Case Detail

FOIA Project Annotation: Judge Dabney Friedrich has rejected an attempt by the U.S. Army Corps of Engineers to withhold a draft Agency Technical Review prepared for Rankin-Hinds' Draft Study regarding its proposed Pearl River Basin flood control project after the Corps argued the draft was protected by Exemption 5 (privileges), even though Rankin-Hinds was not a federal agency for purposes of Exemption 5. After finding that Exemption 5 did not apply, Friedrich went on to find that Exemption 4 (commercial and confidential) was probably not applicable either. The FOIA request stemmed from a proposed flood control project in the Pearl River Basin in Mississippi authorized by the Water Resources Development Act of 1986. In 2007, Congress modified this authorization to direct the Secretary of the Army to build the project in accordance with the Pearl River Watershed, Mississippi, Feasibility Study Main Report, Preliminary Draft after taking into consideration whether the local plan provides a level of flood damage reduction that is equal to or greater than the level of flood damage reduction provided by the national economic plan and is environmentally acceptable and technically feasible. If these conditions are met the Secretary may construct the project identified in the national economic development plan, or the locally preferred plan, or some combination thereof or a non-federal interest may carry out the project. A non-Federal interest may propose a plan and the Secretary is required to review such feasibility studies submitted by a non-Federal interest. A non-Federal interest may submit to the Secretary a request that the Secretary initiate this process and the non-Federal interest may pay the Secretary to undertake such a review. Here, Rankin-Hinds Pearl River Flood and Drainage Control District, a non-Federal interest, prepared an Integrated Draft Feasibility Study and Environmental Impact Statement for a local project in the Pearl River Basin. Rankin-Hinds is a political subdivision of the State of Mississippi. After finishing its Draft Study in 2012, Rankin-Hinds contacted the Corps to conduct a technical review and to ensure it was in compliance with federal requirements. Rankin-Hinds published its Draft Study on its website. The Agency Technical Review consists of 11 steps and is overseen by a team lead which prepares the final ATR Summary Report. The process involves back-and-forth communications by the two parties that leads to edits to the Draft Study by the party that engaged the Corps. In 2018, while the Corps was reviewing the Rankin-Hinds' Draft Study, the ATR team lead announced his pending retirement. His supervisor asked the retiring team leader to prepare an in-progress report to document how the review had been conducted and its current status. The team lead prepared the June 2018 Agency Technical Review Summary Report, which was shared with the Corps and with Rankin-Hinds. In May 2019, the National Wildlife Federation submitted a FOIA request to the Corps for a copy of the Corps' June 2018 draft ATR for Rankin-Hinds' Draft Study regarding its proposed Pearl River Basin flood control project. The Corps denied the NWF's request under Exemption 5. After NWF filed suit, the agency cited both Exemption 4 and Exemption 5 as the basis for withholding the draft study. Friedrich started her analysis of Exemption 4 by explaining that the Supreme Court's 2019 decision in Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019), in which the Court rejected the substantial competitive harm test that first was established in the 1974 decision in National Parks and indicated instead that records were confidential for purposes of Exemption 4 if they were kept confidential by the company and the government agreed to treat the records as confidential. The Corps argued that Rankin-Hinds claimed the records were confidential. Friedrich noted that "however, these representations do not address the relevant inquiry â€" how Rankin-Hinds