Case Detail

FOIA Project Annotation: A federal court in Washington has ruled that Tom and Cathleen Osterman do not have standing to challenge the Army Corps of Engineers' partial denial of a request filed by their attorney for records of their application for permission to build a private boat dock in U.S. waters adjacent to their residence. Dennis Reynolds represented the Ostermans in their permit application. He filed a FOIA request with the agency for the Ostermans' permit application, identifying the application by number. Reynolds did not, however, indicate that he was requesting the records on behalf of the Ostermans. He sent a separate email to the agency indicating that the Ostermans had requested that he review the file and asking when the file could be made available for review purposes. The email made no mention of his FOIA request. When the agency withheld certain records in response to Reynold's FOIA request, he filed an administrative appeal on behalf of the Ostermans. Before the agency responded to the appeal, the Ostermans filed suit. Judge Barbara Rothstein noted that "in the context of FOIA, standing is conferred on an individual whose FOIA request has been denied in whole or part. This means that the individual who made the FOIA request is the only individual who has standing to challenge an agency's response to that request." She observed that "here, it is undisputed that the FOIA request was not signed by the Ostermans; nor, does the FOIA request indicate that it was made on behalf of the Ostermans." The Ostermans argued the agency should have known that their attorney was requesting the records on their behalf. But Rothstein pointed out that "a post hoc declaration by an attorney of an intent which is not manifested by the operative FOIA request is irrelevant. Such a self-serving declaration is inherently unreliable. Moreover, it is patently unworkable from a FOIA perspective to ask federal agencies to recognize someone as an actual FOIA requester based only on after-the-fact statements of intent, such as those made by Mr. Reynolds." Rothstein added that "it was not until after the Corps responded to the FOIA request and an administrative appeal was filed that Mr. Reynolds claimed he made the request on behalf of the Ostermans. This is not sufficient to confer standing on the Ostermans. Indeed, if it were, there would be nothing to prohibit a party from piggy-backing onto an existing request at any point in the administrative and/or judicial process. Such was not the intent of Congress."
Issues: Litigation - Jurisdiction - Proper Party

Date Filed	Doc #	Docket Text
2013-10-04	1	COMPLAINT Tom Osterman, Cathleen Osterman against defendant(s) U.S. Army Corps of Engineers(Receipt # 0981-3370166), filed by Tom Osterman and Cathleen Osterman. (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet, # 3 Summons)(Reynolds, Dennis) Modified on 10/4/2013 to edit parties. (RE). (Entered: 10/04/2013)
2013-10-07		Judge John C Coughenour added. (MKB) (Entered: 10/07/2013)
2013-10-07	2	Summons Issued as to defendant US Army Corps of Engineers. (MKB) (Entered: 10/07/2013)
2013-10-08	3	MINUTE ENTRY re: STATUS CONFERENCE. The attorney who will be responsible for trying the case should attend the conference and be prepared to discuss the following matters at the conference: 1. The nature of the case; 2. The status of matters which are presently set before the Court, e.g., hearings, motions, etc.; 3. The status of discovery and a time schedule for its completion; 4. A statement of any legal issues about which motions are contemplated and a possible briefing schedule; 5. An estimate of the number of days needed for trial; 6. Whether the case is jury or non-jury; 7. The date by which the case will be ready for trial; 8. Settlement probabilities; and 9. Whether the parties consent to proceed to trial before an assigned magistrate judge pursuant to 28 U.S.C. 636(c). If counsel's office is outside of the Greater Metropolitan Seattle area, arrangements may be made to participate telephonically in the conference by contacting the Courtroom Deputy Clerk at (206) 370-8805 at least 10 days prior to the proceeding. Counsel do NOT need to file a Joint Status Report or Rule 26(f) Report in advance of the Status Conference. Furthermore, counsel should plan on arriving 10 minutes early to check in with the Courtroom Deputy Clerk as the Court's calendar promptly begins at 9:00 a.m. COUNSEL FOR THE PLAINTIFF IS DIRECTED TO NOTIFY ALL PARTIES OF THE DATE AND TIME OF THE STATUS CONFERENCE. The Court hereby orders counsel to appear for a Status Conference on 2/11/2014 at 9:00 AM in Courtroom 16206 before United States District Judge John C. Coughenour. (PP) (Entered: 10/08/2013)
