Case Detail

FOIA Project Annotation: Judge Rosemary Collyer ruled that the Competitive Enterprise Institute does not have a remedy under the Federal Records Act to challenge the EPA's allegedly improper destruction of text messages, although CEI has made out a sufficient cause of action under the Administrative Procedure Act to survive the agency's motion to dismiss. CEI claimed that evidence showed that both former EPA Administrator Lisa Jackson and current Administrator Gina McCarthy routinely used text messaging as a means of substantive communication and that their phone bills indicated in excess of 5,000 text messages, yet the agency repeatedly told CEI that it had no records. CEI filed suit, claiming the agency's policy of routinely deleting text messages violated the FRA, the APA, and FOIA. Relying on the Supreme Court's ruling in Kissinger v. Reporters Committee, 445 U.S. 136 (1980), Collyer noted that "[the] precedent is clear that private litigants cannot state a claim for legal relief under FRA." As a result, she pointed out that "CEI cannot state a claim under FRA for an agency's records destruction decisions or its compliance with FRA's enforcement scheme." Collyer dismissed CEI's claim under the APA that the agency was violating its records-retention policy, indicating that "given the circumscribed nature of judicial review under FRA, private plaintiffs cannot rely on the APA to challenge what they are expressly prohibited from challenging under the FRA, i.e., an agency's substantive decisions to destroy or retain records." But Collyer found that Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991), in which the D.C. Circuit ruled that a plaintiff did have a cause of action under the APA to challenge an agency's failure to enforce its obligations under the FRA, provided CEI the basis for challenging the agency's action on that issue. She observed that "CEI adequately alleges that EPA 'fail[ed] to take action in compliance with the [FRA],' and seeks to compel the Agency to comply with its statutory mandate [to notify the Archivist of a violation of FRA]. EPA responds that not all text messages necessarily constitute federal records, and therefore CEI has failed to state a claim for failure to notify the Archivist. But it is implausible that EPA Administrators would not have suspected the destruction of any federal records with the removal of over 5,000 Agency text messages." Collyer dismissed CEI's FOIA claim, pointing out that "because FOIA only addresses an agency's disclosure requirements and not its record-keeping obligations, CEI cannot state a claim for unlawful destruction of records under FOIA."
Issues: Agency Record

Date Filed	Doc #	Docket Text
2013-10-03	1	COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-3489614) filed by COMPETITIVE ENTERPRISE INSTITUTE. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Summons for US Attorney, # 3 Summons Summons for EPA, # 4 Summons Summons for Atty. Gen., # 5 Notice to Counsel/Party Related Case notice)(Bader, Hans) (Entered: 10/03/2013)
2013-10-03		Case Assigned to Judge Rosemary M. Collyer. (kb) (Entered: 10/03/2013)
2013-10-03	2	NOTICE OF RELATED CASE by All Plaintiffs. Case related to Case No. 13-779 & 13-1074. (Bader, Hans) (Entered: 10/03/2013)
2013-10-03	3	ELECTRONIC SUMMONS (3) Issued as to UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Consent Form, # 2 Notice of Consent)(kb) (Entered: 10/03/2013)
2013-10-04	4	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by COMPETITIVE ENTERPRISE INSTITUTE (Bader, Hans) (Entered: 10/04/2013)
