Case Detail

FOIA Project Annotation: Judge Ketanji Brown Jackson has ruled that while most of the EPA's claims under Exemption 5 (privileges) are appropriate, the agency decided within a matter of months after losing Iowa League of Cities v. EPA, 711 F. 3d 844 (8th Cir. 2013), that the agency would consider its holding limited to those states within the Eighth Circuit, an administrative decision known as non-acquiescence, thus adopting it as a final agency decision. Hall & Associates, a consulting group representing clients challenging environmental regulations, had requested all records concerning the agency's decision to not apply the Iowa League of Cities ruling nationwide. The agency located 10 responsive documents. It disclosed one document in full, seven documents with redactions, and withheld two documents entirely, citing Exemption 5 (privileges). Hall & Associates filed suit, arguing that the agency had made its decision to limit the ruling to the Eighth Circuit when it decided in August 2013 not to seek certiorari from the Supreme Court in the case. By contrast, the agency claimed it had never made a decision one way or the other. Jackson found that Stieberger v. Sullivan, 738 F. Supp. 716 (S.D.N.Y. 1990) provided the most useful definition of when an agency non-acquiesced by deliberately failing to follow the law of the circuit that had ruled against the agency, either by formally announcing non-acquiescence, or by evidence of substantial differences between agency policy and the court of appeals ruling. Applying this standard, Jackson concluded that the agency had decided to non-acquiesce in the Iowa League of Cities and that the agency's decision had been made in November 2013 when it issued a Desk Statement explaining that although Iowa League of Cities was binding in the Eighth Circuit, "outside of the Eighth Circuit, the EPA will continue to work with States and communities with the goal of finding solutions that protect public health and the environment" in a manner that is "consistent with the Agency's existing interpretation of the regulations." Jackson pointed out that "this language clearly indicated that the EPA was not committing to applying the Eighth Circuit's holding nationwide. Instead, outside of the Eighth Circuit, the EPA intended to follow the existing interpretation of its regulations, which the Eighth Circuit had struck down in Iowa League of Cities. What is more, the EPA effectively authorized Bloomberg News to release the statement to the public at large, and thus represented to the relevant regulated parties that the agency intended to non-acquiesce outside of the Eighth Circuit." Jackson pointed out that the EPA confirmed its position at the National Association of Clean Water Act law seminar, shortly after the agency's statement was issued. She observed that "all things considered then, as of November 19 and November 20, 2013, it was reasonably clear to all concerned that the EPA did not intend to apply the Iowa League of Cities decision across the board." The EPA contended that its statement that it would consider Iowa League of Cities on a case-by-case basis did not constitute a decision to non-acquiesce. Jackson disagreed, noting that "the EPA's reservation of the right to proceed 'consistent with the Agency's existing interpretation' outside the Eighth Circuit on a case-by-case basis necessarily means that the agency has refused to commit to applying Iowa League of Cities as its policy in all jurisdictions, which is all inter-circuit non-acquiescence requires." Hall & Associates claimed that the agency's decision to not acquiesce with the Iowa League of Cities decision became final when the government decided not to seek certiorari from the Supreme Court in August 2013. Jackson rejected the claim, noting that "it is well-established in this jurisdiction that a certiorari decision and a non-acquiescence determination are not one and the same. Indeed, the D.C. Circuit has made clear that an agency's decision to seek certiorari stands completely apart from a non-acquiescence determination." She explained that "the EPA did not make an announcement that it intended to non-acquiesce at that time, as it did in mid-November, and the evidence H&A points to does not actually indicate that the EPA was engaged in a silent effort to implement a non-acquiescence policy with respect to its permitting decisions as of late October. Rather, the record demonstrates that the EPA was still debating whether or not it should non-acquiesce to the Eighth Circuit's decision in late October." Having established November 19, 2013 as the date when the agency publicly confirmed its intention to non-acquiesce in the Iowa League of Cities decision, Jackson was able to draw a bright-line as to those emails the agency claimed were privileged, finding that almost all the emails written before November 19 qualified for the deliberative process privilege, while those written after that date did not, since they related to a decision that had already been made. She rejected the agency's attorney-client privilege claims, noting as to one claim that "the redaction itself pertains to information regarding the Iowa League of Cities case that is readily known to the public at large; thus, it is not itself 'confidential information provided by the client' and otherwise public information does not become confidential solely by virtue of its having been communicated to a lawyer as the basis for seeking legal advice." Jackson ruled that the agency had not adopted any of withheld records as its working law. She noted that "instead, and if anything, the EPA's working law with respect to the Eighth Circuit's opinion is reflected in the documents that the EPA has already publicly released. Furthermore, the Court's in camera review of the disputed documents reveals that these documents do not explain the agency's policy rationale for why it decided to pursue a non-acquiescence policy." Jackson found that some redacted portions of the documents had been publicly acknowledged because they had been previously disclosed to Hall & Associates as part of a different FOIA request. She pointed out that "the EPA's prior FOIA response constitutes an official and documented disclosure, because the information was previously 'disclosed and preserved in a permanent public record. And because it is the same information that was previously disclosed (word-for-word), the redacted information is every bit as specific as the prior disclosure."
