United States District Court, W.D. Virginia, Charlottesville Division
Glen E. Conrad Senior United States District Judge
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.
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.
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.
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.
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.
has since moved for judgment on the pleadings. The motion has
been fully briefed and is ripe for review.
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).
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).
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.").
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 ...