Case Detail

FOIA Project Annotation: Judge Emmet Sullivan has ruled that calendars of six senior officials at the Department of Agriculture's Food Safety Inspection Service are not agency records. The Consumer Federation of America requested the calendars after concluding that an interim rule issued by FSIS in 2003 to control outbreaks of Listeria, a food-borne bacterium often found in meat and poultry products as a result of post-processing contamination, was significantly weaker than its proposed rule issued in 2001. The Consumer Federation wanted to see the calendars to determine if these officials predominantly met with industry executives interested in weakening the rule. The FSIS informed the Consumer Federation that it did not keep "public calendars," but that each official did maintain an electronic calendar. The agency decided these calendars were personal records, not agency records subject to FOIA. However, the officials voluntarily released portions of their calendars with significant redactions. Relying on Bureau of National Affairs v. Dept. of Justice, 742 F. 2d 1484 (D.C. Cir. 1984), in which the D.C. Circuit ruled that appointment calendars of former Assistant Attorney General William Baxter were not agency records because they were kept in Baxter's office and not relied upon by staff, and the more recent decision in Bloomberg v. SEC, 357 F. Supp. 2d 156 (D.D.C. 2004), in which the court applied the BNA analysis to calendars of former SEC chairman Harvey Pitt, Sullivan noted that "there is very little to distinguish these calendars from the appointment calendars at issue in BNA." The Consumer Federation argued that the agency had a duty to turn over official calendars because several other similar agencies made such calendars publicly available. Sullivan rejected that claim, pointing out that "while these agencies are to be commended for their commitment to the spirit of FOIA, there is nothing in FOIA that creates an affirmative duty for an agency to maintain a specific type of record. In this case, FSIS has declared that it does not maintain public calendars for any of its personnel. This representation must be afforded a presumption of good faith in the absence of any evidence to the contrary."
Issues: Agency Record - Control

FOIA Project Annotation: As agencies create and retain more electronic records, issues unique to such records have begun to appear in litigation more frequently. Two recent cases from district court judges in Washington, D.C. illustrate some of the issues with which courts must now grapple when all or most of the records are either in electronic form or were created electronically. In one case, Judge Emmet Sullivan has ruled in favor of the Department of Agriculture on the matter of its search for appointment calendars kept on Microsoft Outlook even though the agency destroyed the calendar without regard to the fact that it was the subject of FOIA litigation. The other case involves the issue of whether email records created by White House staffers using Republican National Committee email accounts can be protected under Exemption 5 (deliberative process privilege). When Sullivan originally ruled in a case brought by the Consumer Federation of America for appointment calendars of several officials at the Food Safety and Inspection Service concerning meetings they held with industry officials while promulgating an interim rule regulating public exposure to Listeria, he found the records were personal and not subject to FOIA, a finding that was overturned by the D.C. Circuit. However, on remand it became apparent that the agency had destroyed the Outlook calendar entries. CFA argued that, although it requested the records in August 2004, the agency in December 2004 failed to identify or preserve the electronic records of departing FSIS Under Secretary Dr. Elsa Murano; failed to search electronic locations until November 2006 and to conduct a comprehensive search of electronic locations until March 2007; and made a conscious decision not to place a litigation hold on emergency email system backup tapes, allowing them to be overwritten, rather than waiting for a court decision. The agency responded that its physical and electronic searches, although on the late side, were thorough and adequate. Sullivan noted that "it is clear that defendant's initial searches were inadequate. Indeed, counsel for the defendant acknowledged during oral argument that the documents in this case were 'not handled in the way they should have been.' However, the affidavits submitted with defendant's motion for summary judgment regarding the agency's electronic searches in late 2006 and 2007 provide a fairly detailed description of the comprehensive array of electronic locations searched, who undertook the searches, the extent of those searches, and what documents were uncovered. In addition, plaintiff concedes that it is unlikely that further responsive documents will be found, and therefore plaintiff is not asking the Court to order a further search. The defendant has conducted �" albeit belatedly �" a 'search reasonably calculated to uncover all relevant documents,' and the Court will grant summary judgment to defendant." With very few remedies available in such a case, CFA asked Sullivan to refer the agency for sanctions to either the Agriculture Department's Inspector General or to the Office of Special Counsel. CFA argued that "sanctions are warranted, both