Issues: Exemption 5 - Privileges - Waiver of privilege

Date Filed	Doc #	Docket Text
2015-07-06	1	COMPLAINT against U.S. ENVIRONMENTAL PROTECTION AGENCY ( Filing fee $ 400 receipt number 0090-4163560) filed by Hall & Associates. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Summons to 1 Defendant & 2 Non Party, # 3 Exhibit Exhibits 1-9 w/ Index)(Rosenman, Philip) (Entered: 07/06/2015)
2015-07-06		Case Assigned to Judge Ketanji Brown Jackson. (md) (Entered: 07/06/2015)
2015-07-07	2	SUMMONS (3) Issued Electronically as to U.S. ENVIRONMENTAL PROTECTION AGENCY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 07/07/2015)
2015-07-07	3	GENERAL ORDER AND GUIDELINES FOR CIVIL CASES BEFORE JUDGE KETANJI BROWN JACKSON. The Court will hold the parties and counsel responsible for following these directives; failure to conform to this Order may, when appropriate, result in the imposition of sanctions. Signed by Judge Ketanji Brown Jackson on 07/07/2015. (lckbj1) (Entered: 07/07/2015)
2015-07-22	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. ENVIRONMENTAL PROTECTION AGENCY served on 7/10/2015 (Attachments: # 1 Exhibit EPA Return Receipt)(Rosenman, Philip) (Entered: 07/22/2015)
2015-07-22	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/14/2015. Answer due for ALL FEDERAL DEFENDANTS by 8/13/2015. (Attachments: # 1 Exhibit USAO Return Receipt)(Rosenman, Philip) (Entered: 07/22/2015)
2015-07-22	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 7/14/2015. (Attachments: # 1 Exhibit USAG Return Receipt)(Rosenman, Philip) (Entered: 07/22/2015)
2015-07-24	7	NOTICE of Appearance by Claire M. Whitaker on behalf of U.S. ENVIRONMENTAL PROTECTION AGENCY (Whitaker, Claire) (Entered: 07/24/2015)
2015-08-13	8	ANSWER to Complaint by U.S. ENVIRONMENTAL PROTECTION AGENCY.(Whitaker, Claire) (Entered: 08/13/2015)
2015-09-18		MINUTE ORDER. Before the Court in this FOIA case are a complaint and an answer. It is hereby ORDERED that the parties shall promptly confer and file a joint proposed schedule for briefing or disclosure, by 10/2/2015. Signed by Judge Ketanji Brown Jackson on 09/18/2015. (lckbj1) (Entered: 09/18/2015)
2015-10-02	9	PROPOSED BRIEFING SCHEDULE / Joint Case Management Report by HALL & ASSOCIATES. (Rosenman, Philip) (Entered: 10/02/2015)
2015-10-06		MINUTE ORDER. Based on the representations made in the Parties 9 Joint Case Management Report, it is hereby ORDERED that Plaintiff's Motion for Summary Judgment is due by 11/6/2015. Defendant's Consolidated Opposition and Cross-Motion for Summary Judgment is due by 12/7/2015. Plaintiff's Consolidated Reply and Opposition to Cross-Motion is due by 1/8/2016. Defendant's Reply in Support of Cross-Motion is due by 1/29/2016. Signed by Judge Ketanji Brown Jackson on 10/6/2015. (lckbj1) (Entered: 10/06/2015)
2015-11-06	10	MOTION for Summary Judgment by HALL & ASSOCIATES (Attachments: # 1 Statement of Facts H&A's Statement of Material Undisputed Facts, # 2 Exhibit H&A's MSJ Exs. A-V)(Rosenman, Philip) (Entered: 11/06/2015)
2015-12-02	11	MOTION for Extension of Time to opposed Plaintiff's Motion for Summary Judgment and to file Defendant's Cross Motion for Summary Judgment by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Whitaker, Claire) (Entered: 12/02/2015)
2015-12-03		MINUTE ORDER granting, for good cause shown, 11 Motion to Extend Time. It is hereby ORDERED that the briefing schedule in this matter is amended as follows: Defendant's Consolidated Opposition and Cross-Motion for Summary Judgment is due by 12/29/2015. Plaintiff's Consolidated Reply and Opposition to Cross-Motion is due by 2/8/2016. Defendant's Reply in Support of Cross-Motion is due by 2/29/2016. Signed by Judge Ketanji Brown Jackson on 12/3/2015. (lckbj1) (Entered: 12/03/2015)
2015-12-24	12	Second MOTION for Extension of Time to oppose Plaintiff's Motion for Summary Judgment and to file Defendant's Cross Motion for Summary Judgment by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Whitaker, Claire) (Entered: 12/24/2015)
2015-12-26		MINUTE ORDER granting, for good cause shown, Defendant's 12 Motion for Extension of Time. It is hereby ORDERED that the briefing schedule in this matter is amended as follows: Defendant's Consolidated Opposition and Cross-Motion for Summary Judgment is due by 1/8/2016. Plaintiff's Consolidated Reply and Opposition to Cross-Motion is due by 2/18/2016. Defendant's Reply in Support of Cross-Motion is due by 3/10/2016. Signed by Judge Ketanji Brown Jackson on 12/26/15. (lckbj3, ) (Entered: 12/26/2015)
2016-01-07	13	Third MOTION for Extension of Time to to oppose Plaintiff's Motion for Summary Judgment and to file Defendant's Cross Motion for Summary Judgment by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Scheduling Order in Appeal not 14-1150, # 2 Text of Proposed Order)(Whitaker, Claire) (Entered: 01/07/2016)
