Case Detail

FOIA Project Annotation: In a complex case involving the deliberative nature of discussions involving the EPA and the U.S. Corps of Engineers over whether an industrial site in Redwood City, CA fell within federal jurisdiction under the Clean Water Act or the Rivers and Harbors Act, Judge Rudolph Contreras has found that the agencies have not yet sufficiently supported their deliberative process privilege claims. In the course of his discussion, Contreras makes some interesting observations as to when deliberations ripen to a final decision, taking them outside the privilege. The law firm of Hunton & Williams submitted FOIA requests to the EPA, the U.S. Army Corps of Engineers, and the Army, for records concerning the developer's request for an Approved Jurisdictional Determination, establishing the government's position on CWA and RHA jurisdiction. The Corps and the EPA share responsibility for issuing AJDs. The Corps prepared a draft AJD, which was reviewed by the Army. The Corps returned to work on the AJD, informing the EPA in December 2014 that it intended to finalize the AJD. However, the EPA exercised its special case authority to take over the CWA portion of the AJD. As of August 2016, the EPA had not issued the CWA portion of the AJD. In response to Hunton & Williams' request, the EPA disclosed 600 documents in full, withheld 12 documents in full, and withheld 320 documents in part, primarily under Exemption 5 (privileges). The Corps disclosed 20,448 pages of documents, out of a total of 22,776 pages. The Army did not respond until the law firm filed suit. The Army identified 3,852 pages of responsive documents and released 2,422 pages. Contreras found the agencies' searches were adequate. However, he turned to Hunton & Williams' claim that the Corps and the Army had failed to search personal accounts for responsive records. He pointed out that in Competitive Enterprise Institute v. Office of Science & Technology Policy, 827 F.3d 145 (D.C. Cir. 2016), the D.C. Circuit had ruled that when an agency was aware that employees had used personal accounts to conduct agency business it was obligated to search those records. But he observed that in Wright v. Administration for Children & Families, 2016 WL 5922293 (D.D.C. 2016), Judge Beryl Howell, interpreting CEI, found that agencies were not required to search personal accounts based on nothing more than the requester's speculation. Hunton & Williams found some emails in the records the Army disclosed sent from personal email accounts. As a result, the Army searched that particular account, but found no more records. Agreeing that the Army's search was sufficient, Contreras noted that "Hunton identifies no other particular employees whose accounts it asserts should be searched, or other specific facts in the record indicating that personal email accounts�"presumably those for all employees identified as having been involved with the issues�"even in the absence of any indication that any such personal accounts were used for agency business. This goes too far. . .Here, as in Wright, the Court finds that Hunton's purely speculative claims are insufficient to overcome the presumption that the agency's search was adequate." Contreras rejected Hunton & Williams' claim that the agencies should also search for text messages. He pointed out that "unlike email messages, no evidence in the record suggests that any agency employees used text messages to conduct official business." The law firm also challenged the Corps' decision to limit its search to specific individuals. Contreras indicated that "while Hunton may not have consented to an unconditional limitation, it did agree that it would inform the Corps if it sought records from additional custodians. Hunton never exercised that right, and thus cannot object to the Corps proceeding with the original list." Contreras found that all three agencies had not adequately justified their deliberative process privilege claims. Addressing the EPA's explanations, he noted that "mindful of the heightened requirement for specificity in the context of the deliberative process privilege, the Court cannot grant the EPA summary judgment because the EPA's disclosures, like other rejected in this jurisdiction, are insufficiently specific about the deliberative process at issue and the function and significance of each record in that process." To assist the agencies in addressing his concerns, Contreras turned to several specific issues, especially the status of the Corps' final draft AJD. Hunton & Williams argued that the Corps had finalized it AJD, meaning it was no longer predecisional. But Contreras agreed with the EPA that regardless of whether the Corps might consider the draft AJD its final decision, it was still predecisional as to the EPA's final decision. He pointed out that "the EPA does not dispute that the 'final' draft AJD was a whisker's breadth from completion. Nonetheless, because the 'final' draft AJD was never finalized and has not�"to this Court's knowledge�"been adopted by any agency, the Court agrees with EPA that the deliberative process privilege could apply." The law firm asserted that the Corps' draft AJD was the agency's final decision and its failure to actually issue the AJD was "ministerial." However, Contreras explained that "the 'draft' AJD does not appear to have been given any effect, either informally or formally. It was never signed or finalized. . .Nor does Hunton claim that the draft has been applied to government CWA jurisdiction over the site. Instead, Hunton's repeated assertions that EPA has delayed and continues to delay CWA portions of the AJD makes it clear that the government is not giving the 'final' draft AJD, which Hunton asserts concluded against CWA jurisdiction, any legal effect." Indeed, Hunton & Williams argued that the draft AJD was the Corps' final decision. But Contreras observed that "this argument confuses the temporal sense of 'final' with the sense required by FOIA. Hunton presents no evidence that the Corps, or any other agency, has ever relied on, referred to, or treated as precedential the 'final' draft AJD." He indicated that the draft AJD could still be considered deliberative as well, pointing out that "the deliberative process can�"as it did here�"span between two different agencies. This set-up is particularly common when one agency serves a secondary function to a supervising agency." Under the circumstances, he noted that "here, the EPA has the ultimate authority to decide questions of CWA jurisdiction. The agreement between the Corps and the EPA describing the special case authority begins from this premise. The Corps' submissions to the EPA thus are part of the deliberative process because the EPA retained the authority to disagree and exercise its special case power�"as it did here. Given that neither the Corps nor the EPA has�"to the best of this Court's knowledge�"issued a final decision, the deliberative process is ongoing." Contreras rejected the Corps' claims that its draft AJD was protected by the attorney work-product privilege or the attorney-client privilege. He explained that to qualify for the attorney work-product privilege, records had to be created because of the prospect of litigation. He noted that "the 'because of' test demonstrates the flaw in the Corps' reasoning. Drafts of the AJD were not prepared because of possible litigation. The Corps was required to prepare the AJD, and thus drafts of the AJD, even if it knew that no litigation would ever result." He found the agency's attorney-client privilege claims insufficient. He observed that "this general statement cannot overcome the otherwise inadequate Vaughn index because it fails to provide necessary document-specific information such as the identities of the client and lawyer and whether legal advice was sought."