treated the kind of information it provided to the Corps that the agency then included in its 2018 draft ATR." She pointed out that "the declaration by the Chairman of Rankin-Hinds is clear that Rankin-Hinds made (and still makes) some information of that kind public by publishing the Draft Study the Corps reviewed." Friedrich then noted that "nonetheless, it is unclear from the agency's affidavits whether the Corps' 2018 draft ATR included only information provided by Rankin-Hinds that appeared in its publicly available Draft Study." She indicated that "if the Corps' 2018 draft ATR includes additional information provided by Rankin-Hinds that it did not disclose publicly, then the Corps may be able to make the necessary showing under Exemption 4. But based on the current record, the Court cannot discern whether the Corps' 2018 draft ATR contains non-public information provided by Rankin-Hinds." She allowed the Corps to provide a supplemental affidavit to address those concerns. Turning to Exemption 5, Friedrich explained that "facially, it appears that the first condition [of Exemption 5 that records be either inter- or intra-agency records] is not met because the 2018 draft ATR was shared between the Corps, an agency, and Rankin-Hinds, which the agency concedes 'does not meet the traditional definition of agency.' "'Agency' is defined by FOIA to be 'each authority of the Government of the United States, whether or not it is within or subject to review by another agency.' Rankin-Hinds is a political subdivision of Mississippi and does not qualify under the FOIA definition of agency because it is not an authority of the United States government." Regardless of its actual legal status, the Corps suggested that Friedrich that find Rankin-Hinds was a quasi-federal agency for purposes of the Pearl River Basin Flood Control project, or that the consultant corollary doctrine applied, meaning that Rankin-Hinds was acting as a consultant to the agency. Instead, Friedrich rejected both suggestions. Friedrich pointed out that "the Corps cites no authority for treating the entity of another government as a 'quasi-federal agency.' And this court has noted 'that a state agency is generally not an agency for purposes of FOIA.' Indeed, 'agency' is defined as 'each authority of the Government of the United States' and FOIA exemptions 'are construed narrowly in keeping with [the statute's] presumption in favor of disclosure.'" She noted that such a definition also ran counter to the definition of non-Federal interests contained in the Water Resources Development Act. She pointed out that "Rankin-Hinds is not working with the Corps in the Secretary's deliberative process; rather, Rankin-Hinds will be an applicant proposing an alternative plan â€" not an advisor helping the Secretary choose between the two." She explained that "there is no dispute that the Corps did not hire Rankin-Hinds; rather, Rankin-Hinds hired the Corps as its consultant. Thus, the entities' relationship is not the kind covered by the consultant corollary." Although the agency argued that this was a perfect example of the application of the consultant corollary, Friedrich indicated that "but that is not the case. Here, the relationship is reversed, and the Corps has cited to no authority applying the corollary in reverse." She concluded that "here, Rankin-Hinds, the non-agency, hired the Corps, the agency, to advise it and thus further its own interests â€" namely, the approval and ultimate selection of the locally preferred plan for the Pearl River water project over the federal government's proposed national economic development plan. Thus, the relationship is not akin to the relationship contemplated by the consultant corollary and the Court will not extend it."
Issues: Exemption 4 - Confidential business information, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Agency - Federal

Date Filed	Doc #	Docket Text