2016-01-08	14	Memorandum in opposition to re 13 Third MOTION for Extension of Time to to oppose Plaintiff's Motion for Summary Judgment and to file Defendant's Cross Motion for Summary Judgment filed by HALL & ASSOCIATES. (Rosenman, Philip) (Entered: 01/08/2016)
2016-01-08		MINUTE ORDER: On October 6, 2015, this Court entered a Minute Order adopting the parties' proposed briefing schedule in this matter. Among other things, that order set a due date of December 7, 2015, for Defendant's Opposition to Plaintiff's Motion for Summary Judgment and Cross-Motion for Summary Judgment, and this Court subsequently granted Defendant two separate extensions of time with respect to this filing, pushing the deadline to January 8, 2016. Now, one day before this extended deadline, Defendant has requested a third extension, seeking an additional three weeks to file its brief. (See ECF No. 13 .) Plaintiff opposes this request for several reasons expressed in its opposition, and this Court finds that many of Plaintiff's arguments are well-founded. In light of the fact that the deadline for filing has already been extended twice at Defendant's request, and due in no small part to the alleged prejudicial effect of additional delay, this Court will permit Defendant an additional 14 days to produce its brief as ordered, and no more. Accordingly, it is hereby ORDERED that Defendant's 13 Third Motion for Extension of Time to Oppose Plaintiff's Motion for Summary Judgment and to File Defendant's Cross Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART and that Defendant shall file its consolidated Opposition and Cross-Motion on or before January 21, 2016. No further extensions of this deadline will be granted. It is FURTHER ORDERED that Plaintiff's Consolidated Reply and Opposition to Cross-Motion is due by March 3, 2016, and Defendant's Reply in Support of the Cross-Motion is due by March 24, 2016. Signed by Judge Ketanji Brown Jackson on 1/8/2015. (lckbj1) (Entered: 01/08/2016)
2016-01-21	15	MOTION for Summary Judgment by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Declaration Attachment 1 (Att. 1) (Nagle Dec.), # 2 Exhibit Att. 1, Ex. A (FOIA Request), # 3 Exhibit Att. 1, Ex. B (Mod. to FOIA Req), # 4 Exhibit Att. 1, Ex. C (EPA FOIA Resp 1/22/15), # 5 Exhibit Att. 1, Ex. D (1/22/15 doc. release), # 6 Exhibit Att. 1, Ex. E (Appeal ltr), # 7 Exhibit Att. 1, Ex. F (Appeal Det), # 8 Exhibit Att. 1, Ex. G (Appeal Release of Rec), # 9 Exhibit Att. 1, Ex. H (Rosenman email), # 10 Exhibit Att. 1, Ex. I (EPA response to Rosenman), # 11 Exhibit Att. 1, Ex. J (letter to Rosenman), # 12 Exhibit Att. 1, Ex. K (Vaughn Index and Released Documents), # 13 Statement of Facts Defendant's SMF, # 14 Statement of Facts Statement Addressing Pl. Statement of Facts, # 15 Text of Proposed Order)(Whitaker, Claire) (Entered: 01/21/2016)
2016-01-21	16	Memorandum in opposition to re 10 MOTION for Summary Judgment filed by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Whitaker, Claire) (Entered: 01/21/2016)
2016-02-11	17	MOTION to Strike 15 MOTION for Summary Judgment (Nagle Declaration) by HALL & ASSOCIATES (Attachments: # 1 Exhibit Motion to Strike Exs. 1-2)(Rosenman, Philip) (Entered: 02/11/2016)
2016-02-11	18	MOTION to Stay re Order on Motion for Extension of Time to, Set/Reset Deadlines,,,,,,,,,,,,,, (Summary Judgment Briefing) by HALL & ASSOCIATES (Rosenman, Philip) (Entered: 02/11/2016)
2016-02-12		ENTERED IN ERROR.....MINUTE ORDER granting, for good cause shown, Plaintiff's 18 Motion to Stay the briefing for Defendant's 15 Motion for Summary Judgment. Defendant shall respond to Plaintiff's 17 Motion to Strike by 3/3/2016. Plaintiff's reply, if any, is due by 3/17/2016. Signed by Judge Ketanji Brown Jackson on February 12, 2016. (lckbj3, ) Modified on 2/12/2016 (zgdf). (Entered: 02/12/2016)
2016-02-12	19	ERRATA Notice and Corrected Motion to Strike by HALL & ASSOCIATES. (Attachments: # 1 Exhibit Ex. A - Corrected Motion to Strike)(Rosenman, Philip) (Entered: 02/12/2016)
2016-02-12		MINUTE ORDER granting, for good cause shown, Plaintiff's 18 Motion to Stay the briefing for Plaintiff's 10 Motion for Summary Judgment and Defendant's 15 Motion for Summary Judgment. Defendant shall respond to Plaintiff's 17 Motion to Strike by 3/3/2016. Plaintiff's reply, if any, is due by 3/17/2016. Signed by Judge Ketanji Brown Jackson on February 12, 2016. (lckbj3, ) (Entered: 02/12/2016)
2016-02-12		NOTICE OF CORRECTED DOCKET ENTRY:Minute Order filed on 2/12/16 was entered in error and was refiled by the Law Clerk. (gdf) (Entered: 02/12/2016)
