Case Detail

FOIA Project Annotation: A federal court in Virginia has ruled OMB has not yet shown that it conducted an adequate search for records concerning agency reorganizational plans nor has it sufficiently justified its claims under Exemption 5 (privileges). As a result, the court granted the Southern Environmental Law Center limited discovery to take depositions of OMB staff involved in the agency's searches. SELC submitted a FOIA request to OMB for records pertaining to any agency responsible for managing federal public lands. While OMB told SELC that it had found responsive records during its search, the agency's final response referenced only two records. By the time the court ruled, five documents remained in dispute, all of which were withheld under the deliberative process privilege. Finding the agency had not provided sufficient justification for its searches, the court observed that the agency's affidavit "fails to explain why the defendant's initial search for documents responsive to the plaintiff's FOIA request did not include potential custodians who were involved at other stages of the government-wide reorganization efforts. Nor does it address why the search for responsive documents was not immediately broadened after the [Office of Performance and Personnel Management] custodian only identified two documents. Such information is particularly relevant, given that OMB's own evidence indicates that each of the agencies at issue was required to produce at least two documents relevant to the plaintiff's FOIA request." The court pointed out that "although portions of the requested documents may ultimately be held to fall within the privilege, OMB has failed to meet its burden of demonstrating that the documents are exempt from disclosure in their entirety." The court noted that "although [the agency's affidavit] includes several paragraphs that purport to establish the legal basis for invoking the deliberative process privilege, it also leaves unanswered questions which may be critically relevant to the propriety of withholding all of the identified documents in full." Sending the case back to give the agency a chance to supplement its original explanations, the court observed that "if OMB wishes to maintain its exemption claims, 'it must supplement its Vaughn index and declarations, adequately describing the records withheld and specifically detailing how the claimed exemptions apply to the withheld information.' Alternatively, OMB must produce the documents for in camera review."
Issues: Adequacy - Search, Litigation - Discovery, Exemption 5 - Privileges

Date Filed	Doc #	Docket Text
2018-05-30	1	COMPLAINT against Mick Mulvaney (Filing & Administrative fee $ 400; 0423-2906462.), filed by Southern Environmental Law Center. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit 1)(jcj)
2018-05-30	2	Negative Corporate Disclosure Statement by Southern Environmental Law Center (jcj)
2018-05-30	3	Electronic Summons Issued as to Mick Mulvaney NOTICE TO COUNSEL: Please print copies of the electronically issued summons for each defendant as necessary to effectuate service under Fed. R. Civ. P. 4. (jcj)
2018-05-30	4	MOTION for Kimberley Hunter to Appear Pro Hac Vice. by Southern Environmental Law Center. (Attachments: # 1 Text of Proposed Order)(Butler, Morgan)
2018-05-30	5	MOTION for Sam Evans to Appear Pro Hac Vice. by Southern Environmental Law Center. (Attachments: # 1 Text of Proposed Order)(Butler, Morgan)
2018-05-30	6	ORDER granting 4 MOTION for Kimberley C. Hunter to Appear Pro Hac Vice Attorney Kimberley Claire Hunter for Southern Environmental Law Center added. Signed by Senior Judge Glen E. Conrad on 5/30/18. (jcj)
2018-05-30	7	ORDER granting 5 MOTION for Samuel E. Evans to Appear Pro Hac Vice Attorney Samuel E. Evans for Southern Environmental Law Center added. Signed by Senior Judge Glen E. Conrad on 5/30/18. (jcj)
2018-07-03	8	Joint MOTION for Extension of Time to File Answer by Mick Mulvaney. (Attachments: # 1 Text of Proposed Order)(Winn, Sara)
2018-07-03	9	ORDER granting Joint 8 Motion for Extension of Time to Answer re 1 Complaint Mick Mulvaney answer due 8/6/2018.. Signed by Senior Judge Glen E. Conrad on 7/3/18. (hnw)
2018-08-06	10	ANSWER to Complaint 1 by Mick Mulvaney.(Winn, Sara)
2018-08-06	11	Joint MOTION for Summary Judgment Briefing Schedule by Mick Mulvaney. (Attachments: # 1 Text of Proposed Order)(Winn, Sara)
2018-08-17	12	ORDER granting 11 Motion to adjust summary judgment filing deadlines as noted herein. Signed by Senior Judge Glen E. Conrad on 08/17/2018. (ssm) (ssm).
