Case Detail

FOIA Project Annotation: Judge Gladys Kessler has ruled that a pattern and practice suit brought against the CIA by the National Security Archive is moot as to the agency's treatment of 43 current Archive FOIA requests and that future treatment of the Archive's requests by the agency is not ripe for adjudication. The Archive brought the case when the CIA announced it would no longer treat the organization as a representative of the news media for fee purposes. However, the agency reconsidered its decision and agreed to treat the 43 requests under the news media category and to continue to give the Archive news media status as long as its requests were not for commercial purposes. In July 2007, the CIA revised its fee regulations to comply with OMB guidelines. Agreeing that the claims concerning the existing 43 requests were moot, Kessler first noted that "the CIA has granted, subsequent to the Archive's filing of this suit, the Archive's request for news media representative status, has not charged fees for production of the requested documents, and has accorded the requests the place they would otherwise occupy in the Agency's FOIA queue." The Archive, however, argued that its request to require the agency to continue to treat the Archive under the news media provisions was not moot. But Kessler disagreed, noting that "at present it is unclear how the CIA will apply its revised regulations. Therefore, any potential injury that may occur from application of those regulations is far too speculative for adjudication." The Archive relied on Better Government Association v. Dept of State, 780 F.2d 86 (D.C. Cir. 1986), in which the court allowed the plaintiffs to continue their challenge of the agency's practice of denying fee waivers and then granting them when taken to court. But Kessler pointed out that this case differed from Better Government Association because "the regulations at issue here have recently undergone a substantial revision, and therefore the Archive's facial challenge to the regulations as failing to comply with the OMB regulations has been mooted. . . Indeed, at present the factual record is unclear as to how Defendants' policy and practice will be applied to future Archive FOIA requests." Kessler also agreed that the court would benefit from postponement of review until at least the agency's regulations were in final form. She observed that "given the lack of concrete information regarding how the CIA's new regulation will be applied, any ruling by this Court would risk running afoul of the constitutional prohibition on advisory opinions." She added that "given Defendants' representations that it has changed the policy and practice about which the Archive complains, the Court does not foresee any imminent risk to the Archive's publication activities."
Issues: Litigation - Jurisdiction - Moot

FOIA Project Annotation: After earlier saying the issue was moot, Judge Gladys Kessler has reconsidered her decision concerning the fee status of the National Security Archive when requesting records from the CIA. Kessler had previously found that the CIA was no longer denying news media status to the Archive and thus had dismissed the case as moot. But after the Archive submitted evidence showing that the agency continued to misclassify its requests, Kessler decided to reconsider. She noted that "evidence, which came to light as recently as September 11, 2008, compels a reconsideration of the initial decision in this case." She then pointed out that "despite admissions that it had not complied with FOIA, and despite assurances that it would in the future comply with the law, the CIA has continued the very conduct which it has admitted was illegal. It has twice made highly misleading representations to the Archive, as well as to this Court. Such extraordinary misbehavior can no longer insulate it from accountability. Since the Defendants' past actions strongly suggest that their alleged misconduct will recur, the CIA's promises to voluntarily halt its misbehavior no longer moot the issue." She observed that "the CIA must treat the Archive as a representative of the news media for all pending and future non-commercial FOIA requests. Because the Defendants admit that this ruling is correct as a matter of law, they will not be prejudiced by the issuance of an order which makes their legal obligations perfectly clear." In a footnote, she indicated that "the CIA's request that the Court not enter a formal order to this effect�"after twice making misrepresentations about its intentions�"is truly hard to take seriously."