2013-10-25	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 10/10/2013. ( Answer due for ALL FEDERAL DEFENDANTS by 11/9/2013.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY served on 10/17/2013, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 10/08/2013. (Bader, Hans) (Entered: 10/25/2013)
2013-11-04	6	NOTICE of Appearance by Marina Utgoff Braswell on behalf of UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Braswell, Marina) (Entered: 11/04/2013)
2013-11-04	7	Consent MOTION for Extension of Time to File Response/Reply to Freedom of Information Act claims raised in the Complaint by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Braswell, Marina) (Entered: 11/04/2013)
2013-11-05		MINUTE ORDER granting Defendant's 7 Consent Motion for Extension of Time to File Response/Reply. Defendant shall file a response to all claims in Plaintiff's 1 Complaint no later than 12/10/13. Signed by Judge Rosemary M. Collyer on 11/5/2013. (lcrmc1) (Entered: 11/05/2013)
2013-11-05		Set/Reset Deadlines/Hearings: Answer to Complaint due by 12/10/2013. (cdw) (Entered: 11/05/2013)
2013-11-26	8	NOTICE of Appearance by Daniel Schwei on behalf of UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Schwei, Daniel) (Entered: 11/26/2013)
2013-11-26	9	Joint MOTION for Briefing Schedule by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Schwei, Daniel) (Entered: 11/26/2013)
2013-11-26		MINUTE ORDER granting 9 Joint Motion for Briefing Schedule. Defendant's Response to Plaintiff's 1 Complaint shall be filed no later than 1/3/14; Plaintiff's Opposition shall be filed no later than 2/10/14; and Defendant's Reply shall be filed no later than 2/27/14. Signed by Judge Rosemary M. Collyer on 11/26/2013. (lcrmc1) (Entered: 11/26/2013)
2013-11-26		Set/Reset Deadlines/Hearings: Dispositive Motion due by 1/3/2014. Response to Dispositive Motion due by 2/10/2014. Reply to Dispositive Motion due by 2/27/2014. (cdw) (Entered: 11/27/2013)
2014-01-03	10	MOTION to Dismiss by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit 1 - House Committee Letter, # 4 Exhibit 2 - EPA OIG Report, # 5 Exhibit 3 - EPA Interim Policy, # 6 Exhibit 4 - Wachter Letter, # 7 Exhibit 5 - EPA FAQ, Mobile and Portable Devices, # 8 Exhibit 6 - EPA Records Toolkit, What is a Federal Record, # 9 Exhibit 7 - EPA Records Management Manual, ch. 1, # 10 Exhibit 8 - Transparency at EPA, # 11 Exhibit 9 - General Records Schedule 23)(Schwei, Daniel) (Entered: 01/03/2014)
2014-02-10	11	Memorandum in opposition to re 10 MOTION to Dismiss filed by COMPETITIVE ENTERPRISE INSTITUTE. (Bader, Hans) (Entered: 02/10/2014)
2014-02-10	12	NOTICE of Proposed Order to accompany opposition to motion to dismiss by COMPETITIVE ENTERPRISE INSTITUTE re 11 Memorandum in Opposition (Bader, Hans) (Entered: 02/10/2014)
2014-02-10	13	MOTION for Leave to File Amended Complaint by COMPETITIVE ENTERPRISE INSTITUTE (Attachments: # 1 Exhibit Proposed Amended Complaint, # 2 Text of Proposed Order Proposed Order)(Bader, Hans) (Entered: 02/10/2014)
2014-02-27	14	REPLY to opposition to motion re 10 MOTION to Dismiss filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Schwei, Daniel) (Entered: 02/27/2014)
2014-02-27	15	Memorandum in opposition to re 13 MOTION for Leave to File Amended Complaint filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Text of Proposed Order)(Schwei, Daniel) (Entered: 02/27/2014)
2014-03-10	16	REPLY to opposition to motion re 13 MOTION for Leave to File Amended Complaint filed by COMPETITIVE ENTERPRISE INSTITUTE. (Bader, Hans) (Entered: 03/10/2014)
2014-03-14	17	ORDER granting 13 Competitive Enterprise Institute's Motion for Leave to File Amended Complaint. Signed by Judge Rosemary M. Collyer on 3/14/2014. (lcrmc1) (Entered: 03/14/2014)