to hold defendant accountable for its actions in this case and to deter future misconduct, particularly important, according to plaintiff, because the agency is a 'repeat player' where FOIA is concerned." Declining to go that far, Sullivan noted that "in view of the defendant's acknowledgment during oral argument that its search was not handled as well as it might have been, and in order to ensure that defendant carries out future FOIA searches responsibly from the outset, the Court directs defendant to file a supplemental declaration detailing: (1) the specific steps the agency will take when responding to a FOIA request, particularly one including electronic documents; and (2) the steps, if any, the agency has taken to correct the problems that led to the loss of responsive documents in this case." The other case was brought by the Democratic National Committee for emails concerning the firing of U.S. Attorneys. In March 2007, the DNC submitted a FOIA request to the Office of the Attorney General, Deputy Attorney General, and Associate Attorney General pertaining to the appointment, performance and dismissal of U.S. Attorneys. The Office of Information and Privacy identified 5,337 pages of emails and the dispute ultimately narrowed to 68 pages of emails. The remaining disputed emails were sent between officials at the White House and Justice and were sent to or from an email address with the domain name "GWB43.com." All the emails were withheld under Exemption 5. The DNC argued that Exemption 5 was inapplicable because all the emails were sent to or from an address owned by the Republican National Committee, not the government. The RNC emails were supposedly provided to White House officials for use in sending political communications so that they would not violate the Hatch Act, which limits the extent to which certain executive branch employees may conduct political activity at work. The DNC argued that, since the RNC email addresses were for political communications only, the court should assume that they were political in nature and not privileged because they did not relate to "official government matters." The DNC also argued that the emails were not privileged because the White House officials using RNC accounts "were not acting in a governmentally conferred capacity." Judge Ellen Segal Huvelle rejected the argument, noting that "plaintiff's argument, however, crumbles because it is based on a fallacious foundation." She pointed out that "while plaintiff is correct that RNC email accounts were originally 'supposed' to be used exclusively for political communications, it is clear from plaintiff's own exhibits that, in fact, this supposition did not become reality. A report prepared for the United States House of Representatives Committee on Oversight and Government Reform indicates that it was common for many of the 88 White House officials who received RNC e-mail accounts to use them for official government business. . .It is therefore clear that RNC e-mail accounts were used (rightly or wrongly) both for official and RNC business, and thus the nature of the server is not necessarily informative as to whether the document contained official or political communications." The DNC expressed the frustration of many critics of the use of the RNC email accounts when it argued that "it is 'manifestly inappropriate to extend the presidential communication privilege to political emails' under FOIA in view of the White House's failure to preserve these records as required by the Presidential Records Act." Huvelle explained that "given this apparently flagrant violation of the Presidential Records Act, plaintiff contends the Court should not treat the requested e-mails as official presidential communications to which the presidential communications privilege applies under FOIA." But she then added that "however, the administration's violation of the Presidential Records Act is, as plaintiff acknowledges, not before this Court, and it cannot serve as a basis for determining whether the government has properly invoked Exemption5. Moreover, plaintiff fails to point to any case law that would indicate that the server where an e-mail is housed is relevant to its treatment under FOIA. Rather, under D.C. Circuit precedent, it is the content, not the form, of the communication that determines whether it is properly exempt under Exemption 5. Therefore, because the form of the document does not factor into the analysis under FOIA, the Court cannot adopt a per se rule that any-e-mails sent on the RNC servers are not covered by FOIA." In a footnote, she observed that "to adopt plaintiff's approach would presumably mean that any e-mail sent or received from a personal account would no longer be 'official' or 'inter-agency' and therefore would not be covered by FOIA." Huvelle pointed out that "in the absence of such a per se rule, the remainder of plaintiff's argument collapses. Plaintiff appears to accept the government's declaration that the e-mails were exchanged between officials in the White House and DOJ. Moreover, plaintiff does not contest [the agency's] characterization of the content of the e-mails, nor does it argue that these documents could not properly be withheld had they been sent through official government e-mail accounts. The government has therefore demonstrated the requirements of Exemption 5 have been met and its motion for summary judgment must be granted."