Issues: Fee Category - Media or Educational

Date Filed	Doc #	Docket Text
2006-06-14	1	COMPLAINT against CENTRAL INTELLIGENCE AGENCY, MICHAEL V. HAYDEN, SCOTT A. KOCH (Filing fee $ 350) filed by NATIONAL SECURITY ARCHIVE. (Attachments: # 1 Exhibits 1-10# 2 Exhibits 11-20)(tg, ) (Entered: 06/15/2006)
2006-06-14	2	LCvR 7.1 - CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by NATIONAL SECURITY ARCHIVE (tg, ) (Entered: 06/15/2006)
2006-06-14		Summons (5) Issued as to CENTRAL INTELLIGENCE AGENCY, MICHAEL V. HAYDEN, SCOTT A. KOCH, U.S. Attorney and U.S. Attorney General (tg, ) (Entered: 06/26/2006)
2006-06-23	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General June 16, 2006. (Mendel, David) (Entered: 06/23/2006)
2006-06-23	4	ENTERED IN ERROR.....RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney. NATIONAL SECURITY ARCHIVE served on 6/16/2006, answer due 8/15/2006 (Mendel, David) Modified on 6/27/2006 (tg, ). (Entered: 06/23/2006)
2006-06-26		SUMMONS (3) REISSUED as to CENTRAL INTELLIGENCE AGENCY, MICHAEL V. HAYDEN, SCOTT A. KOCH (tg, ) (Entered: 06/26/2006)
2006-06-27		NOTICE OF CORRECTED DOCKET ENTRY: re 4 Summons Returned Executed as to US Attorney for DC was entered in error as the answer deadline does not reflect the FOIA case deadline. Counsel will refile said pleading. (tg, ) (Entered: 06/27/2006)
2006-06-27	5	SUMMONS Returned Executed by NATIONAL SECURITY ARCHIVE US Attorney Served on 6/16/2006, answer due 7/17/2006. (tg, ) (Entered: 06/27/2006)
2006-06-28	6	SUMMONS Returned Executed by NATIONAL SECURITY ARCHIVE. MICHAEL V. HAYDEN served on 6/27/2006, answer due 7/27/2006. (Mendel, David) (Entered: 06/28/2006)
2006-06-28	7	SUMMONS Returned Executed by NATIONAL SECURITY ARCHIVE. SCOTT A. KOCH served on 6/27/2006, answer due 7/27/2006. (Mendel, David) (Entered: 06/28/2006)
2006-06-28	8	SUMMONS Returned Executed by NATIONAL SECURITY ARCHIVE. CENTRAL INTELLIGENCE AGENCY served on 6/26/2006, answer due 7/26/2006. (Mendel, David) (Entered: 06/28/2006)
2006-07-17	9	Consent MOTION for Extension of Time to File Answer re 1 Complaint by CENTRAL INTELLIGENCE AGENCY, MICHAEL V. HAYDEN, SCOTT A. KOCH. (Bressler, Steven) (Entered: 07/17/2006)
2006-07-17		MINUTE ORDER granting 9 Defendants' Motion for Extension of Time; Defendants shall have up to and including August 16, 2006 in which to answer or otherwise respond to Plaintiff's Complaint . Signed by Judge Gladys Kessler on 7/17/06. (CS, ) (Entered: 07/17/2006)
2006-07-17		Set/Reset Deadlines: Answer due by 8/16/2006. (CS, ) (Entered: 07/17/2006)
2006-08-15	10	MOTION for Extension of Time to answer or otherwise respond to Plaintiff's complaint by CENTRAL INTELLIGENCE AGENCY, MICHAEL V. HAYDEN, SCOTT A. KOCH. (Phillips, Heather) (Entered: 08/15/2006)
2006-08-17		MINUTE ORDER granting 10 Defendants' Motion for a Second Extension of Time; Defendants shall have up to and including September 8, 2006 in which to answer or otherwise respond to Plaintiff's Complaint . Signed by Judge Gladys Kessler on 8/17/06. (CS, ) (Entered: 08/17/2006)