2014-03-14	18	AMENDED COMPLAINT against UNITED STATES ENVIRONMENTAL PROTECTION AGENCY filed by COMPETITIVE ENTERPRISE INSTITUTE.(jf, ) (Entered: 03/16/2014)
2014-06-30	19	NOTICE of Subsequent Factual Development by COMPETITIVE ENTERPRISE INSTITUTE re 11 Memorandum in Opposition (Bader, Hans) (Entered: 06/30/2014)
2014-07-11	20	RESPONSE re 19 Notice (Other) filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Exhibit 1 - House Oversight Hearing Transcript, # 2 Exhibit 2 - EPA Letter to NARA)(Schwei, Daniel) (Entered: 07/11/2014)
2014-09-04	21	MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 9/4/2014. (lcrmc1) (Entered: 09/04/2014)
2014-09-04	22	ORDER granting in part and denying in part 10 Defendant's Motion to Dismiss. See Order for details. The Deputy Clerk shall set a status conference for further scheduling of this matter. Signed by Judge Rosemary M. Collyer on 9/4/2014. (lcrmc1) (Entered: 09/04/2014)
2014-09-16		Set/Reset Deadlines/Hearings: Status Conference set for 9/22/2014 at 3:15 PM in Courtroom 8 before Judge Rosemary M. Collyer. (cdw) (Entered: 09/16/2014)
2014-09-16		MINUTE ORDER vacating status conference set for September 22, 2014 at 3:15 p.m. No later than September 22, 2014, Defendant shall file an Answer to all remaining claims in 18 Plaintiff's Amended Complaint. Signed by Judge Rosemary M. Collyer on 9/16/2014. (lcrmc1) (Entered: 09/16/2014)
2014-09-16		Set/Reset Deadlines/Hearings: Answer to Amended Complaint due by 9/22/2014. (cdw) (Entered: 09/18/2014)
2014-09-22	23	ANSWER to 18 Amended Complaint by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. Related document: 18 Amended Complaint filed by COMPETITIVE ENTERPRISE INSTITUTE.(Schwei, Daniel) (Entered: 09/22/2014)
2014-09-23		MINUTE ORDER. No later than October 7, 2014, the parties shall file a joint proposed briefing schedule for Counts III and IV of 18 Plaintiff's Amended Complaint; it is further ordered that the parties shall propose a deadline for filing the administrative record. Signed by Judge Rosemary M. Collyer on 9/23/2014. (lcrmc1) (Entered: 09/23/2014)
2014-09-23		Set/Reset Deadlines/Hearings: Joint proposed briefing schedule due by 10/7/2014. (cdw) (Entered: 09/25/2014)
2014-10-07	24	STATUS REPORT (Joint) by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Schwei, Daniel) (Entered: 10/07/2014)
2014-10-08		MINUTE ORDER granting expedited briefing schedule on the issue of mootness alone as set forth in 24 the Joint Status Report. Defendant's Motion to Dismiss for lack of subject-matter jurisdiction shall be filed no later than October 23, 2014; Plaintiff's Opposition shall be filed no later than November 10, 2014; and Defendant's Reply shall be filed no later than November 20, 2014. Signed by Judge Rosemary M. Collyer on 10/8/14. (lcrmc1) (Entered: 10/08/2014)
2014-10-08		Set/Reset Deadlines/Hearings: Motion to Dismiss due by 10/23/2014. Response due by 11/10/2014. Reply due by 11/20/2014. (cdw) (Entered: 10/09/2014)
2014-10-23	25	MOTION to Dismiss for Lack of Jurisdiction Counts III and IV of Amended Complaint by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1 - EPA Letter to NARA, # 3 Text of Proposed Order)(Schwei, Daniel) (Entered: 10/23/2014)
2014-11-10	26	Memorandum in opposition to re 25 MOTION to Dismiss for Lack of Jurisdiction Counts III and IV of Amended Complaint And Plaintiff's Motion for Leave to Conduct Discovery filed by COMPETITIVE ENTERPRISE INSTITUTE. (Attachments: # 1 Text of Proposed Order denying motion to dismiss for lack of subject-matter jurisdiction, # 2 Text of Proposed Order granting leave to conduct limited discovery)(Bader, Hans) (Entered: 11/10/2014)