Issues: Search - Reasonableness of search, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 5 - Privileges - Attorney work-product privilege compiled in anticipation of litigation, Exemption 5 - Privileges - Attorney-client privilege

FOIA Project Annotation: After reviewing a representative selection of 120 documents, Judge Rudolph Contreras has ruled that, with a few exceptions. the Army Corps of Engineers and the EPA properly withheld records under Exemption 5 (privileges) in response to FOIA requests from the law firm of Hunton & Williams concerning jurisdictional matters under the Clean Water Act and the Rivers and Harbors Act for an industrial site located in Redwood City, CA. The Corps of Engineers has jurisdiction under the RHA but shares jurisdiction with the EPA under the CWA. In 2014, the Corps prepared an Approved Jurisdictional Determination addressing jurisdictional matters, but before it was released, the Army conducted a review in its role as the Corps' parent agency. After that review was complete and the Corps had resumed its work on the AJD, the EPA invoked its "special case" authority to take over the CWA portion of the AJD. The agencies redacted or withheld records under the deliberative process privilege, the attorney-client privilege, and the attorney work-product privilege. Contreras found that the agencies had appropriately claimed the deliberative process privilege but considered the status of the Corps' draft jurisdictional memo in light of whether or not it constituted the agency's final decision on the matter of jurisdiction. In his earlier ruling in the case, Contreras had indicated that it probably retained its predecisional nature and after having reviewed it in camera confirmed that it did not constitute the agency's final decision. He pointed out that "while the document constituted the Corps' final decision on the matter, the document was ultimately sent to the EPA, along with a timeline of when the Corps planned to issue the decision, in order to allow the EPA, based on its review of the document, to invoke its special case authority. In effect, the document served as a proposal to the EPA: it had the option to either not act, thereby allowing the document to be finalized and issued, or, if it disagreed with what the document contained, to intervene and provide its own jurisdictional analysis under the CWA." Contreras agreed that the Army's review of the Corps' jurisdictional report was also protected by the deliberative process privilege. Here, he noted that "each document was predecisional and contributed to one of the Army's decision-making processes: either deciding how best to communicate and work with outside actors, be they personnel in other agencies or the public, in light of the Army's decision to conduct the review, or the ultimate result of the review itself." Contreras found two Corps email exchanges from supervisors to subordinates were not protected by the deliberative process privilege. He explained that "directives from decisionmakers are not covered by the deliberative process privilege." Examining the attorney-client and work-product privilege claims, Contreras found several claims did not qualify for those privileges because they did not involve legal advice, but that all of them were exempt because they qualified under the deliberative process privilege. In one instance, the Corps had claimed the attorney-client privilege for isolated facts and statistics. The Corps claimed disclosure of those materials would reveal what agency attorneys believed were important. Contreras rejected the privilege on that basis but noted they were deliberative because "they contain suggestions from Corps attorneys to other Corps personnel regarding which portions of the documents the attorney believed were important to the AJD process."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional

Date Filed	Doc #	Docket Text
2015-07-24	1	COMPLAINT against U.S. ENVIRONMENTAL PROTECTION AGENCY ( Filing fee $ 400 receipt number 0090-4187155) filed by HUNTON & WILLIAMS LLP. (Attachments: # 1 Exhibit A: EPA Email 10/30/2012, # 2 Exhibit B: Legal Principles 1/9/2014, # 3 Exhibit C: Supplement to Legal Principles 03/25/2014, # 4 Exhibit D: EPA Memo 5/30/2014, # 5 Exhibit E: FOIA 5/30/2014, # 6 Exhibit F: EPA Letter 8/14/2014, # 7 Exhibit G: Itemized List, # 8 Exhibit H: FOIA 8/19/2014, # 9 Exhibit I: EPA Letter (undated), # 10 Exhibit J: Itemized List, # 11 Exhibit K: FOIA 3/19/2015, # 12 Exhibit L: EPA Letter 6/12/2015, # 13 Exhibit M: Itemized List, # 14 Exhibit N: FOIA 3/23/2015, # 15 Exhibit O: EPA Letter 4/23/2015, # 16 Civil Cover Sheet, # 17 Summons EPA, # 18 Summons DOJ, # 19 Summons U.S. Attorney)(Duncan, Deidre) (Entered: 07/24/2015)
