Case Detail

FOIA Project Annotation: Judge Randolph Moss has ruled that the National Resources Defense Council has standing to challenge the EPA's policy of considering FOIA requests voluntarily withdrawn if the agency concludes that the request does not reasonably describe the records sought and the requester fails to respond to an EPA email asking for clarification within 10 days but that NRDC has not yet shown that such a policy can be remedied under FOIA. The NRDC submitted a request asking the agency for records concerning policies for removing information from existing agency websites. The EPA responded three months later, telling NRDC that its request did not sufficiently describe records and would be considered withdrawn if NRDC did not respond with clarification within 10 days. NRDC responded nine days later, arguing that its request was clear and that the agency did not have the statutory authority to unilaterally close requests for failure to respond within 10 days. NRDC then filed suit, challenging the agency's failure to respond to its request as well as its policy of closing requests. The EPA responded to the request to NRDC's satisfaction, but the organization continued its challenge to the agency's policy. Moss started by pointing out that to show standing NRDC had to show that it had suffered an injury-in-fact. The EPA argued that under the provision allowing for tolling of the 20-day response time once if an agency needed to contact the requester for clarification, a request was not deemed received until it reasonably described the records sought. Moss, however, observed that "if construed in this manner, it is unclear what work the tolling provision would perform: because § 552(a)(3) not only requires that the request 'reasonably describe' the records sought, but also requires compliance 'with published rules stating the time, place, fees (if any), and procedures to be followed' in seeking agency records, it is difficult to imagine what request for additional 'information' might trigger the tolling provision if the clock does not even begin to run until the requester has fully complied with § 552(a)(3)." Moss explained that NRDC was not basing its standing argument on the perceived inconsistencies with the tolling provisions but instead on the fact that the EPA policy of quickly closing FOIA requests it deemed insufficiently described the records sought forced the NRDC to expend its resources to respond within 10 days or risking having its request closed and being forced to submit a new one. Moss observed that "the NRDC contends that the EPA's threat to treat a FOIA request as 'voluntarily withdrawn' if the NRDC does not rapidly reply to the EPA's inquiry affects how the NRDC allocates its time and resources." The agency argued that while NRDC had the right to make a FOIA request, it was legally required to abide by the agency's regulations. Moss noted that "this contention assumes that the EPA is right on the merits." Moss found the NRDC qualified for Article III standing because it had shown an injury-in-fact, pointing out that "as the NRDC acknowledges, this burden is a 'modest one.' But Article III standing does not demand more, particularly where, as here, the plaintiff is the object of the challenged administrative action." Having found the NRDC qualified for standing, Moss indicated that "the Court is unpersuaded, at least on the current record, that it has shown enough to establish statutory standing or to obtain injunctive or similar relief." NRDC relied on Payne Enterprises v. United States, 837 F.2d 486 (D.C. Cir. 1988), and its progeny to assert a pattern or practice claim against the EPA. However, Moss pointed out that Payne and the cases following it were all based on allegations that the agency was improperly withholding records. Moss noted that "here, in contrast, the NRDC has not offered evidence that the EPA's 'voluntarily withdrawn' practice has, or is likely to, delay or deny the NRDC access to records that it sought or will seek." He added that the confusion inherent in the policy "could work to dissuade requesters â€" 'particularly less experienced requesters' â€" from pursuing their FOIA requests, from filing administrative appeals, or from filing suit. But the NRDC is a sophisticated requester, and it does not challenge the withholding of records as a result of the practice." Moss indicated that the NRDC needed to further develop its arguments. He pointed out that "until the parties have had the opportunity to address these questions â€"including the questions whether the Court has statutory jurisdiction to entertain the NRDC's policy or practice claim and whether injunctive or similar relief is appropriate in these circumstances â€" the Court cannot resolve this case."