2016-02-29	20	Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiff's Motion to Strike (ECF No. 17, corrected at ECF No. 19) by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Whitaker, Claire) (Entered: 02/29/2016)
2016-03-02		MINUTE ORDER granting, for good cause shown, 20 Consent Motion for Extension of Time to File Response/Reply re Plaintiff's 17 Motion to Strike Defendant's Motion for Summary Judgment. Defendant's response re 17 is due by 3/10/2016. Plaintiff's reply re 17 is due by 3/31/2016. Signed by Judge Ketanji Brown Jackson on 03/02/2016. (lckbj1) (Entered: 03/02/2016)
2016-03-10	21	Memorandum in opposition to re 17 MOTION to Strike 15 MOTION for Summary Judgment (Nagle Declaration) filed by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Att 1 (Suppl.Nagle Decl.), # 2 Att. 2 (Kleinert Mem.Op.), # 3 Att. 3 (Bartko Mem.Op.), # 4 Text of Proposed Order)(Whitaker, Claire) (Entered: 03/10/2016)
2016-03-31	22	REPLY to opposition to motion re 17 MOTION to Strike 15 MOTION for Summary Judgment (Nagle Declaration) filed by HALL & ASSOCIATES. (Attachments: # 1 Exhibit Exs. 1-2 H&A Reply on Motion to Strike)(Rosenman, Philip) (Entered: 03/31/2016)
2016-04-11	23	MOTION for Discovery by HALL & ASSOCIATES (Rosenman, Philip) (Entered: 04/11/2016)
2016-04-15	24	MOTION for Order (Defendant's Motion for In Camera Review) by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Whitaker, Claire) (Entered: 04/15/2016)
2016-04-15	25	MOTION for Leave to File Surreply to Plaintiff's Reply to Plaintiff's Opposition to Motion to Strike Portions of Nagle Declaration and the entire Supplemental Nagle Declaration (Opposed) by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Exhibit A (Jan 7, 2016 FOIA Request by Hall & Ass.), # 2 Exhibit B (Mar 30, 2016 FOIA Response from EPA), # 3 Text of Proposed Order)(Whitaker, Claire) (Entered: 04/15/2016)
2016-04-22	26	NOTICE of Appearance by John C. Hall on behalf of HALL & ASSOCIATES (Hall, John) (Entered: 04/22/2016)
2016-04-25	27	First MOTION for Extension of Time to Oppose Plaintiff's Motion for Discovery (ECF No. 23) until May 4, 2016 by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Whitaker, Claire) (Entered: 04/25/2016)
2016-04-26	28	Unopposed MOTION for Extension of Time to File Response/Reply (In Camera Review; Leave to File Surreply) by HALL & ASSOCIATES (Rosenman, Philip) (Entered: 04/26/2016)
2016-04-29		MINUTE ORDER granting Defendant's 24 Motion for in camera review. It is this Court's ordinary practice to examine disputed documents in FOIA cases in camera when the number of documents is sufficiently small to make it practicable to do so. Accordingly, Defendant's 24 motion for in camera review is GRANTED, and Plaintiff's 28 Unopposed Motion for Extension of Time is DENIED AS MOOT. Signed by Judge Ketanji Brown Jackson on 4/29/2016. (lckbj2) (Entered: 04/29/2016)
2016-04-29		MINUTE ORDER GRANTING, for good cause shown, Defendant's 27 Motion for Extension of Time and setting a Status Conference for 5/26/2016 at 10:30 AM in Courtroom 17 before Judge Ketanji Brown Jackson. Signed by Judge Ketanji Brown Jackson on 4/29/2016. (lckbj2) (Entered: 04/29/2016)
2016-05-02	29	RESPONSE re 25 MOTION for Leave to File Surreply to Plaintiff's Reply to Plaintiff's Opposition to Motion to Strike Portions of Nagle Declaration and the entire Supplemental Nagle Declaration (Opposed) filed by HALL & ASSOCIATES. (Attachments: # 1 Exhibit Exs. A-F - Surreply Response)(Hall, John) (Entered: 05/02/2016)
2016-05-02	30	MOTION for Reconsideration re Order on Motion for Extension of Time to File Response/Reply, Order on Motion for Order,, (April 29, 2016 Minute Order - Granting In Camera Review) , MOTION for Order to Show Cause by HALL & ASSOCIATES (Attachments: # 1 Exhibit Exs. A-F - H&A Motion for Reconsideration and Motion for Show Cause Order)(Hall, John) (Entered: 05/02/2016)
2016-05-03	31	NOTICE (Defendant's Notice of Submission In Camera) by U.S. ENVIRONMENTAL PROTECTION AGENCY re Order on Motion for Extension of Time to File Response/Reply, Order on Motion for Order,, (Whitaker, Claire) (Entered: 05/03/2016)
2016-05-04	32	Unopposed MOTION for Extension of Time to File Response/Reply as to 30 MOTION for Reconsideration re Order on Motion for Extension of Time to File Response/Reply, Order on Motion for Order,, (April 29, 2016 Minute Order - Granting In Camera Review) MOTION for Order to Show Cause , 23 MOTION for Discovery and in Reply to ECF No. 29 by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Whitaker, Claire) (Entered: 05/04/2016)
2016-05-04	33	ERRATA to ECF 32 (Designation should be "Opposed" Motion by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Whitaker, Claire) (Entered: 05/04/2016)