2015-07-24	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by HUNTON & WILLIAMS LLP (Duncan, Deidre) (Entered: 07/24/2015)
2015-07-24		Case Assigned to Judge Rudolph Contreras. (md) (Entered: 07/27/2015)
2015-07-27	3	SUMMONS (3) Issued Electronically as to U.S. ENVIRONMENTAL PROTECTION AGENCY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 07/27/2015)
2015-08-04	4	NOTICE of Appearance by John Eliot Beerbower on behalf of HUNTON & WILLIAMS LLP (Beerbower, John) (Entered: 08/04/2015)
2015-08-05	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. ENVIRONMENTAL PROTECTION AGENCY served on 8/4/2015 (Beerbower, John) (Entered: 08/05/2015)
2015-08-05	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General August 3, 2015. (Beerbower, John) (Entered: 08/05/2015)
2015-08-05	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/3/2015. Answer due for ALL FEDERAL DEFENDANTS by 9/2/2015. (Beerbower, John) (Entered: 08/05/2015)
2015-08-20	8	NOTICE of Appearance by George P. Sibley, III on behalf of All Plaintiffs (Sibley, George) (Entered: 08/20/2015)
2015-09-02	9	ANSWER to Complaint by U.S. ENVIRONMENTAL PROTECTION AGENCY.(Grace, Derrick) (Entered: 09/02/2015)
2015-09-03		MINUTE ORDER: It is hereby ORDERED that the parties shall meet, confer, and submit a proposed briefing schedule on or before September 17, 2015. SO ORDERED. Signed by Judge Rudolph Contreras on 09/03/2015. (lcrc2) (Entered: 09/03/2015)
2015-09-17	10	Joint MOTION for Extension of Time to Submit Proposed Briefing Schedule by HUNTON & WILLIAMS LLP (Attachments: # 1 Text of Proposed Order)(Sibley, George) (Entered: 09/17/2015)
2015-09-17		MINUTE ORDER granting 10 Joint Motion for Extension of Time to Submit Proposed Briefing Schedule: It is hereby ORDERED that the parties shall submit a proposed briefing schedule on or before September 24, 2015. SO ORDERED. Signed by Judge Rudolph Contreras on 9/17/2015. (lcrc2) (Entered: 09/17/2015)
2015-09-24	11	Joint STATUS REPORT by HUNTON & WILLIAMS LLP. (Sibley, George) (Entered: 09/24/2015)
2015-09-25	12	MOTION to Consolidate Cases by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Exhibit)(Grace, Derrick) (Entered: 09/25/2015)
2015-09-30		MINUTE ORDER: It is hereby ORDERED that the parties shall appear before the Court for a status conference at 2:30 PM on October 15, 2015, in Courtroom 14. SO ORDERED. Signed by Judge Rudolph Contreras on 9/30/2015. (lcrc2) (Entered: 09/30/2015)
2015-09-30		Set/Reset Hearings: Status Conference set for 10/15/2015 @ 02:30 PM in Courtroom 14 before Judge Rudolph Contreras. (tj) (Entered: 09/30/2015)
2015-10-13	13	RESPONSE re 12 MOTION to Consolidate Cases (Plaintiff's Opposition to Motion to Consolidate) filed by HUNTON & WILLIAMS LLP. (Sibley, George) (Entered: 10/13/2015)
2015-10-15		Minute Entry for proceedings held before Judge Rudolph Contreras: Status Conference held on 10/15/2015. Parties to meet and confer by 10/29/15, and case to be consolidated. (Court Reporter: Annette Montalvo.) (tj) (Entered: 10/15/2015)
2015-10-15	14	ORDER granting 12 Defendants' Motion to Consolidate Cases. See document for details. Signed by Judge Rudolph Contreras on 10/15/2015. (lcrc2) (Entered: 10/15/2015)
2015-10-16	15	SCHEDULING ORDER. See document for details. Signed by Judge Rudolph Contreras on 10/16/2015. (lcrc2) (Entered: 10/16/2015)
2015-10-29	16	ANSWER to Complaint by U.S. DEPARTMENT OF THE ARMY.(Grace, Derrick) (Entered: 10/29/2015)
2015-10-29	17	ANSWER to Complaint by U.S. ARMY CORPS OF ENGINEERS.(Grace, Derrick) (Entered: 10/29/2015)
2015-10-29	18	PROPOSED BRIEFING SCHEDULE JOINT by HUNTON & WILLIAMS LLP. (Attachments: # 1 Text of Proposed Order Proposed Order)(Sibley, George) (Entered: 10/29/2015)
2015-11-02	19	SCHEDULING ORDER for Case Nos. 15-1203 and 15-1207. See document for details. Signed by Judge Rudolph Contreras on 10/30/2015. (lcrc2) (Entered: 11/02/2015)
2015-11-05	20	SCHEDULING ORDER for Case No. 15-1208. See document for details. Signed by Judge Rudolph Contreras on 11/05/2015. (lcrc2) (Entered: 11/05/2015)