2013-10-08	4	ORDER REGARDING DISCOVERY AND DEPOSITIONS by United States District Judge John C. Coughenour. (PP) (Entered: 10/08/2013)
2013-10-08	5	NOTICE OF PARTICIPATION OF CAMERAS IN THE COURTROOM. The Western District of Washington is participating in the Judiciary's Pilot Project on Cameras in the Courtroom . The project is a 3-year study to evaluate the effects of cameras in the courtrooms. This case is eligible to have proceedings video recorded and made available to the public via the U.S. Court's and Western District of Washington's web sites. Please notify the Courtroom Deputy Clerk for United States District Judge John C. Coughenour to indicate whether or not you agree to participate in the pilot project. If you should desire to participate, the court will require formal consent for the recording of each scheduled proceeding. Please contact the Courtroom Deputy at: paul_pierson@wawd.uscourts.gov. Do not e-file your response. (PP) (Entered: 10/08/2013)
2013-10-10	6	AFFIDAVIT of Service of Summons and Complaint on Milton Boyd on 10/9/2013, filed by Plaintiff Tom Osterman. (Reynolds, Dennis) (Entered: 10/10/2013)
2013-10-29	7	AFFIDAVIT of Service of Summons and Complaint on James B. Collins on 10/10/2013, filed by Plaintiff Tom Osterman. (Reynolds, Dennis) (Entered: 10/29/2013)
2013-11-18	8	ANSWER to 1 Complaint, Attorney Peter Angus Winn added to party US Army Corps of Engineers(pty:dft) by US Army Corps of Engineers.(Winn, Peter) (Entered: 11/18/2013)
2014-01-09	9	NOTICE OF RESCHEDULED STATUS CONFERENCE. The Court, on its own motion, hereby orders the Status Conference reset to 3/18/2014 at 9:00 AM in Courtroom 16206 before U.S. District Judge John C. Coughenour.(PP) (Entered: 01/09/2014)
2014-02-13	10	NOTICE of Appearance by attorney Brian C Kipnis on behalf of Defendant US Army Corps of Engineers. (Kipnis, Brian) (Entered: 02/13/2014)
2014-02-13	11	NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Peter Angus Winn for Defendant US Army Corps of Engineers. (Kipnis, Brian) (Entered: 02/13/2014)
2014-03-13	12	MOTION to Amend 8 Answer to Complaint, Notice of Motion and Federal Defendants' Motion to Amend Answer; Memorandum of Points and Authorities in Support Thereof by Defendant US Army Corps of Engineers. (Attachments: # 1 Exhibit A, # 2 Proposed Order) Noting Date 3/28/2014, (Kipnis, Brian) (Entered: 03/13/2014)
2014-03-18	13	MINUTE ENTRY re: STATUS CONFERENCE held before United States District Judge John C. Coughenour; Courtroom Deputy Clerk Paul Pierson; Court Reporter Nancy Bauer; Plaintiff(s) Counsel Dennis Reynolds; Defendant(s) Counsel Brian Kipnis, AUSA. The case was called and counsel made their appearance. The Court inquires of counsel concerning their desired trial date and time estimate for trial. Note that all depositions, discovery and perpetuation, must be completed before the discovery completion date. Counsel are advised that this case may be one of several cases set for the week described below. Counsel should be prepared to commence trial as scheduled, but understand that the trial may have to be continued. Counsel are directed to contact the Courtroom Deputy Clerk at paul_pierson@wawd.uscourts.gov 2-4 weeks in advance of the trial date regarding the Court's trial calendar. Case management dates are established as follows: 1 day estimate for a COURT TRIAL is set for 7/6/2015 at 9:30 AM in Courtroom 16206 before U.S. District Judge John C. Coughenour; Proposed Pretrial Order is due by 6/26/2015; Pleading amendment/3rd pty action is/are due by 9/5/2014; Trial briefs to be submitted by 7/2/2015; discovery cutoff is 120 days before trial, and the dispositive motion filing deadline is 90 days before trial. Counsel should attend Courtroom Technology Training at least 1 month in advance of the trial date in order to become familiar utilizing the A/V equipment now available in the courtroom. Training is generally held at 3:00 p.m. on the 1st and 3rd Wednesday of each month in Courtroom 18B. (PP) (Entered: 03/18/2014)
2014-03-24	14	RESPONSE, by Plaintiffs Cathleen Osterman, Tom Osterman, to 12 MOTION to Amend 8 Answer to Complaint, Notice of Motion and Federal Defendants' Motion to Amend Answer; Memorandum of Points and Authorities in Support Thereof . (Reynolds, Dennis) (Entered: 03/24/2014)