2016-05-05	34	RESPONSE re 32 Unopposed MOTION for Extension of Time to File Response/Reply as to 30 MOTION for Reconsideration re Order on Motion for Extension of Time to File Response/Reply, Order on Motion for Order,, (April 29, 2016 Minute Order - Granting In Came filed by HALL & ASSOCIATES. (Rosenman, Philip) (Entered: 05/05/2016)
2016-05-05		MINUTE ORDER granting in part, for good cause shown, 32 Motion for Extension of Time to File Response re 23 Motion for Discovery, nunc pro tunc. It is hereby ORDERED that Defendant shall file a consolidated opposition to Plaintiff's 23 Motion for Discovery and 30 Motion for Reconsideration and reply in support of its 25 Motion for Leave to File a Surreply, on or before 5/13/2016. Plaintiff shall file a consolidated reply in support of its 23 Motion for Discovery and 30 Motion for Reconsideration, on or before 5/23/2016. Any further requests for extensions of time must comply with 3 the Court's General Order and Guidelines for Civil Cases. Counsel are specifically directed to Section 5 of the Appendix to the General Order and Guidelines. Signed by Judge Ketanji Brown Jackson on 06/11/2014. (lckbj1) (Entered: 05/05/2016)
2016-05-09		MINUTE ORDER. It is hereby ORDERED that the Status Conference currently set for 5/26/2016 is VACATED and RESET for 6/2/2016 at 02:15 PM in Courtroom 17 before Judge Ketanji Brown Jackson. Signed by Judge Ketanji Brown Jackson on 05/09/2016. (lckbj1) (Entered: 05/09/2016)
2016-05-09	35	MOTION to Hold in Abeyance (June 2, 2016 Status Conference and Plaintiff's Consolidated Reply) , MOTION for Extension of Time to File Response/Reply (Plaintiff's Consolidated Reply) by HALL & ASSOCIATES (Attachments: # 1 Exhibit Exs. 1-4 - Motion to Defer Status Conference and Extend Time on Plaintiff's Consolidated Reply)(Rosenman, Philip) (Entered: 05/09/2016)
2016-05-11		MINUTE ORDER DENYING Plaintiffs' 35 Motion to Hold in Abeyance. The parties shall be prepared to discuss the status of this matter at the status conference set for 6/2/2016. Signed by Judge Ketanji Brown Jackson on 5/11/2016. (lckbj2) (Entered: 05/11/2016)
2016-05-13	36	Memorandum in opposition to re 23 MOTION for Discovery , 30 MOTION for Reconsideration re Order on Motion for Extension of Time to File Response/Reply, Order on Motion for Order,, <filed by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Exhibit A (Brief of Pettitoner CRR in CRR v. EPA), # 2 Exhibit B (Brief of Respondent EPA in CRR v. EPA), # 3 Exhibit C (Reply Brief of Petitioner CRR in CRR v. EPA), # 4 Exhibit D (Bloomberg BNA News Article, Nov. 20, 2013), # 5 Text of Proposed Order)(Whitaker, Claire) Modified on 5/16/2016 (jf). (Entered: 05/13/2016)
2016-05-13	37	REPLY to opposition to re 25 MOTION for Leave to File Surreply to Plaintiff's Reply to Plaintiff's Opposition to Motion to Strike Portions of Nagle Declaration and the entire Supplemental Nagle Declaration (Opposed) filed by U.S. ENVIRONMENTAL PROTECTION AGENCY. (See Docket Entry 36 to view document) (jf) (Entered: 05/16/2016)
2016-05-16		NOTICE OF ERROR re 36 Memorandum in Opposition; emailed to claire.whitaker@usdoj.gov, cc'd 5 associated attorneys -- The PDF file you docketed contained errors: 1. Two-part docket entry, 2. DO NOT REFILE-Counsel is reminded to docket all parts of their filing(s) (jf, ) (Entered: 05/16/2016)
2016-05-16		MINUTE ORDER. It is hereby ORDERED that the Status Conference currently set for 6/2/2016 is VACATED and RESET for 6/3/2016 at 10:00 AM in Courtroom 17 before Judge Ketanji Brown Jackson. Signed by Judge Ketanji Brown Jackson on 05/16/2016. (lckbj1) (Entered: 05/16/2016)
2016-05-23	38	REPLY to opposition to motion re 23 MOTION for Discovery (Consolidated Reply) filed by HALL & ASSOCIATES. (Attachments: # 1 Exhibit H&A Consolidated Reply Exs. 1-9)(Hall, John) (Entered: 05/23/2016)
2016-05-23	39	REPLY to opposition to motion re 30 MOTION for Reconsideration re Order on Motion for Extension of Time to File Response/Reply, Order on Motion for Order,, (April 29, 2016 Minute Order - Granting In Camera Review) MOTION for Order to Show Cause (Consolidated Reply) filed by HALL & ASSOCIATES. (Hall, John) (Entered: 05/23/2016)
2016-05-27	40	NOTICE of New Information by HALL & ASSOCIATES (Attachments: # 1 Exhibit Exs. 1-4 - H&A Notice of New Info)(Hall, John) (Entered: 05/27/2016)
2016-05-31	41	NOTICE of Appearance by Gary B. Cohen on behalf of HALL & ASSOCIATES (Cohen, Gary) (Entered: 05/31/2016)
2016-06-03		Minute Entry for proceedings held before Judge Ketanji Brown Jackson: Status Conference held on 6/3/2016. Order addressing pending motions and scheduling to be submitted by Chambers. (Court Reporter Barbara DeVico) (gdf) (Entered: 06/03/2016)
