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Public Emps. for Envtl. Responsibility v. United States Int'l Boundary & Water Comm'n

United States District Court, District of Columbia

March 19, 2013

PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, Plaintiff,
v.
U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION, Defendant

For PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, Plaintiff: Kathryn Douglass, Paula Naomi Dinerstein, PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, Washington, DC.

For U.S. INTERNATIONAL BOUNDARY AND WATER COMMISSION, Defendant: Fred Elmore Haynes, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

Page 25

AMENDED MEMORANDUM AND ORDER

Royce C. Lamberth, Chief United States District Judge.

Now before the Court is defendant International Boundary and Water Commission's (" IBWC" or " Agency" ) Motion [36] to Amend the Court's February 7, 2012, Memorandum Opinion, and plaintiff Public Employees for Environmental Responsibility's (" PEER" ) Motion [37, 38] for Sanctions. [1] Upon consideration of the motions, oppositions, replies, the entire record herein, and the applicable law, both parties' motions will be denied.

I. BACKGROUND[2]

This controversy arises out of a Freedom of Information Act (" FOIA" ) case filed by PEER against IBWC. The genesis of PEER's FOIA request was IBWC's removal of Robert McCarthy as general counsel in July 2009, and IBWC's engagement of the law firm Jackson Lewis to represent the Agency during Mr. McCarthy's appeal before the Merit Systems Protection Board. Public Emps. for Envtl. Responsibility v. U.S. Int'l Bound. & Water Comm'n, 842 F.Supp.2d 219, 221 (D.D.C. 2012). PEER suspected that IBWC's payments to the firm constituted a misuse of government funds and in 2009 filed a FOIA request seeking two sets of documents:

(1) A copy of the retainer agreement between [IBWC] and the law firm of Jackson Lewis in the matter concerning McCarthy v. IBWC, Docket # DA-1221-09-0725-S-1, and
(2) All documents that evidence the source of the funds used to pay for representation by Jackson Lewis in the matter concerning McCarthy v. USIBWC.

Id. at 222. IBWC's refusal to provide PEER with the requested documents lead to the instant suit. Id.

The parties cross-filed for summary judgment in 2010, but Judge Sullivan, originally assigned to this case, dismissed both motions without prejudice. Id. at 223. After an in camera review by Judge Sullivan, IBWC provided PEER with a redacted copy of the retainer agreement. Id. The parties then cross-filed for summary judgment on the issue of whether IBWC's search was adequate under FOIA. Id. On February 7, 2012, the Court denied IBWC's motion and granted PEER's motion. Order 1-2, ECF No. 26. The Court found IBWC in violation of FOIA because it " fail[ed] to perform an adequate search for records." Id. The Court ordered IBWC to perform a new search--which had to include various offices--and to submit the resulting documents, if any, to PEER, and to submit a new Vaughn index to PEER and to the Court. Id. The Court also noted:

At this point, after the Commission has been given multiple opportunities to get it right, it is patently obvious to the Court that the Commission, for reasons unknown, is simply persisting in blowing-off PEER's FOIA request. This is a sad state of affairs that this Memorandum

Page 26

Opinion and accompanying Order will begin ...

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