enjoin NASA from disclosing the pricing information. MDA claimed that
NASA's decision to release various prices, incentive amounts, and billing
arrangements relating to the contract was arbitrary and capricious. MDA
also claimed that the information at issue is protected from disclosure
by exemption four of the FOIA, 5 U.S.C. § 552(b)(4) (1994), and the
Trade Secrets Act, 18 U.S.C. § 1905 (1994).
The parties filed cross-motions for summary judgment in this Court.
NASA sought to disclose the information at issue to the FOIA requester
and MDA sought a permanent injunction barring the disclosure. By
memorandum opinion and order dated October 10, 1997, this Court granted
Defendant NASA's motion for summary judgment, denied Plaintiff MDA's
cross-motion for summary judgment, and dismissed the case.
MDA appealed the dismissal, and the Court of Appeals for the District
of Columbia Circuit reversed. By order and opinion dated June 25, 1999,
the Court of Appeals held that the contract line item pricing information
at issue in this lawsuit is exempt from disclosure under FOIA exemption
four pursuant to the Trade Secrets Act. Subsequently, Plaintiff MDA made
a motion to this Court for judgment pursuant to appellate mandate.
After the parties briefed the Court on Plaintiffs motion, Defendant
NASA informed the Court that the FOIA request underlying this litigation
had been withdrawn by the requester, FOIA Group, Inc., by letter dated
February 9, 2000. (Def.'s Mem. to Ct., filed March 1, 2000, Attach. 1.)
NASA also informed the Court that prior to that withdrawal, NASA received
another request for the same information from The Aerospace Corporation
("Aerospace"), dated December 15, 1999. (Id. at 1.)*fn1
In light of the withdrawal of the FOIA request underlying this
litigation, the Court must answer the threshold question of whether the
case is moot. "Simply stated, a case is moot when the issues presented
are no longer `live' or the parties lack a legally cognizable interest in
the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23
L.Ed.2d 491 (1969).
A reverse FOIA suit, such as the instant case, is moot when the FOIA
request that is the underlying basis for the suit is withdrawn by the
requester. Gulf Oil Corp. v. Brock, 778 F.2d 834, 843 (D.C. Cir. 1985).
In Gulf Oil, plaintiff Gulf Oil Corporation ("Gulf") brought a reverse
FOIA action to enjoin defendant Department of Labor ("DOL") from
disclosing an affirmative action plan to the National Organization of
Women ("NOW"). Id. at 837. NOW had requested the plan under FOIA, but
withdrew the request during the litigation between Gulf and DOL. Id. at
837. When NOW withdrew its request it "mooted the live dispute that was
once before the District Court." Id. at 838. Likewise, when the FOIA
Group withdrew its request to NASA, it mooted the live dispute that was
once before this Court.
Despite the withdrawal of the FOIA Group's request to NASA, Plaintiff
MDA asserts that the case is not moot. MDA argues that "given prospect of
further requests for access to similar information,
`the-capable-of-repetition-yet-evading-review doctrine saves the case
from mootness'." (Pl.'s Resp. to Def.'s Mem. to Ct.,
filed March 3, 2000, at 2, n. 2 (quoting In re Motions of Dow Jones
& Co., 142 F.3d 496, 499 n. 3 (D.C. Cir.), cert. denied, 525 U.S. 820,
119 S.Ct. 60, 142 L.Ed.2d 47 (1998)).) Absent a class action, the
"capable of repetition, yet evading review" doctrine is "limited to the
situation where two elements combined: (1) the challenged action was in
its duration too short to be fully litigated prior to its cessation or
expiration, and (2) there was a reasonable expectation that the same
complaining party would be subjected to the same action again." Weinstein
v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975).
In Dow Jones, a number of media outlets moved for access to district
court proceedings and pleadings relating to a grand jury investigation.
Dow Jones, 142 F.3d at 498. The judge denied the motions for access and
the media appealed. Although two of the hearings had concluded, the Court
of Appeals for the District of Columbia Circuit decided the case
nonetheless, noting that "the capable-of-repetition-yet-evading-review
doctrine saves the case from mootness." Id. at 499. Dow Jones was saved
from mootness under the Bradford criteria because 1) the district court
proceedings were too short in duration for the issue of media access to be
fully litigated prior to the proceedings' expiration, and 2) there was a
reasonable expectation that the media would be denied access to future
proceedings. See Bradford, 423 U.S. at 149, 96 S.Ct. 347.
The instant case is distinguishable from Dow Jones. The "capable of
repetition, yet evading review" doctrine does not apply to FOIA
disclosures. Gulf Oil, 778 F.2d at 839. In Gulf Oil, the Court of Appeals
[t]he prolonged proceedings of this case are testimony
that the first requirement under the "capable of
repetition, yet evading review" exception is not met
with regard to FOIA disclosures. DOL notified Gulf of
NOW's request for the 1973 plan, gave Gulf an
opportunity to oppose the disclosure, and notified
Gulf of the decision to disclose and agreed not to
disclose the plan pending a judicial determination on
the merits. When NOW withdrew its request eleven years
later, the document still had not been disclosed.
Id. at 839. This scenario is analogous to the instant case. Here, as in
Gulf Oil, the first requirement of the "capable of repetition, yet
evading review" doctrine has not been met. NASA's attempted disclosure
was not too short in its duration to be fully litigated prior to its
cessation or expiration. When the FOIA Group withdrew its request, the
pricing information still had not been disclosed by NASA. Although this
case is moot, it is important to note that MDA "will undoubtedly be
accorded a similar opportunity to litigate fully any future decision to
disclose a document." Id. at 839.