2015-11-06	21	Joint STATUS REPORT (proposed briefing schedule - Army) by U.S. DEPARTMENT OF THE ARMY. (Grace, Derrick) (Entered: 11/06/2015)
2015-11-25	22	PROPOSED BRIEFING SCHEDULE JOINT by HUNTON & WILLIAMS LLP. (Attachments: # 1 Text of Proposed Order)(Sibley, George) (Entered: 11/25/2015)
2015-11-30	23	Joint STATUS REPORT by U.S. ARMY CORPS OF ENGINEERS, U.S. DEPARTMENT OF THE ARMY, U.S. ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Exhibit A)(Grace, Derrick) (Entered: 11/30/2015)
2015-11-30	24	SCHEDULING ORDER for Case No. 15-1208. See document for details. Signed by Judge Rudolph Contreras on 11/30/2015. (lcrc2) (Entered: 11/30/2015)
2015-12-01		MINUTE ORDER: It is hereby ORDERED that the parties shall appear before the Court for a status conference at 10:00 AM on December 16, 2015, in Courtroom 14. SO ORDERED. Signed by Judge Rudolph Contreras on 12/1/2015. (lcrc2) (Entered: 12/01/2015)
2015-12-04		MINUTE ORDER: It is hereby ORDERED that the December 16, 2015 status conference is VACATED and is RESCHEDULED for December 15, 2015 at 2:30 PM. SO ORDERED. Signed by Judge Rudolph Contreras on 12/04/2015. (lcrc2) (Entered: 12/04/2015)
2015-12-04		Reset Hearings: Status Conference set for 12/15/2015 at 02:30 PM in Courtroom 14 before Judge Rudolph Contreras. (tj) (Entered: 12/04/2015)
2015-12-15		Minute Entry for proceedings held before Judge Rudolph Contreras: Status Conference held on 12/15/2015. Parties advise the court of the status of this action. (Court Reporter: Jeff Hook.) (tj) (Entered: 12/16/2015)
2015-12-16	25	SCHEDULING ORDER for Case No. 15-1207. See document for details. Signed by Judge Rudolph Contreras on 12/16/2015. (lcrc2) (Entered: 12/16/2015)
2016-01-07	26	Consent MOTION for Extension of Time to file motion for summary judgment by U.S. DEPARTMENT OF THE ARMY (Grace, Derrick) (Entered: 01/07/2016)
2016-01-08	27	AMENDED SCHEDULING ORDER for Case No. 15-1208. See document for details. Signed by Judge Rudolph Contreras on 01/08/2016. (lcrc2) (Entered: 01/08/2016)
2016-01-13	28	Consent MOTION for Extension of Time to file motion for summary judgment in 15-1203 by U.S. ENVIRONMENTAL PROTECTION AGENCY (Grace, Derrick) (Entered: 01/13/2016)
2016-01-13	29	AMENDED SCHEDULING ORDER for Case No. 15-1203. See document for details. Signed by Judge Rudolph Contreras on 01/13/2016. (lcrc2) (Entered: 01/13/2016)
2016-01-14		Set/Reset Deadlines: Summary Judgment motions due by 2/5/2016. Response to Motion for Summary Judgment due by 3/4/2016. Reply to Motion for Summary Judgment due by 3/18/2016. Cross Motions due by 3/4/2016. Response to Cross Motions due by 3/18/2016. Reply to Cross Motions due by 4/1/2016. (tj) (Entered: 01/14/2016)
2016-01-22	30	Joint MOTION for Scheduling Order Amendment in 15-1207 by U.S. ARMY CORPS OF ENGINEERS (Grace, Derrick) (Entered: 01/22/2016)
2016-01-22	31	Consent MOTION for Extension of Time to file status report and motion for sample Vaughn index by U.S. ARMY CORPS OF ENGINEERS (Grace, Derrick) (Entered: 01/22/2016)
2016-01-22	32	Amended MOTION for Extension of Time to file status report and motion for sample Vaughn Index in Civil Action No. 15-1207 by U.S. ARMY CORPS OF ENGINEERS (Grace, Derrick) (Entered: 01/22/2016)
2016-01-25	33	AMENDED SCHEDULING ORDER for Case No. 15-1207 and ORDER denying as moot 31 , 32 Defendant's Consent Motion and Amended Consent Motion for Enlargement of Time. See document for details. Signed by Judge Rudolph Contreras on 01/25/2016. (lcrc2) (Entered: 01/25/2016)
2016-01-25	34	Consent MOTION for Extension of Time to file motion for summary judgment in 15-1208 by U.S. DEPARTMENT OF THE ARMY (Grace, Derrick) (Entered: 01/25/2016)
2016-01-25	35	SECOND AMENDED SCHEDULING ORDER for Case No. 15-1208. See document for details. Signed by Judge Rudolph Contreras on 01/25/2016. (lcrc2) (Entered: 01/25/2016)
2016-01-27	36	MOTION for Summary Judgment for Civil No 15-1208 by U.S. DEPARTMENT OF THE ARMY (Attachments: # 1 Statement of Facts, # 2 Exhibit 1 - DeAgostino Declaration, # 3 Exhibit 2 - Vaughn Index, # 4 Exhibit 3 - General Order)(Grace, Derrick) (Entered: 01/27/2016)
2016-02-03	37	Consent MOTION for Extension of Time to file motion for summary judgment in Case No. 15-1203 by U.S. ENVIRONMENTAL PROTECTION AGENCY (Grace, Derrick) (Entered: 02/03/2016)
