Landmark Legal Foundation v. E.P.A.

• Decision Date: 24 July 2003
• Docket Number: No. CIV.A.00-2338 (RCL).,CIV.A.00-2338 (RCL).
• Parties: LANDMARK LEGAL FOUNDATION, Plaintiff, v. ENVIRONMENTAL PROTECTION AGENCY, Defendant.
• Court: U.S. District Court — District of Columbia

272 F.Supp.2d 70

LANDMARK LEGAL FOUNDATION, Plaintiff, v. ENVIRONMENTAL PROTECTION AGENCY, Defendant.

No. CIV.A.00-2338 (RCL).

United States District Court, District of Columbia.

July 24, 2003.

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Mark R. Levin, Landmark Legal Foundation, Herndon, VA, Richard P. Hutchison, Landmark Legal Foundation, Kansas City, MO, Arthur Fergenson, Ballard Spahr Andrews & Ingersoll, LLP, Washington, DC, for plaintiff.

Roscoe C. Howard, Jr., U.S. Attorney, Mark E. Nagle, Peter D. Blumberg, Assistant U.S. Attorneys, Washington, DC, for defendant.

MEMORANDUM OPINION

LAMBERTH, District Judge.

This comes before the Court on the plaintiff's motion for civil contempt [50], the memoranda in opposition of EPA [55], Gary Guzy [54], Michael McCabe [56], and Carol Browner [59], and Plaintiff's reply [58]. Also before the Court is Plaintiff's Motion for Sanctions [26], which predates its motion for contempt, defendant's response [30], and plaintiff's reply [32]. Upon consideration of the briefing, the law, and the record in this case, the Court will deny the motion as to Gary Guzy, Michael McCabe, Carol Browner, and the United States Attorney's Office. EPA will be held in contempt, and ordered to pay sanctions in the amount of Landmark's legal fees and costs expended as a result of EPA's contumacious conduct. Plaintiff's motion for sanctions [26] is moot in part as to legal fees and costs incurred as a result of EPA's contumacious conduct, and will be denied in part as to fees and costs unrelated to the contempt.

I. Background

Plaintiff filed a FOIA request with defendant EPA on September 7, 2000, seeking "[i]dentification of all rules or regulations for which public notice has not been given, but which public notice is planned by the EPA between September 7, 2000 and January 20, 2001, including but not limited to the rules or regulations referenced in the attached news article" and various types of documents relating to those rules and regulations. The news article indicated that EPA was attempting to push through certain regulations before the administration change. Dissatisfied with EPA's response, Plaintiff filed the instant suit on September 29, 2000. Concerned about the imminent change in administration, the parties appeared before the Court on January 19, 2001 on Plaintiff's application for a preliminary injunction to prevent the destruction of responsive materials. Although EPA represented to the Court that the responsive material was in no danger, the Court on January 19, 2001 issued a preliminary injunction [15] ordering "that Environmental Protection Agency and its agents and employees are enjoined from transporting, removing or in any way tampering with information potentially responsive to Landmark Legal Foundation's September 7, 2000, Freedom of Information Act request." Despite the Court's order, the hard drives of several EPA officials were reformatted, email backup tapes were erased and reused, and individuals deleted emails received after that date. Based on these activities, which were brought to light by EPA's May 16, 2001 Status Report to the Court [42] and the deposition of Myra Galbreath, Landmark filed this motion for contempt [50].

II. EPA

A. Specificity of Court's Preliminary Injunction

A preliminary matter the Court must determine before proceeding to the merits of the contempt motion against EPA is whether the Court's January 19, 2001 order satisfied the particularity requirement for contempt and the specificity mandated by Rule 65(d). Civil contempt lies only for violation of a clear and unambiguous order. Armstrong v. EOP, 1 F.3d 1274, 1289 (D.C.Cir.1993). EPA concedes that as to itself, the order is reasonably clear and specific as that phrase is applied to contempt. EPA Response [55] at 5.¹ Additionally, Rule 65(d) provides in part that an order granting an injunction "shall be specific in terms" and "shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained." Fed. R.Civ.P. 65(d). The relevant text of the Court's preliminary injunction orders "that Environmental Protection Agency and its agents and employees are enjoined from transporting, removing or in any way tampering with information potentially responsive to Landmark Legal Foundation's September 7, 2000 Freedom of Information Act request," and thus in part refers to another document to define its terms.