Issues: Litigation - Jurisdiction - Standing

Date Filed	Doc #	Docket Text
2017-06-26	1	COMPLAINT against UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ( Filing fee $ 400 receipt number 0090-5005487) filed by NATURAL RESOURCES DEFENSE COUNCIL, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Knicley, Jared) (Entered: 06/26/2017)
2017-06-26	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by NATURAL RESOURCES DEFENSE COUNCIL, INC. (Knicley, Jared) (Entered: 06/26/2017)
2017-06-26		Case Assigned to Judge Randolph D. Moss. (md) (Entered: 06/26/2017)
2017-06-26	3	STANDING ORDER: The parties are hereby ORDERED to comply with the directives in the attached Standing Order. See document for details. Signed by Judge Randolph D. Moss on 6/26/2017. (lcrdm1, ) Modified on 7/5/2017 to correct grammatical error (kt). (Entered: 06/26/2017)
2017-06-26	4	SUMMONS (3) Issued Electronically as to UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 06/26/2017)
2017-06-30	5	NOTICE of Appearance by Aaron S. Colangelo on behalf of NATURAL RESOURCES DEFENSE COUNCIL, INC. (Colangelo, Aaron) (Entered: 06/30/2017)
2017-07-12	6	NOTICE of Appearance by Joshua L. Rogers on behalf of UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Rogers, Joshua) (Entered: 07/12/2017)
2017-07-13	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY served on 6/30/2017 (Attachments: # 1 Exhibit A)(Knicley, Jared) (Entered: 07/13/2017)
2017-07-13	8	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 07/03/2017. (Attachments: # 1 Exhibit A)(Knicley, Jared) (Entered: 07/13/2017)
2017-07-13	9	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/3/2017. Answer due for ALL FEDERAL DEFENDANTS by 8/2/2017. (Attachments: # 1 Exhibit A)(Knicley, Jared) (Entered: 07/13/2017)
2017-08-01	10	Consent MOTION for Extension of Time to File Answer by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Rogers, Joshua) (Entered: 08/01/2017)
2017-08-03		MINUTE ORDER: Upon consideration of the Consent Motion for Extension of Time 10 , the motion is hereby GRANTED. Defendant is hereby ORDERED to respond to Plaintiff's operative complaint on or before September 25, 2017. Signed by Judge Randolph D. Moss on 8/3/2017. (lcrdm1, ) (Entered: 08/03/2017)
2017-08-03		Set/Reset Deadlines: Response to Plaintiff's operative complaint due by 9/25/2017. (kt) (Entered: 08/03/2017)
2017-08-09	11	AMENDED COMPLAINT against UNITED STATES ENVIRONMENTAL PROTECTION AGENCY filed by NATURAL RESOURCES DEFENSE COUNCIL, INC.. (Attachments: # 1 Amended Complaint - Redline)(Knicley, Jared) (Entered: 08/09/2017)
2017-09-25	12	MOTION for Extension of Time to File Answer re 11 Amended Complaint by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Rogers, Joshua) (Entered: 09/25/2017)
2017-09-25	13	Memorandum in opposition to re 12 MOTION for Extension of Time to File Answer re 11 Amended Complaint filed by NATURAL RESOURCES DEFENSE COUNCIL, INC.. (Attachments: # 1 Text of Proposed Order)(Knicley, Jared) (Entered: 09/25/2017)
2017-09-26		MINUTE ORDER: Upon consideration of Defendant's Motion for Extension 12 , the motion is hereby GRANTED in part and DENIED in part. As per this Court's Standing Order in Civil Cases, "[a]bsent extraordinary circumstances, contested motions for extension of time sh[ould] be filed at least three business days before the relevant deadline." See Dkt. 3 at 5. Here, the Court ordered Defendant to respond to Plaintiff's operative complaint "on or before September 25, 2017," Minute Order (Aug. 3, 2017), but the Court did not receive Defendant's motion for an extension until that same date. In addition, Defendant has not made a specific showing of a need for an extension of the length requested but, rather, merely notes that counsel is "diligently working to resolve this case as well as many others" and that counsel is deciding whether the "proper course of action" would be to file a motion to dismiss rather than an answer. Dkt. 12 at 1-2. Nonetheless, the Court will grant Defendant a two-week extension, and will hereby ORDER that it file its response to Plaintiff's amended complaint on or before October 10, 2017. Signed by Judge Randolph D. Moss on 9/26/2017. (lcrdm1, ) (Entered: 09/26/2017)