2021-01-27	1	COMPLAINT against All Defendants ( Filing fee $ 402 receipt number ADCDC-8129822) filed by NATIONAL WILDLIFE FEDERATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Civil Cover Sheet, # 6 Summons, # 7 Summons, # 8 Summons)(Rumelt, Kenneth) (Entered: 01/27/2021)
2021-01-28		Case Assigned to Judge Dabney L. Friedrich. (adh, ) (Entered: 01/28/2021)
2021-01-28	2	SUMMONS (3) Issued Electronically as to U.S. ARMY CORPS OF ENGINEERS, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(adh, ) (Entered: 01/28/2021)
2021-01-29	3	STANDARD ORDER for civil cases. See text for details. Signed by Judge Dabney L. Friedrich on January 29, 2021. (lcdlf3) (Entered: 01/29/2021)
2021-03-15	4	NOTICE of Appearance by Sean Patrick Mahard on behalf of U.S. ARMY CORPS OF ENGINEERS (Mahard, Sean) (Entered: 03/15/2021)
2021-03-15	5	ANSWER to Complaint by U.S. ARMY CORPS OF ENGINEERS.(Mahard, Sean) (Entered: 03/15/2021)
2021-03-15		MINUTE ORDER requiring the parties to meet and confer and file a joint status report proposing a schedule for further proceedings. The report should address the status of the plaintiff's FOIA request, including the anticipated number of documents responsive to the request and the anticipated date(s) for release of the requested documents. The parties shall file the joint status report on or before March 29, 2021. So ordered by Judge Dabney L. Friedrich on March 15, 2021. (lcdlf3) (Entered: 03/15/2021)
2021-03-15		Set/Reset Deadlines: Status Report due by 3/29/2021 (zjch) (Entered: 03/16/2021)
2021-03-29	6	Joint STATUS REPORT by U.S. ARMY CORPS OF ENGINEERS. (Attachments: # 1 Text of Proposed Order)(Mahard, Sean) (Entered: 03/29/2021)
2021-03-30		MINUTE ORDER. Upon consideration of the parties' 6 Joint Status Report, the following schedule shall govern further proceedings: the defendant's Motion for Summary Judgment shall be due on or before July 9, 2021; the plaintiff's Cross-Motion for Summary Judgment and Opposition shall be due on or before July 30, 2021; the defendant's Opposition and Reply shall be due on or before August 20, 2021; and the plaintiff's Reply shall be due on or before September 10, 2021. So ordered by Judge Dabney L. Friedrich on March 30, 2021. (lcdlf3) (Entered: 03/30/2021)
2021-03-30		Set/Reset Deadlines: Cross Motions due by 7/30/2021. Response to Cross Motions due by 8/20/2021. Reply to Cross Motions due by 9/10/2021. Summary Judgment motions due by 7/9/2021. Response to Motion for Summary Judgment due by 7/30/2021. Reply to Motion for Summary Judgment due by 8/20/2021. (zjch) (Entered: 03/31/2021)
2021-06-11	7	NOTICE OF SUBSTITUTION OF COUNSEL by Jessica B. Colsia on behalf of U.S. ARMY CORPS OF ENGINEERS Substituting for attorney Sean Mahard (Colsia, Jessica) (Entered: 06/11/2021)
2021-07-07	8	Unopposed MOTION for Extension of Time to File Motion for Summary Judgment by U.S. ARMY CORPS OF ENGINEERS. (Attachments: # 1 Text of Proposed Order)(Colsia, Jessica) (Entered: 07/07/2021)
2021-07-07		MINUTE ORDER Upon consideration of defendant's unopposed 8 Motion for Extension of Time to File Motion for Summary Judgment, the motion is GRANTED. The defendant shall file its motion for summary judgment on or before August 16, 2021; the plaintiff shall file its cross-motion for summary judgment and opposition on or before September 6, 2021; the defendant shall file its combined opposition and reply on or before September 27; and the plaintiff shall file its reply on or before October 18, 2021. So Ordered by Judge Dabney L. Friedrich on July 7, 2021. (lcdlf3) (Entered: 07/07/2021)
2021-07-07		Set/Reset Deadlines: Cross Motions due by 9/6/2021. Response to Cross Motions due by 9/27/2021. Reply to Cross Motions due by 10/18/2021. Summary Judgment motions due by 8/16/2021. Response to Motion for Summary Judgment due by 9/6/2021. Reply to Motion for Summary Judgment due by 9/27/2021. (zjch) (Entered: 07/07/2021)
