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Southern Environmental Law Center v. Council On Environmental Quality

United States District Court, W.D. Virginia, Charlottesville Division

September 16, 2019



          Hon. Glen E. Conrad Senior United States District Judge

         Southern Environmental Law Center ("SELC") filed this action against the Council on Environmental Quality ("CEQ"), seeking to compel the disclosure of records requested under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The case is presently before the court on the plaintiffs motion for judgment on the pleadings. For the reasons set forth below, the court will deny the plaintiffs motion.


         On June 20, 2018, CEQ published an Advanced Notice of Proposed Rulemaking in the federal register titled "Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act" (the "ANPRM"). 83 Fed. Reg. 28591 (June 20, 2018). On July 19, 2018, SELC sent CEQ a FOIA request via email seeking "all records in the possession of [CEQ] that in any way relate to [the ANPRM]." Compl. Ex. 1, Dkt. No. 1-2. That same day, Howard Sun, CEQ's FOIA Public Liaison, confirmed receipt of the FOIA request and asked that it be resubmitted on organizational letterhead. The request was assigned reference number FY2018-150.

         On September 5, 2018, SELC submitted an updated version of the FOIA request on SELC letterhead. The updated submission broadened the scope of the FOIA request to include "all records in the possession of [CEQ] that in any way relate to CEQ's proposed rulemaking to update CEQ's implementing regulations for the procedural provisions of the National Environmental Policy Act ('NEPA'), including but not limited to all records that any way relate to [the ANPRM]." Compl. Ex. 2, Dkt. No. 1-3. On September 7, 2018, CEQ confirmed receipt of the updated FOIA request.

         As of November 30, 2018, CEQ had not produced any documents or issued a determination as to whether it intended to comply with the FOIA request. Consequently, SELC filed the instant action seeking to compel CEQ to "provide all nonexempt, responsive documents." Compl. 7, Dkt. No. 1.

         On February 1, 2019, CEQ filed an answer to the complaint. In its answer, CEQ admitted that it had not provided any documents to SELC in response to the FOIA request. See Answer ¶ 24, Dkt. No. 9. CEQ asserted, as an affirmative defense, that "[s]ome or all of the requested records may be exempt, in full or in part, from release under FOIA." Id. at 4.

         SELC has since moved for judgment on the pleadings. The motion has been fully briefed and is ripe for review.

         Standard of Review

          Rule 12(c) of the Federal Rules of Civil Procedure permits any party to move for judgment on the pleadings after the pleadings are closed. "Judgment on the pleadings is appropriate where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law." Cannon v. City of W. Palm Beach. 250 F.3d 1299, 1301 (11th Cir. 2001). In determining whether a party is entitled to judgment on the pleadings, the court must accept as true all material facts alleged in the non-moving party's pleading, and view those facts in the light most favorable to the non-moving party. Massey v. Oianiit. 759 F.3d 343, 353 (4th Cir. 2014). "Under this standard, a judgment on the pleadings is not appropriate if there are issues of fact which if proved would defeat recovery, even if the trial court is convinced that the party opposing the motion is unlikely to prevail at trial." Dist. No. 1. Pac. Coast Dist., Marine Eng'rs Beneficial Ass'n. AFL-CIO v. Liberty Mar. Corp.. 933 F.3d 751, 761 (D.C. Cir. 2019) (citation and internal quotation marks omitted).


          FOIA was enacted in 1966 '"to establish a general philosophy of full agency disclosure, S. Rep. No. 89-813, at 3 (1965), and 'to assure the availability of Government information necessary to an informed electorate,' H.R. Rep. No. 89-1497, at 12 (1966)." Coleman v. Drug Enf't Admin.. 714 F.3d 816, 818 (4th Cir. 2013). The statute provides, subject to certain enumerated exemptions, that each federal agency upon a proper request for records "shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A); see also id. § 552(b) (listing nine categories of documents to which FOIA does not apply).

         Upon receipt of a FOIA request, an agency has twenty working days to "determine . . . whether to comply with such request," and it must "immediately notify the person making such request of . . . such determination and the reasons therefor." Id. § 552(a)(6)(A)(i). The twenty-day period may be extended in certain "unusual circumstances." Id. § 552(a)(6)(B)(i). If an agency seeks to invoke such extension, it must send "written notice to the person, making such request setting forth the unusual circumstances for such extension and the date on which a determination is expected to be dispatched." Id. "No extension for 'unusual circumstances' is permissible without written notice to the requester." Coleman, 714 F.3d at 819. If the agency does not issue its "determination" within the required time period, "the requester may bring suit directly in federal district court without exhausting administrative appeal remedies." Citizens for Responsibility & Ethics in Wash, v. Fed. Election Comm'n, 711 F.3d 180, 182 (D.C. Cir. 2013); see also Coleman, 714 F.3d at 823 ("After each agency exceeded its statutory deadline, Coleman was free to seek judicial relief.").

         FOIA confers jurisdiction on federal district courts "to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B). "Under this provision, 'federal jurisdiction is dependent on a showing that an agency has (1) 'improperly' (2) 'withheld' (3) 'agency records.'" United States Dep't of Justice v. Tax Analysts. 492 U.S. 136, 142 (1989) (quoting Kissinger v. Reporters Comm. for Freedom of the Press. 445 U.S. 136, 150 (1980)). "Unless each of these criteria is ...

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