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MCDONNELL DOUGLAS v. NATIONAL AERONAUTICS & SPACE

June 9, 2000

MCDONNELL DOUGLAS CORPORATION, PLAINTIFF,
V.
NATIONAL AERONAUTICS & SPACE ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Lamberth, District Judge.

MEMORANDUM OPINION

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.

I. Background

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Court on Plaintiffs motion, Defendant NASA informed the Court that the FOIA request underlying this litigation had been withdrawn by the requester, FOIA Group, Inc., by letter dated February 9, 2000.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

II. Analysis

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 ...


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