Case Detail

FOIA Project Annotation: Judge Amy Berman Jackson has ruled that the Competitive Enterprise Institute's FOIA suit against the EPA alleging the agency's decision to disclose emails sent to an anonymous email account used by former EPA Administrator Lisa Jackson at a rate of 100 records per month violated FOIA became moot once CEI and the agency agreed upon a more rapid response and the agency began to process the records at the accelerated rate. CEI filed suit alleging that the agency's original proposal was glacially slow and, thus, a de facto violation of FOIA. Jackson noted that "here, by virtue of the negotiated resolution, plaintiff has obtained the relief it sought in the form of an injunction in Count II, and that count is moot. And under these circumstances, as the D.C. Circuit has stated, Count I becomes moot as well." CEI argued that it still could contest the agency's exemption claims. Jackson indicated that "but in this complaint, notwithstanding its references to the fact that plaintiff has already appealed what it characterized as 'heavy redactions' in the productions that have been made to date, plaintiff did not ask the court to do anything about those redactions. The complaint is devoid of any claim alleging improper withholdings under Exemption 5 or any other exemption, and it seeks no relief in connection with the withholdings. The obvious point of the litigation was to obtain a judicial declaration that producing only 100 of the 120,000 responsive records per month was inconsistent with the FOIA statute, as well as an order requiring production of the records at a faster pace. Since the request for the only relief sought in this case has been rendered moot, the case will be dismissed." CEI claimed the agency had a pattern or practice of failing to respond to its FOIA requests. Jackson found CEI had not shown that the agency's response to this request constituted a pattern or practice in responding to other CEI requests. She pointed out that "but the single bone of contention between the parties has now evaporated, and neither the head of the agency nor the Court has found that the original production schedule was unlawful. . .[T]here was no allegation in the complaint identifying any other specific FOIA request that was denied or even delayed, and the complaint does not describe any other dispute that needs to be resolved or behavior that needs to be enjoined."
Issues: Litigation - Jurisdiction - Moot

Date Filed	Doc #	Docket Text
2015-03-11	1	COMPLAINT against UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ( Filing fee $ 400 receipt number 0090-4018433) filed by COMPETITIVE ENTERPRISE INSTITUTE. (Attachments: # 1 Civil Cover Sheet, # 2 Summons for the U.S Attorney, # 3 Summons for the agency (the EPA), # 4 Summons for the Attorney General)(Bader, Hans) (Entered: 03/11/2015)
2015-03-11	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by COMPETITIVE ENTERPRISE INSTITUTE (Bader, Hans) (Entered: 03/11/2015)
2015-03-11		Case Assigned to Judge Amy Berman Jackson. (md, ) (Entered: 03/11/2015)
2015-03-11	3	SUMMONS (3) Issued Electronically as to UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent, # 2 Consent Form) (md, ) (Entered: 03/11/2015)
2015-03-18	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/16/2015. ( Answer due for ALL FEDERAL DEFENDANTS by 4/15/2015.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY served on 3/16/2015, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 3/16/2015. (Bader, Hans) (Entered: 03/18/2015)
2015-04-15	5	ANSWER to Complaint by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.(LaCour, Alice) (Entered: 04/15/2015)
2015-04-16	6	ORDER. Before the Court in this FOIA case are a complaint and an answer. The requirements of LCvR 16.3 and Rule 26(f) of the Federal Rules of Civil Procedure appear to be inapplicable. Accordingly, defendant shall file a dispositive motion or, in the alternative, a report setting forth the schedule according to which it will complete its production of documents to plaintiff on or before May 15, 2015. See order for details. Signed by Judge Amy Berman Jackson on 4/16/2015. (lcabj3) (Entered: 04/16/2015)
2015-04-16		Set/Reset Deadlines: Defendant shall file a dispositive motion or, in the alternative, a report setting forth the schedule according to which it will complete its production of documents to plaintiff by 5/15/2015. (jth) (Entered: 04/16/2015)
2015-04-20	7	Joint MOTION for Extension of Time to File Dispositive Motion or, in the Alternative, a Production Schedule by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(LaCour, Alice) (Entered: 04/20/2015)