Issues: Litigation - Vaughn index, Adequacy - Search

Date Filed	Doc #	Docket Text
2004-10-18	1	COMPLAINT against UNITED STATES DEPARTMENT OF AGRICULTURE (Filing fee $ 150) filed by CONSUMER FEDERATION OF AMERICA.(td, ) (Entered: 10/21/2004)
2004-10-18	2	LCvR 7.1 - CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests (td, ) (Entered: 10/21/2004)
2004-10-18		SUMMONS (3) Issued as to UNITED STATES DEPARTMENT OF AGRICULTURE, U.S. Attorney and U.S. Attorney General (td, ) (Entered: 10/21/2004)
2004-10-21	3	ATTORNEY APPEARANCE. (Vladeck, David) (Entered: 10/21/2004)
2004-10-21	4	SUMMONS Returned Executed by CONSUMER FEDERATION OF AMERICA. UNITED STATES DEPARTMENT OF AGRICULTURE served on 10/18/2004, answer due 11/17/2004. (Vladeck, David) (Entered: 10/21/2004)
2004-10-21	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 10/18/2004. (Vladeck, David) (Entered: 10/21/2004)
2004-10-21	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney. (Vladeck, David) (Entered: 10/21/2004)
2004-11-15	7	NOTICE of Appearance by William Rakestraw Cowden on behalf of UNITED STATES DEPARTMENT OF AGRICULTURE (Cowden, William) (Entered: 11/15/2004)
2004-11-15	8	ANSWER to Complaint by UNITED STATES DEPARTMENT OF AGRICULTURE.(Cowden, William) (Entered: 11/15/2004)
2004-11-16	9	ORDER Initial Conference set for 1/27/2005 10:00 AM in Courtroom 1 before Judge Emmet G. Sullivan. setting forth further instsruction to counsel;. Signed by Judge Emmet G. Sullivan on 11/16/04. (clv, ) (Entered: 11/16/2004)
2004-12-21	10	MOTION for Summary Judgment by CONSUMER FEDERATION OF AMERICA. (Attachments: # 1 Rule 56.1 Statement# 2 Declaration of Carol Tucker Foreman (with exhibits)# 3 Text of Proposed Order)(McKewen, Richard) (Entered: 12/21/2004)
2005-01-05	11	Consent MOTION for Extension of Time to File Response/Reply as to 10 MOTION for Summary Judgment to Set Briefing Schedule and to Cancel Scheduling Conference by UNITED STATES DEPARTMENT OF AGRICULTURE. (Cowden, William) (Entered: 01/05/2005)
2005-01-10		MINUTE ORDER granting 11 Consent Motion to Adopt Proposed Briefing Schedule. Defendant's Opposition and Cross-Motion for Summary Judgment due 1/27/05; Plaintiff's Opposition and Reply due 2/28/05; Defendant's Reply due 3/15/05. The Initial Scheduling Conference, currently set for 1/27/05, is cancelled. Signed by Judge Emmet G. Sullivan on January 10, 2005. (lcegs2) (Entered: 01/10/2005)
2005-01-10		Set/Reset Deadlines: Defendants oppossition and Cross Summary Judgment Motions due by 1/27/2005. Response to Cross Motions due by 2/28/2005. Reply to Cross Motions due by 3/15/2005. (clv, ) (Entered: 01/11/2005)
2005-01-27	12	Consent MOTION for Extension of Time to File Oppositions/Cross Motions by UNITED STATES DEPARTMENT OF AGRICULTURE. (Cowden, William) (Entered: 01/27/2005)
2005-01-28		MINUTE ORDER granting 12 Motion to Modify the Briefing Schedule. Defendant's Opposition and Cross Motion for Summary Judgment shall be filed on or before February 10, 2005 and that an additional fourteen days shall be added to the previously set due dates for Plaintiff's Opposition and Reply and for Defendant's Reply. Signed by Judge Emmet G. Sullivan on January 28, 2005. (lcegs2) (Entered: 01/28/2005)
2005-01-28		Set/Reset Deadlines: Cross Motions due by 2/10/2005. Response to Cross Motions due by 3/14/2005. Reply to Cross Motions due by 3/28/2005. (lcegs2) (Entered: 01/28/2005)
2005-01-28		Set/Reset Deadlines: Defendant's Cross Moton forSummary Judgment and opposition to Plaintiffs Motion for Summary Judgment due by 2/10/2005. (clv, ) (Entered: 01/28/2005)
2005-02-10	13	Unopposed MOTION for Extension of Time to File Pleadings (Modify Briefing Schedule) by UNITED STATES DEPARTMENT OF AGRICULTURE. (Cowden, William) (Entered: 02/10/2005)
2005-02-10	14	RESPONSE to Defendant's Motion to Modify Briefing Schedule filed by CONSUMER FEDERATION OF AMERICA. (McKewen, Richard) (Entered: 02/10/2005)
2005-02-11		MINUTE ORDER granting 13 Motion to Modify Briefing Schedule. Defendant's Opposition and Cross Motion due by 3/10/2005. Plaintiff's Response and Reply due by 4/14/2005. Defendant's Reply due by 4/28/2005. Signed by Judge Emmet G. Sullivan on February 11, 2005. (lcegs2) (Entered: 02/11/2005)