2021-08-16	9	MOTION for Summary Judgment by U.S. ARMY CORPS OF ENGINEERS. (Attachments: # 1 Text of Proposed Order, # 2 Statement of Facts, # 3 Memorandum in Support, # 4 Exhibit 1 - MOA, # 5 Exhibit 2 - Support Agreement 2, # 6 Exhibit 3 - Support Agreement 3, # 7 Exhibit 4 - Rhoads Declaration, # 8 Exhibit 5 - Thaut Declaration, # 9 Exhibit 6 - Regulation)(Colsia, Jessica) (Entered: 08/16/2021)
2021-08-23	10	NOTICE of Appearance by Sean Sandoloski on behalf of Rankin-Hinds Pearl River Flood and Drainage Control District (Sandoloski, Sean) (Entered: 08/23/2021)
2021-08-23	11	MOTION for Leave to File Amicus Curiae Brief in Support of U.S. Army Corps of Engineers by Rankin-Hinds Pearl River Flood and Drainage Control District. (Attachments: # 1 Proposed Amicus Brief, # 2 Proposed Order)(Sandoloski, Sean) (Entered: 08/23/2021)
2021-08-23		MINUTE ORDER. Upon consideration of Rankin-Hinds Pearl River Flood and Drainage Control District's 11 Motion for Leave to File Amicus Curiae Brief, it is ORDERED that the motion is GRANTED. So Ordered by Judge Dabney L. Friedrich on August 23, 2021. (lcdlf3) (Entered: 08/23/2021)
2021-09-02	12	Joint MOTION for Extension of Time to File Response/Reply by U.S. ARMY CORPS OF ENGINEERS. (Attachments: # 1 Text of Proposed Order)(Colsia, Jessica) (Entered: 09/02/2021)
2021-09-03		MINUTE ORDER. Upon consideration of parties' 12 Joint Motion for Extension of Time, the motion is GRANTED. The plaintiff shall file its cross-motion for summary judgment and opposition on or before September 20, 2021; the defendant shall file its combined opposition and reply on or before October 11; and the plaintiff shall file its reply on or before November 1, 2021. So Ordered by Judge Dabney L. Friedrich on September 3, 2021. (lcdlf3) (Entered: 09/03/2021)
2021-09-17	13	Joint MOTION for Extension of Time to File Response/Reply to Defendants' Motion for Summary Judgment by NATIONAL WILDLIFE FEDERATION. (Attachments: # 1 Text of Proposed Order)(Rumelt, Kenneth) (Entered: 09/17/2021)
2021-09-17		MINUTE ORDER. Upon consideration of parties' 13 Joint Motion for Extension of Time, the motion is GRANTED. The plaintiff shall file its cross-motion for summary judgment and opposition on or before September 27, 2021; the defendant shall file its combined opposition and reply on or before October 18; and the plaintiff shall file its reply on or before November 8, 2021. So Ordered by Judge Dabney L. Friedrich on September 17, 2021. (lcdlf3) (Entered: 09/17/2021)
2021-09-17		Set/Reset Deadlines: Cross Motions due by 9/27/2021. Response to Cross Motions due by 10/18/2021. Reply to Cross Motions due by 11/8/2021. Response to Motion for Summary Judgment due by 9/27/2021. Reply to Motion for Summary Judgment due by 10/18/2021. (zjch) (Entered: 09/17/2021)
2021-09-27	14	Memorandum in opposition to re 9 MOTION for Summary Judgment and Cross Motion for Summary Judgment filed by NATIONAL WILDLIFE FEDERATION. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Rumelt, Kenneth) (Entered: 09/27/2021)
2021-09-27	15	Cross-MOTION for Summary Judgment by NATIONAL WILDLIFE FEDERATION. (See Docket Entry 14 to view document). (eg) (Entered: 09/29/2021)
2021-10-18	16	REPLY to opposition to motion re 9 MOTION for Summary Judgment filed by U.S. ARMY CORPS OF ENGINEERS. (Attachments: # 1 Text of Proposed Order)(Colsia, Jessica) Modified link on 10/25/2021 (znmw). (Entered: 10/18/2021)
2021-10-18	17	Memorandum in opposition to re 15 MOTION for Summary Judgment filed by U.S. ARMY CORPS OF ENGINEERS. (Attachments: # 1 Text of Proposed Order)(Colsia, Jessica) (Entered: 10/18/2021)
2021-11-08	18	REPLY to opposition to motion re 9 MOTION for Summary Judgment filed by NATIONAL WILDLIFE FEDERATION. (Rumelt, Kenneth) (Entered: 11/08/2021)
2022-03-24	19	NOTICE OF SUBSTITUTION OF COUNSEL by Mark Wendell DeLaquil on behalf of RANKIN-HINDS PEARL RIVER FLOOD AND DRAINAGE CONTROL DISTRICT Substituting for attorney Sean Sandoloski (DeLaquil, Mark) (Entered: 03/24/2022)
2022-03-31	20	ORDER denying defendant's 9 Motion for Summary Judgment and granting in part and denying in part plaintiff's 15 Cross-Motion for Summary Judgment. See text for details. Signed by Judge Dabney L. Friedrich on March 31, 2022. (Entered: 03/31/2022)