2016-06-03		MINUTE ORDER: The parties appeared before this Court for a status conference on June 3, 2016. During the conference, the parties expressed, among other things, a desire to file new summary-judgment briefs due to intervening developments. In light of those wishes and the further discussion held on the record at the status conference, it is hereby ORDERED that the parties will be permitted to file new cross-motions for summary judgment and related briefs, in accordance with the following schedule: Defendant shall submit its motion for summary judgment on or before July 5, 2016; Plaintiff shall submit its combined opposition and cross-motion for summary judgment on or before August 4, 2016; Defendant shall submit its combined reply in support of its motion and opposition to Plaintiff's cross-motion on or before August 17, 2016; and Plaintiff shall submit its reply in support of its cross-motion on or before August 31, 2016. It is FURTHER ORDERED that, in light of this new round of summary-judgment briefing, Plaintiff's 10 Motion for Summary Judgment, Defendant's 15 Motion for Summary Judgment, Plaintiff's 17 Motion to Strike, and Defendant's 25 Motion for Leave to File Surreply are all DENIED AS MOOT, and Plaintiff's 23 Motion for Discovery is DENIED WITHOUT PREJUDICE. It is FURTHER ORDERED that, for the reasons stated in open court during the status conference, Plaintiff's 30 Motion for Reconsideration of this Court's Order requiring production of the documents at issue for in camera review (Minute Order of April 29, 2016) is DENIED. Signed by Judge Ketanji Brown Jackson on 6/3/2016. (lckbj2) (Entered: 06/03/2016)
2016-07-05	42	Consent MOTION for Extension of Time to Defendant's Motion for Summary Judgment and remaining deadlines for six working days by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Whitaker, Claire) (Entered: 07/05/2016)
2016-07-06		MINUTE ORDER granting, for good cause shown, 42 Consent Motion to Extend TIme. It is hereby ORDERED that the briefing schedule in this matter is amended as follows: Defendant shall submit its motion for summary judgment on or before July 13, 2016; Plaintiff shall submit its combined opposition and cross-motion for summary judgment on or before August 12, 2016; Defendant shall submit its combined reply in support of its motion and opposition to Plaintiff's cross-motion on or before August 25, 2016; and Plaintiff shall submit its reply in support of its cross-motion on or before September 9, 2016. Signed by Judge Ketanji Brown Jackson on 07/06/2016. (lckbj1) (Entered: 07/06/2016)
2016-07-13	43	MOTION for Summary Judgment by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Attachment 1 (Nagle Decl), # 2 Exhibit A (FOIA Req), # 3 Exhibit B (scope emails), # 4 Exhibit C (response), # 5 Exhibit D (Consol. resp), # 6 Exhibit E (Appeal ltr), # 7 Exhibit F (Appeal Det), # 8 Exhibit G (Final disp), # 9 Exhibit H (Rosenman email), # 10 Exhibit I (EPA resp), # 11 Exhibit J (Ltr to Rosenman), # 12 Exhibit K (Vaughn Index and documents), # 13 Exhibit L (Consol. FOIA Reqs), # 14 Exhibit M (Resp. to 2016-1599), # 15 Exhibit N (Response to 2014-522), # 16 Exhibit O (4-State meeting minutes), # 17 Exhibit P (desk statement), # 18 Exhibit Q (BNA Incoming press inquiry), # 19 Exhibit R (BNA article), # 20 Exhibit S (Weiss email), # 21 Exhibit T (League of Citites corresp), # 22 Attachment 2 (BNA 11/20/13 article), # 23 Statement of Facts, # 24 Text of Proposed Order)(Whitaker, Claire) (Entered: 07/13/2016)
2016-08-12	44	Cross MOTION for Summary Judgment by HALL & ASSOCIATES (Attachments: # 1 Memorandum in Support H&A Supporting Memorandum of Points and Authorities, # 2 Statement of Facts H&A Material Undisputed Facts and Response to EPA Facts, # 3 Exhibit Exs. 1-11, # 4 Exhibit Exs. 12-33)(Hall, John) (Entered: 08/12/2016)
2016-08-12	45	RESPONSE re 43 MOTION for Summary Judgment filed by HALL & ASSOCIATES. (Attachments: # 1 Memorandum in Support H&A Supporting Memorandum of Points and Authorities, # 2 Statement of Facts H&A Material Undisputed Facts and Response to EPA Facts, # 3 Exhibit Exs. 1-11, # 4 Exhibit Exs. 12-33)(Hall, John) (Entered: 08/12/2016)
2016-08-12	46	MOTION to Amend/Correct 1 Complaint, by HALL & ASSOCIATES (Attachments: # 1 Memorandum in Support H&A Supporting Memorandum of Points and Authorities, # 2 Exhibit Exs. A & B, Amended Complaint, Amended Complaint (w changes notated), # 3 Exhibit Supporting Memo Exs. 1-11, # 4 Exhibit Supporting Memo Exs. 12-33)(Hall, John) (Entered: 08/12/2016)
2016-08-12	47	MOTION for Discovery , MOTION to Strike 43 MOTION for Summary Judgment Renewed Nagle Declaration by HALL & ASSOCIATES (Attachments: # 1 Memorandum in Support H&A Supporting Memorandum of Points and Authorities, # 2 Exhibit Supporting Memo Exs. 1-11, # 3 Exhibit Supporting Memo Exs. 12-33)(Hall, John) (Entered: 08/12/2016)