2006-08-17		Set/Reset Deadlines: Answer due by 9/8/2006. (CS, ) (Entered: 08/17/2006)
2006-09-08	11	ENTERED IN ERROR.....MOTION for Summary Judgment by NATIONAL SECURITY ARCHIVE. (Attachments: # 1 Text of Proposed Order # 2 Plaintiff's Statement of Material Facts# 3 Plaintiff's Memorandum of Points and Authorities# 4 Exhibits A-B1# 5 Exhibits B2-3# 6 Exhibit B4 Part 1)(Mendel, David) Modified on 9/11/2006 (tg, ). (Entered: 09/08/2006)
2006-09-08	12	MOTION for Summary Judgment by NATIONAL SECURITY ARCHIVE. (Attachments: # 1 Text of Proposed Order # 2 Plaintiff's Statement of Material Facts# 3 Plaintiff's Memorandum of Points and Authorities# 4 Exhibits A-B1)(Mendel, David) (Entered: 09/08/2006)
2006-09-08	13	ADDITIONAL ATTACHMENT by NATIONAL SECURITY ARCHIVE 12 MOTION for Summary Judgment filed by NATIONAL SECURITY ARCHIVE,. (Attachments: # 1 Exhibit B4 Part 1# 2 Exhibit B4 Part 2# 3 Exhibit B4 Part 3# 4 Exhibit B5 Part 1# 5 Exhibit B5 Part 2# 6 Exhibit B5 Part 3)(Mendel, David) (Entered: 09/08/2006)
2006-09-08	14	ADDITIONAL ATTACHMENT by NATIONAL SECURITY ARCHIVE 12 MOTION for Summary Judgment filed by NATIONAL SECURITY ARCHIVE,. (Attachments: # 1 Exhibit B7# 2 Exhibits B8-10# 3 Exhibits B11-14# 4 Exhibits 15-28# 5 Exhibits C-D)(Mendel, David) (Entered: 09/08/2006)
2006-09-08	15	MOTION to Dismiss for Lack of Jurisdiction by CENTRAL INTELLIGENCE AGENCY, MICHAEL V. HAYDEN, SCOTT A. KOCH. (Attachments: # 1 Exhibit A)(Phillips, Heather) (Entered: 09/08/2006)
2006-09-11		NOTICE OF CORRECTED DOCKET ENTRY: re 11 MOTION for Summary Judgment was entered in error at the request of counsel. (tg, ) (Entered: 09/11/2006)
2006-09-14	16	ORDER that, no later than October 1, 2006, the parties shall file a joint praecipe informing the Court of the status of the case, how the parties wish to proceed, and whether they believe an in-court status conference is necessary . Signed by Judge Gladys Kessler on 9/14/06. (CS, ) (Entered: 09/14/2006)
2006-09-14		Set/Reset Deadlines: Joint Praecipe re Status of the Case due by 10/1/2006. (CS, ) (Entered: 09/14/2006)
2006-09-19	17	Memorandum in opposition to re 12 MOTION for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY, MICHAEL V. HAYDEN, SCOTT A. KOCH. (Attachments: # 1 Exhibit A)(Phillips, Heather) (Entered: 09/19/2006)
2006-09-22	18	Memorandum in opposition to re 15 MOTION to Dismiss for Lack of Jurisdiction filed by NATIONAL SECURITY ARCHIVE. (Attachments: # 1 Text of Proposed Order # 2 Adair Declaration)(Mendel, David) (Entered: 09/22/2006)
2006-09-29	19	REPLY to opposition to motion re 12 MOTION for Summary Judgment filed by NATIONAL SECURITY ARCHIVE. (Mendel, David) (Entered: 09/29/2006)
2006-09-29	20	STATUS REPORT Joint Praecipe as requested by September 14 Order by NATIONAL SECURITY ARCHIVE, CENTRAL INTELLIGENCE AGENCY, MICHAEL V. HAYDEN, SCOTT A. KOCH. (Mendel, David) (Entered: 09/29/2006)
2006-10-04	21	REPLY to opposition to motion re 15 MOTION to Dismiss for Lack of Jurisdiction filed by CENTRAL INTELLIGENCE AGENCY, MICHAEL V. HAYDEN, SCOTT A. KOCH. (Phillips, Heather) (Entered: 10/04/2006)