2005-02-11		Set/Reset Deadlines: Cross Motions due by 3/10/2005. Response to Cross Motions due by 4/14/2005. Reply to Cross Motions due by 4/28/2005. (lcegs2) (Entered: 02/11/2005)
2005-02-11		Set/Reset Deadlines: Defendant's opposition to cross motions due by 3/10/2005; Plaintiff's response and Reply due by 4/14/2005; defendant's reply due by 4/28/05.. (clv, ) (Entered: 02/11/2005)
2005-03-10	15	MOTION for Extension of Time to File Formal Opposition/Cross Motion for Summary Judgment by UNITED STATES DEPARTMENT OF AGRICULTURE. (Attachments: # 1 Exhibit 1 (Response Letter)# 2 Exhibit 2 (Declaration))(Cowden, William) (Entered: 03/10/2005)
2005-03-11	16	Memorandum in opposition to motion re 15 filed by CONSUMER FEDERATION OF AMERICA. (Attachments: # 1 Text of Proposed Order # 2 Exhibits)(McKewen, Richard) (Entered: 03/11/2005)
2005-03-16		MINUTE ORDER granting in part and denying in part 15 Defendant's Motion for Extension of Time. It is hereby ORDERED that Defendant's Opposition and Corss Motion for Summary Judgment shall be filed by no later than March 23, 2005. Signed by Judge Emmet G. Sullivan on March 16, 2005. (lcegs2) (Entered: 03/16/2005)
2005-03-16		Set/Reset Deadlines: Response & Cross Motions due by 3/23/2005. (lcegs2) (Entered: 03/16/2005)
2005-03-18		Set/Reset Deadlines: Defendant's Cross Summary Judgment motions and Response to Motion for Summary Judgment due by 3/23/2005. (clv, ) (Entered: 03/18/2005)
2005-03-23	17	MOTION for Summary Judgment (and Opposition to Plaintiff's MSJ) by UNITED STATES DEPARTMENT OF AGRICULTURE. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Cowden, William) (Entered: 03/23/2005)
2005-03-28	18	Consent MOTION for Order Clarifying the Briefing Schedule by CONSUMER FEDERATION OF AMERICA. (Attachments: # 1 Text of Proposed Order)(McKewen, Richard) (Entered: 03/28/2005)
2005-03-28		MINUTE ORDER granting 18 Consent Motion for Order Clarifying the Briefing Schedule. Plaintiff's combined opposition and reply brief is due by no later than April 27, 2005, and Defendant's reply brief is due by no later than May 11, 2005. Signed by Judge Emmet G. Sullivan on March 28, 2005. (lcegs2) Modified on 3/28/2005 (lcegs2). (Entered: 03/28/2005)
2005-03-28		Set/Reset Deadlines: Opposition/Reply due by 4/27/2005. Reply due by 5/11/2005. (lcegs2) (Entered: 03/28/2005)
2005-04-27	19	Memorandum in opposition to motion re 17 filed by CONSUMER FEDERATION OF AMERICA. (Attachments: # 1 Rule 56.1 Counter Statement# 2 Declaration of Christopher Waldrop)(McKewen, Richard) (Entered: 04/27/2005)
2005-04-27	20	REPLY to opposition to motion re 10 filed by CONSUMER FEDERATION OF AMERICA. (Attachments: # 1 Declaration of Christopher Waldrop)(McKewen, Richard) (Entered: 04/27/2005)
2005-05-09	21	REPLY to opposition to motion re 17 filed by UNITED STATES DEPARTMENT OF AGRICULTURE. (Cowden, William) (Entered: 05/09/2005)
2005-05-24	22	NOTICE of Appearance by Mercedeh Momeni on behalf of UNITED STATES DEPARTMENT OF AGRICULTURE (Momeni, Mercedeh) (Entered: 05/24/2005)
2005-06-22	23	NOTICE OF WITHDRAWAL OF APPEARANCE as to CONSUMER FEDERATION OF AMERICA. Attorney Richard E. McKewen terminated. (Vladeck, David) (Entered: 06/22/2005)
2005-07-28	24	MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on July 28, 2005. (lcegs2) (Entered: 07/28/2005)
2005-07-28	25	ORDER & JUDGMENT in favor of Defendant against Plaintiff. Signed by Judge Emmet G. Sullivan on July 28, 2005. (lcegs2) (Entered: 07/28/2005)
2005-07-28	26	CLERK'S JUDGMENT in favor of defendant and removing this case from the active calendar of the court.. Signed by Carol Votteler, Courtroom Deputy to Judge Emmet G. Sullivan on 7/28/05. (clv, ) (Entered: 07/28/2005)
2005-09-12	27	NOTICE OF APPEAL as to 24 Memorandum & Opinion, 25 Judgment by CONSUMER FEDERATION OF AMERICA. Filing fee $ 255, receipt number 137903. (td, ) (Entered: 09/15/2005)
2005-09-12		Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 27 Notice of Appeal (td, ) (Entered: 09/15/2005)
2005-09-30		USCA Case Number 05-5360 for 27 Notice of Appeal filed by CONSUMER FEDERATION OF AMERICA,. (jf, ) (Entered: 10/03/2005)