2016-02-03	38	SECOND AMENDED SCHEDULING ORDER for Case No. 15-1203. See document for details. Signed by Judge Rudolph Contreras on 02/03/2016. (lcrc2) (Entered: 02/03/2016)
2016-02-03		Set/Reset Deadlines: Summary Judgment motions due by 2/19/2016; Response to Motion for Summary Judgment due by 3/25/2016; Reply to Motion for Summary Judgment due by 4/8/2016; Cross Motions due by 3/25/2016; Response to Cross Motions due by 4/8/2016; Reply to Cross Motions due by 4/22/2016. (tj) (Entered: 02/03/2016)
2016-02-05	39	Consent MOTION for Extension of Time to Respond to Motion for Summary Judgment by HUNTON & WILLIAMS LLP (Attachments: # 1 Text of Proposed Order)(Sibley, George) (Entered: 02/05/2016)
2016-02-05		MINUTE ORDER granting 39 Plaintiff's Consent Motion for Extension of Time: It is hereby ORDERED that 35 the Court's Second Amended Scheduling Order for Case No. 15-1208 is amended as follows: Plaintiff shall file its opposition to Defendant the Army's motion for summary judgment, and any cross-motion for summary judgment, on or before March 7, 2016; Defendant shall file its reply, and any opposition to Plaintiff's cross-motion for summary judgment, on or before March 21, 2016; and Plaintiff shall file its reply in support of its cross-motion for summary judgment, if any, on or before April 4, 2016. SO ORDERED. Signed by Judge Rudolph Contreras on 02/05/2016. (lcrc2) (Entered: 02/05/2016)
2016-02-19	40	MOTION for Summary Judgment for case 15-1203 by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Statement of Facts, # 2 Exhibit Exhibit 1 - Brush Declaration, # 3 Exhibit Exhibit A-Q of Brush Declaration, # 4 Exhibit Exhibit R-S of Brush Declaration, # 5 Supplement Exhibit 2-4)(Grace, Derrick) Modified on 9/7/2016 (jf). (Entered: 02/19/2016)
2016-02-26	41	Consent MOTION to Amend/Correct 38 Order on Motion for Extension of Time to, Order on Motion for Extension of Time to,, Amend Scheduling Orders by HUNTON & WILLIAMS LLP (Attachments: # 1 Text of Proposed Order)(Sibley, George) (Entered: 02/26/2016)
2016-02-26	42	THIRD AMENDED SCHEDULING ORDER for Case No. 15-1203 and Case No. 15-1208. See document for details. Signed by Judge Rudolph Contreras on 02/26/2016. (lcrc2) (Entered: 02/26/2016)
2016-05-10	43	Consent MOTION to Amend/Correct 42 Order on Motion to Amend/Correct, 33 Order on Motion for Scheduling Order, Order on Motion for Extension of Time to, Amend Scheduling Orders by HUNTON & WILLIAMS LLP (Attachments: # 1 Text of Proposed Order)(Sibley, George) (Entered: 05/10/2016)
2016-05-10	44	SCHEDULING ORDER. See document for details. Signed by Judge Rudolph Contreras on 05/10/2016. (lcrc2) (Entered: 05/10/2016)
2016-05-11		Set/Reset Deadlines: Cross Motions due by 6/20/2016. Response to Cross Motions due by 8/1/2016. Reply to Cross Motions due by 8/15/2016. Response to Motion for Summary Judgment due by 6/20/2016. Reply to Motion for Summary Judgment due by 8/1/2016. (tj) (Entered: 05/11/2016)
2016-06-13	45	Memorandum in opposition to re 36 MOTION for Summary Judgment for Civil No 15-1208 filed by HUNTON & WILLIAMS LLP. (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 Declaration Ex. 9 - Declaration of George P. Sibley, III, # 10 Text of Proposed Order)(Sibley, George) (Entered: 06/13/2016)
2016-06-13	46	MOTION for Summary Judgment by HUNTON & WILLIAMS LLP (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 Declaration Ex. 9 - Declaration of George P. Sibley, III, # 10 Exhibit A, # 11 Exhibit B, # 12 Exhibit C, # 13 Exhibit D, # 14 Exhibit E, # 15 Text of Proposed Order)(Sibley, George) (Entered: 06/13/2016)
2016-06-17	47	Joint MOTION to Amend/Correct 44 Order on Motion to Amend/Correct Scheduling Order by HUNTON & WILLIAMS LLP (Attachments: # 1 Text of Proposed Order)(Sibley, George) (Entered: 06/17/2016)
2016-06-17	48	SCHEDULING ORDER. See document for details. Signed by Judge Rudolph Contreras on 06/17/2016. (lcrc2) (Entered: 06/17/2016)
2016-06-17		Set/Reset Deadlines: Cross Motions due by 7/7/2016. Response to Cross Motions due by 8/17/2016. Reply to Cross Motions due by 8/31/2016. Response to Motion for Summary Judgment due by 7/7/2016. (tj) (Entered: 06/17/2016)
2016-07-07	49	Memorandum in opposition to re 40 MOTION for Summary Judgment for case 15-1203 filed by HUNTON & WILLIAMS LLP. (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 Text of Proposed Order)(Sibley, George) (Entered: 07/07/2016)