2018-09-05	13	MOTION for Summary Judgment by Southern Environmental Law Center. (Attachments: # 1 Memorandum in Support, # 2 Exhibit Exhibits 1-7)(Hunter, Kimberley)
2018-09-06	14	Magistrate Consent Notice to Parties. (hnw)
2018-10-01	15	MOTION for Extension of Time to File Response/Reply to Plaintiff's Motion for Summary Judgment by Mick Mulvaney. (Attachments: # 1 Text of Proposed Order)(Winn, Sara)
2018-10-02	16	ORDER granting 15 Unopposed Motion to Modify Briefing Schedule. Signed by Senior Judge Glen E. Conrad on 10/2/18. (hnw)
2018-10-17	17	MOTION for Extension of Time to File by Mick Mulvaney. (Attachments: # 1 Text of Proposed Order)(Winn, Sara)
2018-10-17	18	RESPONSE in Opposition re 17 MOTION for Extension of Time to File . filed by Southern Environmental Law Center. (Hunter, Kimberley)
2018-10-24	19	Order Referring Case to Magistrate Judge Joel C. HoppeMotion to Extend Time referred to Joel C. Hoppe. Signed by Senior Judge Glen E. Conrad on 10/24/2018. (ssm)
2018-10-25	20	ORDER granting in part and denying in part 17 Motion for Extension of Time. The briefing schedule is MODIFIED as follows: Defendant's brief in opposition/cross motion due November 5, 2018; Plaintiff's reply/response to cross motion due November 19, 2018; and Defendant's reply to his cross motion due November 26, 2018. Signed by Magistrate Judge Joel C. Hoppe on 10/25/18. (hnw)
2018-11-05	21	Brief / Memorandum in Opposition re 13 MOTION for Summary Judgment . filed by Mick Mulvaney. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Winn, Sara)
2018-11-19	22	REPLY to Response to Motion re 13 MOTION for Summary Judgment and Response to Defendant's Cross Motion for Summary Judgment . filed by Southern Environmental Law Center. (Hunter, Kimberley)
2018-11-26	23	REPLY to Response to Motion re 13 MOTION for Summary Judgment . filed by Mick Mulvaney. (Winn, Sara)
2019-09-25	24	MEMORANDUM OPINION. Signed by Senior Judge Glen E. Conrad on 9/25/19. (jcj)
2019-09-25	25	ORDER denying without prejudice cross motions at MOTION for Summary Judgment 13 filed by Southern Environmental Law Center, Brief / Memorandum in Opposition 21 filed by Mick Mulvaney; GRANTING plaintiff's alternative request to engage in limited discovery; DIRECTING the parties to confer within 14 days regarding the identification of deponents, or as set forth in the order; and within 14 days thereof, DIRECTING the parties to file a joint report summarizing their respective positions, and including any deadlines for briefing, with the understanding that the parties shall conclude discovery within 45 days, of entry of this order and Cross SJ Motions refilled 21 days thereafter, unless both sides agree to a different schedule. Signed by Senior Judge Glen E. Conrad on 09/25/2019. (ssm)
2019-10-21	26	STATUS REPORT by Southern Environmental Law Center (Attachments: # 1 Text of Proposed Order Plaintiff's Proposed Order, # 2 Text of Proposed Order Defendant's Proposed Order)(Hunter, Kimberley)
2019-11-07	27	SCHEDULING ORDER Cross Motions for Summary Judgment Deadline due by 2/3/2020. Briefs in opposition to Motions due by 2/17/2020. Reply to briefs due by 2/24/2020, and further relief as set forth in said scheduling order. Signed by Magistrate Judge Joel C. Hoppe on 11/7/19(hnw)
2019-11-18	28	STATUS REPORT and Motion to Extend Deadline by Mick Mulvaney (Attachments: # 1 Text of Proposed Order)(Winn, Sara)
2019-11-19	29	ORDER granting Status Report 28 /Joint Motion of the parties to modify the scheduling deadlines set out in the Court's Order dated 9/25/19 (ECF 24), and the Court's Order dated 11/7/19 (ECF 27). Signed by Magistrate Judge Joel C. Hoppe on 11/18/19. (hnw)
2019-12-16	30	MOTION Extend Deadline re 29 Order, by Mick Mulvaney. Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order Proposed Order)(Winn, Sara)
2019-12-17	31	ORDER granting 30 Motion to Modify the Scheduling Deadline set out in Part 2 of the Court's Order dated 11/19/19. Signed by Magistrate Judge Joel C. Hoppe on 12/17/19. (hnw)
2020-02-03	32	Joint MOTION for Extension of Time to File Cross Motions for Summary Judgment by Southern Environmental Law Center. Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Joint Motion for Extension of Time)(Hunter, Kimberley)
2020-02-04	33	ORDER granting 32 Motion for Extension of Time to File cross motions for summary judgment. Cross motions for summary judgment due no later than March 19, 2020. Briefs in opposition are due by April 2, 2020, and any reply brief is due by April 9, 2020. Signed by Magistrate Judge Joel C. Hoppe on 2/4/2020. (hnw)
2020-03-17	34	Joint MOTION to Extend Deadlines by Southern Environmental Law Center. Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Motion to Extend Deadlines)(Hunter, Kimberley)
2020-03-18	35	ORDER granting 34 Joint Motion to Extend Deadlines Signed by Magistrate Judge Joel C. Hoppe on 3/18/2020. (hnw)
