Landmark Legal Found. v. Envtl. Prot. Agency

• Decision Date: 21 December 2012
• Docket Number: Civil No. 12–1726(RCL).
• Citation: 910 F.Supp.2d 270
• Parties: LANDMARK LEGAL FOUNDATION, Plaintiff, v. ENVIRONMENTAL PROTECTION AGENCY, Defendant.
• Court: U.S. District Court — District of Columbia

910 F.Supp.2d 270

LANDMARK LEGAL FOUNDATION, Plaintiff,

v.ENVIRONMENTAL PROTECTION AGENCY, Defendant.

Civil No. 12–1726(RCL).

United States District Court, District of Columbia.

Dec. 21, 2012.

Michael J. O'Neill, Landmark Legal Foundation, Leesburg, VA, for Plaintiff.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

Plaintiff Landmark Legal Foundation (“Landmark”) has moved for a preliminary injunction compelling defendant Environmental Protection Agency (“EPA”) to preserve certain records, expedite processing of Landmark's Freedom of Information Act (“FOIA”) request, and produce certain records by 5 p.m. on December 24, 2012. Upon consideration of Landmark's Motion [14] for Preliminary Injunction and Request for Expedited Consideration, EPA's Opposition [16], Landmark's Reply [17], the entire record in this case, and the applicable law, the Court will DENY the Motion for Preliminary Injunction.

A brief description of the Court's reasoning follows and a separate Order consistent with this Opinion shall issue this date.

I. BACKGROUND

On August 17, 2012, Landmark, a “national public interest law firm,” submitted a FOIA request to the EPA requesting records regarding any EPA rule or regulation for which public notice has not been made, but which was contemplated or under consideration for public notice between January 1, 2012 and August 17, 2012.¹Compl. ¶ 10, ECF No. 1. The genesis of the FOIA request was Landmark's suspicion, based on news reports, that the EPA may have intentionally delayed a “controversial” regulation until after the November 2012 presidential election. Compl. ¶ 6. Landmark expressed concern about the possibility that “a) the Obama Administration is improperly politicizing EPA activities; b) EPA officials are attempting to shield their true policy goals from the public; and/or c) EPA officials themselves are putting partisan interests above the public welfare.” Compl. ¶ 9.

The EPA acknowledged receipt of the FOIA request but denied Landmark's request for expedited processing. Compl. ¶ 13. Landmark administratively appealed, and EPA denied the appeal because Landmark had not shown it was “primarily engaged in disseminating information to the public” as required by FOIA for expedited processing. Letter from Kevin M. Miller, Assistant Gen. Counsel, U.S. Envtl. Prot. Agency, to Mark Levin, Landmark Legal Found. (Oct. 18, 2012), ECF No. 1–6. The EPA also stated that Landmark would not meet the “urgency” requirement for expedited processing. Id. Landmark subsequently filed this suit.

Landmark's Complaint sought orders directing EPA to preserve all records potentially responsive to Plaintiff's FOIA request; declaring that the EPA wrongfully denied Landmark's expedited processing request, that it must immediately conduct an expedited search and produce all responsive records; and declaring that Landmark is an entity “primarily engaged in disseminating information” for purposes of expedited processing under FOIA. Compl. 5. Finally Landmark requested attorneys' fees and costs. Id.

In late November, the EPA notified Landmark that it intended to produce all documents responsive to the request on or before January 31, 2013. Hutchison Aff. ¶ 7, ECF No. 14–4.

Also in late November, the EPA issued a proposed rule ²—Reconsideration of Certain New Source and Startup/Shutdown Issues (“November proposed rule”) ³—which Landmark characterizes as “extremely politically controversial” and “ ‘expected to be one of the most costly rules ever issued by EPA.’ ” Pl.'s Stmt. P. & A. in Supp. of Pl.'s Mot. for Prelim. Inj. 4, ECF No. 14–1 [hereinafter Pl.'s Stmt. P. & A.]. Landmark argues that the rule was originally finalized on February 16, 2012, but that EPA later announced it would reconsider the rule; thus, Landmark argues that communications regarding this rule fall within the FOIA request. Id.

Landmark now seeks a preliminary injunction ordering production of records related to this proposed rule by 5 p.m. on December 24, 2012. Pl.'s Stmt. P. & A.1. Landmark also seeks an order compelling expedited processing of all additional records responsive to Landmark's FOIA request, and compelling EPA to preserve all responsive information, and directing the EPA Administrator to ensure that any order of this Court is carried out.⁴ Pl.'s Stmt. P. & A.2.

II. DISCUSSIONA. Preliminary Injunction Requiring Expedited Processing

The Court may grant preliminary injunctive relief when the movant demonstrates:

(1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction is not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction.

Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C.Cir.1998)

Preliminary injunctive relief is an extraordinary form of judicial relief and courts should thus grant it sparingly. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). Additionally, any preliminary injunctive relief should be carefully circumscribed to remedy the harm shown. Nat'l Treasury Employees Union v. Yeutter, 918 F.2d 968, 977 (D.C.Cir.1990) (citation omitted).

The circuits split on whether courts should balance the four preliminary injunction factors on a sliding scale, as they have traditionally done, or whether each factor must now be established independently. The D.C. Circuit has not yet resolved this question for courts in our circuit; ⁵ however, the debate is academic here since Landmark's claim fails under even the more forgiving sliding scale test.

1. Landmark Has Not Shown Substantial Likelihood of Success on the Merits

Landmark argues that the standard for evaluating the likelihood of success on the merits turns not on whether the requester will receive any documents, but whether plaintiff is entitled to full processing of its FOIA request. Pl.'s Stmt. P. & A.5 (citing Wash. Post v. Dep't of Homeland Sec., 459 F.Supp.2d 61, 67 (D.D.C.2006)). However, Landmark seeks expedited processing of its request for documents regarding the November 2012 proposed rule as well as other proposed rules considered but not finalized between January 1 and August 17, 2012; thus, the question with respect to these two claims is whether Landmark is entitled to expedited processing and not just whether it is entitled to a response.

Courts review agency decisions denying expedited processing de novo. 5 U.S.C. § 552(a)(6)(E)(iii), id. § 4(B). Additionally, “judicial review shall be based on the record before the agency at the time of the determination.” Id. § 552(a)(6)(E)(iii) (emphasis added).

As a preliminary matter, the Court believes that Landmark's request for expedited processing may be moot. If it is, this alone would prevent Landmark from showing a likelihood of success. Expedited processing requires only that an agency process the request “as soon as practicable.” The statute does not assign any particular time frame to release of the records sought. This Court has previously noted that an award of expedited processing only moves the plaintiff's request “to the front of the agency's processing queue, as provided by FOIA, and require[s] that they be processed ‘as soon as practicable.’ ” Leadership Conference on Civil Rights v. Gonzales, 404 F.Supp.2d 246, 259–60 (D.D.C.2005). Since the EPA has already stated that Landmark's request is “at the top of the FOIA processing queue” and that it intends to process the request on or before January 31, 2013, the Court questions whether an order compelling expedited processing would afford any additional relief to Landmark. See Def.'s Opp'n 4 (citing Wachter Decl. ¶ 11).⁶

However, because courts have equitable powers to order agencies to act within a particular time frame, for example, by December 24, and because a formal grant of “expedited processing” might ensure that the EPA keeps Landmark at the top of the queue, the Court will analyze Landmark's claim on the merits.

a. Expedited Processing “Compelling Need” Standard

To obtain expedited processing, Landmark must show a “compelling need.” 5 U.S.C. § 552(a)(6)(E)(i). Such a need is established if either: (1) failure to obtain expedited processing would pose an “imminent threat to the life or physical safety of an individual”; or (2) the requester is “primarily engaged in disseminating information” and shows an “urgency to inform the public concerning actual or alleged Federal Government activity.” 5 U.S.C. § 552(a)(6)(E)(v)(II); see also6 C.F.R. § 5.5(d)(1)(ii). Only the second category is at issue here.

The FOIA expedited processing provision was added in 1996 by the Electronic Freedom of Information Act Amendments, Pub. L. 104–231, § 8, 110 Stat. 3048, 3051–52. The D.C. Circuit, in examining the legislative history of these amendments, has noted that “ ‘the specified categories for compelling need are intended to be narrowly applied.’ ” Al–Fayed v. CIA, 254 F.3d 300, 310 (D.C.Cir.2001) (quoting H.R.Rep. No. 104–795, at 26 (1996), 1996 U.S.C.C.A.N. 3448, 3469). The Circuit reiterated Congress' concern for agencies' “ ‘finite resources' ” and the possibility that overuse of the expedited process would unfairly disadvantage other requesters. Id.

i. Landmark Has Not Shown it is a “Person Primarily Engaged in Disseminating Information”

Scant caselaw defines who qualifies as a person primarily engaged in information dissemination. Courts regularly find that reporters and members of the media qualify, and EPA regulations implicitly assume they meet the definition. See40 C.F.R. § 2.104(e)(3). However, given Congressional and D.C. Circuit direction that the category be narrowly construed, this Court must be cautious in deeming non-media organizations as persons primarilyengaged in information dissemination.⁷ As noted in the legislative history, the category

should not include individuals who are engaged only incidentally in the dissemination of...