2016-08-22	48	Consent MOTION for Extension of Time to File Response/Reply as to 44 Cross MOTION for Summary Judgment , 46 MOTION to Amend/Correct 1 Complaint, , 43 MOTION for Summary Judgment , 47 MOTION for Discovery MOTION to Strike 43 MOTION for Summary Judgment Renewed Nagle Declaration by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Whitaker, Claire) (Entered: 08/22/2016)
2016-08-24	49	Memorandum in opposition to re 48 Consent MOTION for Extension of Time to File Response/Reply as to 44 Cross MOTION for Summary Judgment , 46 MOTION to Amend/Correct 1 Complaint, , 43 MOTION for Summary Judgment , 47 MOTION for Discovery filed by HALL & ASSOCIATES. (Hall, John) (Entered: 08/24/2016)
2016-08-29	50	REPLY to opposition to motion re 48 Consent MOTION for Extension of Time to File Response/Reply as to 44 Cross MOTION for Summary Judgment , 46 MOTION to Amend/Correct 1 Complaint, , 43 MOTION for Summary Judgment , 47 MOTION for Discovery filed by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Text of Proposed Order)(Whitaker, Claire) (Entered: 08/29/2016)
2016-08-29		MINUTE ORDER granting, for good cause shown, 48 Motion for Extension of Time to File Responses and Replies regarding pending motions. Defendant's Consolidated Responses to 44 , 46 , and 47 and Reply in further support of 43 is due on or before 9/16/2016; Plaintiff's Consolidated Reply in further support of 44 , 46 , and 47 is due on or before 10/14/2016. Signed by Judge Ketanji Brown Jackson on 08/29/2016. (lckbj1, ) (Entered: 08/29/2016)
2016-09-15	51	Unopposed MOTION for Extension of Time to File Response/Reply as to 44 Cross MOTION for Summary Judgment , 46 MOTION to Amend/Correct 1 Complaint, , 43 MOTION for Summary Judgment , 47 MOTION for Discovery MOTION to Strike 43 MOTION for Summary Judgment Renewed Nagle Declaration by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Whitaker, Claire) (Entered: 09/15/2016)
2016-09-15	52	ERRATA to Docket Entry No. 51 - corrected to read "OPPOSED" Motion for Extension of Time by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Whitaker, Claire) (Entered: 09/15/2016)
2016-09-16	53	RESPONSE re 51 Unopposed MOTION for Extension of Time to File Response/Reply as to 44 Cross MOTION for Summary Judgment , 46 MOTION to Amend/Correct 1 Complaint, , 43 MOTION for Summary Judgment , 47 MOTION for Discover filed by HALL & ASSOCIATES. (Hall, John) (Entered: 09/16/2016)
2016-09-16		MINUTE ORDER granting, for good cause shown, Defendant's 51 Motion for Extension of Time. Defendant's response is due on or before 9/23/2016, and Plaintiff's reply is due on or before 10/21/2016. Absent extraordinary and unexpected circumstances, no further extensions with respect to Defendant's response will be granted. Signed by Judge Ketanji Brown Jackson on 09/16/2016. (lckbj2) (Entered: 09/16/2016)
2016-09-23	54	Memorandum in opposition to re 44 Cross MOTION for Summary Judgment filed by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Declaration (Suppl. Nagle Decl. with attachments), # 2 Statement of Facts (Defendant's Statement addressing Plaintiff's Statement of Undisputed Facts), # 3 Text of Proposed Order)(Whitaker, Claire) (Entered: 09/23/2016)
2016-09-23	55	REPLY to opposition to motion re 43 MOTION for Summary Judgment filed by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Whitaker, Claire) (Entered: 09/23/2016)
2016-09-23	56	RESPONSE re 46 MOTION to Amend/Correct 1 Complaint, , 47 MOTION for Discovery MOTION to Strike 43 MOTION for Summary Judgment Renewed Nagle Declaration filed by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Text of Proposed Order)(Whitaker, Claire) (Entered: 09/23/2016)
2016-10-21	57	REPLY to opposition to motion re 44 Cross MOTION for Summary Judgment , 46 MOTION to Amend/Correct 1 Complaint, filed by HALL & ASSOCIATES. (Attachments: # 1 Exhibit Exs. 34-35, H&A Reply on MSJ and Amend Complaint Motion)(Hall, John) (Entered: 10/21/2016)
2016-10-21	58	REPLY to opposition to motion re 47 MOTION for Discovery MOTION to Strike 43 MOTION for Summary Judgment Renewed Nagle Declaration filed by HALL & ASSOCIATES. (Attachments: # 1 Exhibit Exs. 36-37, H&A Reply on Discovery and Motion to Strike)(Hall, John) (Entered: 10/21/2016)
2016-12-23		MINUTE ORDER STAYING CASE. Plaintiff has represented that one of the legal positions that Defendant has taken in the instant matter mirrors the Defendant's argument in a case that is currently pending before the D.C. Circuit. (See ECF No. 44-1, at 13 (discussing Center for Regulatory Reasonableness v. EPA (D.C. Cir. No. 14-1150)). Given this representation, and in the interest of judicial efficiency, it is hereby ORDERED that this case is administratively STAYED until further order of this Court. It is FURTHER ORDERED that, no later than 30 days after the D.C. Circuit issues its mandate in Center for Regulatory Reasonableness v. EPA (D.C. Cir. No. 14-1150), the parties shall file a joint status report that describes the parties' respective views regarding the impact of that decision, if any, on this case. Signed by Judge Ketanji Brown Jackson on December 23, 2016. (lckbj2) (Entered: 12/23/2016)
