Case Detail

FOIA Project Annotation: Judge Emmet Sullivan has ruled that the Army Corps of Engineers and U.S. Customs and Border Protection conducted adequate searches in response to requests from the Center for Biological Diversity for records mentioning the building of physical barriers on the U.S. border that were provided to the Presidential Transition Team. The agencies withheld records under a variety of exemptions, but CBD only challenged the agencies' Exemption 5 (privileges) and Exemption 7(E) (investigative methods or techniques), as well as CBP's Exemption 6 (invasion of privacy) claims for non-law enforcement and agency employees. Noting that CBD had not challenged the adequacy of the agencies' searches, Sullivan indicated that he had an independent obligation to determine whether the agencies had met their FOIA obligations. After reviewing the agencies' affidavits, he concluded that both agencies had conducted adequate searches. Turning to Exemption 5, Sullivan observed that both agencies had shown that documents withheld under the deliberative process privilege were predecisional and deliberative. He pointed out that "defendants have identified the deliberative process at issue in this case: Army Corps has identified its process of determining the appropriate 'infrastructure along our nations' borders,' and CBP has identified its process for 'potential plans for construction of new tactical border infrastructure as directed by President Trump.'" Although CBD had not challenged CBP's attorney-client privilege claim, Sullivan reviewed them as well and found them appropriate. Assessing the CBP's Exemption 6 claims, Sullivan agreed that the agency had shown more than a de minimis privacy interest in names of employees. But Sullivan also found that CBD had articulated a public interest in disclosure of the names. He pointed out that "the level of expertise of the individuals providing information to the government related to environmental effects of the construction of the wall clearly falls under the ambit of information that 'lets citizens know what their government is up to.'" But he noted that "in light of the fact that the Center has the names of higher-ranking officials who provided information to the Transition team, the Center's claimed public interest in disclosure of the names of lower-level employees is diminished. The Court finds that, on balance, the lower-level employees' interest in avoiding harassment outweighs the interest of public disclosure which is moderated by the release of the names of higher-ranking agency personnel." CBD claimed that the Army Corps of Engineers had not shown that it had a law enforcement function that would allow it to invoke Exemption 7. Sullivan disagreed, noting that "the task for this Court is to determine whether the records were compiled for law enforcement purposes not simply to determine the nature of the agency which compiled the records." Finding that the records withheld by the Army Corps fell within Exemption 7(E), he pointed out that "the information relating to infrastructure and used to prevent or detect illegal entry of people and items is clearly information compiled for law enforcement purposes such that Exemption 7((E) applies."
Issues: Adequacy - Search, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 6 - Invasion of privacy, Exemption 7(E) - Investigative methods or techniques

Date Filed	Doc #	Docket Text
2017-05-31	1	COMPLAINT against U.S. ARMY CORPS OF ENGINEERS, U.S. CUSTOMS AND BORDER PROTECTION ( Filing fee $ 400 receipt number 0090-4971164) filed by CENTER FOR BIOLOGICAL DIVERSITY. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons)(Atwood, Amy) (Entered: 05/31/2017)
2017-05-31	2	Corporate Disclosure Statement by CENTER FOR BIOLOGICAL DIVERSITY. (Atwood, Amy) (Entered: 05/31/2017)
2017-05-31		Case Assigned to Judge Emmet G. Sullivan. (md) (Entered: 06/01/2017)
2017-06-02	3	SUMMONS (4) Issued Electronically as to U.S. ARMY CORPS OF ENGINEERS, U.S. CUSTOMS AND BORDER PROTECTION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 06/02/2017)