2017-09-26		Set/Reset Deadlines: Answer due by 10/10/2017. (kt) (Entered: 09/26/2017)
2017-10-04	14	STIPULATION Joint Stipulation and Proposed Order as to Count One of the Amended Complaint by NATURAL RESOURCES DEFENSE COUNCIL, INC.. (Knicley, Jared) (Entered: 10/04/2017)
2017-10-10	15	MOTION to Dismiss or, in the Alternative, for Summary Judgment by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Statement of Facts, # 2 Exhibit, # 3 Text of Proposed Order)(Rogers, Joshua). Added MOTION for Summary Judgment on 10/11/2017 (znmw). (Entered: 10/10/2017)
2017-10-10	16	ERRATA (Declaration Attached) by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 15 MOTION to Dismiss or, in the Alternative, for Summary Judgment filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Declaration)(Rogers, Joshua) (Entered: 10/10/2017)
2017-10-11	17	ORDER: Upon consideration of the parties' Joint Stipulation and Proposed Order 14 , it is hereby ORDERED that the Stipulation is approved. It is further ORDERED that EPA will process the documents identified under the agreed-upon search terms and disclose to NRDC records responsive to the FOIA Request as follows: (1) On before November 15, 2017, EPA will review at least 4500 documents and disclose to NRDC all responsive, non-exempt e-mails and attachments identified during that process; (2) On or before December 29, 2017, EPA will review at least 4500 additional documents (for a total of at least 9000 documents) and disclose to NRDC all responsive, non-exempt e-mails and attachments identified during that process; (3) On or before January 31, 2018, EPA will review all remaining documents and disclose to NRDC all responsive, non-exempt e-mails and attachments identified during that process; (4) If EPA withholds in part or in whole any record or records responsive to the FOIA Request, EPA will provide to NRDC an initial index identifying all such records and the basis for the withholdings on or before January 31, 2018; (5) On or before February 14, 2018, the parties will confer regarding whether there are outstanding matters to be resolved under Count One of the Amended Complaint, including the form and necessity of any final Vaughn index, such as whether a sample or categorical Vaughn index is appropriate in this matter. This Stipulation does not resolve, affect, or address any portion of Counts Two or Three of the Amended Complaint. See document for details. Signed by Judge Randolph D. Moss on 10/11/2017. (lcrdm1, ) (Entered: 10/11/2017)
2017-10-13	18	ERRATA by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 15 MOTION to Dismiss or, in the Alternative, for Summary Judgment MOTION for Summary Judgment filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Text of Proposed Order)(Rogers, Joshua) (Entered: 10/13/2017)
2017-10-19	19	Unopposed MOTION for Extension of Time to File Response/Reply as to 15 MOTION to Dismiss or, in the Alternative, for Summary Judgment MOTION for Summary Judgment by NATURAL RESOURCES DEFENSE COUNCIL, INC. (Attachments: # 1 Text of Proposed Order)(Colangelo, Aaron) (Entered: 10/19/2017)
2017-10-21		MINUTE ORDER: Upon consideration of Plaintiff's Unopposed Motion for Extension of Time 19 , it is hereby ORDERED that the motion is GRANTED. Plaintiff shall file its opposition to Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment on or before November 3, 2017. Signed by Judge Randolph D. Moss on 10/21/2017. (lcrdm1, ) (Entered: 10/21/2017)