2006-08-23	28	USCA JUDGMENT (certified copy) as to 27 Notice of Appeal filed by CONSUMER FEDERATION OF AMERICA; It is hereby ordered and adjudged that the judgment of the District Court appealed from in this cause is hereby affirmed in part and reversed in part; USCA#05-5360 (jsc) (Entered: 08/28/2006)
2006-08-30	29	NOTICE of Appearance by Jillian M. Cutler on behalf of CONSUMER FEDERATION OF AMERICA (Cutler, Jillian) (Entered: 08/30/2006)
2006-09-22	30	Unopposed MOTION for a Status Conference by CONSUMER FEDERATION OF AMERICA. (Cutler, Jillian) (Entered: 09/22/2006)
2006-09-25		MINUTE ORDER granting 30 Unopposed Motion for a Status Hearing. A status hearing is scheduled for October 24, 2006, at 1:00 PM in Courtroom 24A. Signed by Judge Emmet G. Sullivan on September 25, 2006. (lcegs2) (Entered: 09/25/2006)
2006-10-03		Set/Reset Hearings: Status Conference set for 10/24/2006 01:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (clv, ) (Entered: 10/03/2006)
2006-10-24		Minute Entry for proceedings held before Judge Emmet G. Sullivan : Status Conference held on 10/24/2006. In view of discussions taken in Court today discovery is still ongoing and a Status Report due by 12/5/2006. (Court Reporter WM. MCALLISTER.) (clv, ) (Entered: 10/24/2006)
2006-12-04	31	Consent MOTION for Extension of Time to File a Status Report by UNITED STATES DEPARTMENT OF AGRICULTURE. (Momeni, Mercedeh) (Entered: 12/04/2006)
2006-12-06		MINUTE ORDER granting 31 Defendant's Motion for Extension of Time to file a joint status report. The joint status report shall be filed by no later than December 18, 2006. Signed by Judge Emmet G. Sullivan on December 6, 2006. (lcegs2) (Entered: 12/06/2006)
2006-12-06		Set/Reset Deadlines: Status Report due by 12/18/2006. (clv, ) (Entered: 12/06/2006)
2006-12-15	32	MOTION for Extension of Time to File Status Report by UNITED STATES DEPARTMENT OF AGRICULTURE. (Momeni, Mercedeh) (Entered: 12/15/2006)
2006-12-15		MINUTE ORDER granting 32 Motion for Extension of Time to File Status Report. The Status Report is due by no later than January 9, 2007. Signed by Judge Emmet G. Sullivan on December 15, 2006. (lcegs2) (Entered: 12/15/2006)
2006-12-18		Set/Reset Deadlines: Status Report due by 1/9/2007. (clv, ) (Entered: 12/18/2006)
2007-01-09	33	STATUS REPORT from Plaintiff by CONSUMER FEDERATION OF AMERICA. (Attachments: # 1 Declaration of Jan Singelmann# 2 Declaration of Cheryn Evans and Attached Memo# 3 Declaration of Valarie Burks)(Cutler, Jillian) (Entered: 01/09/2007)
2007-01-09	34	STATUS REPORT by UNITED STATES DEPARTMENT OF AGRICULTURE. (Momeni, Mercedeh) (Entered: 01/09/2007)
2007-01-19		MINUTE ORDER. The Court construes 33 Plaintiff's Status Report as a motion to compel discovery. Defendant shall file a response by no later than February 20, 2007. Plaintiff's reply, if any, is due by March 6, 2007. Signed by Judge Emmet G. Sullivan on January 19, 2007. (lcegs2) (Entered: 01/19/2007)
2007-01-22		Set/Reset Deadlines: Responses due by 2/20/2007 Replies due by 3/6/2007. (clv, ) (Entered: 01/22/2007)
2007-02-15	35	MOTION for Extension of Time to File Response/Reply to Plaintiff's Motion to Compel Discovery by UNITED STATES DEPARTMENT OF AGRICULTURE. (Momeni, Mercedeh) (Entered: 02/15/2007)
2007-02-20		MINUTE ORDER granting 35 Defendant's Motion for Extension of Time to File Opposition to Plaintiff's Motion to Compel Discovery. Defendant's opposition is now due March 6, 2007. Plaintiff's, reply, if any, is now due March 20, 2007. Signed by Judge Emmet G. Sullivan on February 20, 2007. (lcegs2) (Entered: 02/20/2007)
2007-02-21		Set/Reset Deadlines: Responses due by 3/6/2007 Replies due by 3/20/2007. (clv, ) (Entered: 02/21/2007)
2007-03-05	36	MOTION for Extension of Time to File an Opposition to Plaintiff's Motion to Compel Discovery by UNITED STATES DEPARTMENT OF AGRICULTURE. (Momeni, Mercedeh) (Entered: 03/05/2007)
2007-03-06		MINUTE ORDER granting 36 Defendant's Motion for Extension of Time to File Opposition to Plaintiff's Motion to Compel Discovery. Defendant's opposition is now due April 5, 2007. Any further requests for extension of time will be viewed by the Court with disfavor. Signed by Judge Emmet G. Sullivan on March 6, 2007. (lcegs2) (Entered: 03/06/2007)
