Case Detail

FOIA Project Annotation: Judge Royce Lamberth has castigated the International Boundary and Water Commission for its failure to conduct even the semblance of an adequate search for two simple FOIA requests submitted by Public Employees for Environmental Responsibility. After Commission General Counsel Robert McCarthy was removed from his job in July 2009, he appealed the Commission's decision to the Merit Systems Protection Board. To represent it before the Board, the Commission hired the law firm of Jackson Lewis. PEER became concerned that this was a potential misuse of government funds and filed a request for the retainer agreement and for records showing the source of funding. The agency withheld the agreement on the basis of attorney-client privilege and referred PEER to its website for information about its congressional funding. After reviewing the retainer agreement in camera, Judge Emmet Sullivan upheld the agency's redactions. However, he found the agency had not supported its search and asked for further explanation. The case was then reassigned to Lamberth, who pointed out that "the agency only responded to a question that PEER did not askâ€"that is, 'Where did the funds come from that were used to pay Jackson Lewis?' PEER didn't ask the agency, that, or any other question. Rather, PEER made a routine FOIA records request calling for 'all documents that evidence the source of the funds used to pay for representation by Jackson Lewis in the matter concerning McCarthy v. USIBWC.' The Commission's obligation, under FOIA, was not to construe PEER's request narrowly as a call for the agency's opinion on a question and to produce some records supporting that unsolicited opinion; the agency's obligation was to begin a search for 'all' the documents it had on the topic, and to set the stage for a reasonable search by identifying the agency components and personnel that might have responsive records. . .By impermissibly interpreting PEER's records request so narrowly, the Commission could not have conducted an adequate search." Finding that the agency continued to show signs of intransigency, Lamberth told the Commission to search six other offices and "at a minimum, explain in detail in nonconclusory affidavits why a search of those offices would not produce records responsive to PEER's FOIA request. . .[T]he Court will order the Commission to submit to PEER and file with this Court, alongside any responsive documents, a detailed Vaughn index describing documents redacted or withheld and the Commission's grounds for doing so."
Issues: Adequacy - Search

FOIA Project Annotation: Judge Royce Lamberth has rejected a request by the U.S. International Boundary and Water Commission to amend his previous ruling chastising the agency for its poor search in response to a request by Public Employees for Environmental Responsibility. Lamberth had accused IBWC of "blowing off" PEER's request and the agency attempted to show Lamberth that it had taken PEER's request seriously. But Lamberth found the agency had provided no more information that it could have done at the time of the original summary judgment motions. He noted that "IBWC had an obligation to present evidence showing that it complied with its FOIA obligations as part of its motion for summary judgment or in response to PEER's motion for summary judgment, but it evidently failed to do so. Therefore, it is clear that IBWC's motion is simply an attempt�"a poor one at that�"to relitigate issues disposed of by the Court's [earlier order], and as such it cannot succeed." He added that "the fact that IBWC is a 'very small' agency does not convert its limited search into a reasonable one. The Court is unaware of any section of the FOIA statute, or any case law, that allows the Court to treat agencies differently based on their size. The law is the law and it applies equally to all�"whether the target of a FOIA request is the Department of Defense or the IBWC."
Issues: Adequacy - Administrative record

FOIA Project Annotation: In a case that shows how crucial it is for plaintiffs to consider who is the named party at both the request and litigation stage, Judge Royce Lamberth has rejected the International Boundary and Water Commission's claim that PEER is not entitled to $40,000 in attorney's fees because $32,000 of the requested attorney's fees were attributable to Robert McCarthy, a former IBWC attorney who PEER defended in a whistleblower case against the agency. IBWC argued that McCarthy was essentially acting as a pro se attorney. But Lamberth, recognizing the legal impact of labels, pointed out that "it is only the party-in-interest�"in other words, the party in whose name the action was brought by or against�"that concerns the court; no one else is considered a pro se litigant for attorneys' fees purposes. Further, an organization cannot be a pro se litigant because it is always represented by counsel, be it in-house or other." Lamberth indicated that "here, McCarthy was not the party-in-interest, and IBWC cannot foist the pro se exception to attorney's fees upon him just because he may have had an 'interest.'" He pointed out that "even if we assume that McCarthy was interested in the underlying litigation and therefore not completely detached, this Court will not analyze levels of detachment to determine the applicability of the pro se exception. If it did, other people for whose work attorneys' fees might not attach include parents, friends, or, frankly, anyone who cares deeply about the issues being litigated."