2016-07-07	50	MOTION for Order Governing Further Proceedings by HUNTON & WILLIAMS LLP (Attachments: # 1 Text of Proposed Order)(Sibley, George) (Entered: 07/07/2016)
2016-07-13	51	REPLY to opposition to motion re 36 MOTION for Summary Judgment for Civil No 15-1208 and Opposition to Plaintiff's Partial Motion for Summary Judgment filed by U.S. DEPARTMENT OF THE ARMY. (Attachments: # 1 Declaration of DeAgostino - Supplementary)(Grace, Derrick) (Entered: 07/13/2016)
2016-07-13	52	MOTION for Summary Judgment in 15-1207 by U.S. ARMY CORPS OF ENGINEERS (Attachments: # 1 Statement of Facts, # 2 Declaration of Michelle Bartlett, # 3 Exhibit A-Y of Declaration, # 4 Exhibit Z - Vaughn Index)(Grace, Derrick) (Entered: 07/13/2016)
2016-07-13	53	Memorandum in opposition to re 46 MOTION for Partial Summary Judgment 15cv1208 filed by U.S. DEPARTMENT OF THE ARMY. (See Docket Entry 52 to view document). (znmw) (Entered: 07/14/2016)
2016-07-27	54	RESPONSE re 46 MOTION for Summary Judgment (Plaintiff's Reply Brief in Support of Its Motion for Partial Summary Judgment) filed by HUNTON & WILLIAMS LLP. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Sibley, George) (Entered: 07/27/2016)
2016-08-12	55	Memorandum in opposition to re 52 MOTION for Summary Judgment in 15-1207 filed by HUNTON & WILLIAMS LLP. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Declaration of George P. Sibley, III, # 8 Text of Proposed Order Proposed Order)(Sibley, George) (Entered: 08/12/2016)
2016-08-12	56	MOTION for Partial Summary Judgment in Case No. 15-1207 by HUNTON & WILLIAMS LLP (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Declaration of George P. Sibley, III, # 8 Exhibit 1, # 9 Exhibit 2, # 10 Exhibit 3, # 11 Exhibit 4, # 12 Exhibit 5, # 13 Text of Proposed Order Proposed Order)(Sibley, George) (Entered: 08/12/2016)
2016-08-17	57	REPLY to opposition to motion re 40 MOTION for Summary Judgment for case 15-1203 and Opposition to Plaintiff's Motion to Govern Future Proceedings 50 filed by U.S. ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Exhibit)(Grace, Derrick) (Entered: 08/17/2016)
2016-08-17	58	Memorandum in opposition to re 50 MOTION for Order Governing Further Proceedings for case 15-1203 filed by U.S. ENVIRONMENTAL PROTECTION AGENCY. (See Docket Entry 57 to view document). (znmw) (Entered: 08/18/2016)
2016-09-01	59	REPLY to opposition to motion re 52 MOTION for Summary Judgment in 15-1207 and in Opposition to Plaintiff's Motion for Partial Summary Judgment filed by U.S. ARMY CORPS OF ENGINEERS. (Attachments: # 1 Declaration Second Bartlett Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Statement of Facts Response)(Grace, Derrick) (Entered: 09/01/2016)
2016-09-16	60	RESPONSE re 56 MOTION for Partial Summary Judgment in Case No. 15-1207 (Plaintiff's Reply Brief in Support of Its Motion for Partial Summary Judgment) filed by HUNTON & WILLIAMS LLP. (Attachments: # 1 Exhibit A)(Sibley, George) (Entered: 09/16/2016)
2016-12-23	61	NOTICE of additional search by U.S. DEPARTMENT OF THE ARMY (Grace, Derrick) (Entered: 12/23/2016)
2017-03-31	62	ORDER granting in part and denying in part 40 EPA's motion for summary judgment, granting in part and denying in part 52 Corps' motion for summary judgment, granting in part and denying in part 36 Army's motion for summary judgment, granting in part and denying in part 50 Plaintiff's motion for order governing further proceedings concerning the EPA, granting in part and denying in part 56 Plaintiff's motion for partial summary judgment concerning the Corps, granting in part and denying in part 46 Plaintiff's motion for partial summary judgment concerning the Army, and ordering in camera review. See document for details. Signed by Judge Rudolph Contreras on 3/31/2017. (lcrc1) (Entered: 03/31/2017)
2017-03-31	63	MEMORANDUM OPINION granting in part and denying in part 40 EPA's motion for summary judgment, granting in part and denying in part 52 Corps' motion for summary judgment, granting in part and denying in part 36 Army's motion for summary judgment, granting in part and denying in part 50 Plaintiff's motion for order governing further proceedings concerning the EPA, granting in part and denying in part 56 Plaintiff's motion for partial summary judgment concerning the Corps, granting in part and denying in part 46 Plaintiff's motion for partial summary judgment concerning the Army, and ordering in camera review. See document for details. Signed by Judge Rudolph Contreras on 3/31/2017. (lcrc1) (Entered: 03/31/2017)