Courts are split on whether Rule 65(d) requires a strict interpretation. See, e.g., Consumers Gas & Oil, Inc. v. Farmland Indus., Inc., 84 F.3d 367, 371 (10th Cir. 1996) (observing split of authorities). In adopting a strict construction, the court in Consumers Gas & Oil, Inc. v. Farmland Industries, Inc., 84 F.3d 367 (10th Cir. 1996), advanced two reasons for the Rule's specificity requirement: "(1) to prevent confusion on the part of those faced with injunctive orders and (2) to aid the appellate court in defining the bounds of the injunctive relief." Id. at 371 (citation omitted); see generally Seattle-First Nat'l Bank v. Manges, 900 F.2d 795, 800 (5th Cir.1990) (calling Rule 65(d) "an important procedural safeguard"). The Courts that have adopted a less literal approach to the rule have done so in light of these rationales.

The Supreme Court has explained that the Rule "was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood." Schmidt v. Lessard, 414 U.S. 473, 476, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974). The D.C. Circuit has taken a practical approach to Rule 65(d), stating that "[i]n the context of the litigation, an injunction's language might be sufficiently specific to notify the parties of the acts the court seeks to restrain," despite its reference to another document. Common Cause v. Nuclear Regulatory Comm'n, 674 F.2d 921, 927 (D.C.Cir.1982). That is, Rule 65(d)'s fair notice requirement is to be applied "`in the light of the circumstances surrounding (the injunction's) entry: the relief sought by the moving party, the evidence produced at the hearing on the injunction, and the mischief that the injunction seeks to prevent.'" Id. (citation omitted).

Other circuits agree. Where an injunction incorporates by reference a document with which the enjoined party is familiar, the primary purpose of Rule 65(d) is served, and adequate notice is provided to parties who could face contempt for violation of the order. Davis v. City & County of San Francisco, 890 F.2d 1438, 1450 (9th Cir.1989). Again, where the "record of the proceedings relating to the proposed injunction amply demonstrate [a party's] grasp of these documents and its complete acquiescence in the reference to them," the fair notice requirement of Rule 65(d) is satisfied, and contempt may lie for failure to obey the injunction. Perfect Fit Indus., Inc. v. Acme Quilting Co., Inc., 646 F.2d 800, 809 (2nd Cir.1981). The basic inquiry is "whether the parties subject to the injunctive order understood their obligations under the order." Williams v. City of Dothan, Ala., 818 F.2d 755, 761 (11th Cir.1987).

In this case, the injunction refers to Landmark's FOIA request in defining the boundaries of what may not be removed or destroyed, and could be construed to be in conflict with Rule 65(d). However, this is not dispositive. At the January 19, 2001 hearing, counsel for EPA reviewed the order and stated, "I can live with this order." Tr. of Jan. 19, 2001 hearing at 31. Counsel's statements throughout the hearing indicate that EPA understood the nature of the FOIA request referenced in the order. For instance, counsel represented that EPA would complete its response to the request by February 16, less than one month from the hearing date. Tr. at 27-28. Counsel also stated that previous difficulties could have been resolved "if we had had the request refined early on," Tr. at 26-27, indicating that by the time of the January 19 hearing the request (or at least EPA's understanding of it) had been refined. Thus, the Court finds that the order satisfies the notice requirement of Rule 65(d), and is not too vague to support a finding of contempt.

B. Contempt Power

This Court has the inherent power to protect its integrity and to prevent abuses of the judicial process by holding those who violate its orders in contempt and ordering sanctions for such violations. Cobell v. Babbitt, 37 F.Supp.2d 6, 9 (D.D.C.1999) (Lamberth, J.). For contempt to issue, two conditions must be present: (1) the existence of a reasonably clear and specific order, which the Court has already determined in the affirmative supra, and (2) violation of that order by the defendant. Id. The evidence supporting a finding of contempt must be clear and convincing. Id. It is important at the outset to distinguish between civil contempt proceedings-such as the present action-and criminal contempt proceedings. The D.C. Circuit has explained that:

Traditionally, whether a contempt is civil or criminal has depended on the character and purpose of the sanction. A sanction is considered civil if it is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court.

Evans v. Williams, 206 F.3d 1292, 1294-95 (D.C.Cir.2000) (internal quotations omitted); see also 11A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2960, at 369 ("In general, ... a contempt of court for which punishment is inflicted for the primary purpose of vindicating public authority is denominated criminal. Those in which the ultimate object of the punishment is the enforcement of the rights and remedies of a litigant are civil contempts.").

Because the purpose of a civil contempt proceeding is to vindicate the rights of the non-violating party, not to punish the violator, the...