2007-03-06		Set/Reset Deadlines: Responses due by 4/5/2007 (clv, ) (Entered: 03/06/2007)
2007-03-06	37	MOTION for Reconsideration re Order on Motion for Extension of Time to, by CONSUMER FEDERATION OF AMERICA. (Attachments: # 1 Text of Proposed Order)(Cutler, Jillian) (Entered: 03/06/2007)
2007-03-06		MINUTE ORDER. The defendant shall file a response to 37 plaintiff's Motion to Reconsider by 12:00 p.m. on March 7, 2007. Signed by Judge Emmet G. Sullivan on March 6, 2007. (lcegs2) (Entered: 03/06/2007)
2007-03-07	38	MOTION for Extension of Time to Respond to Plaintiff's Motion for Reconsideration by UNITED STATES DEPARTMENT OF AGRICULTURE. (Momeni, Mercedeh) (Entered: 03/07/2007)
2007-03-07	39	RESPONSE to Plaintiff's Motion to Reconsider 37 filed by UNITED STATES DEPARTMENT OF AGRICULTURE. (Momeni, Mercedeh) (jf, ). (Entered: 03/07/2007)
2007-03-07	40	REPLY to opposition to motion re 37 MOTION for Reconsideration re Order on Motion for Extension of Time to, filed by CONSUMER FEDERATION OF AMERICA. (Cutler, Jillian) (Entered: 03/07/2007)
2007-03-08		MINUTE ORDER granting 38 Defendant's Motion for Extension of Time to File a Response to Plaintiff's Motion for Reconsideration Nunc Pro Tunc. Defendant's Response to Plaintiff's Motion for Reconsideration 39 has already been filed. Signed by Judge Emmet G. Sullivan on March 8, 2007. (lcegs2) (Entered: 03/08/2007)
2007-03-08		MINUTE ORDER denying 37 Plaintiff's Motion to Reconsider Court's Order Extending Defendant's Time to File Opposition to Plaintiff's Motion to Compel Discovery. Defendant shall file its opposition to the motion to compel by no later than April 5, 2007. As the Court has already indicated, any further requests for extension of time will be viewed with disfavor. Signed by Judge Emmet G. Sullivan on March 8, 2007. (lcegs2) (Entered: 03/08/2007)
2007-03-09		Set/Reset Deadlines: Responses due by 4/5/2007 (clv, ) (Entered: 03/09/2007)
2007-04-05	41	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Exhibit Disclosure Letters to Plaintiff's Counsel# 2 Affidavit Burks' Supplemental Decl.# 3 Affidavit Pierson's Supplemental Decl.# 4 Affidavit Murano's Supplemental Decl.)(Momeni, Mercedeh) . (Entered: 04/05/2007)
2007-04-05	42	RESPONSE (OPPOSITION) re 33 Status Report/Motion to Compel (see Court's minute entry dtd 01/19/07) filed by UNITED STATES DEPARTMENT OF AGRICULTURE. (to view document, click on link # 41 ) (jf, ) (Entered: 04/06/2007)
2007-04-13	43	Consent MOTION for Extension of Time to File Response/Reply as to 41 MOTION for Summary Judgment and Opposition to Plaintiff's Motion to Compel by CONSUMER FEDERATION OF AMERICA (Cutler, Jillian) (Entered: 04/13/2007)
2007-04-13		MINUTE ORDER granting 43 Plaintiff's Consent Motion for Extension of Time to File Opposition to Defendant's Motion for Summary Judgment. Plaintiff's opposition brief is due by April 24, 2007. Defendant's reply is due by May 8, 2007. Signed by Judge Emmet G. Sullivan on April 13, 2007. (lcegs2) (Entered: 04/13/2007)
2007-04-13		Set/Reset Deadlines: Response to Defendant's Motion for Summary Judgment due by 4/24/2007. Reply due by 5/8/2007. (mm) (Entered: 04/16/2007)
2007-04-24	44	MOTION for Summary Judgment by CONSUMER FEDERATION OF AMERICA (Attachments: # 1 Text of Proposed Order # 2 Statement of Facts Plaintiff's Statement of Material Facts# 3 Statement of Facts Plaintiff's Response to Defendant's Statement of Facts# 4 Affidavit of Christopher Waldrop# 5 Affidavit of Valerie Schuster# 6 Exhibit A# 7 Exhibit B# 8 Exhibit C# 9 Exhibit D# 10 Exhibit E# 11 Exhibit F)(Cutler, Jillian) Modified on 4/25/2007 (jf, ). (Entered: 04/24/2007)
2007-04-24	45	Memorandum in opposition to re 41 MOTION for Summary Judgment and Opposition to Plaintiff's Motion to Compel filed by CONSUMER FEDERATION OF AMERICA. (to view document, click on link # 44 ) (jf, ) (Entered: 04/25/2007)
2007-05-03	46	Consent MOTION for Extension of Time to File Response/Reply as to 41 MOTION for Summary Judgment and Opposition to Plaintiff's Motion to Compel , 44 MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment by UNITED STATES DEPARTMENT OF AGRICULTURE (Momeni, Mercedeh) (Entered: 05/03/2007)