2014-11-12	27	MOTION for Discovery AND MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION, which was previously filed but docketed by plaintiff under the wrong category by COMPETITIVE ENTERPRISE INSTITUTE (Attachments: # 1 Text of Proposed Order granting leave to conduct discovery, # 2 Text of Proposed Order denying defendant's motion to dismiss for lack of subject-matter jurisdiction)(Bader, Hans) (Entered: 11/12/2014)
2014-11-13	28	NOTICE of filing of Local Civil Rule 7(m) Statement on Motion for Leave to Conduct Discovery by COMPETITIVE ENTERPRISE INSTITUTE (Bader, Hans) (Entered: 11/13/2014)
2014-11-20	29	MOTION to Strike 27 MOTION for Discovery AND MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION, which was previously filed but docketed by plaintiff under the wrong category by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Exhibit 1 - Emails Between Schwei and Bader Part 1, # 2 Exhibit 2 - Emails Between Schwei and Bader Part 2, # 3 Text of Proposed Order)(Schwei, Daniel) (Entered: 11/20/2014)
2014-11-20	30	REPLY to opposition to motion re 25 MOTION to Dismiss for Lack of Jurisdiction Counts III and IV of Amended Complaint filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Exhibit 1 - Emails Between Ellis and Wolfinger)(Schwei, Daniel) (Entered: 11/20/2014)
2014-11-21		MINUTE ORDER granting in part and denying in part 29 Defendant's Motion to Strike Plaintiff's Motion for Leave to Conduct Discovery. The 29 Motion to Strike is denied. Briefing on 27 Plaintiff's Motion for Discovery is stayed pending the resolution of 25 Defendant's Motion to Dismiss. The Court will address Defendant's argument on mootness (and jurisdiction) first. Signed by Judge Rosemary M. Collyer on November 21, 2014. (lcrmc1) (Entered: 11/21/2014)
2015-04-22		MINUTE ORDER denying without prejudice 25 Defendant's Motion to Dismiss, as the parties' briefs are insufficient to determine if the case is moot, as the Defendant asserts. Defendant is directed to submit affidavits, including from the National Archives and Records Administration (NARA), to inform the Court of the status of NARA's investigation and intentions regarding Defendant's destruction of text messages. Defendant shall file the affidavits no later than May 22, 2015. Plaintiff shall file a response no later than June 12, 2015. Defendant shall file a reply no later than June 26, 2015. In light of this Order, the Court denies 27 Plaintiff's motion for discovery without prejudice. Signed by Judge Rosemary M. Collyer on April 22, 2015. (lcrmc1) (Entered: 04/22/2015)
2015-04-22		Set/Reset Deadlines/Hearings: Defendant's affidavits due by 5/22/2015. Response due by 6/12/2015. Reply due by 6/26/2015. (cdw) Modified on 4/23/2015 (zcdw). (Entered: 04/23/2015)
2015-05-22	31	Second MOTION to Dismiss for Lack of Jurisdiction by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Exhibit 1 -- EPA Declaration of John Ellis, # 2 Exhibit 1-A -- EPA Materials Provided to Mr. Wolfinger, # 3 Exhibit 1-B -- Procedures for Separating Personnel, # 4 Exhibit 1-C -- Checklist for Separating Personnel, # 5 Exhibit 1-D -- EPA Records Management Policy, # 6 Exhibit 1-E -- EPA First Email to Paul Wester, # 7 Exhibit 1-F -- EPA Second Email to Paul Wester, # 8 Exhibit 1-G -- NARA Letter from Paul Wester, # 9 Exhibit 1-H -- EPA Quarterly Records Day Mailer, # 10 Exhibit 2 - NARA Declaration of Paul Wester, # 11 Text of Proposed Order)(Schwei, Daniel) (Entered: 05/22/2015)
2015-06-11	32	STIPULATION of Dismissal by the parties filed by COMPETITIVE ENTERPRISE INSTITUTE. (Bader, Hans) (Entered: 06/11/2015)
2015-06-12		MINUTE ORDER approving 32 the parties' stipulation of dismissal with prejudice. This case is closed. Signed by Judge Rosemary M. Collyer on June 12, 2015. (lcrmc1) (Entered: 06/12/2015)
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