The opinion of the court was delivered by: Lamberth, District Judge.
This matter comes before the Court on Plaintiff McDonnell Douglas
Aerospace Corporation's ("MDA") Motion for Judgment Pursuant to Appellate
Mandate. For the following reasons, the Court finds the case to be moot
and it is dismissed.
In December 1994, Defendant National Aeronautics & Space
Administration ("NASA") issued a solicitation of bids relating to its
need for expendable launch vehicle services. The solicitation requested,
among other information, the submission of proposed prices for a number
of contract line items. MDA submitted a bid which NASA accepted. On
February 27, 1996, the parties executed a contract which contained the
pricing information at issue in this lawsuit.
Subsequently, NASA received a Freedom of Information Act ("FOIA")
request for a copy of the MDA contract. NASA requested comment from MDA
regarding the FOIA request. After NASA reviewed MDA's objections to
disclosure of certain pricing information, NASA issued a "Notice of
Intent to Release Information" letter. MDA responded, raising new
objections, further explaining its previous objections, and asking NASA
to reconsider the planned disclosure.
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had been withdrawn by the requester, FOIA Group, Inc., by letter dated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 ...