2017-10-23		Set/Reset Deadlines: Plaintiff shall file its opposition to Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment on or before 11/3/2017. (kt) (Entered: 10/23/2017)
2017-11-03	20	Cross MOTION for Summary Judgment as to Counts Two and Three of the Amended Complaint by NATURAL RESOURCES DEFENSE COUNCIL, INC. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts and Resp. to Def.'s Statement of Facts, # 3 Declaration of Mitchell S. Bernard, # 4 Declaration of Jared E. Knicley (and exhibits), # 5 Text of Proposed Order)(Knicley, Jared) (Entered: 11/03/2017)
2017-11-03	21	Memorandum in opposition to re 15 MOTION to Dismiss or, in the Alternative, for Summary Judgment MOTION for Summary Judgment filed by NATURAL RESOURCES DEFENSE COUNCIL, INC.. (Knicley, Jared) (Entered: 11/03/2017)
2017-11-09	22	Consent MOTION for Extension of Time to Reply by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Rogers, Joshua) (Entered: 11/09/2017)
2017-11-09		MINUTE ORDER: Upon consideration of Defendant's Motion for Extension 22 , it is hereby ORDERED that the motion is GRANTED. Defendant shall file its Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment on or before December 13, 2017. Signed by Judge Randolph D. Moss on 11/9/2017. (lcrdm1, ) (Entered: 11/09/2017)
2017-11-13		Set/Reset Deadlines: Reply to Motion for Summary Judgment due by 12/13/2017. (kt) (Entered: 11/13/2017)
2017-11-15	23	MOTION for Extension of Time to File Response by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Rogers, Joshua) (Entered: 11/15/2017)
2017-11-16		MINUTE ORDER: Upon consideration of Defendant's Consent Motion for an Extension of Time 23 , it is hereby ORDERED that the motion is GRANTED. Defendant shall respond to Plaintiff's Cross-Motion for Summary Judgment on or before December 13, 2017. Signed by Judge Randolph D. Moss on 11/16/2017. (lcrdm1, ) (Entered: 11/16/2017)
2017-11-16		Set/Reset Deadlines: Defendant shall respond to Plaintiff's Cross-Motion for Summary Judgment on or before 12/13/2017. (kt) (Entered: 11/16/2017)
2017-12-08	24	Consent MOTION for Extension of Time to File Response/Reply as to 20 Cross MOTION for Summary Judgment as to Counts Two and Three of the Amended Complaint by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Rogers, Joshua) (Entered: 12/08/2017)
2017-12-11		MINUTE ORDER: Upon consideration of Defendant's Consent Motion for Extension of Time 24 , it is hereby ORDERED that the motion is GRANTED. Defendant shall respond to Plaintiff's Cross-Motion for Summary Judgment on or before December 15, 2017. Signed by Judge Randolph D. Moss on 12/11/2017. (lcrdm1, ) (Entered: 12/11/2017)
2017-12-11		Set/Reset Deadlines: Response to Cross Motions due by 12/15/2017. (kt) (Entered: 12/11/2017)
2017-12-15	25	REPLY to opposition to motion re 20 Cross MOTION for Summary Judgment as to Counts Two and Three of the Amended Complaint , 15 MOTION to Dismiss or, in the Alternative, for Summary Judgment MOTION for Summary Judgment filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Statement of Facts)(Rogers, Joshua) (Entered: 12/15/2017)
2017-12-19	26	ERRATA by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 25 Reply to opposition to Motion, filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Rogers, Joshua) (Entered: 12/19/2017)
2017-12-22	27	REPLY to opposition to motion re 20 Cross MOTION for Summary Judgment as to Counts Two and Three of the Amended Complaint filed by NATURAL RESOURCES DEFENSE COUNCIL, INC.. (Attachments: # 1 Statement of Facts)(Knicley, Jared) (Entered: 12/22/2017)
2018-05-23	28	Joint STATUS REPORT by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Rogers, Joshua) (Entered: 05/23/2018)