Issues: Litigation - Jurisdiction - Proper Party

Date Filed	Doc #	Docket Text
2010-01-06	1	COMPLAINT against U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION ( Filing fee $ 350, receipt number 4616026590) filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Entered: 01/07/2010)
2010-01-06		SUMMONS (3) Issued as to U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 01/07/2010)
2010-02-09	2	MOTION for Summary Judgment by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY (Attachments: # 1 Statement of Facts Statement of Material Facts Not in Dispute, # 2 Memorandum in Support Memorandum of Points and Authorities, # 3 Text of Proposed Order Proposed Order)(Dinerstein, Paula) (Entered: 02/09/2010)
2010-02-18	3	MOTION for Extension of Time to File Answer re 1 Complaint by U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION (Haynes, Fred) (Entered: 02/18/2010)
2010-02-19		MINUTE ORDER granting over objection 3 defendant's motion for extension of time. Defendant shall answer or otherwise respond to plaintiff's complaint by no later than March 12, 2010; future requests for extension of time will be viewed by the Court with disfavor. Defendant's opposition to plaintiff's motion for summary judgment shall also be filed by no later than March 12, 2010. In the event that defendant chooses to file a cross-motion, it shall be combined with the opposition and filed on the same date. Plaintiff's reply and, if applicable, combined opposition shall be filed no later than April 1, 2010. Defendant's reply, if applicable, shall be filed no later than April 15, 2010. Signed by Judge Emmet G. Sullivan on February 19, 2010. (lcegs1) (Entered: 02/19/2010)
2010-02-19		Set/Reset Deadlines: Answer due by 3/12/2010, Cross Motions and response due by 3/12/2010. Response to Cross Motions and reply due by 4/1/2010. Reply to Cross Motions due by 4/15/2010. (clv, ) (Entered: 02/19/2010)
2010-03-12	4	Second MOTION for Extension of Time to File Answer re 2 MOTION for Summary Judgment, 1 Complaint by U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION (Haynes, Fred) (Entered: 03/12/2010)
2010-03-15		MINUTE ORDER granting in part 4 defendant's unopposed second motion for extension of time. While the Court is sympathetic to defense counsel's "heavy litigation commitments in other cases," defense counsel is cautioned that deadlines ordered by this Court are firm and will not be altered in the future absent an exceptional circumstance. Defense counsel is further cautioned against filing a motion for extension of time on the date that a pleading is due; such motions will hereinafter be summarily denied by the Court. The briefing schedule previously entered by the Court is hereby modified as follows: defendant shall answer or otherwise respond to plaintiff's complaint by no later than 12:00 p.m. on March 19, 2010. Defendant's opposition to plaintiff's motion for summary judgment shall also be filed by no later than 12:00 p.m. on March 19, 2010. In the event that defendant chooses to file a cross-motion, it shall be combined with the opposition and filed on the same date. Plaintiff's reply and, if applicable, combined opposition shall be filed no later than April 12, 2010. Defendant's reply, if applicable, shall be filed no later than April 26, 2010. In addition, if, at any point in time, the parties desire to have a mediator from the District Courts mediation program appointed to assist with settlement discussions, the parties shall electronically file a motion captioned "Joint Motion for Appointment of a Mediator." Signed by Judge Emmet G. Sullivan on March 15, 2010. (lcegs1) (Entered: 03/15/2010)
2010-03-16		Set/Reset Deadlines: Answer due by 12:00 p.m. on 3/19/2010, Response and Cross Motions due by 12:00 p.m. on 3/19/2010. Reply and Response to Cross Motions due by 4/12/2010. Reply to Cross Motions due by 4/26/2010. (clv, ) (Entered: 03/16/2010)
2010-03-19	5	ANSWER to 1 Complaint by U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION.(Haynes, Fred) (Entered: 03/19/2010)
2010-03-19	6	MOTION for Summary Judgment by U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION (Attachments: # 1 Exhibit A -- Declaration of Eric Meza, # 2 Exhibit B -- Declaration of Gary A. Nails)(Haynes, Fred) (Entered: 03/19/2010)
2010-03-19	7	Memorandum in opposition to re 2 MOTION for Summary Judgment filed by U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION. (Haynes, Fred) (Entered: 03/19/2010)
2010-04-01	8	Memorandum in opposition to re 6 MOTION for Summary Judgment filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Dinerstein, Paula) (Entered: 04/01/2010)
