Case Detail

FOIA Project Annotation: Judge Jia Cobb has ruled that the Bureaus of Alcohol, Tobacco and Firearms conducted an adequate search in response to a FOIA request from pro se litigator Tony Emery for records about himself, focusing his request on records from the Western District of Missouri, the Eastern District of Missouri, and ATF's Washington, D.C. headquarters. ATF responded that it had conducted a search but found no responsive records and told Emery that he could file an administrative appeal to the Office of Information Policy. Emery did not file an administrative appeal but instead filed suit against DOJ and ATF. A year later, ATF discovered nearly 600 responsive records in the Kansas City Federal Records Center that it previously had believed were destroyed. ATF disclosed all non-exempt records. Both parties filed motions for summary judgment. ATF argued that Emery had failed to exhaust his administrative remedies because he did not file an administrative appeal. However, since the agency had failed itself to conduct an adequate search in its first response to Emery's original FOIA request, Cobb found the claim was now moot. She explained that "after Emery filed suit, the ATF discovered, processed, and released new documents. In doing so, the ATF implicitly abandoned its original position that such document could not be located, thus 'rendering the propriety of the original agency decision â€" and any administrative challenges to it â€" an entirely academic question." Instead, she moved to whether the agency had conducted an adequate search the second time around and concluded that it had. Cobb noted that the agency's affidavit "explains why the hard copies, which the ATF reasonably believed to have been destroyed, were not discovered until later. Those sworn statements are sufficient to carry the DOJ's burden as to its search terms and methodology. Accordingly, the Court agrees with the DOJ that the search for records responsive to Emery's request was adequate." Cobb also approved of the agency's redactions and its segregability analysis.
Issues: Adequacy - Search

Date Filed	Doc #	Docket Text
2019-11-21		Initiating Pleading & IFP Application Received on 11/21/2019. A copy of the docket sheet has been mailed to the address of record for the pro se party. (adh, ) (Entered: 11/22/2019)
2019-11-21	1	COMPLAINT against BUREA OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVE, UNITED STATES DEPARTMENT OF JUSTICE with Jury Demand filed by TONY E. EMERY. (Attachment: # 1 Exhibit)(adh, ) (Entered: 11/22/2019)
2019-11-21	2	MOTION for Leave to Proceed in forma pauperis by TONY E. EMERY (adh, ) (Entered: 11/22/2019)
2019-11-21	3	PRISONER TRUST FUND ACCOUNT STATEMENT for period of six months by TONY E. EMERY (adh, ) (Entered: 11/22/2019)
2019-12-23	4	ORDER granting 2 Motion for Leave to Proceed in forma pauperis Signed by Judge Randolph D. Moss on 12/19/2019. (adh, ) (Entered: 12/23/2019)
2019-12-23		Case Assigned to Judge Ketanji Brown Jackson. (adh, ) (Entered: 12/23/2019)
2019-12-26	5	SUMMONS(4) Issued as to BUREA OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVE, UNITED STATES DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (adh, ) (Entered: 12/26/2019)
2020-01-10	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF JUSTICE served on 1/10/2020, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 1/10/2020. (jf) (Entered: 01/14/2020)
2020-01-13	8	WITHDRAWN PURSUANT TO THE MINUTE ORDER ENTERED ON 10/05/2020..... MOTION to Dismiss by TONY E. EMERY (eg) Modified on 2/4/2020 (zeg). (Main Document 8 replaced on 2/4/2020) (zeg). Modified on 10/5/2020 (zgdf). (Entered: 01/22/2020)
2020-01-13	11	MOTION for Relief of Orders. by TONY E. EMERY (eg) (Entered: 02/04/2020)
2020-01-14	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 1/13/2020. Answer due for ALL FEDERAL DEFENDANTS by 2/12/2020. (jf) (Entered: 01/15/2020)
2020-01-22	9	NOTICE of Appearance by Marsha Wellknown Yee on behalf of BUREA OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVE, UNITED STATES DEPARTMENT OF JUSTICE (Yee, Marsha) (Entered: 01/22/2020)
