Case Detail

FOIA Project Annotation: A federal court in Virginia has ruled that the Humane Society has failed to state a claim in arguing that the U.S. Fish and Wildlife Service should be forced to post African elephant and lion trophy permits since 2016 on its website. The Humane Society had submitted a FOIA request for the permits but had also asked that the agency be required to post such records going forward on its website under the reading room provision of Section (a)(2) requiring proactive disclosure. After finding that the Humane Society's FOIA requests for the existing records became moot once the agency disclosed the records, the court next found that the Humane Society had failed to state a claim concerning the posting of future records under the reading room provision. The court pointed out that "the language of the statute itself â€" particularly the use of the term 'record,' indicates it is referring to information that already exists, not information that will be created in the future." The court added that "further, § 552(a)(2)(D) makes clear that it applies only to copies of records 'that have been released to any person under paragraph (3).'" The court noted that a D.C. Circuit district court had interpreted the meaning of the reading room requirements in Lipton v. EPA, 316 F. Supp. 3d 245 (D.D.C. 2018). The court pointed out that "as the Lipton court emphasized, this statutory language 'suggests that the particular information that must be published under the reading-room provision has to be the same information that has already been released in the past.'" Applying the holding of Lipton, the court observed that "it is impossible for a record that is not yet in existence to have been properly requested and released under paragraph (3). Thus, the reading room provision cannot be used to require agencies to release documents proactively. If Plaintiffs wish to use FOIA to compel agencies to automatically post certain records, Plaintiffs must convince Congress to revise the language of the statute, not seek injunctive relief from the courts."
Issues: Litigation - Jurisdiction - Failure to State a Claim

Date Filed	Doc #	Docket Text
2018-10-18	1	COMPLAINT against U.S. Department of the Interior, U.S. Fish and Wildlife Service ( Filing fee $ 400, receipt number 0422-6322593.), filed by Humane Society of the United States, Humane Society International, Born Free USA, Center for Biological Diversity. (Attachments: # 1 Civil Cover Sheet)(dvanm, ) (Entered: 10/19/2018)
2018-10-19	2	DOCUMENT REMOVED FILED IN ERROR Proposed Summons re 1 Complaint, US Attorney for the Eastern District of Virginia by Born Free USA, Center for Biological Diversity, Humane Society International, Humane Society of the United States. (Mollen, Neal) (Main Document 2 replaced on 10/22/2018) (dvanm, ). Modified on 10/22/2018 (dvanm, ). (Entered: 10/19/2018)
2018-10-19	3	DOCUMENT REMOVED FILED IN ERROR Proposed Summons re 1 Complaint, Acting Solicitor, U.S. Department of the Interior by Born Free USA, Center for Biological Diversity, Humane Society International, Humane Society of the United States. (Mollen, Neal) (Main Document 3 replaced on 10/22/2018) (dvanm, ). Modified on 10/22/2018 (dvanm, ). (Entered: 10/19/2018)
2018-10-19	4	DOCUMENT REMOVED FILED IN ERROR Proposed Summons re 1 Complaint, Acting Director, U.S. Fish and Wildlife Service by Born Free USA, Center for Biological Diversity, Humane Society International, Humane Society of the United States. (Mollen, Neal) (Main Document 4 replaced on 10/22/2018) (dvanm, ). Modified on 10/22/2018 (dvanm, ). (Entered: 10/19/2018)