2022-03-31	21	MEMORANDUM OPINION regarding defendant's 9 Motion for Summary Judgment and plaintiff's 15 Cross-Motion for Summary Judgment. See text for details. Signed by Judge Dabney L. Friedrich on March 31, 2022. (lcdlf3) (Entered: 03/31/2022)
2022-04-13	22	NOTICE of Appearance by John Haberland on behalf of U.S. ARMY CORPS OF ENGINEERS (Haberland, John) (Entered: 04/13/2022)
2022-04-13	23	DECLARATION by U.S. ARMY CORPS OF ENGINEERS re 21 Memorandum & Opinion, Terminate Deadlines. (Attachments: # 1 Declaration)(Haberland, John) (Entered: 04/13/2022)
2022-04-19	24	PROPOSED BRIEFING SCHEDULE re 20 Order on Motion for Summary Judgment,, Set/Reset Deadlines by U.S. ARMY CORPS OF ENGINEERS. (Attachments: # 1 Text of Proposed Order)(Haberland, John) (Entered: 04/19/2022)
2022-04-21		MINUTE ORDER. Upon consideration of the parties' 24 Proposed Briefing Schedule, the following schedule shall govern further proceedings: the defendant's Motion for Summary Judgment shall be due on or before May 24, 2022; the plaintiff's Cross-Motion for Summary Judgment and Opposition shall be due on or before June 21, 2022; the defendant's Opposition and Reply shall be due on or before July 12, 2022; and the plaintiff's Reply shall be due on or before July 26, 2022. So Ordered by Judge Dabney L. Friedrich on April 21, 2022. (lcdlf3) (Entered: 04/21/2022)
2022-05-12	25	Consent MOTION for Extension of Time to file motion for summary judgment by U.S. ARMY CORPS OF ENGINEERS. (Attachments: # 1 Text of Proposed Order)(Haberland, John) (Entered: 05/12/2022)
2022-05-12		VACATED PURSUANT TO ORDER FILED 6/15/2022.....MINUTE ORDER. Upon consideration of the parties' 25 Consent Motion for Extension of Time, it is hereby ORDERED that the motion is GRANTED. Accordingly, the following schedule shall govern further proceedings: the defendant's Motion for Summary Judgment shall be due on or before June 24, 2022; the plaintiff's Cross-Motion for Summary Judgment and Opposition shall be due on or before July 21, 2022; the defendant's Opposition and Reply shall be due on or before August 12, 2022; and the plaintiff's Reply shall be due on or before August 26, 2022. So Ordered by Judge Dabney L. Friedrich on May 12, 2022. (lcdlf3) Modified on 6/16/2022 (zjch, ). (Entered: 05/12/2022)
2022-06-15	26	Consent MOTION for Extension of Time to file MSJ by U.S. ARMY CORPS OF ENGINEERS. (Attachments: # 1 Text of Proposed Order)(Haberland, John) (Entered: 06/15/2022)
2022-06-15		MINUTE ORDER. Upon consideration of the defendant's 26 Consent Motion for Extension of Time, it is hereby ORDERED that it is GRANTED IN PART. Accordingly, the current briefing schedule is hereby VACATED. The parties are directed to file a joint status report on or before August 12, 2022, informing the Court whether they are able to resolve the issues of fees and costs themselves or instead proposing a fees motion briefing schedule, if a joint stipulation of voluntary dismissal is not filed before then. So Ordered by Judge Dabney L. Friedrich on June 15, 2022. (lcdlf3) (Entered: 06/15/2022)
2022-08-11	27	Joint STATUS REPORT by U.S. ARMY CORPS OF ENGINEERS. (Attachments: # 1 Text of Proposed Order)(Haberland, John) (Entered: 08/11/2022)
2022-08-12		MINUTE ORDER. Upon consideration of the parties' 27 Joint Status Report, the parties are directed to file another joint status report on or before August 26, 2022, unless a stipulation of dismissal is filed before then. So Ordered by Judge Dabney L. Friedrich on August 12, 2022. (lcdlf3) (Entered: 08/12/2022)
2022-08-25	28	NOTICE of Voluntary Dismissal by U.S. ARMY CORPS OF ENGINEERS (Haberland, John) (Entered: 08/25/2022)
2022-08-25		MINUTE ORDER dismissing this case with prejudice in light of the 28 Notice of Voluntary Dismissal. See Fed. R. Civ. P. 41(a). The Clerk of Court is directed to close this case. So Ordered by Judge Dabney L. Friedrich on August 25, 2022. (lcdlf3) (Entered: 08/25/2022)
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