Case Detail

FOIA Project Annotation: Judge Timothy Kelly has ruled that the U.S. Army Corps of Engineers had an improper policy or practice of claiming that Exemption 5 (privileges) applied to pending Clean Water Act permit applications and then admitting its error and disclosing the records once the Missouri Coalition for the Environment filed suit. The Coalition told Kelly that at least six of its requests handled by either the St. Louis or Little Rock districts involved initial claims that portions of pending permit applications were protected by the deliberative process privilege that were dropped once MCE filed suit. The agency admitted its error but argued that these were isolated instances and did not constitute a policy or practice. However, Kelly found MCE's evidence overwhelming. He noted that "the Corps' record of repeated and almost identical FOIA violations leads to the unavoidable conclusion that its decisions resulted from a policy or practice to withhold materials in the application files of pending [CWA] permit applications, even if those materials were not inter- or intra-agency records. The Court cannot reasonably conclude that those decisions were isolated mistakes. And because, as the parties agree, withholding materials on that basis violates FOIA, the policy or practice is unlawful." Although the agency argued that the improper withholdings were mistakes and did not rise to the level of a policy or practice, Kelly indicated that the agency's declarations did not support that conclusion. He pointed out that "it is also telling that the Corps has provided no examples of times when it did release non-agency records in application files for pending [CWA] permits. If, as the Corps now claims, the improper withholdings under Exemption 5 were merely isolated mistakes, examples of times when it released the application files for pending permits should abound. But the Corps offers none." The agency also urged Kelly to judge the handful of mistakes in the two districts separately. Instead, Kelly noted that "a plaintiff need not proffer instances of an alleged policy or practice in every single Corps district to show that a policy or practice exists." He added that "if anything, the fact that MCE received unlawful responses from two different Corps districts only further evidences that the Corps maintained a policy or practice and that the decisions to withhold the records at issue were not isolated mistakes." Kelly declined MCE's request for injunctive relief, pointing out that "even if an agency maintains an unlawful policy or practice such that a FOIA plaintiff is entitled to declaratory relief, the heightened remedy of injunctive relief is not necessarily appropriate." He found that the agency had recognized that its policy was incorrect and taken steps to release such records in the future.
Issues: Litigation - Jurisdiction - Standing

Date Filed	Doc #	Docket Text
2018-03-23	1	COMPLAINT against U.S. ARMY CORPS OF ENGINEERS ( Filing fee $ 400 receipt number 0090-5385558) filed by MISSOURI COALITION FOR THE ENVIRONMENT. (Attachments: # 1 Civil Cover Sheet, # 2 Corporate Disclosure)(Hubertz, Elizabeth) (Attachment 1 replaced on 3/26/2018) (jd) (Entered: 03/23/2018)
2018-03-23	2	REQUEST FOR SUMMONS TO ISSUE re 1 Complaint, filed by MISSOURI COALITION FOR THE ENVIRONMENT. Related document: 1 Complaint, filed by MISSOURI COALITION FOR THE ENVIRONMENT. (Attachments: # 1 Summons, # 2 Summons)(Hubertz, Elizabeth) (Entered: 03/23/2018)
2018-03-23	3	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by MISSOURI COALITION FOR THE ENVIRONMENT. (jd) (Entered: 03/26/2018)
2018-03-23		Case Assigned to Judge Timothy J. Kelly. (jd) (Entered: 03/26/2018)
2018-03-26	4	SUMMONS (3) Issued Electronically as to U.S. ARMY CORPS OF ENGINEERS, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Notice and Consent)(jd) (Entered: 03/26/2018)
2018-04-16	5	NOTICE of Appearance by Shanna Laura Cronin on behalf of U.S. ARMY CORPS OF ENGINEERS (Cronin, Shanna) (Entered: 04/16/2018)
2018-04-25	6	ANSWER to Complaint by U.S. ARMY CORPS OF ENGINEERS.(Cronin, Shanna) (Entered: 04/25/2018)
2018-05-02		MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. It is hereby ORDERED that the parties shall meet, confer, and file a joint proposed schedule for briefing or disclosure by May 21, 2018. Signed by Judge Timothy J. Kelly on 5/2/2018. (lctjk3) (Entered: 05/02/2018)
2018-05-03		Set/Reset Deadlines: Joint proposed schedule for briefing or disclosure due by 5/21/2018. (jl) (Entered: 05/03/2018)
2018-05-08	7	NOTICE OF SUBSTITUTION OF COUNSEL by Jeremy Allen Haugh on behalf of U.S. ARMY CORPS OF ENGINEERS Substituting for attorney Shanna Cronin (Haugh, Jeremy) (Entered: 05/08/2018)