2017-06-07	59	NOTICE OF WITHDRAWAL OF APPEARANCE as to HALL & ASSOCIATES. Attorney Philip D. Rosenman terminated. (Rosenman, Philip) (Entered: 06/07/2017)
2017-07-14	60	Joint STATUS REPORT by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Whitaker, Claire) (Entered: 07/14/2017)
2017-08-23		MINUTE ORDER setting hearing on Defendant's 43 Motion for Summary Judgment and Plaintiff's 44 Cross-Motion for Summary Judgment, 46 Motion to Amend, and 47 Motion for Discovery for November 28, 2017, at 10:30 AM in Courtroom 17 before Judge Ketanji Brown Jackson. Signed by Judge Ketanji Brown Jackson on August 23, 2017. (lckbj2) (Entered: 08/23/2017)
2017-10-05		MINUTE ORDER LIFTING STAY. Signed by Judge Ketanji Brown Jackson on October 5, 2017. (lckbj2) (Entered: 10/05/2017)
2017-11-16	61	ENTERED IN ERROR.....NOTICE OF SUPPLEMENTAL AUTHORITY by HALL & ASSOCIATES (Hall, John) Modified on 11/17/2017 (znmw). (Entered: 11/16/2017)
2017-11-17		NOTICE OF ERROR re 61 NOTICE OF SUPPLEMENTAL AUTHORITY; emailed to jhall@hall-associates.com, cc'd 7 associated attorneys -- The PDF file you docketed contained errors: 1. Please refile document, 2. ENTERED IN ERROR; Incorrect format (Letter); Refile in pleading format in accordance with Local Rules. (znmw, ) (Entered: 11/17/2017)
2017-11-17	62	NOTICE OF SUPPLEMENTAL AUTHORITY by HALL & ASSOCIATES (Attachments: # 1 Ctr. for Biological Diversity v. EPA Decision)(Hall, John) (Entered: 11/17/2017)
2017-11-26	63	MOTION for Extension of Time to November 28, 2017, Hearing Date by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Whitaker, Claire) (Entered: 11/26/2017)
2017-11-27		MINUTE ORDER granting, for good cause shown, 63 Motion to Reschedule November 28, 2017 Hearing. Is is hereby ORDERED that the Motion Hearing currently set for 11/28/2017 is VACATED, and that on or before 12/1/2017, the parties shall file a notice proposing three dates for rescheduling the hearing. Signed by Judge Ketanji Brown Jackson on 11/27/2017. (lckbj1) (Entered: 11/27/2017)
2017-11-28	64	MOTION To Forgo Oral Argument and Accelerate Court's Decision Regarding Document Release by HALL & ASSOCIATES (Hall, John). Added MOTION to Expedite on 11/29/2017 (znmw). (Entered: 11/28/2017)
2017-11-28		MINUTE ORDER. Defendant shall respond to Plaintiff's Motion 64 on or before December 1, 2017. Signed by Judge Ketanji Brown Jackson on 11/28/2017. (lckbj2) (Entered: 11/28/2017)
2017-12-01	65	NOTICE of Appearance by Fred Elmore Haynes on behalf of U.S. ENVIRONMENTAL PROTECTION AGENCY (Haynes, Fred) (Entered: 12/01/2017)
2017-12-01	66	RESPONSE re 64 MOTION To Forgo Oral Argument and Accelerate Court's Decision Regarding Document Release MOTION to Expedite filed by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Haynes, Fred) (Entered: 12/01/2017)
2017-12-04	67	REPLY re 66 Response to motion to Forgo Oral Argument and Accelerate Court's Decision Regarding Document Release filed by HALL & ASSOCIATES. (Hall, John) (Entered: 12/04/2017)
2017-12-04		MINUTE ORDER. Based on the parties' representation, no future date shall be set for oral argument, and the Court will take this matter under advisement. Signed by Judge Ketanji Brown Jackson on 12/4/2017. (lckbj2) (Entered: 12/04/2017)
2017-12-14		MINUTE ORDER. A Status Conference is set for this matter on Friday, January 26th, 2018 at 2:30pm. Signed by Judge Ketanji Brown Jackson on 12/14/2017. (lckbj2) (Entered: 12/14/2017)
2017-12-15		Set/Reset Hearings: Status Conference set for 1/26/2017 at 2:30 PM in Courtroom 17 before Judge Ketanji Brown Jackson. (gdf) (Entered: 12/15/2017)
2018-01-23		MINUTE ORDER: The Status Conference set for Friday, January 26, 2018 is vacated. So Ordered by Judge Ketanji Brown Jackson on 1/23/2018. (lckbj2) Modified on 1/23/2018 (zgdf). (Entered: 01/23/2018)
2018-03-31	68	ORDER granting in part and denying in part 43 Defendant's Motion for Summary Judgment; granting in part and denying in part 44 Plaintiff's Motion for Summary Judgment; denying 46 Plaintiff's Motion to Amend/Correct; denying 47 Plaintiff's Motion for Discovery; denying 47 Plaintiff's Motion to Strike; and finding as moot 64 Plaintiff's Motion to Expedite. Signed by Judge Ketanji Brown Jackson on 3/31/2018. (lckbj2) (Entered: 03/31/2018)
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