2018-10-22		Notice of Correction re 4 Proposed Summons, 3 Proposed Summons, 2 Proposed Summons. The filing user has been notified that documents 2-4 are incorrectly saved PDF fillable form and has been removed. The filing user was directed to refile the documents. (dvanm, ) (Entered: 10/22/2018)
2018-10-22	5	Proposed Summons re 1 Complaint, Daniel Jorjani, Principle Deputy Solicitor, U.S. Department of the Interior by Born Free USA, Center for Biological Diversity, Humane Society International, Humane Society of the United States. (Mollen, Neal) (Entered: 10/22/2018)
2018-10-22	6	Proposed Summons re 1 Complaint, G. Zachary Terwilliger, U.S. Attorney for Eastern District of Virginia by Born Free USA, Center for Biological Diversity, Humane Society International, Humane Society of the United States. (Mollen, Neal) (Entered: 10/22/2018)
2018-10-22	7	Proposed Summons re 1 Complaint, James Kurth, Acting Director, U.S. Fish and Wildlife Service by Born Free USA, Center for Biological Diversity, Humane Society International, Humane Society of the United States. (Mollen, Neal) (Entered: 10/22/2018)
2018-10-23	8	Summons Issued as to U.S. Department of the Interior, U.S. Fish and Wildlife Service, U.S. Attorney and U.S. Attorney General. NOTICE TO ATTORNEY: Print out two electronically issued summons and one copy of the attachments for each defendant to be served with the complaint. (Attachments: # 1 Notice)(dvanm, ) (Entered: 10/23/2018)
2018-11-09	9	SUMMONS Returned Executed as to the Department of the Interior and U.S. Fish and Wildlife Service (dvanm, ) (Entered: 11/09/2018)
2018-11-13	10	SUMMONS Returned Executed by Humane Society of the United States. U.S. Attorney's Office served on 11/7/2018, answer due 1/7/2019. (dvanm, ) (Entered: 11/13/2018)
2018-11-14	11	Motion to appear Pro Hac Vice by Charles Patrizia and Certification of Local Counsel Neal Mollen Filing fee $ 75, receipt number 0422-6363722. by Born Free USA, Center for Biological Diversity, Humane Society International, Humane Society of the United States. (Mollen, Neal) (Entered: 11/14/2018)
2018-11-14	12	Motion to appear Pro Hac Vice by Scott Flicker and Certification of Local Counsel Neal Mollen Filing fee $ 75, receipt number 0422-6363738. by Born Free USA, Center for Biological Diversity, Humane Society International, Humane Society of the United States. (Mollen, Neal) (Entered: 11/14/2018)
2018-11-14	13	Motion to appear Pro Hac Vice by Noah Simmons and Certification of Local Counsel Neal Mollen Filing fee $ 75, receipt number 0422-6363755. by Born Free USA, Center for Biological Diversity, Humane Society International, Humane Society of the United States. (Mollen, Neal) (Entered: 11/14/2018)
2018-11-15	14	ORDER granting 11 Motion for Pro hac vice for Charles Patrizia. Signed by District Judge Liam O'Grady on 11/15/2018. (dest, ) (Entered: 11/16/2018)
2018-11-15	15	ORDER granting 12 Motion for Pro hac vice for Scott Flicker. Signed by District Judge Liam O'Grady on 11/15/2018. (dest, ) (Entered: 11/16/2018)
2018-11-15	16	ORDER granting 13 Motion for Pro hac vice for Noah Simmons. Signed by District Judge Liam O'Grady on 11/15/2018. (dest, ) (Entered: 11/16/2018)
2018-12-03	17	ORDERED that on or before January 7, 2019, Defendants shall file a response to the complaint; it is further ORDERED that if Defendants' response is a dispositive motion, Plaintiffs' opposition brief is due on or before February 4, 2019, and Defendants' reply brief is due on or before February 18, 2019. Signed by District Judge Liam O'Grady on 12/03/2018. (dvanm, ) (Entered: 12/04/2018)
2019-01-04	18	MOTION to Dismiss for Lack of Jurisdiction by U.S. Department of the Interior, U.S. Fish and Wildlife Service. (McCotter, R.) (Entered: 01/04/2019)