2018-06-08	29	NOTICE OF SUPPLEMENTAL AUTHORITY by NATURAL RESOURCES DEFENSE COUNCIL, INC. (Attachments: # 1 PEER v. EPA)(Knicley, Jared) (Entered: 06/08/2018)
2018-06-19	30	RESPONSE re 29 NOTICE OF SUPPLEMENTAL AUTHORITY filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Rogers, Joshua) (Entered: 06/19/2018)
2018-07-23	31	NOTICE OF SUPPLEMENTAL AUTHORITY by NATURAL RESOURCES DEFENSE COUNCIL, INC. (Attachments: # 1 Judicial Watch v. DHS)(Knicley, Jared) (Entered: 07/23/2018)
2018-08-03	32	RESPONSE re 31 NOTICE OF SUPPLEMENTAL AUTHORITY filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Rogers, Joshua) (Entered: 08/03/2018)
2019-04-19	33	MEMORANDUM OPINION & ORDER: Defendant's motion for summary judgment, Dkt. 15, is hereby DENIED, and Defendant's motion to dismiss, Dkt. 15, and Plaintiff's cross-motion for summary judgment, Dkt. 20, are hereby DENIED without prejudice. See document for details. Signed by Judge Randolph D. Moss on 4/19/2019. (lcrdm1, ) (Entered: 04/19/2019)
2019-07-23	34	Joint STATUS REPORT by NATURAL RESOURCES DEFENSE COUNCIL, INC.. (Knicley, Jared) (Entered: 07/23/2019)
2019-07-28		MINUTE ORDER: Upon consideration of the parties' joint status report, Dkt. 34 , it is hereby ORDERED that the parties shall file a further joint status report on or before Friday, August 23, 2019. Signed by Judge Randolph D. Moss on 7/28/2019. (lcrdm1, ) (Entered: 07/28/2019)
2019-07-29		Set/Reset Deadlines: Joint Status Report due by 8/23/2019. (hmc) (Entered: 07/29/2019)
2019-08-23	35	Joint STATUS REPORT by NATURAL RESOURCES DEFENSE COUNCIL, INC.. (Knicley, Jared) (Entered: 08/23/2019)
2019-08-23		MINUTE ORDER: Upon consideration of the parties' joint status report, Dkt. 35 , it is hereby ORDERED that the parties shall file a further status report on or before September 23, 2019. Signed by Judge Randolph D. Moss on 8/23/19. (lcrdm1, ) (Entered: 08/23/2019)
2019-08-23		Set/Reset Deadlines: Joint Status Report due by 9/23/2019. (dot) (Entered: 08/26/2019)
2019-09-23	36	Joint STATUS REPORT by NATURAL RESOURCES DEFENSE COUNCIL, INC.. (Knicley, Jared) (Entered: 09/23/2019)
2019-09-23		MINUTE ORDER: Upon consideration of the parties' joint status report, Dkt. 36 , it is hereby ORDERED that the parties file a further status report on or before October 7, 2019. Signed by Judge Randolph D. Moss on 9/23/19. (lcrdm1, ) (Entered: 09/23/2019)
2019-09-24		Set/Reset Deadlines: Joint Status Report due by 10/7/2019. (kt) (Entered: 09/24/2019)
2019-10-07	37	Joint STATUS REPORT by NATURAL RESOURCES DEFENSE COUNCIL, INC.. (Knicley, Jared) (Entered: 10/07/2019)
2019-10-07		MINUTE ORDER: In light of the parties' joint status report, Dkt 37 , it is hereby ORDERED that the parties shall either submit a stipulation of dismissal or otherwise update the Court on the status of the case on or before October 11, 2019. Signed by Judge Randolph D. Moss on 10/7/19. (lcrdm1) (Entered: 10/07/2019)
2019-10-07		Set/Reset Deadlines: Status Report or Stipulation due by 10/11/2019. (kt) (Entered: 10/07/2019)
2019-10-11	38	STIPULATION Joint Stipulation of Settlement and [Proposed] Order by NATURAL RESOURCES DEFENSE COUNCIL, INC.. (Attachments: # 1 Exhibit A)(Knicley, Jared) (Entered: 10/11/2019)
2019-10-11	39	ORDER: Upon consideration of the parties' joint stipulation of settlement, Dkt. 38 , it is hereby ORDERED that the parties shall abide by the terms of the joint stipulation of settlement. See document for details. It is further ORDERED that the case is DISMISSED with prejudice without costs or fees other than those provided in paragraph 2 of the parties' joint stipulation. The Clerk of Court is hereby directed to terminate the case. Signed by Judge Randolph D. Moss on 10/11/19. (lcrdm1) Modified on 10/21/2019 to take out the word "Minute" in front of "Order" (kt). (Entered: 10/11/2019)
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