2017-07-11	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/20/2017. Answer due for ALL FEDERAL DEFENDANTS by 7/20/2017. (Atwood, Amy) (Entered: 07/11/2017)
2017-07-11	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 06/09/2017. (Atwood, Amy) (Entered: 07/11/2017)
2017-07-11	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. ARMY CORPS OF ENGINEERS served on 6/8/2017; U.S. CUSTOMS AND BORDER PROTECTION served on 6/14/2017 (Atwood, Amy) (Entered: 07/11/2017)
2017-07-20	7	NOTICE of Appearance by Melanie Dyani Hendry on behalf of U.S. ARMY CORPS OF ENGINEERS, U.S. CUSTOMS AND BORDER PROTECTION (Hendry, Melanie) (Entered: 07/20/2017)
2017-07-20	8	ANSWER to Complaint by U.S. ARMY CORPS OF ENGINEERS, U.S. CUSTOMS AND BORDER PROTECTION.(Hendry, Melanie) (Entered: 07/20/2017)
2017-07-24	9	STANDING ORDER: The parties are directed to read the attached Standing Order Governing Civil Cases Before Judge Emmet G. Sullivan in its entirety upon receipt. The parties are hereby ORDERED to comply with the directives in the attached Standing Order. Signed by Judge Emmet G. Sullivan on 7/24/2017. (Attachments: # 1 Exhibit) (lcegs1) (Entered: 07/24/2017)
2017-07-24		MINUTE ORDER. Plaintiff brings this action pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The parties are directed to meet and confer and propose a joint scheduling order for further proceedings in this case by no later than August 7, 2017. The parties joint proposed scheduling order shall address the following: (1) The status of plaintiffs FOIA request; (2) The anticipated number of documents responsive to plaintiffs FOIA request; (3) The anticipated date(s) for release of documents responsive to plaintiffs FOIA request; (4)Whether a motion for an Open America stay is likely in this case; (5) Whether a Vaughn index will be required in this case; (6) Whether this case would benefit from referral to a magistrate judge or the District Court Mediation Program for purposes of settlement; and (7) A proposed briefing schedule for dispositive motions, if applicable. If the parties are unable to agree on a joint recommendation, the joint proposed scheduling order shall include each partys individual recommendations.Signed by Judge Emmet G. Sullivan on 7/24/2017. (lcegs1) (Entered: 07/24/2017)
2017-07-24		Set/Reset Deadlines/Hearings: Joint proposed scheduling order due by 8/7/2017. (cdw) (Entered: 07/25/2017)
2017-08-01	10	Consent MOTION for Extension of Time to File Proposed Schedule by U.S. ARMY CORPS OF ENGINEERS, U.S. CUSTOMS AND BORDER PROTECTION (Attachments: # 1 Proposed Order)(Hendry, Melanie) (Entered: 08/01/2017)
2017-08-01		MINUTE ORDER granting 10 consent motion for extension of time. The parties are directed to meet and confer and file their proposed scheduling order for further proceedings in this case by no later than August 28, 2017. Signed by Judge Emmet G. Sullivan on August 1, 2017. (lcegs2) (Entered: 08/01/2017)
2017-08-02		Set/Reset Deadlines: Joint Proposed Scheduling Order due by 8/28/2017. (mac) (Entered: 08/02/2017)
2017-08-15	11	NOTICE of Appearance by Margaret E. Townsend on behalf of CENTER FOR BIOLOGICAL DIVERSITY (Townsend, Margaret) (Entered: 08/15/2017)
2017-08-28	12	Joint STATUS REPORT by U.S. ARMY CORPS OF ENGINEERS, U.S. CUSTOMS AND BORDER PROTECTION. (Hendry, Melanie) (Entered: 08/28/2017)
2017-08-29		MINUTE ORDER. In view of 12 the parties' joint status report, the parties are directed to file a further joint status report, including, if necessary, their proposed scheduling order for further proceedings in this case, by no later than November 7, 2017. Signed by Judge Emmet G. Sullivan on August 29, 2017. (lcegs2) (Entered: 08/29/2017)
2017-08-30		Set/Reset Deadlines: Joint Status Report due by 11/7/2017 (mac) (Entered: 08/30/2017)
2017-11-06	13	STATUS REPORT by U.S. ARMY CORPS OF ENGINEERS, U.S. CUSTOMS AND BORDER PROTECTION. (Hendry, Melanie) (Entered: 11/06/2017)
2017-11-07	14	STATUS REPORT by CENTER FOR BIOLOGICAL DIVERSITY. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Townsend, Margaret) (Entered: 11/07/2017)