2019-01-04	19	MOTION to Dismiss for Failure to State a Claim by U.S. Department of the Interior, U.S. Fish and Wildlife Service. (McCotter, R.) (Entered: 01/04/2019)
2019-01-04	20	MOTION to Strike by U.S. Department of the Interior, U.S. Fish and Wildlife Service. (McCotter, R.) (Entered: 01/04/2019)
2019-01-04	21	Memorandum in Support re 19 MOTION to Dismiss for Failure to State a Claim , 18 MOTION to Dismiss for Lack of Jurisdiction , 20 MOTION to Strike filed by U.S. Department of the Interior, U.S. Fish and Wildlife Service. (McCotter, R.) (Entered: 01/04/2019)
2019-01-04	22	Notice of Hearing Date set for March 1, 2019 re 19 MOTION to Dismiss for Failure to State a Claim , 18 MOTION to Dismiss for Lack of Jurisdiction , 20 MOTION to Strike (McCotter, R.) (Entered: 01/04/2019)
2019-01-07		Set Deadlines as to 19 MOTION to Dismiss for Failure to State a Claim , 18 MOTION to Dismiss for Lack of Jurisdiction , 20 MOTION to Strike . Motion Hearing set for 3/1/2019 at 10:00 AM in Alexandria Courtroom 1000 before District Judge Liam O'Grady. (clar, ) (Entered: 01/07/2019)
2019-01-14	23	Consent MOTION for Leave to File Excess Pages for Consolidated Memorandum in Opposition to Defendants' Partial Motions to Dismiss and Motion to Strike and Brief in Support Thereof by Born Free USA, Center for Biological Diversity, Humane Society International, Humane Society of the United States. (Attachments: # 1 Proposed Order)(Mollen, Neal) (Entered: 01/14/2019)
2019-01-15	24	ORDER granting 23 Motion for Leave to File Excess Pages. Plaintiffs will be permitted to file a single 40-page memorandum in opposition to Defendants' Motions. Signed by District Judge Liam O'Grady on 01/15/2019. (dvanm, ) (Entered: 01/15/2019)
2019-01-24	25	AMENDED COMPLAINT against U.S. Department of the Interior, U.S. Fish and Wildlife Service, filed by Humane Society of the United States, Humane Society International, Born Free USA, Center for Biological Diversity. (Attachments: # 1 Redline of original complaint to amended complaint, # 2 Exhibit 1, # 3 Exhibit 2)(Mollen, Neal) (Entered: 01/24/2019)
2019-01-28	26	ORDER- Accordingly Defendant's Motions to Dismiss Dkt's 18 , 19 , and Motion to Strike 20 are hereby DENIED WITHOUT PREJUDICE as they have become moot. Signed by District Judge Liam O'Grady on 1/28/2019. (See order for further details). (acha, ) (Entered: 01/28/2019)
2019-02-01	27	ORDERED that on or before February 21,2019, Defendants shall file a response to the complaint; it is further ORDERED that if Defendants' response is a motion to dismiss. Plaintiffs' opposition brief is due on or before March 21,2019, and Defendants' reply brief is due on or before April 4, 2019. Signed by District Judge Liam O'Grady on 02/01/2019. (dvanm, ) (Entered: 02/01/2019)
2019-02-21	28	Consent MOTION for Extension One Day Extension of Briefing Schedules by U.S. Department of the Interior, U.S. Fish and Wildlife Service. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 02/21/2019)
2019-02-22	29	ORDER granting 28 Motion for Extension of Time to File. ORDERED that on or before February 22, 2019, Defendants shall file a response to the amended complaint; it is further ORDERED that if Defendants' response is a motion to dismiss, Plaintiffs' oppositionbrief is due on or before March 22, 2019, and Defendants' reply brief is due on or before April 5, 2019. Signed by Magistrate Judge John F. Anderson on 02/22/2019. (wgar, ) (Entered: 02/22/2019)
2019-02-22	30	MOTION to Dismiss for Lack of Jurisdiction by U.S. Department of the Interior, U.S. Fish and Wildlife Service. (McCotter, R.) (Entered: 02/22/2019)
2019-02-22	31	MOTION to Dismiss for Failure to State a Claim by U.S. Department of the Interior, U.S. Fish and Wildlife Service. (McCotter, R.) (Entered: 02/22/2019)