2007-07-31	22	NOTICE OF SUPPLEMENTAL AUTHORITY by CENTRAL INTELLIGENCE AGENCY, MICHAEL V. HAYDEN, SCOTT A. KOCH (Attachments: # 1 Exhibit Final Rule)(Phillips, Heather) (Entered: 07/31/2007)
2007-08-24	23	MOTION for Leave to File Supplemental Memorandum of Law in Response to Defendants' Notice of Supplemental Authority by NATIONAL SECURITY ARCHIVE (Attachments: # 1 Text of Proposed Order # 2 Memorandum of Law)(Mendel, David) (Entered: 08/24/2007)
2007-09-06	24	Memorandum in opposition to re 23 MOTION for Leave to File Supplemental Memorandum of Law in Response to Defendants' Notice of Supplemental Authority filed by CENTRAL INTELLIGENCE AGENCY, MICHAEL V. HAYDEN, SCOTT A. KOCH. (Phillips, Heather) (Entered: 09/06/2007)
2007-10-19		MINUTE ORDER granting 23 Plaintiff's Motion for Leave to File Supplemental Memorandum of Law in Response to Defendants' Notice of Supplemental Authority; the Clerk shall file the proposed supplemental memorandum that Plaintiff has lodged. Signed by Judge Gladys Kessler on 10/19/07. (CL, ) (Entered: 10/19/2007)
2007-10-19	25	MEMORANDUM of Law in Response to 22 NOTICE OF SUPPLEMENTAL AUTHORITY filed by SCOTT A. KOCH, CENTRAL INTELLIGENCE AGENCY, MICHAEL V. HAYDEN by NATIONAL SECURITY ARCHIVE. (tg, ) (Entered: 10/22/2007)
2007-10-24	26	REPLY to Rec. Doc. No. 25, Plaintiff's Memorandum of Law filed by CENTRAL INTELLIGENCE AGENCY, MICHAEL V. HAYDEN, SCOTT A. KOCH. (Phillips, Heather) (Entered: 10/24/2007)
2007-11-08	27	NOTICE of Appearance by Patrick Joseph Carome on behalf of NATIONAL SECURITY ARCHIVE (Carome, Patrick) (Entered: 11/08/2007)
2007-11-08	28	NOTICE OF WITHDRAWAL OF APPEARANCE as to NATIONAL SECURITY ARCHIVE. Attorney David Stuart Mendel terminated. (Mendel, David) (Entered: 11/08/2007)
2008-07-14	29	ORDER denying 12 Plaintiff's Motion for Summary Judgment; and granting 15 Defendants' Motion to Dismiss for Lack of Jurisdiction; this case is hereby dismissed. Signed by Judge Gladys Kessler on 7/14/08. (CL, ) (Entered: 07/14/2008)
2008-07-14	30	MEMORANDUM OPINION to the Order granting Defendants' Motion to Dismiss and denying Plaintiff's Motion for Summary Judgment. Signed by Judge Gladys Kessler on 7/14/08. (CL, ) (Entered: 07/14/2008)
2008-07-24	31	Unopposed MOTION for Extension of Time to File A Motion for Attorneys Fees by NATIONAL SECURITY ARCHIVE (Attachments: # 1 Text of Proposed Order)(Carome, Patrick) (Entered: 07/24/2008)
2008-07-25		MINUTE ORDER granting 31 Plaintiff's Unopposed Motion for Extension of Time to File a Motion for Attorneys' Fees; the time for filing Plaintiff's Motion for Attorneys' Fees is extended until 30 days after the Court renders a decision of Plaintiff's Motion for Reconsideration. Signed by Judge Gladys Kessler on 7/25/08. (CL, ) (Entered: 07/25/2008)
2008-07-28	32	MOTION to Alter Judgment as to 29 Order on Motion for Summary Judgment, Order on Motion to Dismiss/Lack of Jurisdiction, 30 Memorandum & Opinion or for Reconsideration of the Court's July 14, 2008 Order Dismissing the Case by NATIONAL SECURITY ARCHIVE (Attachments: # 1 Memorandum in Support Motion for Reconsideration or, in the Alternative, for Relief from or to Alter or Amend Judgment, # 2 Declaration of Catherine Nielsen, # 3 Declaration of Kristin Adair, # 4 Text of Proposed Order)(Carome, Patrick) (Entered: 07/28/2008)
