Case Detail

FOIA Project Annotation: Judge Emmet Sullivan has ruled that pulmonary function testing (PFT) data for workers exposed to Libby amphibole asbestos, collected as part of federal contracts with the University of Cincinnati, is not an agency record of the EPA because the agency never had custody or control of the data. The EPA was the lead agency studying the effects of Libby amphibole asbestos and was completing a toxicological review of its effects on workers. It had contracted with the University of Cincinnati to study the ways in which workers were exposed. But the second phase of the UC contract to study the effects on workers was not funded by EPA, but by the Transportation Department. A related contract to study health effects of Libby amphibole asbestos was awarded to UC by the Agency for Toxic Substances and Disease Registry, a component of the Department of Health and Human Services. The EPA contracted with Syracuse Research Corporation to assist the agency in responding to comments and recommendations from EPA's Science Advisory Board concerning the draft toxicological review. Because the contract required SRC to subcontract with a third party knowledgeable about the health studies, UC was brought in as a subcontractor. The law firm of Beveridge & Diamond requested information from EPA about their Libby amphibole asbestos review, including high resolution tomography (HRCT) data and PFT data. EPA provided 71 documents and several redacted contracts, but told Beveridge that it did not have either the HRCT or the PFT data. During the litigation, the agency provided an Excel spreadsheet of HRCT data that it had received from UC as an email attachment, but continued to claim that it did not have the PFT data. Beveridge argued that because the HRCT and PFT data are "companion data" collected as part of the same study, the EPA must have control of the PFT data as well. But Sullivan noted that "Beveridge's leap of logic relies on its characterization of the HRCT and PFT data as 'companion data.' Beveridge's unsupported assertion is wholly insufficient to overcome the record in this case. . ." Sullivan pointed out that "even assuming that the EPA had a right to acquire the PFT data, which it does not, the EPA has not exercised its right. By ordering the EPA to 'exercise its right of access' the Court would be effectively compelling the EPA to create an agency record." Beveridge claimed that the federal government had a right of access to the data and it was created to aid EPA in its toxicological review. Sullivan indicated that "the EPA cannot require UC to provide it with the PFT data UC may have collected under the [DOT] contract, nor does the EPA have a right to access UC's PFT data under the [HHS] grant." Beveridge contended that Burka v. Dept of HHS, 87 F.3d 508 (D.C. Cir. 1996), in which the D.C. Circuit found that NCI had constructive control of data because of its close supervision of the grantee, required EPA to provide the records. Sullivan however, found that use of the records was the decisive factor under Burka and that there was no evidence that EPA had even seen the PFT data.
Issues: Agency Record

Date Filed	Doc #	Docket Text
2014-04-16	1	COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-3687639) filed by BEVERIDGE & DIAMOND, P.C.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Civil Cover Sheet, # 11 Summons U.S. Environmental Protection Agency, # 12 Summons U.S. Attorney General, # 13 Summons U.S. Attorney for the District of Columbia)(Barker, David) (Entered: 04/16/2014)
2014-04-16	2	Corporate Disclosure Statement by BEVERIDGE & DIAMOND, P.C.. (Barker, David) (Entered: 04/16/2014)
2014-04-16	3	NOTICE OF RELATED CASE by BEVERIDGE & DIAMOND, P.C.. Case related to Case No. 1:14 cv 80. (Barker, David) (Entered: 04/16/2014)
2014-04-16		Case Assigned to Judge Emmet G. Sullivan. (kb) (Entered: 04/17/2014)
2014-05-06	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY served on 4/17/2014 (Barker, David) (Entered: 05/06/2014)
2014-05-06	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 04/17/2014. (Barker, David) (Entered: 05/06/2014)
2014-05-06	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/17/2013. Answer due for ALL FEDERAL DEFENDANTS by 5/17/2013. (Barker, David) (Entered: 05/06/2014)