2020-01-28	10	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. BUREA OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVE served on 1/28/2020 (jf) (Entered: 01/29/2020)
2020-02-05	12	RESPONSE re 8 MOTION to Dismiss MOTION for Relief of Orders, 11 MOTION MOTION for Relief of Orders. filed by BUREA OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVE, UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Certificate of Service)(Yee, Marsha) (Entered: 02/05/2020)
2020-02-05	13	ORDER held in abeyance 8 Plaintiff's Motion to Dismiss; denying 11 Plaintiff's Motion for Relief from December 23, 2019 Order; directing Plaintiff to state his intention to dismiss or to proceed with the case by March 9, 2020 (see document for details). Signed by Judge Ketanji Brown Jackson on 2/5/20.(ah) (Entered: 02/05/2020)
2020-02-05		Set/Reset Deadlines: Notice due by 3/9/2020. (zgdf) (Entered: 02/06/2020)
2020-02-14	14	WITHDRAWN PURSUANT TO THE MINUTED ENTERED ON 10/05/2020.....MOTION to Dismiss by TONY E. EMERY (jf) Modified on 10/5/2020 (zgdf). (Entered: 02/19/2020)
2020-02-19	15	MOTION to Withdraw 14 MOTION to Dismiss by TONY E. EMERY (jf) (Main Document 15 replaced on 2/26/2020) (zjf). (Entered: 02/21/2020)
2020-10-05		MINUTE ORDER. Plaintiff's motion 15 to withdraw his motion to dismiss this FOIA case is GRANTED, and said motions (ECF Nos. 8, 14) are hereby withdrawn. Because this action is exempt from the requirements of Local Civil Rule 16.3 and Federal Rule of Civil Procedure Rule 26(f), see Local Civil Rule 16.3(b)(9), Defendants shall propose a schedule to govern the proceedings on or before October 20, 2020. SO ORDERED. Signed by Judge Ketanji Brown Jackson on 10/5/20.(psu1) (Entered: 10/05/2020)
2020-10-05		Set/Reset Deadlines: Defendant shall propose a schedule by 10/20/2020. (zgdf) (Entered: 10/05/2020)
2020-10-20	16	STATUS REPORT (Proposed Briefing Schedule) by BUREA OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVE, UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Certificate of Service)(Yee, Marsha) (Entered: 10/20/2020)
2020-11-23		MINUTE ORDER SETTING BRIEFING SCHEDULE. Upon consideration of 16 Defendants' Status Report and proposed schedule, the parties shall adhere to the following deadlines. Defendants' motion for summary judgment is due on or before December 18, 2020; Plaintiff's opposition is due on or before January 29, 2021; and Defendant shall file any reply on or before February 19, 2021. SO ORDERED. Signed by Judge Ketanji Brown Jackson on 11/23/20.(psu1) (Entered: 11/23/2020)
2020-11-24		Set/Reset Deadlines: Summary Judgment motions due by 12/18/2020. Response to Motion for Summary Judgment due by 1/29/2021. Reply to Motion for Summary Judgment due by 2/19/2021. (zgdf) (Entered: 11/24/2020)
2020-12-16	17	MOTION for Extension of Time to File Defendant's Motion for Summary Judgment and to Modify Remainder of Briefing Schedule by BUREA OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVE, UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Yee, Marsha) (Entered: 12/16/2020)
2021-01-28	18	WITHDRAWN PURSUANT TO 20 NOTICE FILED ON 03/17/2021.....MOTION for Summary Judgment by BUREA OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVE, UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Statement of Facts, # 2 Siple Decl., # 3 Text of Proposed Order, # 4 Certificate of Service)(Yee, Marsha) Modified on 3/17/2021 (zjf). (Entered: 01/28/2021)
2021-02-01		MINUTE ORDER granting nunc pro tunc 17 Defendants' Motion for an Extension of Time to file dispositive motion. Signed by Judge Ketanji Brown Jackson on 2/1/2021.(psu1) (Entered: 02/01/2021)
2021-02-02	19	Order advising plaintiff to respond by March 15, 2021, to defendants' motion for summary judgment or risk entry of judgment in defendants' favor and dismissal of the case (see document for details). Signed by Judge Ketanji Brown Jackson on 2/2/2021.(psu1) (Entered: 02/02/2021)
2021-02-03		Set/Reset Deadlines: Response due by 3/15/2021. (zgdf) (Entered: 02/03/2021)
2021-03-17	20	NOTICE OF WITHDRAWAL OF MOTION re 18 MOTION for Summary Judgment by BUREA OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVE, UNITED STATES DEPARTMENT OF JUSTICE (Yee, Marsha) Modified to add link on 3/18/2021 (znmw). (Entered: 03/17/2021)