2008-07-28	33	MOTION for Reconsideration re 29 Order on Motion for Summary Judgment, Order on Motion to Dismiss/Lack of Jurisdiction, 30 Memorandum & Opinion, MOTION Or For Relief from Judgement re 29 Order on Motion for Summary Judgment, Order on Motion to Dismiss/Lack of Jurisdiction, 30 Memorandum & Opinion by NATIONAL SECURITY ARCHIVE (tr)( See Docket Entry 32 to view document) (Entered: 07/29/2008)
2008-08-05	34	Unopposed MOTION for Extension of Time to File Opposition to Plaintiff's Motion to Reconsider by CENTRAL INTELLIGENCE AGENCY, MICHAEL V. HAYDEN, SCOTT A. KOCH (Phillips, Heather) (Entered: 08/05/2008)
2008-08-06		MINUTE ORDER granting 34 Defendants' Unopposed Motion for Extension of Time; Defendnants shall have up to and including August 25, 2008 in which to file their Opposition to Plaintiff's Motion for Reconsideration; Plaintiff's reply, if any, shall be due on September 11, 2008. Signed by Judge Gladys Kessler on 8/6/08. (CL, ) (Entered: 08/06/2008)
2008-08-06		Set/Reset Deadlines: Opposition due by 8/25/2008 Reply due by 9/11/2008. (CL, ) (Entered: 08/06/2008)
2008-08-25	35	Second MOTION for Extension of Time to file Opposition to Plaintiff's Motion for Reconsideration by CENTRAL INTELLIGENCE AGENCY, MICHAEL V. HAYDEN, SCOTT A. KOCH (Phillips, Heather) (Entered: 08/25/2008)
2008-08-26	36	Memorandum in opposition to re 35 Second MOTION for Extension of Time to file Opposition to Plaintiff's Motion for Reconsideration Response to Motion filed by NATIONAL SECURITY ARCHIVE. (Attachments: # 1 Text of Proposed Order)(Carome, Patrick) (Entered: 08/26/2008)
2008-08-27		MINUTE ORDER granting 35 Defendants' Second Motion for Extension of Time; Defendants shall have up to and including September 5, 2008 in which to file their Opposition to Plaintiff's Motion for Reconsideration; any reply brief shall be due on September 29, 2008. Signed by Judge Gladys Kessler on 8/27/08. (CL, ) (Entered: 08/27/2008)
2008-08-27		Set/Reset Deadlines: Responses due by 9/5/2008 Replies due by 9/29/2008. (CL, ) (Entered: 08/27/2008)
2008-09-05	37	Memorandum in opposition to re 32 MOTION to Alter Judgment as to 29 Order on Motion for Summary Judgment, Order on Motion to Dismiss/Lack of Jurisdiction, 30 Memorandum & Opinion or for Reconsideration of the Court's July 14, 2008 Order Dismissing the Case MOTION to Alter Judgment as to 29 Order on Motion for Summary Judgment, Order on Motion to Dismiss/Lack of Jurisdiction, 30 Memorandum & Opinion or for Reconsideration of the Court's July 14, 2008 Order Dismissing the Case MOTION to Alter Judgment as to 29 Order on Motion for Summary Judgment, Order on Motion to Dismiss/Lack of Jurisdiction, 30 Memorandum & Opinion or for Reconsideration of the Court's July 14, 2008 Order Dismissing the Case , 33 MOTION for