2017-04-28	64	Joint MOTION for Extension of Time to Submit Proposed Case Management Plan by HUNTON & WILLIAMS LLP (Attachments: # 1 Text of Proposed Order)(Sibley, George) (Entered: 04/28/2017)
2017-04-29		MINUTE ORDER granting 64 Joint Motion for Extension of Time: It is hereby ORDERED that the parties shall submit a case management plan as described in 62 this Court's Order on or before May 8, 2017. SO ORDERED. Signed by Judge Rudolph Contreras on 4/29/2017. (lcrc1) (Entered: 04/29/2017)
2017-05-03		Set/Reset Deadlines: Case Management Plan due by 5/8/2017. (tj) (Entered: 05/03/2017)
2017-05-08	65	Joint STATUS REPORT Proposed Case Management Plan by HUNTON & WILLIAMS LLP. (Sibley, George) (Entered: 05/08/2017)
2017-05-08		MINUTE ORDER: Upon consideration of 65 Joint Proposed Case Management Plan, it is hereby ORDERED that the parties' proposed case management plan is ADOPTED. It is FURTHER ORDERED that the parties shall advise the Court of whether briefing is necessary concerning the "non-responsive" documents on or before June 30, 2017. It is FURTHER ORDERED that Defendants shall provide the Court with unredacted copies of the documents selected for in camera review, as described in the proposed case management plan, and their supplemental briefing on or before August 1, 2017. It is FURTHER ORDERED that Plaintiff shall file its brief in response on or before August 15, 2017. SO ORDERED. Signed by Judge Rudolph Contreras on 5/8/2017. (lcrc1) (Entered: 05/08/2017)
2017-06-27	66	NOTICE OF SUBSTITUTION OF COUNSEL by Shanna Laura Cronin on behalf of All Defendants Substituting for attorney Derrick Grace (Cronin, Shanna) (Entered: 06/27/2017)
2017-06-30	67	Joint STATUS REPORT by HUNTON & WILLIAMS LLP. (Sibley, George) (Entered: 06/30/2017)
2017-07-07	68	Joint MOTION to Amend/Correct 65 Status Report Amend Case Management Plan by HUNTON & WILLIAMS LLP (Attachments: # 1 Text of Proposed Order)(Sibley, George) (Entered: 07/07/2017)
2017-07-07		MINUTE ORDER granting 68 Joint Motion to Amend Case Management Plan: It is hereby ORDERED that Plaintiff will identify the records that it has selected pursuant to Paragraph 2(a) of the case management plan no later than July 24, 2017. It is FURTHER ORDERED that Defendants shall provide the Court with unredacted copies of the documents selected for in camera review, as described in the case management plan, and their supplemental briefing on or before August 23, 2017. It is FURTHER ORDERED that Plaintiff shall file its brief in response on or before September 6, 2017. SO ORDERED. Signed by Judge Rudolph Contreras on 7/7/2017. (lcrc1) (Entered: 07/07/2017)
2017-07-10		Set/Reset Deadlines: Supplemental Memorandum due by 8/23/2017; Responses due by 9/6/2017 (tj) (Entered: 07/10/2017)
2017-08-01	69	NOTICE OF WITHDRAWAL OF APPEARANCE as to HUNTON & WILLIAMS LLP. Attorney John Eliot Beerbower terminated. (Beerbower, John) (Entered: 08/01/2017)
2017-08-02	70	Consent MOTION for Extension of Time to File in camera and brief by U.S. ARMY CORPS OF ENGINEERS, U.S. DEPARTMENT OF THE ARMY, U.S. ENVIRONMENTAL PROTECTION AGENCY (Cronin, Shanna) (Entered: 08/02/2017)
2017-08-02		MINUTE ORDER granting 70 Motion to Amend Case Management Plan: It is hereby ORDERED that Defendants shall provide the Court with unredacted copies of the documents selected for in camera review, as described in the case management plan, and their supplemental briefing on or before August 30, 2017. It is FURTHER ORDERED that Plaintiff shall file its brief in response on or before September 13, 2017. SO ORDERED. Signed by Judge Rudolph Contreras on 8/2/2017. (lcrc1) (Entered: 08/02/2017)
2017-08-25	71	Second MOTION for Extension of Time to File in camera review and MSJ by U.S. ARMY CORPS OF ENGINEERS, U.S. DEPARTMENT OF THE ARMY, U.S. ENVIRONMENTAL PROTECTION AGENCY (Cronin, Shanna) (Entered: 08/25/2017)
2017-08-28		MINUTE ORDER granting 71 Motion to Amend Case Management Plan: It is hereby ORDERED that Defendants shall provide the Court with unredacted copies of the documents selected for in camera review, as described in the case management plan, and their supplemental briefing on or before September 20, 2017. It is FURTHER ORDERED that Plaintiff shall file its brief in response on or before October 4, 2017. SO ORDERED. Signed by Judge Rudolph Contreras on 8/28/2017. (lcrc1) (Entered: 08/28/2017)