2020-04-15	36	MOTION Unopposed Motion to Extend Deadlines by Mick Mulvaney. Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order Proposed Order)(Winn, Sara)
2020-04-16	37	ORDER granting 36 Motion to Extend Deadlines. Defendant has until May 15, 2020, to provide Plaintiff with an extended Vaughn index. Should dispositive motions be needed, Plaintiff shall file its motion for summary judgment on or before June 15, 2020, with Defendant's cross motion and associated responses and replies to follow seriatim. Signed by Magistrate Judge Joel C. Hoppe on 4/16/2020. (hnw)
2020-06-12	38	MOTION to Extend Deadlines by Southern Environmental Law Center. Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Motion to Extend Deadlines)(Hunter, Kimberley)
2020-06-12	39	ORDER granting 38 Motion for new scheduling order to extend deadlines. Plaintiff shall file its motion for summary judgment on 8/15/2020 and defendant's cross motion and associated responses and replies to follow seriatim Signed by Magistrate Judge Joel C. Hoppe on 6/12/2020. (hnw)
2020-08-14	40	STATUS REPORT by Southern Environmental Law Center (Hunter, Kimberley)
2020-09-21		IMPORTANT NOTICE: The United States District Court for the Western District of Virginia (WDVA) will be going live on the Next Generation of CM/ECF (NextGen CM/ECF) Tuesday, October 13, 2020 . Preparing for NextGen CM/ECF is a two-step process. Step One is that each attorney must upgrade their individual PACER account, no shared accounts within firms will be allowed. Check and see if your PACER account is an "Upgraded" PACER account. Many PACER accounts have already been upgraded. If any of the following is true, you have an upgraded PACER account and no action is required until after the VAWD NextGen CM/ECF upgrade on October 13, 2020: 1) You have an upgraded PACER account for another NextGen Court or 2) Your PACER account was created after August 10, 2014. If none of these are true, you must upgrade your legacy PACER account before you will be able to link your PACER account to your VAWD CM/ECF account for your new NextGen CM/ECF account. Click here to learn how to upgrade your PACER Account. If you still have questions regarding your PACER account, please contact the PACER Service Center 800- 676-6856. Complete information regarding the WDVA NextGen CM/ECF implementation can be found at NextGen Information . (mzc) (ADI)
2020-09-29		IMPORTANT NOTICE: The Western District of Virginia will be going live on NextGen CM/ECF Tuesday, October 13, 2020 . This is a Two-Step process. In Step one each attorney was to make sure they had an upgraded individual PACER account. Now in preparation for Step Two please make sure you know your VAWD CM/ECF username and password . Please manually log in to the VAWD CM/ECF system at ht tps://ecf.vawd.uscourts.gov/cgi-bin/login.pl to make sure you know your current VAWD CM/ECF username and password. (do not rely on the auto-populating in your browser, because you will have to manually enter your CM/ECF username and password during the linking process after we go live on NextGen.) If you do not know your username or password please email ecf@vawd.uscourts.gov and include your bar# and contact phone#. (ADI) (mzc)
2020-10-05		IMPORTANT NOTICE: The Western District of Virginia will be going live on NextGen CM/ECF Tuesday, October 13, 2020 . The VAWD CM/ECF system will be unavailable from 8:00 am, October 10, 2020, through 8:00 am on Tuesday October 13, 2020. Preparing for NextGen CM/ECF is a two-step process. Step one was to upgrade your PACER account. Each attorney should have their own individual Upgraded PACER account at this time. Step two will be to link your upgraded PACER account to your VAWD CM/ECF account after the Court goes live on NextGen CM/ECF October 13, 2020. Instructions for linking you r account can be found by clicking here . Remember you cannot link your accounts until on or after the court goes live on NextGe n October 13, 2020. If you have any additional questions please call the VAWD Clerks Office at 540-857-5100 or email ecf@vawd.uscourts.gov. (ADI) (mzc)
2020-12-18	41	STATUS REPORT ORDER; that the parties shall have ten (10) days to file an updated report summarizing the status of any remaining issues and their respective positions on the need for this action to remain pending on the court's active docket. Status Report due by 12/28/2020. Signed by Senior Judge Glen E. Conrad on 12/18/2020. (hnw)
2020-12-28	42	STATUS REPORT by Southern Environmental Law Center (Hunter, Kimberley)
2021-02-04	43	STIPULATION of Dismissal and Settlement by Mick Mulvaney (Winn, Sara)
2021-02-04	44	ORDER DISMISSING CASE WITH Prejudice. Signed by Senior Judge Glen E. Conrad on 2/4/2021. (ssm)
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