2010-04-26	9	REPLY to opposition to motion re 6 MOTION for Summary Judgment filed by U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION. (Haynes, Fred) (Entered: 04/26/2010)
2010-12-08	10	ORDER denying 2 6 the parties' motions for summary judgment without prejudice and directing defendant to deliver to the chambers of the Honorable Emmet G. Sullivan a copy of the disputed retainer agreement for in camera inspection by no later than December 16, 2010. Signed by Judge Emmet G. Sullivan on December 8, 2010. (lcegs1) (Entered: 12/08/2010)
2010-12-09		Set/Reset Deadlines: copy of the disputed retainer agreement shall be delivered to chambers by 12/16/2010. (clv, ) (Entered: 12/09/2010)
2010-12-16	11	NOTICE of In Camera Filing of Unredacted Retainer Agreement by U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION (Haynes, Fred) (Entered: 12/16/2010)
2011-01-04		MINUTE ORDER. On December 8, 2010, this Court entered an Order directing defendant to deliver a copy of a disputed retainer agreement for in camera inspection, so that the Court could determine whether Part C of the retainer agreement was properly withheld under the attorney-client privilege. See Order at 3. Having reviewed the redacted material, the Court concludes that Part C of the retainer agreement was properly withheld. Signed by Judge Emmet G. Sullivan on January 4, 2011. (lcegs1) (Entered: 01/04/2011)
2011-05-25		MINUTE ORDER directing the parties to file a joint status report, including a recommendation for further proceedings, by no later than June 15, 2011. In the event that counsel are unable to agree on a joint recommendation, each party shall file an individual recommendation by that time. Signed by Judge Emmet G. Sullivan on May 25, 2011. (lcegs1) (Entered: 05/25/2011)
2011-05-26		Set/Reset Deadlines: Status Report due by 6/15/2011 (clv, ) (Entered: 05/26/2011)
2011-06-08	12	STATUS REPORT Joint by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION. (Dinerstein, Paula) (Entered: 06/08/2011)
2011-06-10		MINUTE ORDER. Upon consideration of the parties' joint status report, the Court hereby enters the following briefing schedule: defendant's motion for summary judgment shall be filed by no later than June 23, 2011. Plaintiff's opposition shall be filed no later than July 25, 2011. If plaintiff chooses to file a cross-motion, it shall be combined with the opposition and filed on the same date. Defendant's reply and, if applicable, combined opposition shall be filed no later than August 8, 2011. Plaintiff's reply, if applicable, shall be filed no later than August 22, 2011. Signed by Judge Emmet G. Sullivan on June 10, 2011. (lcegs1) (Entered: 06/10/2011)
2011-06-13		Set/Reset Deadlines: Summary Judgment Motions due by 6/23/11; Response and Cross Motions due by 7/25/2011; reply and Response to Cross Motions due by 8/8/2011 Reply to Cross Motions due by 8/22/2011.. (clv, ) (Entered: 06/13/2011)
2011-06-23	13	Consent MOTION for Extension of Time to File Defendant's Renewed Motion for Summary Judgment by U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION (Haynes, Fred) (Entered: 06/23/2011)
2011-06-28		MINUTE ORDER. Upon consideration of 13 the parties' consent motion for extension of time, the Court hereby enters the following modified briefing schedule: defendant's motion for summary judgment shall be filed by no later than June 30, 2011. Plaintiff's opposition shall be filed no later than August 2, 2011. If plaintiff chooses to file a cross-motion, it shall be combined with the opposition and filed on the same date. Defendant's reply and, if applicable, combined opposition shall be filed no later than August 15, 2011. Plaintiff's reply, if applicable, shall be filed no later than August 29, 2011. Signed by Judge Emmet G. Sullivan on June 28, 2011. (lcegs1) (Entered: 06/28/2011)
2011-06-28		Set/Reset Deadlines: Defendant's motion for summary judgment due by 6/30/11; response and Cross Motions due by 8/2/2011. Reply and Response to Cross Motions due by 8/15/2011. Reply to Cross Motions due by 8/29/2011. (clv, ) (Entered: 06/28/2011)
2011-06-30	14	Consent MOTION for Extension of Time to File Defendant's Renewed Motion for Summary Judgment (one day extension of time) by U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION (Haynes, Fred) (Entered: 06/30/2011)
2011-07-01		MINUTE ORDER granting 14 defendant's consent motion for extension of time. Defendant shall file its renewed motion for summary judgment by no later than July 1, 2011. Signed by Judge Emmet G. Sullivan on July 1, 2011. (lcegs1) (Entered: 07/01/2011)