2007-05-03		MINUTE ORDER granting 46 Defendant's Consent Motion For Extension of Time to File a Response to 44 Plaintiff's Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment. Defendant's response is due no later than May 11, 2007. Signed by Judge Emmet G. Sullivan on May 3, 2007. (lcegs2) (Entered: 05/03/2007)
2007-05-03		Set/Reset Deadlines: Response to Motion for Summary Judgment due by 5/11/2007. (clv, ) (Entered: 05/03/2007)
2007-05-11	47	REPLY to opposition to motion re 41 MOTION for Summary Judgment and Opposition to Plaintiff's Motion to Compel filed by UNITED STATES DEPARTMENT OF AGRICULTURE. (Attachments: # 1 Exhibit Selected Pierson Calendar Pages)(Momeni, Mercedeh) (Entered: 05/11/2007)
2007-05-11	48	Memorandum in opposition to re 44 MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment filed by UNITED STATES DEPARTMENT OF AGRICULTURE. (Momeni, Mercedeh) (Entered: 05/11/2007)
2007-05-21	49	Consent MOTION to Suspend Briefing Schedule by CONSUMER FEDERATION OF AMERICA (Attachments: # 1 Text of Proposed Order)(Cutler, Jillian) (Entered: 05/21/2007)
2007-05-21		MINUTE ORDER granting 49 Plaintiff's Consent Motion to Suspend Briefing Schedule. At the parties' request, briefing in this case is suspended while the parties explore settlement. In the event that the parties do not reach settlement, Plaintiff shall file if Reply in Support of its Cross-Motion for Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment by no later than June 11, 2007. Signed by Judge Emmet G. Sullivan on May 21, 2007. (lcegs2) (Entered: 05/21/2007)
2007-05-21		Set/Reset Deadlines: Plaintiff's reply in support of its cross-motion for summary judgment due by 6/11/2007. (mm) (Entered: 05/22/2007)
2007-05-21		Set/Reset Deadlines: Plaintiff's response to defendant's motion for summary judgment due by 6/11/2007. (mm) (Entered: 05/22/2007)
2007-06-07	50	MOTION for Extension of Time to File Response/Reply in Support of Plaintiff's Motion for Summary Judgment by CONSUMER FEDERATION OF AMERICA (Cutler, Jillian) (Entered: 06/07/2007)
2007-06-08		MINUTE ORDER granting 50 Plaintiff's Motion for Extension of Time. Plaintiff shall file its Reply in Support of its Cross-Motion for Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment by no later than June 21, 2007. Signed by Judge Emmet G. Sullivan on June 8, 2007. (lcegs2) (Entered: 06/08/2007)
2007-06-11		Set/Reset Deadlines: Response to Motion for Summary Judgment due by 6/21/2007.,Reply to Motion for Summary Judgment due by 6/21/2007. (clv, ) (Entered: 06/11/2007)
2007-06-21	51	REPLY to opposition to motion re 44 MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment filed by CONSUMER FEDERATION OF AMERICA. (Cutler, Jillian) (Entered: 06/21/2007)
2007-06-28	52	MOTION for Leave to File a Sur-Reply by UNITED STATES DEPARTMENT OF AGRICULTURE (Momeni, Mercedeh) (Entered: 06/28/2007)
2007-06-29	53	Memorandum in opposition to re 52 MOTION for Leave to File a Sur-Reply filed by CONSUMER FEDERATION OF AMERICA. (Cutler, Jillian) (Entered: 06/29/2007)
2007-08-06	54	NOTICE OF WITHDRAWAL OF APPEARANCE as to CONSUMER FEDERATION OF AMERICA. Attorney Jillian M. Cutler terminated. (Cutler, Jillian) (Entered: 08/06/2007)
2008-01-30		MINUTE ORDER. The Court, sua sponte, will hold a hearing on pending motions on March 18, 2008 at 2:00 p.m. in Courtroom 24A. Signed by Judge Emmet G. Sullivan on January 30, 2008. (AS) (Entered: 01/30/2008)
2008-01-31		Set/Reset Hearings: Motion Hearing on pending motions set for 3/18/2008 02:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (clv, ) (Entered: 01/31/2008)
2008-03-11	55	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- KATHRYN A. SABBETH, :Firm- Institute for Public Representation, Georgetown Law Center, :Address- 600 New Jersey Avenue, N.W., Suite 312, Washington D.C. 20001. Phone No. - (202) 662-9546. Fax No. - (202) 662-9634 by CONSUMER FEDERATION OF AMERICA (Attachments: # 1 Text of Proposed Order)(Vladeck, David) (Entered: 03/11/2008)
2008-03-12		MINTUE ORDER granting 55 Motion for Leave for Kathryn A. Sabbeth to Appear Pro Hac Vice. Signed by Judge Emmet G. Sullivan on March 12, 2008. (AS, ) (Entered: 03/12/2008)