2017-11-07	15	MOTION for Briefing Schedule by CENTER FOR BIOLOGICAL DIVERSITY (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Townsend, Margaret) (Entered: 11/07/2017)
2017-11-22		MINUTE ORDER granting in part and holding in abeyance in part 15 plaintiff's motion for a briefing schedule. In view of 13 , 14 the parties' status reports, the parties are directed to file a joint status report by no later than December 8, 2017 including, inter alia, the number of records responsive to plaintiff's FOIA request that have been located to date by defendant U.S. Customs and Border Patrol ("CBP"), the status of CBP's processing of plaintiff's FOIA request, the date by which CBP intends to complete its productions to plaintiff, whether defendants intend to produce Vaughn indexes in advance of summary judgment briefing, and a proposed summary judgment briefing schedule. Signed by Judge Emmet G. Sullivan on November 22, 2017. (lcegs2) (Entered: 11/22/2017)
2017-11-22		Set/Reset Deadlines: Joint Status Report due by 12/8/2017. (znbn) (Entered: 11/22/2017)
2017-12-07	16	Joint STATUS REPORT by U.S. ARMY CORPS OF ENGINEERS, U.S. CUSTOMS AND BORDER PROTECTION. (Hendry, Melanie) (Entered: 12/07/2017)
2018-01-11		MINUTE ORDER. In view of the parties' joint status report, the Court directs defendant U.S. Customs and Border Protection to complete its production of records responsive to plaintiff's FOIA request by no later than April 30, 2018. The Court further directs the parties to comply with the following briefing schedule: defendants shall file their motion for summary judgment by no later than June 15, 2018; plaintiff shall file a combined cross-motion for summary judgment and opposition to defendants' motion for summary judgment by no later than July 16, 2018; defendants shall file a combined reply in support of their motion and opposition to plaintiff's cross-motion by no later than August 15, 2018; and plaintiff shall file a reply in support of its cross-motion by no later than August 30, 2018. Signed by Judge Emmet G. Sullivan on January 11, 2017. (lcegs2) (Entered: 01/11/2018)
2018-01-12		Set/Reset Deadlines: Defendants Motion For Summary Judgment due by 6/15/2018. Plaintiff Combined Cross-Motion For Summary Judgment And Opposition To Defendants' Motion For Summary Judgment due by 7/16/2018. Defendants Combined Reply In Support Of Their Motion And Opposition To Plaintiff's Cross-Motion due by 8/15/2018. Plaintiff Reply In Support Of Its Cross-Motion due by 8/30/2018. (mac) (Entered: 01/12/2018)
2018-05-22	17	Consent MOTION for Extension of Time to File Summary Judgment Motion by U.S. ARMY CORPS OF ENGINEERS, U.S. CUSTOMS AND BORDER PROTECTION (Hendry, Melanie) (Entered: 05/22/2018)
2018-05-25		MINUTE ORDER granting 17 defendants' consent motion for an extension of time. The Court directs the parties to comply with the following briefing schedule: defendants shall file their motion for summary judgment by no later than July 16, 2018; plaintiff shall file a combined cross-motion for summary judgment and opposition to defendants' motion for summary judgment by no later than August 16, 2018; defendants shall file a combined reply in support of their motion and opposition to plaintiff's cross-motion by no later than September 17, 2018; and plaintiff shall file a reply in support of its cross-motion by no later than October 1, 2018. Signed by Judge Emmet G. Sullivan on May 25, 2018. (lcegs2) (Entered: 05/25/2018)
2018-05-27		Set/Reset Deadlines: Defendants' Motion for Summary Judgment is due by 7/16/2018; Plaintiff's combined Cross-Motion for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment is due by 8/16/2018; Defendants' Combined Reply in support of their Motion and Opposition to Plaintiff's Cross-Motion is due by 9/17/2018; Plaintiff's Reply in support of its Cross-Motion is due by 10/1/2018. (jth) (Entered: 05/27/2018)
2018-07-13	18	Consent MOTION for Extension of Time to File Summary Judgment Motion by U.S. ARMY CORPS OF ENGINEERS, U.S. CUSTOMS AND BORDER PROTECTION (Hendry, Melanie) (Entered: 07/13/2018)