2015-04-22		MINUTE ORDER granting 7 Joint Motion for Extension of Time to File. It is ORDERED that defendant shall file a dispositive motion or, in the alternative, a report setting forth the schedule according to which it will complete its production of documents to plaintiff on or before May 29, 2015. It is FURTHER ORDERED that plaintiff's response to any dispositive motion shall be due on or before June 29, 2015. Signed by Judge Amy Berman Jackson on 4/22/2015. (lcabj3) (Entered: 04/22/2015)
2015-04-22		Set/Reset Deadlines: Defendant shall file a Dispositive Motion or, in the alternative, a Report setting forth the schedule according to which it will complete its production of documents to plaintiff by 5/29/2015. Plaintiff's Response to any Dispositive Motion shall be due by 6/29/2015.(jth) (Entered: 04/22/2015)
2015-05-29	8	MOTION to Dismiss For Failure to State a Claim , MOTION to Dismiss for Lack of Jurisdiction by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Text of Proposed Order)(LaCour, Alice) (Entered: 05/29/2015)
2015-06-25	9	Memorandum in opposition to re 8 MOTION to Dismiss For Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by COMPETITIVE ENTERPRISE INSTITUTE. (Attachments: # 1 Text of Proposed Order)(Bader, Hans) (Entered: 06/25/2015)
2015-06-29		MINUTE ORDER. It is ORDERED that a status conference is set for July 6, 2015, at 9:45 a.m. in Courtroom 3. The parties should be prepared to discuss the schedule for the completion of the document production and to inform the Court of their position on whether the matter should be referred for mediation. Signed by Judge Amy Berman Jackson on 6/29/15. (DMK) (Entered: 06/29/2015)
2015-06-29		Set/Reset Hearings: A Status Conference is set for 7/6/2015 at 9:45 AM in Courtroom 3 before Judge Amy Berman Jackson. (jth) (Entered: 06/29/2015)
2015-07-02	10	REPLY to opposition to motion re 8 MOTION to Dismiss For Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (LaCour, Alice) (Entered: 07/02/2015)
2015-07-06		Minute Entry for proceedings held before Judge Amy Berman Jackson: Status Conference held on 7/6/2015. This Case is to be referred for Mediation. (Court Reporter Janice Dickman) (jth) (Entered: 07/06/2015)
2015-07-06	11	ORDER REFERRING CASE to Mediation. It is ORDERED that this matter is referred to the Court's Mediation Program to commence as of July 7, 2015 and to conclude by September 8, 2015. It is FURTHER ORDERED that the parties submit a status report to the Court on the status of the mediation by September 8, 2015. See Order for details. Signed by Judge Amy Berman Jackson on 7/6/15. (DMK) (Entered: 07/06/2015)
2015-07-06		Set/Reset Deadlines: Mediation to conclude by 9/8/2015; the parties are also directed to submit a Report to the Court on the Status of the mediation by 9/8/2015. (jth) (Entered: 07/06/2015)
2015-07-28	12	STIPULATION TO A PRODUCTION SCHEDULE by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (LaCour, Alice) (Entered: 07/28/2015)
2015-07-28		MINUTE ORDER. In light of the stipulation filed on this date, it is ORDERED that the parties shall file by September 14, 2015 a joint status report on the status of production. Signed by Judge Amy Berman Jackson on 7/28/15. (DMK) (Entered: 07/28/2015)
2015-07-28		Set/Reset Deadlines: The parties shall file a Joint Report on the Status of production by 9/14/2015. (jth) (Entered: 07/28/2015)
2015-09-14	13	Joint STATUS REPORT by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (LaCour, Alice) (Entered: 09/14/2015)
2015-09-15		MINUTE ORDER. In light of the most recent status report, it is ORDERED that the parties shall file another joint status report on the status of production by October 13, 2015. Signed by Judge Amy Berman Jackson on 9/15/15. (DMK) (Entered: 09/15/2015)
2015-09-16		Set/Reset Deadlines: The parties shall file a Joint Report on the Status of Production by 10/13/2015. (jth) (Entered: 09/16/2015)
2015-10-13	14	Joint STATUS REPORT by Competitve Enterprise Institute and by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (LaCour, Alice) (Entered: 10/13/2015)
2015-10-14		MINUTE ORDER. In light of the most recent status report, it is ORDERED that the parties shall file another joint status report on the status of production by November 13, 2015. Signed by Judge Amy Berman Jackson on 10/14/2015 (lcabj3) (Entered: 10/14/2015)
2015-10-14		Set/Reset Deadlines: The parties shall file a Joint Report on the Status of Production by 11/13/2015. (jth) (Entered: 10/14/2015)
2015-11-13	15	Third STATUS REPORT Jointly filed by Competitive Enterprise Institute and by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (LaCour, Alice) (Entered: 11/13/2015)