2017-08-28		Set/Reset Deadlines: In-Camera Submission due by 9/20/2017. Brief in response due by 10/4/2017. (hs) (Entered: 08/28/2017)
2017-09-20	72	NOTICE of In Camera Review Filed by U.S. ARMY CORPS OF ENGINEERS, U.S. DEPARTMENT OF THE ARMY, U.S. ENVIRONMENTAL PROTECTION AGENCY (Cronin, Shanna) (Entered: 09/20/2017)
2017-09-20	73	MOTION for Summary Judgment by U.S. ARMY CORPS OF ENGINEERS, U.S. DEPARTMENT OF THE ARMY, U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Exhibit 1 - EPA Supp Vaughn, # 2 Exhibit 2 - USACE Supp Vaughn, # 3 Exhibit 3 - 2014 Memo, # 4 Exhibit 4 - Army Supp Vaughn, # 5 Exhibit 5 - Letter 2015, # 6 Exhibit 6 - Email 2007)(Cronin, Shanna) (Entered: 09/20/2017)
2017-10-03	74	Consent MOTION for Extension of Time to File Response/Reply as to 73 MOTION for Summary Judgment by HUNTON & WILLIAMS LLP (Attachments: # 1 Text of Proposed Order)(Duncan, Deidre) (Entered: 10/03/2017)
2017-10-04		MINUTE ORDER granting 74 Plaintiff's Consent Motion for Extension of Time to Respond to Defendants' Motion for Summary Judgment: It is hereby ORDERED that the time for Plaintiff to respond to Defendants' Motion for Summary Judgment shall be extended up to and including October 25, 2017. SO ORDERED. Signed by Judge Rudolph Contreras on 10/04/2017. (lcrc1) (Entered: 10/04/2017)
2017-10-24	75	Consent MOTION for Extension of Time to File Response/Reply as to 73 MOTION for Summary Judgment by HUNTON & WILLIAMS LLP (Attachments: # 1 Text of Proposed Order)(Sibley, George) (Entered: 10/24/2017)
2017-10-24		MINUTE ORDER granting 75 Plaintiff's Consent Motion for Extension of Time: It is hereby ORDERED that Plaintiff shall file its response to Defendants' motion for summary judgement on or before November 3, 2017. SO ORDERED. Signed by Judge Rudolph Contreras on 10/24/2017. (lcrc1) (Entered: 10/24/2017)
2017-11-03	76	Memorandum in opposition to re 73 MOTION for Summary Judgment Plaintiff's Brief in Opposition to Renewed Motion for Summary Judgment filed by HUNTON & WILLIAMS LLP. (Sibley, George) (Entered: 11/03/2017)
2017-11-09	77	Consent MOTION for Extension of Time to File Response/Reply by U.S. ARMY CORPS OF ENGINEERS, U.S. DEPARTMENT OF THE ARMY, U.S. ENVIRONMENTAL PROTECTION AGENCY (Cronin, Shanna) (Entered: 11/09/2017)
2017-11-09		MINUTE ORDER granting 77 Defendants' Motion for Enlargement of Time: It is hereby ORDERED that Defendants shall file their reply on or before November 27, 2017. SO ORDERED. Signed by Judge Rudolph Contreras on 11/9/2017. (lcrc1) (Entered: 11/09/2017)
2017-11-13		Set/Reset Deadlines: Reply due by 11/27/2017. (gdf) (Entered: 11/13/2017)
2017-11-21	78	NOTICE of Appearance by Jane M. Lyons on behalf of All Defendants (Lyons, Jane) (Entered: 11/21/2017)
2017-11-21	79	Consent MOTION for Extension of Time to File Response/Reply by U.S. ARMY CORPS OF ENGINEERS, U.S. DEPARTMENT OF THE ARMY, U.S. ENVIRONMENTAL PROTECTION AGENCY (Lyons, Jane) (Entered: 11/21/2017)
2017-11-21		MINUTE ORDER granting 79 Defendants' Consent Motion for Enlargement of Time: It is hereby ORDERED that Defendants shall have until December 11, 2017 to file their reply brief. SO ORDERED. Signed by Judge Rudolph Contreras on 11/21/2017. (lcrc1) (Entered: 11/21/2017)
2017-11-21		Set/Reset Deadlines: Replies due by 12/11/2017. (tj) (Entered: 11/21/2017)
2017-12-11	80	REPLY to opposition to motion re 73 MOTION for Summary Judgment filed by U.S. ARMY CORPS OF ENGINEERS, U.S. DEPARTMENT OF THE ARMY, U.S. ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Exhibit 1 (email chain))(Cronin, Shanna) (Entered: 12/11/2017)
2018-05-08	81	NOTICE OF SUBSTITUTION OF COUNSEL by Jeremy Allen Haugh on behalf of All Defendants Substituting for attorney Shanna Cronin (Haugh, Jeremy) (Entered: 05/08/2018)
2018-09-27	82	ORDER granting in part and denying in part 73 Defendants' Motion for Summary Judgment; sua sponte granting in part summary judgment to Plaintiff. See document for details. Signed by Judge Rudolph Contreras on 9/27/18. (lcrc1) (Entered: 09/27/2018)
2018-09-27	83	MEMORANDUM OPINION granting in part and denying in part 73 Defendants' Motion for Summary Judgment; sua sponte granting in part summary judgment to Plaintiff. See document for details. Signed by Judge Rudolph Contreras on 9/27/18. (lcrc1) (Entered: 09/27/2018)
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