2019-02-22	32	Memorandum in Support re 30 MOTION to Dismiss for Lack of Jurisdiction , 31 MOTION to Dismiss for Failure to State a Claim filed by U.S. Department of the Interior, U.S. Fish and Wildlife Service. (Attachments: # 1 Exhibit Rose Declaration)(McCotter, R.) (Entered: 02/22/2019)
2019-02-22	33	Notice of Hearing Date set for April 12, 2019 re 30 MOTION to Dismiss for Lack of Jurisdiction , 31 MOTION to Dismiss for Failure to State a Claim (McCotter, R.) (Entered: 02/22/2019)
2019-02-25		Set Deadlines as to 31 MOTION to Dismiss for Failure to State a Claim , 30 MOTION to Dismiss for Lack of Jurisdiction . Motion Hearing set for 4/12/2019 at 10:00 AM in Alexandria Courtroom 1000 before District Judge Liam O'Grady. (clar, ) (Entered: 02/25/2019)
2019-02-28	34	Notice of Hearing Date AMENDED set for April 19, 2019 re 30 MOTION to Dismiss for Lack of Jurisdiction , 31 MOTION to Dismiss for Failure to State a Claim (McCotter, R.) (Entered: 02/28/2019)
2019-03-01		Reset Deadlines as to 31 MOTION to Dismiss for Failure to State a Claim , 30 MOTION to Dismiss for Lack of Jurisdiction . Motion Hearing set for 4/19/2019 at 10:00 AM in Alexandria Courtroom 1000 before District Judge Liam O'Grady. (clar, ) (Entered: 03/01/2019)
2019-03-14	35	MOTION for Leave to File Excess Pages Unopposed by Born Free USA, Center for Biological Diversity, Humane Society International, Humane Society of the United States. (Attachments: # 1 Proposed Order)(Mollen, Neal) (Entered: 03/14/2019)
2019-03-15	36	ORDER granting 35 Motion for Leave to File Excess Pages Unopposed Signed by District Judge Liam O'Grady on 3/15/2019. (See order for further details). (acha, ) (Entered: 03/15/2019)
2019-03-22	37	RESPONSE in Opposition re 31 MOTION to Dismiss for Failure to State a Claim , 30 MOTION to Dismiss for Lack of Jurisdiction filed by Born Free USA, Center for Biological Diversity, Humane Society International, Humane Society of the United States. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Mollen, Neal) (Entered: 03/22/2019)
2019-04-05	38	REPLY to Response to Motion re 30 MOTION to Dismiss for Lack of Jurisdiction , 31 MOTION to Dismiss for Failure to State a Claim filed by U.S. Department of the Interior, U.S. Fish and Wildlife Service. (Attachments: # 1 Exhibit Declaration)(McCotter, Richard) (Entered: 04/05/2019)
2019-04-19	39	Minute Entry for proceedings held before District Judge Liam O'Grady:Motion Hearing held on 4/19/2019 re 30 MOTION to Dismiss for Lack of Jurisdiction filed by U.S. Department of the Interior, U.S. Fish and Wildlife Service, 31 MOTION to Dismiss for Failure to State a Claim filed by U.S. Department of the Interior, U.S. Fish and Wildlife Service. Counsel enter their appearances and present arguments. Court takes matters under advisement. (Court Reporter N. Linnell.)(awac, ) (Entered: 04/19/2019)
2019-05-01	40	TRANSCRIPT of motions hearing held on 4-19-2019 before Judge Liam O'Grady. Court Reporter Norman Linnell, telephone number 703-549-4626. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 5/31/2019. Redacted Transcript Deadline set for 7/1/2019. Release of Transcript Restriction set for 7/30/2019.(linnell, norman) (Main Document 40 replaced on 5/2/2019) (rban, ). (Entered: 05/01/2019)
2019-05-16	41	MEMORANDUM OPINION. Signed by District Judge Liam O'Grady on 5/16/2019. (awac, ) (Entered: 05/16/2019)
2019-05-16	42	ORDER granting 30 Motion to Dismiss for Lack of Jurisdiction; granting 31 Motion to Dismiss for Failure to State a Claim. The case is dismissed. Signed by District Judge Liam O'Grady on 5/16/2019. (awac, ) (Entered: 05/16/2019)
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