2018-07-17		MINUTE ORDER granting 18 defendants' second consent motion for an extension of time. The Court directs the parties to comply with the following briefing schedule: defendants shall file their motion for summary judgment by no later than July 30, 2018; plaintiff shall file a combined cross-motion for summary judgment and opposition to defendants' motion for summary judgment by no later than August 30, 2018; defendants shall file a combined reply in support of their motion and opposition to plaintiff's cross-motion by no later than October 1, 2018; and plaintiff shall file a reply in support of its cross-motion by no later than October 15, 2018. Signed by Judge Emmet G. Sullivan on July 17, 2018. (lcegs2) (Entered: 07/17/2018)
2018-07-18		Set/Reset Deadlines: Defendants Motion For Summary Judgment due by 7/30/2018. Plaintiff Combined Cross-Motion For Summary Judgment And Opposition To Defendants' Motion For Summary Judgment due by 8/30/2018. Defendants Combined Reply In Support Of Their Motion And Opposition To Plaintiff's Cross-Motion due by 10/1/2018. Plaintiff Reply In Support Of Its Cross-Motion due by 10/15/2018. (mac) (Entered: 07/18/2018)
2018-07-30	19	MOTION to Vacate Summary Judgment Briefing Schedule by U.S. ARMY CORPS OF ENGINEERS, U.S. CUSTOMS AND BORDER PROTECTION (Hendry, Melanie) (Entered: 07/30/2018)
2018-07-30		MINUTE ORDER treating as opposed and granting over objection 19 defendants' motion to vacate summary judgment briefing schedule. The parties are directed to submit a joint status report, including a recommendation for further proceedings, by no later than August 13, 2018. Defendants are instructed to provide an update on the status of the processing of the documents referenced in their motion and, if that process has already been completed, to propose a new briefing schedule. Signed by Judge Emmet G. Sullivan on 7/30/2018. (lcegs2) (Entered: 07/30/2018)
2018-07-31		Set/Reset Deadlines: Joint Status Report due by 8/13/2018. (mac) (Entered: 07/31/2018)
2018-08-10	20	Joint STATUS REPORT by U.S. ARMY CORPS OF ENGINEERS, U.S. CUSTOMS AND BORDER PROTECTION. (Hendry, Melanie) (Entered: 08/10/2018)
2018-08-10		MINUTE ORDER. Upon consideration of 20 the parties' joint proposed schedule, the parties are directed to comply with the following briefing schedule: defendant's motion for summary judgment shall be filed no later than September 13, 2018. Plaintiff's opposition shall be filed no later than October 15, 2018. If plaintiff chooses to file a cross-motion, it shall be combined with the opposition and filed on the same date. Defendant's reply and, if applicable, combined opposition shall be filed no later than November 15, 2018. Plaintiff's reply, if applicable, shall be filed no later than December 6, 2018. Signed by Judge Emmet G. Sullivan on 8/10/2018. (lcegs2) (Entered: 08/10/2018)
2018-08-13		Set/Reset Deadlines: Defendant Motion For Summary Judgment due by 9/13/2018. Plaintiff's Opposition And If Plaintiff Chooses To File A Cross- Motion, It Shall Be Combined With The Opposition due by 10/15/2018. Defendant's Reply, And, If Applicable, Combined Opposition due by 11/15/2018. Plaintiff's Reply, If Applicable due by 12/6/2018. (mac) (Entered: 08/13/2018)
2018-09-13	21	MOTION for Summary Judgment by U.S. ARMY CORPS OF ENGINEERS, U.S. CUSTOMS AND BORDER PROTECTION (Attachments: # 1 Statement of Facts, # 2 Declaration of Patrick Howard, # 3 Declaration of Damon Roberts)(Hendry, Melanie) (Entered: 09/13/2018)
2018-10-15	22	Cross MOTION for Partial Summary Judgment by CENTER FOR BIOLOGICAL DIVERSITY (Attachments: # 1 Text of Proposed Order, # 2 Statement of Facts, # 3 Declaration of M. Townsend, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10, # 14 Exhibit 11, # 15 Exhibit 12, # 16 Exhibit 13, # 17 Exhibit 14, # 18 Exhibit 15, # 19 Exhibit 16, # 20 Exhibit 17, # 21 Exhibit 18, # 22 Exhibit 19, # 23 Exhibit 20, # 24 Exhibit 21, # 25 Exhibit 22)(Townsend, Margaret) Modified on 10/16/2018 to correct docket text/event (jf). (Entered: 10/15/2018)