2014-05-08	7	NOTICE of Appearance by Jayni Anita Lanham on behalf of BEVERIDGE & DIAMOND, P.C. (Lanham, Jayni) (Entered: 05/08/2014)
2014-05-12	8	NOTICE of Appearance by Judith A. Kidwell on behalf of UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Kidwell, Judith) (Entered: 05/12/2014)
2014-05-12	9	MOTION for Summary Judgment by BEVERIDGE & DIAMOND, P.C. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Text of Proposed Order)(Barker, David) (Entered: 05/12/2014)
2014-05-12	10	MOTION to Expedite and Set a Prompt Briefing Schedule for Plaintiff's Motion for Summary Judgment by BEVERIDGE & DIAMOND, P.C. (Attachments: # 1 Text of Proposed Order)(Barker, David) (Entered: 05/12/2014)
2014-05-15		MINUTE ORDER directing EPA to file its response to the motion to expedite by no later than May 19, 2014; plaintiff shall file its reply by no later than May 20, 2014. Signed by Judge Emmet G. Sullivan on May 15, 2014. (lcegs4) (Entered: 05/15/2014)
2014-05-15		Set/Reset Deadlines: Defendant Response To Motion To Expedit due by 5/19/2014. Plaintiff Reply due by 5/20/2014. (mac) (Entered: 05/15/2014)
2014-05-19	11	Memorandum in opposition to re 10 MOTION to Expedite and Set a Prompt Briefing Schedule for Plaintiff's Motion for Summary Judgment filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Text of Proposed Order)(Kidwell, Judith) (Entered: 05/19/2014)
2014-05-19	12	ANSWER to Complaint by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.(Kidwell, Judith) (Entered: 05/19/2014)
2014-05-20	13	REPLY to opposition to motion re 10 MOTION to Expedite and Set a Prompt Briefing Schedule for Plaintiff's Motion for Summary Judgment filed by BEVERIDGE & DIAMOND, P.C.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Text of Proposed Order)(Lanham, Jayni) (Entered: 05/20/2014)
2014-05-23		MINUTE ORDER granting in part plaintiff's motion for expedited briefing schedule. EPA's response to plaintiff's motion for summary judgment and, if applicable, cross motion for summary judgment shall be filed by no later than June 9, 2014. Plaintiff's reply in support of it's motion, and if applicable, combined response to defendant's cross motion, shall be filed by no later than June 23, 2014. Defendant's reply in support of its cross motion, if applicable, shall be filed by no later than June 30, 2014. SO ORDERED. Signed by Judge Emmet G. Sullivan on May 23, 2014. (lcegs4) (Entered: 05/23/2014)
2014-05-23		Set/Reset Deadlines: EPA Response To Plaintiff's Motion For Summary Judgment, and, if applicable Cross Motion Motion For Summary Judgment due by 6/9/2014. Plaintiff's Reply In Support Of It's Motion, and if applicable, combined response to defendant's cross motion due by 6/23/2014. Defendant's Reply In Support Of Its Cross Motion due by 6/30/2014. (mac) (Entered: 05/23/2014)
2014-06-09	14	Consent MOTION for Extension of Time to File by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Kidwell, Judith) (Entered: 06/09/2014)
2014-06-11	15	Memorandum in opposition to re 9 MOTION for Summary Judgment filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14 Exhibit K, # 15 Exhibit L, # 16 Exhibit M, # 17 Exhibit N, # 18 Exhibit O, # 19 Exhibit P, # 20 Exhibit Q, # 21 Exhibit R, # 22 Exhibit S, # 23 Exhibit T, # 24 Exhibit U, # 25 Exhibit V, # 26 Exhibit W, # 27 Exhibit X, # 28 Exhibit Y, # 29 Exhibit Z, # 30 Exhibit ZA, # 31 Statement of Facts, # 32 Text of Proposed Order)(Kidwell, Judith) (Entered: 06/11/2014)
2014-06-11	16	Cross MOTION for Summary Judgment by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Text of Proposed Order, # 4 Statement of Facts)(Kidwell, Judith) . (Entered: 06/11/2014)
2014-06-12		MINUTE ORDER granting, nunc pro tunc, 14 EPA's consent motion for extension of time until June 11, 2014 to file its combined opposition and cross motion. Signed by Judge Emmet G. Sullivan on June 12, 2014. (lcegs4) (Entered: 06/12/2014)
2014-06-20		MINUTE ORDER. The Court's June 12, 2014 Minute Order is hereby amended as follows: Plaintiff shall file its combined reply and opposition to Defendant's cross motion for summary judgment by no later than June 24, 2014. Defendant's reply shall be filed by no later than June 30, 2014. SO ORDERED. Signed by Judge Emmet G. Sullivan on June 20, 2014. (lcegs1) (Entered: 06/20/2014)