Reconsideration re 29 Order on Motion for Summary Judgment, Order on Motion to Dismiss/Lack of Jurisdiction, 30 Memorandum & Opinion MOTION for Reconsideration re 29 Order on Motion for Summary Judgment, Order on Motion to Dismiss/Lack of Jurisdiction, 30 Memorandum & Opinion MOTION Or For Relief from Judgement re 29 Order on Motion for Summary Judgment, Order on Motion to Dismiss/Lack of Jurisdiction, 30 Memorandum & Opinion MOTION Or For Relief from Judgement re 29 Order on Motion for Summary Judgment, Order on Motion to Dismiss/Lack of Jurisdiction, 30 Memorandum & Opinion filed by CENTRAL INTELLIGENCE AGENCY, MICHAEL V. HAYDEN, SCOTT A. KOCH. (Attachments: # 1 Exhibit September 5, 2008 Letter to NSA)(Phillips, Heather) (Entered: 09/05/2008)
2008-09-26	38	REPLY to opposition to motion re 33 MOTION for Reconsideration 29 Order on Motion for Summary Judgment, Order on Motion to Dismiss/Lack of Jurisdiction, 30 Memorandum & Opinion or for Reconsideration of the Court's July 14, 2008 Order Dismissing the Case MOTION to Alter Judgment as to 29 Order on Motion for Summary Judgment, Order on Motion to Dismiss/Lack of Jurisdiction, 30 Memorandum & Opinion or for Reconsideration of the Court's July 14, 2008 Order Dismissing the Case MOTION to Alter Judgment as to 29 Order on Motion for Summary Judgment, Order on Motion to Dismiss/Lack of Jurisdiction, 30 Memorandum & Opinion or for Reconsideration of the Court's July 14, 2008 Order Dismissing the Case filed by NATIONAL SECURITY ARCHIVE. (Attachments: # 1 Declaration Supplemental Declaration of Kristin Adair)(Carome, Patrick) Modified on 9/26/2008 to add correct linkage to motion (tr). (Entered: 09/26/2008)
2008-11-04	39	ORDER granting 33 Plaintiff's Motion for Reconsideration; Plaintiff's Motion for Summary Judgment is hereby granted; Defendants shall grant Plaintiff status as a "representative of the news media" within the meaning of 5 U.S.C. Section 552(a)(4)(A)(ii)(II) Signed by Judge Gladys Kessler on 11/4/08. (CL, ) (Entered: 11/04/2008)
2008-11-04	40	MEMORANDUM OPINION to the Order granting Plaintiff's Motion for Reconsideration. Signed by Judge Gladys Kessler on 11/4/08. (CL, ) (Entered: 11/04/2008)
2008-11-26	41	Unopposed MOTION for Extension of Time to File Motion for Attorneys' Fees by NATIONAL SECURITY ARCHIVE (Attachments: # 1 Text of Proposed Order)(Carome, Patrick) (Entered: 11/26/2008)
2008-12-02		MINUTE ORDER granting 41 Plaintiff's Motion for Extension of Time; Plaintiff shall have to and including December 15, 2008 in which to file its Motion for Attorneys' Fees. Signed by Judge Gladys Kessler on 12/2/08. (CL, ) (Entered: 12/02/2008)
2008-12-02		Set/Reset Deadlines: Motion for Attorneys' Fees due by 12/15/2008. (CL, ) (Entered: 12/02/2008)
2008-12-02		Set/Reset Deadlines: Motion for Attorney Fees due by 12/15/2008. (tth, ) (Entered: 12/02/2008)
2008-12-11	42	STIPULATION and Settlement Agreement for Attorneys' Fees and Costs by NATIONAL SECURITY ARCHIVE. (Carome, Patrick) (Entered: 12/11/2008)
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