2014-03-24	15	DECLARATION of Dennis D. Reynolds filed by Plaintiffs Cathleen Osterman, Tom Osterman re 12 MOTION to Amend 8 Answer to Complaint, Notice of Motion and Federal Defendants' Motion to Amend Answer; Memorandum of Points and Authorities in Support Thereof (Attachments: # 1 Exhibit to Reynolds Declaration in Opposition to Def Motion to Amend)(Reynolds, Dennis) (Entered: 03/24/2014)
2014-03-28	16	REPLY, filed by Defendant US Army Corps of Engineers, TO RESPONSE to 12 MOTION to Amend 8 Answer to Complaint, Notice of Motion and Federal Defendants' Motion to Amend Answer; Memorandum of Points and Authorities in Support Thereof (Kipnis, Brian) (Entered: 03/28/2014)
2014-04-17	17	MINUTE ORDER REASSIGNING CASE. Case reassigned to Judge Barbara J. Rothstein for all further proceedings. Judge John C Coughenour no longer assigned to case Cc to BJR. All future pleadings in this case should reflect the change in the case number as follows: C13-1787-BJR by Judge John C Coughenour. (RS) (Entered: 04/17/2014)
2014-06-25	18	ORDER granting 12 Motion to Amend. Counsel is directed to e-file their Amended Complaint. by Judge Barbara J. Rothstein.(HR) (Entered: 06/25/2014)
2014-06-25	19	AMENDED ANSWER to 1 Complaint, First Amended Answer to Plaintiffs' Complaint by US Army Corps of Engineers. (Kipnis, Brian) (Entered: 06/25/2014)
2014-07-03	20	MOTION to Dismiss Notice of Motion and Defendant's Motion to Dismiss Action for Lack of Subject Matter Jurisdiction; Memorandum of Points and Authorities in Support Thereof by Defendant US Army Corps of Engineers. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 5) Noting Date 7/25/2014, (Kipnis, Brian) (Entered: 07/03/2014)
2014-07-18	21	MOTION to Intervene or Amend Complaint by Plaintiffs Cathleen Osterman, Tom Osterman. (Attachments: # 1 Proposed Order, # 2 Proposed Order) Noting Date 7/25/2014, (Reynolds, Dennis) (Entered: 07/18/2014)
2014-07-18	22	PRAECIPE to attach document Proposed Order Corrected re 21 MOTION to Intervene or Amend Complaint by Plaintiffs Cathleen Osterman, Tom Osterman. (Reynolds, Dennis) (Entered: 07/18/2014)
2014-07-18	23	RESPONSE, by Plaintiffs Cathleen Osterman, Tom Osterman, to 20 MOTION to Dismiss Notice of Motion and Defendant's Motion to Dismiss Action for Lack of Subject Matter Jurisdiction; Memorandum of Points and Authorities in Support Thereof . (Reynolds, Dennis) (Entered: 07/18/2014)
2014-07-18	24	DECLARATION of Dennis Reynolds filed by Plaintiffs Cathleen Osterman, Tom Osterman re 20 MOTION to Dismiss Notice of Motion and Defendant's Motion to Dismiss Action for Lack of Subject Matter Jurisdiction; Memorandum of Points and Authorities in Support Thereof (Reynolds, Dennis) (Entered: 07/18/2014)
2014-07-22		Noting Date Reset regarding 21 MOTION to Intervene or Amend Complaint : Noting Date 8/8/2014, (RM) (Entered: 07/22/2014)
2014-07-24		Set/Reset Hearing: Bench Trial is set for 7/6/2015 at 09:00 AM in Courtroom 16106 before Judge Barbara J. Rothstein. (RM) (Entered: 07/24/2014)
2014-07-25	25	REPLY, filed by Defendant US Army Corps of Engineers, TO RESPONSE to 20 MOTION to Dismiss Notice of Motion and Defendant's Motion to Dismiss Action for Lack of Subject Matter Jurisdiction; Memorandum of Points and Authorities in Support Thereof (Kipnis, Brian) (Entered: 07/25/2014)
2014-07-25	26	DECLARATION of Anthony C. Funkhouser filed by Defendant US Army Corps of Engineers re 20 MOTION to Dismiss Notice of Motion and Defendant's Motion to Dismiss Action for Lack of Subject Matter Jurisdiction; Memorandum of Points and Authorities in Support Thereof (Attachments: # 1 Exhibit 6, # 2 Exhibit 7)(Kipnis, Brian) (Entered: 07/25/2014)
2014-08-04	27	RESPONSE, by Defendant US Army Corps of Engineers, to 21 MOTION to Intervene or Amend Complaint . (Kipnis, Brian) (Entered: 08/04/2014)
2014-08-07	28	REPLY, filed by Plaintiffs Cathleen Osterman, Tom Osterman, TO RESPONSE to 21 MOTION to Intervene or Amend Complaint (Reynolds, Dennis) (Entered: 08/07/2014)
2014-10-21	29	MINUTE ORDER setting pretrial dates and deadlines: Pretrial Conference set for 6/24/2015 at 01:00 PM PST before Judge Barbara J. Rothstein. Joint Pretrial Statement due by 6/10/2015. (RM) (Entered: 10/21/2014)
2014-10-30	30	ORDER granting 20 Motion to Dismiss and striking 21 Motion to Intervene as moot by Judge Barbara J. Rothstein.(HR) (Entered: 10/30/2014)
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