from Deputy Solicitor David L. Bernhardt of the U.S. Department of Interior Regarding Standardized Guidance on Compiling a Decision File and an Administrative Record, # 23 Exhibit Exhibit 23 - Spreadsheet of Florida Keys Mole Skink Survey Data (Filename: 27 KeyMoleSkinkOppsearch.pdf))(Bennett, Elise) (Entered: 03/30/2020)
2020-03-3034PAPERLESS ORDER REQUIRING EXPEDITED RESPONSE. Defendant shall file a response to 33 Plaintiff's Motion to Compel Completion of Administrative Record by 4/6/2020. Signed by Judge Robin L. Rosenberg on 3/30/2020. (hhn) (Entered: 03/30/2020)
2020-04-0135Unopposed MOTION for Extension of Time to File Response/Reply/Answer as to 33 Plaintiff's MOTION to Compel Completion of the Administrative Record and Memorandum in Support , 34 Order by Secretary of the U.S. Department of the Interior, U.S. Fish and Wildlife Service. (Attachments: # 1 Text of Proposed Order)(Brown, Mark) (Entered: 04/01/2020)
2020-04-0336PAPERLESS ORDER granting 35 Defendant's Motion for Extension of Time. Defendant shall respond to 33 Plaintiff's Motion to Compel by 5:00 PM on 4/20/2020. Signed by Judge Robin L. Rosenberg on 4/3/2020. (hhn) (Entered: 04/03/2020)
2020-04-2037RESPONSE in Opposition re 33 Plaintiff's MOTION to Compel Completion of the Administrative Record and Memorandum in Support filed by Secretary of the U.S. Department of the Interior, U.S. Fish and Wildlife Service. Replies due by 4/27/2020. (Attachments: # 1 Exhibit Ex. 1-Slip Opinion)(Brown, Mark) (Entered: 04/20/2020)
2020-04-2138Joint MOTION to Dismiss with Prejudice 16 Amended Complaint, FOIA claims 7-10 , Joint MOTION to Stay re 16 Amended Complaint, Attorneys' Fees and Costs under FOIA by Center for Biological Diversity. Responses due by 5/5/2020 (Bennett, Elise) (Entered: 04/21/2020)
2020-04-2139Joint MOTION to Stay re 31 Scheduling Order, by Center for Biological Diversity. Responses due by 5/5/2020 (Bennett, Elise) (Entered: 04/21/2020)
2020-04-2240ORDER DISMISSING CLAIMS 710 OF PLAINTIFFS AMENDED COMPLAINT AND GRANTING PARTIES JOINT MOTION TO STAY RESOLUTION OF ATTORNEYS FEES AND COSTS re 38 Joint Motion for Dismissal of Freedom of Information Act (FOIA) Claims 710 of Plaintiffs Amended Complaint and to Stay Resolution of Attorneys Fees and Costs under FOIA. ORDERED AND ADJUDGED that Claims 710 of the Amended Complaint are DISMISSED WITH PREJUDICE, and resolution of Plaintiffs claim for attorneys fees and costs under FOIA is STAYED until the remaining claims in Plaintiffs Amended Complaint are resolved. Signed by Judge Robin L. Rosenberg on 4/22/2020. See attached document for full details. (ebz) (Entered: 04/22/2020)
2020-04-2241PAPERLESS ORDER granting in part and denying in part 39 Joint Motion to Stay. The Motion is granted insofar as the Court's 31 Amended Scheduling Order is stayed until further notice. The Court will direct further action after ruling on 33 Plaintiff's Motion to Compel, which will likely include Plaintiff filing a status report which estimates the time and work needed to complete its summary judgment motion. The Court expects that Plaintiff will have drafted as much of its summary judgment motion as reasonably possible, based on the undisputed portion of the administrative record, prior to the Court's ruling on the Motion to Compel. The Court further anticipates that any amended briefing schedule would not expand the time periods for responses and replies. Signed by Judge Robin L. Rosenberg on 4/22/2020. (hhn) (Entered: 04/22/2020)
2020-04-2742REPLY to Response to Motion re 33 Plaintiff's MOTION to Compel Completion of the Administrative Record and Memorandum in Support filed by Center for Biological Diversity. (Bennett, Elise) (Entered: 04/27/2020)
2020-05-2643ORDER Granting 33 Plaintiff's Motion to Compel Completion of the Administrative Record. Signed by Judge Robin L. Rosenberg on 5/26/2020. See attached document for full details. (hhn) (Entered: 05/26/2020)
2020-05-2944NOTICE by Center for Biological Diversity PROVIDING ESTIMATE OF TIME NEEDED TO COMPLETE SUMMARY JUDGMENT MOTION (Bennett, Elise) (Entered: 05/29/2020)
2020-06-0245PAPERLESS ORDER cancelling status conference, calendar call, and trial date in light of the absence of factfinding in an APA case of this nature. See Camp v. Pitts, 411 U.S. 138, 143 (1973) (holding that if an agencys finding is not sustainable on the administrative record made, the decision must be vacated and the matter remanded to the agency). Signed by Judge Robin L. Rosenberg on 6/2/2020. (hhn) (Entered: 06/02/2020)
2020-06-0246SECOND AMENDED SCHEDULING ORDER: re 44 Providing Estimate of Time Needed to Complete Summary Judgment Motion. (Oral Argument via Zoom set for 9/2/2020 10:00 AM before Judge Robin L. Rosenberg.) Signed by Judge Robin L. Rosenberg on 6/2/2020. See attached document for full details. (ebz) (Entered: 06/02/2020)
2020-06-0247Unopposed MOTION for Extension of Time to file Supplement to Administrative Record as Required by Order at ECF No. 43 by Secretary of the U.S. Department of the Interior, U.S. Fish and Wildlife Service. Responses due by 6/16/2020 (Raurell, Carlos) (Entered: 06/02/2020)
2020-06-0348PAPERLESS ORDER granting 47 Defendant's Motion for Extension of Time. Defendant shall file the supplement to the administrative record by 6/5/2020 and may do so conventionally on removable media. Signed by Judge Robin L. Rosenberg on 6/3/2020. (hhn) (Entered: 06/03/2020)
2020-06-0449FEDERAL DEFENDANTS' NOTICE OF FILING CERTIFIED ADMINISTRATIVE RECORD AND INDEX THERETO by Secretary of the U.S. Department of the Interior, U.S. Fish and Wildlife Service (Attachments: # 1 Exhibit) (ail) (Entered: 06/05/2020)
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