2021-03-17	21	PROPOSED BRIEFING SCHEDULE by BUREA OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVE, UNITED STATES DEPARTMENT OF JUSTICE. (Yee, Marsha) (Entered: 03/17/2021)
2021-03-17	22	CERTIFICATE OF SERVICE by BUREA OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVE, UNITED STATES DEPARTMENT OF JUSTICE re 21 Proposed Briefing Schedule, 20 Notice of Withdrawal of Motion . (Yee, Marsha) (Entered: 03/17/2021)
2021-03-30	23	MOTION to assess court costs to the respondents and to return funds seized from account by TONY E. EMERY. (zjf) (Entered: 04/05/2021)
2021-03-30	24	MOTION to Appoint Counsel by TONY E. EMERY. (zjf) (Entered: 04/05/2021)
2021-03-30	25	Memorandum in opposition re 18 MOTION for Summary Judgment(WIHDRAWN ON 03/17/2021) filed by TONY E. EMERY. (zjf) (Entered: 04/05/2021)
2021-04-05		MINUTE ORDER SETTING BRIEFING SCHEDULE. Consistent with 20 Defendant's notice of withdrawal of its initial motion for summary judgment and 21 Defendant's proposed briefing schedule, the parties shall adhere to the following deadlines. Defendant shall file its motion for summary judgment on or before May 14, 2021; Plaintiff shall file his opposition and any cross motion for summary judgment on or before June 30, 2021; Defendant shall file a combined reply and opposition, if needed, on or before July 21, 2021; and, if needed, Plaintiff may file any reply in further support of his cross motion for summary judgment on or before August 20, 2021. SO ORDERED. Signed by Judge Ketanji Brown Jackson on 4/5/2021.(psu1) (Entered: 04/05/2021)
2021-04-05		Set/Reset Deadlines: Cross Motions due by 6/30/2021. Response to Cross Motions due by 7/21/2021. Reply to Cross Motions due by 8/20/2021. Summary Judgment motions due by 5/14/2021. Response to Motion for Summary Judgment due by 6/30/2021. Reply to Motion for Summary Judgment due by 7/21/2021. (zgdf) (Entered: 04/05/2021)
2021-05-14	26	Second MOTION for Summary Judgment by BUREA OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVE, UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Statement of Facts, # 2 May 14, 2021, Siple Decl. and Exhibits, # 3 Text of Proposed Order, # 4 Certificate of Service)(Yee, Marsha) (Entered: 05/14/2021)
2021-06-29		Judge Ketanji Brown Jackson has been elevated to serve on the U.S. Court of Appeals for the D.C. Circuit. She is therefore no longer assigned to this case, and this matter has been reassigned to the Calendar Committee, which will oversee it until it is assigned to another district judge. Any questions should be directed to Judge Jackson's former deputy clerk, Gwendolyn Franklin, at 202-354-3145 or gwen_franklin@dcd.uscourts.gov. (rj) (Entered: 06/29/2021)
2021-11-15		Case directly reassigned to Judge Jia M. Cobb. Judge Ketanji Brown Jackson has been appointed to the D.C. Circuit and is no longer assigned to the case. (rj) (Entered: 11/15/2021)
2021-12-07	27	ORDER denying without prejudice 24 Plaintiff's Motion to Appoint Counsel (see document for details). Signed by Judge Jia M. Cobb on 12/7/2021.(psu1) (Entered: 12/07/2021)
2021-12-07	28	Order advising Plaintiff to respond by January 18, 2022, to Defendant's Second Motion for Summary Judgment or risk entry of judgment in Defendant's favor or dismissal of the case (see document for details). Signed by Judge Jia M. Cobb on 12/6/2021.(psu1) (Entered: 12/07/2021)
2021-12-07		Set/Reset Deadlines: Response to Defendant's Second Motion for Summary Judgment due by 1/18/2022. (zgdf) (Entered: 12/07/2021)
2022-02-01	29	RESPONSE re 26 Second MOTION for Summary Judgment filed by TONY E. EMERY. (Attachments: # 1 Exhibit)(zjf) (Entered: 02/07/2022)
2022-10-31	30	MEMORANDUM OPINION re 26 Second Motion for Summary Judgement and 23 Motion to Assess Court Costs: See document for details. Signed by Judge Jia M. Cobb on October 31, 2022. (lcjmc3) (Entered: 10/31/2022)
2022-10-31	31	ORDER granting 26 Second Motion for Summary Judgement and denying 23 Motion to Assess Court Costs: See document for details. Signed by Judge Jia M. Cobb on October 31, 2022. (lcjmc3) (Entered: 10/31/2022)
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