2018-10-15	23	Memorandum in opposition to re 21 MOTION for Summary Judgment filed by CENTER FOR BIOLOGICAL DIVERSITY. (Attachments: # 1 Text of Proposed Order, # 2 Counter-Statement of Disputed Facts, # 3 Declaration of M. Townsend, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10, # 14 Exhibit 11, # 15 Exhibit 12, # 16 Exhibit 13, # 17 Exhibit 14, # 18 Exhibit 15, # 19 Exhibit 16, # 20 Exhibit 17, # 21 Exhibit 18, # 22 Exhibit 19, # 23 Exhibit 20, # 24 Exhibit 21, # 25 Exhibit 22)(Townsend, Margaret) (Entered: 10/15/2018)
2018-11-09	24	MOTION for Extension of Time to File Response/Reply as to 21 MOTION for Summary Judgment , 22 Cross MOTION for Partial Summary Judgment by U.S. ARMY CORPS OF ENGINEERS, U.S. CUSTOMS AND BORDER PROTECTION (Hendry, Melanie) (Entered: 11/09/2018)
2018-11-09		MINUTE ORDER granting 24 defendants' consent motion for an extension of time. Defendants shall file their opposition to plaintiffs' cross-motion for summary judgment and reply by no later than November 29, 2018. Plaintiffs' reply to defendants' opposition is due by no later than December 20, 2018. Signed by Judge Emmet G. Sullivan on 11/9/2018. (lcegs2) (Entered: 11/09/2018)
2018-11-09		Set/Reset Deadlines/Hearings: Defendants' reply to Motion for Summary Judgment due by 11/29/2018. Defendants' response to Cross Motion due by 11/29/2018. Plaintiff's reply to Cross Motion due by 12/20/2018. (zcdw) (Entered: 11/13/2018)
2018-11-26	25	MOTION for Extension of Time to File Response/Reply as to 21 MOTION for Summary Judgment , 22 Cross MOTION for Partial Summary Judgment by U.S. ARMY CORPS OF ENGINEERS, U.S. CUSTOMS AND BORDER PROTECTION (Hendry, Melanie) (Entered: 11/26/2018)
2018-11-29		MINUTE ORDER treating as opposed and granting over objection 25 defendants' motion for an extension of time. Defendants shall file their opposition to plaintiffs' cross-motion for summary judgment and reply by no later than December 14, 2018. Plaintiffs' reply to defendants' opposition is due by no later than January 11, 2019. Signed by Judge Emmet G. Sullivan on 11/29/2018. (lcegs2) (Entered: 11/29/2018)
2018-11-30		Set/Reset Deadlines: Defendants Opposition To Plaintiffs' Cross-Motion For Summary Judgment And Reply due by 12/14/2018. Plaintiffs' Reply To Defendants' Opposition due by 1/11/2019. (mac) (Entered: 11/30/2018)
2018-11-30	26	RESPONSE re 25 MOTION for Extension of Time to File Response/Reply as to 21 MOTION for Summary Judgment , 22 Cross MOTION for Partial Summary Judgment filed by CENTER FOR BIOLOGICAL DIVERSITY. (Townsend, Margaret) (Entered: 11/30/2018)
2018-12-14	27	REPLY to opposition to motion re 21 MOTION for Summary Judgment filed by U.S. ARMY CORPS OF ENGINEERS, U.S. CUSTOMS AND BORDER PROTECTION. (Attachments: # 1 Second Declaration of Patrick Howard)(Hendry, Melanie) (Entered: 12/14/2018)
2018-12-14	28	RESPONSE re 22 Cross MOTION for Partial Summary Judgment filed by U.S. ARMY CORPS OF ENGINEERS, U.S. CUSTOMS AND BORDER PROTECTION. (Attachments: # 1 Second Declaration of Patrick Howard, # 2 Defendants' Counter-Statement of Disputed Facts)(Hendry, Melanie) (Entered: 12/14/2018)
2019-01-11	29	REPLY to opposition to motion re 22 Cross MOTION for Partial Summary Judgment filed by CENTER FOR BIOLOGICAL DIVERSITY. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Townsend, Margaret) (Entered: 01/11/2019)
2019-08-07	30	NOTICE OF SUBSTITUTION OF COUNSEL by John Moustakas on behalf of U.S. ARMY CORPS OF ENGINEERS, U.S. CUSTOMS AND BORDER PROTECTION Substituting for attorney Melanie Hendry (Moustakas, John) (Entered: 08/07/2019)
2019-09-27	31	ORDER granting 21 defendants' motion for summary judgment; and denying 22 plaintiff's cross-motion for summary judgment. Signed by Judge Emmet G. Sullivan on 9/27/2019. (lcegs2) (Entered: 09/27/2019)
2019-09-27	32	MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 9/27/2019. (lcegs2) (Entered: 09/27/2019)
2019-09-27	33	FINAL JUDGMENT in favor of defendants, the United States Army Corps of Engineers and United States Customs and Border Protection, and against plaintiff, Center for Biological Diversity. Signed by Judge Emmet G. Sullivan on 9/27/2019. (lcegs2) (Entered: 09/27/2019)
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