2008-03-18		Minute Entry for proceedings held before Judge Emmet G. Sullivan: Motion Hearing held on 3/18/2008 re 10 MOTION for Summary Judgment {17] MOTION for Summary Judgment 41 MOTION for Summary Judgment 44 MOTION for Summary Judgment; OTBP (Court Reporter JACKIE SULLIVAN.) (clv, ) (Entered: 03/19/2008)
2008-03-22		MINUTE ORDER denying as moot 52 Motion for Leave to File a Sur-reply. Signed by Judge Emmet G. Sullivan on March 22, 2008. (AS) (Entered: 03/22/2008)
2008-03-22	56	ORDER granting 41 defendant's Motion for Summary Judgment; denying 44 plaintiff's Motion for Summary Judgment; and directing defendant to file a supplemental declaration. Signed by Judge Emmet G. Sullivan on March 22, 2008.(AS) (Entered: 03/22/2008)
2008-03-22	57	MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on March 22, 2008. (AS) (Entered: 03/22/2008)
2008-04-30	58	AFFIDAVIT re 56 Order on Motion for Summary Judgment, Supplemental Declarations by UNITED STATES DEPARTMENT OF AGRICULTURE. (Attachments: # 1 Affidavit Declaration of L. Benjamin Young, # 2 Affidavit Declaration of Rita M. Morgan, # 3 Exhibit Exh. I - Morgan Declaration, # 4 Exhibit Exh. II - Morgan Declaration)(Momeni, Mercedeh) (Entered: 04/30/2008)
2008-05-07	59	REPLY filed by CONSUMER FEDERATION OF AMERICA. (Attachments: # 1 Exhibit Sample Certification of Completion from Sedona Conference)(Vladeck, David) (Entered: 05/07/2008)
2008-05-15	60	MOTION To Set A Time to Reply to Plaintiff's "Response" re 59 Reply to Document by UNITED STATES DEPARTMENT OF AGRICULTURE (Momeni, Mercedeh) (Entered: 05/15/2008)
2008-05-28		MINUTE ORDER granting 60 Defendant's Motion to Set a Time To Reply to Plaintiff's Response to Defendant's Supplemental Declarations. Defendant's Response shall be filed by no later than June 9, 2008. Signed by Judge Emmet G. Sullivan on May 28, 2008. (AS) (Entered: 05/28/2008)
2008-05-28		Set/Reset Deadlines: Responses due by 6/9/2008 (clv, ) (Entered: 05/28/2008)
2008-06-06	61	MOTION for Extension of Time to Reply to Plaintiff's Response (Doc. No. 59) by UNITED STATES DEPARTMENT OF AGRICULTURE (Momeni, Mercedeh) (Entered: 06/06/2008)
2008-06-06		MINUTE ORDER granting 61 Defendant's Motion for Extension of Time to File Reply. Defendant's Reply shall be filed no later than June 11, 2008. Signed by Judge Emmet G. Sullivan on June 6, 2008. (lcegs2) (Entered: 06/06/2008)
2008-06-10		Set/Reset Deadlines: Replies due by 6/11/2008. (clv, ) (Entered: 06/10/2008)
2008-06-11	62	REPLY re 58 Affidavit, and Plaintiff's "Response" (Doc. No. 59) filed by UNITED STATES DEPARTMENT OF AGRICULTURE. (Attachments: # 1 Affidavit Young Supp. Decl. (Exh. A), # 2 Affidavit Morgan Supp. Decl. (Exh. B), # 3 Affidavit Harris Decl. (Exh. C))(Momeni, Mercedeh) (Entered: 06/11/2008)
2008-07-30	63	NOTICE of Settlement Regarding Fees and Costs by UNITED STATES DEPARTMENT OF AGRICULTURE (Momeni, Mercedeh) (Entered: 07/30/2008)
2008-08-06	64	STIPULATION AND ORDER OF SETTLEMENT REGARDING FEES AND COSTS. Signed by Judge Emmet G. Sullivan on 8/5/08. (clv, ) (Entered: 08/06/2008)
2008-08-06		MINUTE ORDER. On March 18, 2008, the Court held a hearing on the parties' cross-motions for summary judgment. Following the hearing, the Court granted the defendant's motion for summary judgment and denied the plaintiff's motion. However, in view of the defendant's concessions during the hearing that it had failed to conduct its initial document searches appropriately, the Court took plaintiff's request for sanctions under advisement and directed the defendant to file supplemental declarations addressing (1) what steps the defendant agency will take in the future when responding to FOIA requests and (2) what steps, if any, defendant has taken to correct the problems that led to the loss of responsive documents in this case. Upon consideration of the defendant's supplemental declarations, the plaintiff's response, and the defendant's reply, the Court is satisfied that the defendant has made good faith efforts to address the failures evident in the handling of the FOIA request at issue in this case and that on this record, plaintiff's request for sanctions should be and is DENIED. Signed by Judge Emmet G. Sullivan on August 6, 2008. (AS) (Entered: 08/06/2008)
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