2011-07-01	15	Second MOTION for Summary Judgment by U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION (Attachments: # 1 Exhibit A -- Second Meza Declaration)(Haynes, Fred) (Entered: 07/01/2011)
2011-07-05		Set/Reset Deadlines: Summary Judgment motions due by 7/1/2011. (clv, ) (Entered: 07/05/2011)
2011-07-29	16	Second MOTION for Summary Judgment by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Dinerstein, Paula) (Entered: 07/29/2011)
2011-07-29	17	Memorandum in opposition to re 15 Second MOTION for Summary Judgment by Defendant filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Dinerstein, Paula) (Entered: 07/29/2011)
2011-08-15	18	Consent MOTION for Extension of Time to File Defendant's Opposition to Plaintiff's Renewed Motion for Summary Judgment and to File a Reply Memorandum in Support of Defendant's Renewed Motion for Summary Judgment by U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION (Haynes, Fred) (Entered: 08/15/2011)
2011-08-16		MINUTE ORDER granting 18 defendant's consent motion for extension of time. Defendant shall file its opposition to plaintiff's renewed motion for summary judgment and its reply in support of its renewed motion for summary judgment by no later than August 19, 2011. Signed by Judge Emmet G. Sullivan on August 16, 2011. (lcegs6) (Entered: 08/16/2011)
2011-08-16		Set/Reset Deadlines: defendant's opposition to plaintiff's renewed motion for summary judgment and its reply in support of its renewed motion for summary judgment due by 8/19/2011. (clv, ) (Entered: 08/16/2011)
2011-08-16	19	First MOTION for Extension of Time to File Response/Reply to Defendant's Motion for Summary Judgment by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY (Attachments: # 1 Text of Proposed Order)(Dinerstein, Paula) (Entered: 08/16/2011)
2011-08-16		MINUTE ORDER granting 19 plaintiff's consent motion for extension of time. Plaintiff shall file its reply brief in support of its motion for summary judgment by no later than September 6, 2011. Signed by Judge Emmet G. Sullivan on August 16, 2011. (lcegs6) (Entered: 08/16/2011)
2011-08-16		Set/Reset Deadlines: Reply to Motion for Summary Judgment due by 9/6/2011. (clv, ) (Entered: 08/16/2011)
2011-08-19	20	Consent MOTION for Extension of Time to File Defendant's Opposition to Plaintiff's Renewed Motion for Summary Judgment and to File A Reply Memorandum in Support of Its Renewed Motion for Summary Judgment by U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION (Haynes, Fred) (Entered: 08/19/2011)
2011-08-22		MINUTE ORDER granting 20 defendant's consent motion for extension of time. Defendant shall file its opposition to plaintiff's renewed motion for summary judgment by no later than August 22, 2011. It is FURTHER ORDERED that defendant shall file its reply in support of its renewed motion for summary judgment by no later than September 9, 2011. Future motions for extension of time filed on the day a filing is due will be viewed by the Court with disfavor. Signed by Judge Emmet G. Sullivan on August 22, 2011. (lcegs6) (Entered: 08/22/2011)
2011-08-22	21	Memorandum in opposition to re 16 Second MOTION for Summary Judgment filed by U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION. (znmw, ) (Entered: 08/23/2011)
2011-08-22	22	REPLY to opposition to motion re 15 Second MOTION for Summary Judgment filed by U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION. (znmw, ) (Entered: 08/23/2011)
2011-08-24		Set/Reset Deadlines: Response to Motion for Summary Judgment due by 8/22/2011. Reply to Motion for Summary Judgment due by 9/9/2011. (clv, ) (Entered: 08/24/2011)
2011-09-09	23	REPLY to opposition to motion re 16 Second MOTION for Summary Judgment filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Dinerstein, Paula) (Entered: 09/09/2011)
2011-09-20	24	NOTICE of Filing of Declarations That Were Provided to Plaintiff on September 8, 2011 by U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION (Attachments: # 1 Exhibit A - Revised Declaration of Eric Meza, # 2 Exhibit B - Declaration of Elena Martinez)(Haynes, Fred) (Entered: 09/20/2011)
2011-10-11	25	Case reassigned by consent to Chief Judge Royce C. Lamberth. Judge Emmet G. Sullivan no longer assigned to the case. (gt, ) (Entered: 10/11/2011)
2012-02-07	26	ORDER denying 15 defendant's Renewed Motion for Summary Judgment; granting 16 plaintiff's Renewed Motion for Summary Judgment. Signed by Chief Judge Royce C. Lamberth on February 7, 2012. (lcrcl4) (Entered: 02/07/2012)
2012-02-07	27	MEMORANDUM OPINION. Signed by Chief Judge Royce C. Lamberth on February 7, 2012. (lcrcl4) (Entered: 02/07/2012)
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