2018-05-21	8	RESPONSE to Minute Order of May 2, 2018 by MISSOURI COALITION FOR THE ENVIRONMENT. (Hubertz, Elizabeth) Modified on 5/22/2018 to correct docket text (jf). (Entered: 05/21/2018)
2018-05-21		MINUTE ORDER: Upon review of the 8 Proposed Briefing Schedule filed by the parties, it is hereby ORDERED that Defendant shall file its Motion for Summary Judgment by July 20, 2018; Plaintiff shall file its Memorandum in Opposition to Defendant's Motion for Summary Judgment and Cross-Motion for Summary Judgment by August 20, 2018; Defendant shall file its Reply in Support of its Motion for Summary Judgment and Opposition to Plaintiff's Cross-Motion by September 19, 2018; and Plaintiff shall file its Reply in support of its Cross-Motion by October 4, 2018. Signed by Judge Timothy J. Kelly on 5/21/2018. (lctjk3) (Entered: 05/21/2018)
2018-05-22	9	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General April 2 2018. (Hubertz, Elizabeth) (Main Document 9 replaced on 5/23/2018) (zjf). (Entered: 05/22/2018)
2018-05-22	10	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/2/2018. Answer due for ALL FEDERAL DEFENDANTS by 5/2/2018. (Hubertz, Elizabeth) (Main Document 10 replaced on 5/23/2018) (zjf). (Entered: 05/22/2018)
2018-05-22	11	Summons Returned Unexecuted by MISSOURI COALITION FOR THE ENVIRONMENT as to U.S. ARMY CORPS OF ENGINEERS. (Hubertz, Elizabeth) (Main Document 11 replaced on 5/23/2018) (zjf). (Entered: 05/22/2018)
2018-05-22	12	REQUEST FOR SUMMONS TO ISSUE to US Corps of Engineers filed by MISSOURI COALITION FOR THE ENVIRONMENT.(Hubertz, Elizabeth) (Entered: 05/22/2018)
2018-05-23	13	SUMMONS (1) Issued Electronically as to U.S. ARMY CORPS OF ENGINEERS. (jf) (Entered: 05/23/2018)
2018-06-06	14	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. ARMY CORPS OF ENGINEERS served on 4/2/2018 (Hubertz, Elizabeth) Modified on 7/2/2018 (zrdj). (Entered: 06/06/2018)
2018-07-20	15	Consent MOTION for Extension of Time to File Motion for Summary Judgment by U.S. ARMY CORPS OF ENGINEERS (Haugh, Jeremy) (Entered: 07/20/2018)
2018-07-23		MINUTE ORDER granting, nunc pro tunc, Defendant's 15 Consent Motion for Extension of Time. It is hereby ORDERED that Defendant shall file its motion for summary judgment by July 27, 2018; Plaintiff shall file its cross-motion for summary judgment and opposition to Defendant's motion by August 27, 2018; Defendant shall file its reply in support of its motion by September 26, 2018; and Plaintiff shall file its reply in support of its cross-motion by October 11, 2018. Signed by Judge Timothy J. Kelly on 7/23/2018. (lctjk3) (Entered: 07/23/2018)
2018-07-27	16	MOTION for Summary Judgment by U.S. ARMY CORPS OF ENGINEERS (Attachments: # 1 Statement of Facts, # 2 Declaration of Jacqueline E. Bouchard, # 3 Declaration of William P. Levins)(Haugh, Jeremy) (Entered: 07/27/2018)
2018-08-27	17	Cross MOTION for Summary Judgment Statement of Facts and Memorandum in Support by MISSOURI COALITION FOR THE ENVIRONMENT (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Declaration of Heather Navarro, # 8 Declaration of Elizabeth Hubertz, # 9 Text of Proposed Order)(Hubertz, Elizabeth) (Entered: 08/27/2018)
2018-08-27	18	Memorandum in opposition to re 16 MOTION for Summary Judgment filed by MISSOURI COALITION FOR THE ENVIRONMENT. (Hubertz, Elizabeth) (Entered: 08/27/2018)
2018-09-26	19	Memorandum in opposition to re 17 Cross MOTION for Summary Judgment Statement of Facts and Memorandum in Support and Reply Memorandum In Support of Defendant's Motion for Summary Judgment filed by U.S. ARMY CORPS OF ENGINEERS. (Attachments: # 1 Exhibit Levins Supplemental Declaration, # 2 Exhibit Bouchard Supplemental Declaration)(Haugh, Jeremy) (Entered: 09/26/2018)
2018-09-26	20	REPLY to opposition to motion re 16 MOTION for Summary Judgment filed by U.S. ARMY CORPS OF ENGINEERS. (Haugh, Jeremy) (Entered: 09/26/2018)
2018-10-11	21	REPLY to opposition to motion re 17 Cross MOTION for Summary Judgment Statement of Facts and Memorandum in Support filed by MISSOURI COALITION FOR THE ENVIRONMENT. (Hubertz, Elizabeth) (Entered: 10/11/2018)
2018-12-14	22	NOTICE OF SUBSTITUTION OF COUNSEL by Roberto Cesar Martens, Jr on behalf of U.S. ARMY CORPS OF ENGINEERS Substituting for attorney Jeremy A. Haugh (Martens, Roberto) (Entered: 12/14/2018)
2019-03-28	23	ORDER denying Defendant's 16 Motion for Summary Judgment, granting Plaintiff's 17 Cross-Motion for Summary Judgment, and entering declaratory judgment. See Order for details. Signed by Judge Timothy J. Kelly on 3/28/2019. (lctjk2) (Entered: 03/28/2019)
2019-03-28	24	MEMORANDUM OPINION in support of 23 Order denying Defendant's Motion for Summary Judgment, granting Plaintiff's Cross-Motion for Summary Judgment, and entering declaratory judgment. Signed by Judge Timothy J. Kelly on 3/28/2019. (lctjk2) (Entered: 03/28/2019)
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