2014-06-20		Set/Reset Deadlines: Plaintiff Reply And Opposition To Defendant's Cross Motion for Summary Judgment due by 6/24/2014. Defendant's Reply due by 6/30/2014. (mac) (Entered: 06/20/2014)
2014-06-24	17	REPLY to opposition to re 9 MOTION for Summary Judgment filed by BEVERIDGE & DIAMOND, P.C.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Lanham, Jayni) . (Entered: 06/24/2014)
2014-06-24	18	Memorandum in opposition to re 16 Cross MOTION for Summary Judgment and Reply in Support of Plaintiff's Motion for Summary Judgment filed by BEVERIDGE & DIAMOND, P.C.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Lanham, Jayni) (Entered: 06/24/2014)
2014-06-27	19	NOTICE OF WITHDRAWAL OF APPEARANCE as to UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. Attorney Judith A. Kidwell terminated. (Kidwell, Judith) (Entered: 06/27/2014)
2014-06-30	20	NOTICE of Appearance by Shannon L. Fagan on behalf of UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (jf, ) (Entered: 07/01/2014)
2014-06-30	21	MOTION for Extension of Time to File Response/Reply as to 9 MOTION for Summary Judgment , 16 Cross MOTION for Summary Judgment by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(jf, ) (Entered: 07/01/2014)
2014-07-01	22	RESPONSE re 21 MOTION for Extension of Time to File Response/Reply as to 9 MOTION for Summary Judgment , 16 Cross MOTION for Summary Judgment filed by BEVERIDGE & DIAMOND, P.C.. (Barker, David) (Entered: 07/01/2014)
2014-07-01		MINUTE ORDER granting 21 defendant's partial consent motion for extension of time. Defendant requests an extension to file its reply by July 7, 2014, and plaintiff consents to the extension only until noon on July 7, 2014. The Court GRANTS 21 defendant's motion in full. Defendant shall file its reply brief by no later than July 10, 2014. Signed by Judge Emmet G. Sullivan on July 1, 2014. (lcegs7) (Entered: 07/01/2014)
2014-07-02		Set/Reset Deadlines: Defendant Reply Brief due by 7/10/2014. (mac) (Entered: 07/02/2014)
2014-07-10	23	REPLY to opposition to motion re 16 Cross MOTION for Summary Judgment filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Declaration Attachment 1 - Benson Decl., # 2 Exhibit A - Viana Decl.)(Fagan, Shannon) (Entered: 07/10/2014)
2014-07-11	24	ERRATA by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 23 Reply to opposition to Motion, filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Fagan, Shannon) (Entered: 07/11/2014)
2014-10-08		MINUTE ORDER. It appears to the Court that administrative appeals of the plaintiff's FOIA requests to the defendant are still pending. The plaintiff is ordered to file a status report by no later than noon on Saturday, October 11, 2014 explaining the status of any administrative appeals regarding the FOIA requests at issue in this case, and what impact those administrative appeals have on the pending motions for summary judgment. Any response by the defendant shall be filed by no later than noon on Tuesday, October 14, 2014. Signed by Judge Emmet G. Sullivan on October 8, 2014. (lcegs7) (Entered: 10/08/2014)
2014-10-09		Set/Reset Deadlines: Plaintiff Status Report due by 10/11/2014 at 12:00pm. Defendant Response due by 10/14/14 at 12:00pm. (mac) (Entered: 10/09/2014)
2014-10-10	25	STATUS REPORT on Pending Administrative Appeals by BEVERIDGE & DIAMOND, P.C.. (Barker, David) (Entered: 10/10/2014)
2014-10-14	26	RESPONSE to Plaintiff's 25 Status Report on Administrative Appeals filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Fagan, Shannon) Modified on 10/15/2014 (jf, ). (Entered: 10/14/2014)
2014-10-31	27	NOTICE OF WITHDRAWAL OF APPEARANCE as to UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. Attorney Shannon L. Fagan terminated. (Fagan, Shannon) (Entered: 10/31/2014)
2014-11-05	28	NOTICE of Appearance by Marina Utgoff Braswell on behalf of UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Braswell, Marina) (Entered: 11/05/2014)
2015-01-20	29	ORDER denying 9 plaintiff's motion for summary judgment, granting 16 defendant's cross motion for summary judgment. Signed by Judge Emmet G. Sullivan on January 20, 2015. (lcegs4) (Entered: 01/20/2015)
2015-01-20	30	MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on January 20, 2015. (lcegs4) (Entered: 01/20/2015)
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