2015-11-13		MINUTE ORDER. In light of the representations in the parties' 15 Joint Status Report, plaintiff shall inform the Court on or before December 2, 2015, whether there are any allegations in the complaint that remain to be resolved, or if this entire matter is now moot. SO ORDERED. Signed by Judge Amy Berman Jackson on 11/13/2015. (lcabj3) (Entered: 11/13/2015)
2015-11-13		Set/Reset Deadlines: Plaintiff to inform the Court by 12/2/2015, whether there are any allegations in the complaint that remain to be resolved, or if this entire matter is now moot. (jth) (Entered: 11/13/2015)
2015-12-02	16	STATUS REPORT on whether the case is moot by COMPETITIVE ENTERPRISE INSTITUTE. (Bader, Hans) (Entered: 12/02/2015)
2015-12-03		MINUTE ORDER. Plaintiff brought this lawsuit claiming that defendant EPA failed to timely respond to its 2012 request under the Freedom of Information Act, 5 U.S.C. § 552, which sought emails related to a "false-identity email account created for certain official correspondence for then-EPA Administrator Lisa Jackson in the name of 'Richard Windsor.'" Compl. 1 para. 1. In response to plaintiff's request, EPA identified "approximately 120,000 responsive records," which it promised to produce at a rate of 100 records per month. Compl. para. 28. The parties have since, by mutual agreement, limited the scope of plaintiff's request, and defendant has completed production of the 3,723 records that remained at issue. See Stipulated Production Schedule [Dkt. # 12 ] at 2; 3d Jt. Status Report [Dkt. # 15 ]. Because the issues in the complaint seem to have been fully resolved, the Court ordered plaintiff to advise the Court if the matter was moot. See Min. Order (Nov. 13, 2015). Plaintiffs response, however, raises claims that may not be ripe, and furthermore, may not be related to its 1 complaint. See Status Report [Dkt. # 16 ] at 1-2. Thus, it is ORDERED that the parties shall file, on or before December 11, 2015, memoranda detailing their respective positions on whether the Court has subject matter jurisdiction over plaintiff's claims that documents were improperly redacted or withheld, given the fact that plaintiff's claims as articulated in the original complaint now appear to be moot. Signed by Judge Amy Berman Jackson on 12/3/2015. (lcabj3) (Entered: 12/03/2015)
2015-12-03		Set/Reset Deadlines: The parties shall file by 12/11/2015, memoranda detailing their respective positions on whether the Court has subject matter jurisdiction over plaintiff's claims that documents were improperly redacted or withheld, given the fact that plaintiff's claims as articulated in the original complaint now appear to be moot. (jth) (Entered: 12/03/2015)
2015-12-11	17	MEMORANDUM re Order,,,,,, by COMPETITIVE ENTERPRISE INSTITUTE. (Attachments: # 1 Declaration of Hans Bader in support of Plaintiff's Memorandum Regarding Subject Matter Jurisdiction)(Bader, Hans) (Entered: 12/11/2015)
2015-12-11	18	MEMORANDUM by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (LaCour, Alice) (Entered: 12/11/2015)
2015-12-21		MINUTE ORDER. The government is ORDERED to file a memorandum by January 8, 2016 setting forth its response to plaintiff's argument on pages 12-14 of plaintiff's 17 December 11, 2015 filing. The government should specifically address the mootness of plaintiff's "pattern or practice" claim in light of Payne Enterprises v. United States, 837 F.2d 486, 490-92 (D.C. Cir. 1984). The government need not repeat any arguments that it has made in prior filings. Signed by Judge Amy Berman Jackson on 12/21/2015. (lcabj3) (Entered: 12/21/2015)
2015-12-23		Set/Reset Deadlines: The Government's Memorandum is due by 1/8/2016. (jth) (Entered: 12/23/2015)
2016-01-08	19	AFFIDAVIT re 17 Memorandum (Supplemental Declaration of Hans Bader in Support of Plaintiff's Memorandum Regarding Subject Matter Jurisdiction) by COMPETITIVE ENTERPRISE INSTITUTE. (Bader, Hans) (Entered: 01/08/2016)
2016-01-08	20	MEMORANDUM by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (LaCour, Alice) (Entered: 01/08/2016)
2016-01-28	21	ORDER. Pursuant to Federal Rule of Civil Procedure 12(b)(1) and for the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that plaintiff's 1 Complaint is dismissed as moot. It is FURTHER ORDERED that defendant's 8 pending motion to dismiss is denied as moot. See Order for complete details. Signed by Judge Amy Berman Jackson on 1/28/2016 (lcabj3) (Entered: 01/28/2016)
2016-01-28	22	MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 1/28/2016. (lcabj3) (Entered: 01/28/2016)
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