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Organization for Competitive Markets v. Office of Inspector General

United States District Court, District of Columbia

October 25, 2016



          Emmet G. Sullivan, United States District Judge.

         In this Freedom of Information Act (“FOIA”) lawsuit, plaintiff Organization for Competitive Markets (“OCM”) seeks to compel defendant the Office of Inspector General (“OIG”) of the United States Department of Agriculture (“USDA”) to produce documents related to OIG's 2011 audit of USDA's Agricultural Marketing Service (“AMS”) regarding AMS's oversight of USDA's beef promotion program. Now pending before the Court is a motion to intervene filed by prospective defendant-intervenor National Cattlemen's Beef Association (“NCBA”). Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, NCBA's motion to intervene is GRANTED.

         However, to avoid unfair delay, NCBA's participation in this litigation is LIMITED to (1) reviewing documents and records for its confidential and proprietary business information and (2) objecting to the production of documents and records to OCM exclusively on the basis that those documents and records contain its confidential and proprietary business information.

         I. Background

         Pursuant to federal statute and regulation, the Cattlemen's Beef Promotion and Research Board (“Beef Board”) administers a program of beef promotion and research. Mem. Supp. of NCBA's Mot. to Intervene (“Mem. Supp.”), ECF No. 34 at 3.[1] Part of the Beef Board's promotion program includes what is known as the “beef checkoff.” Id. at 4; see Compl., ECF No. 1 ¶¶ 1, 11. USDA provides oversight for the Beef Board and its beef checkoff through a component agency, AMS. Mem. Supp. at 4; cf. Compl. ¶ 20.

         In 2011, USDA OIG initiated an audit to determine if AMS's oversight procedures with regard to the beef checkoff were adequate and in compliance with federal law and regulation. Mem. Supp. at 4; Compl. ¶ 12. Concerned with inconsistent findings between that 2011 OIG audit and an independent accounting firm's 2010 review of the beef checkoff program, on April 11, 2013 OCM submitted a FOIA request to OIG seeking records related to its 2011 audit. Compl. ¶¶ 14-15. After approximately a year-and-a-half of back-and-forth between OCM and OIG and a series of administrative appeals regarding OCM's request, see generally Id. ¶¶ 17-39, on November 12, 2014 OCM filed suit against OIG in this Court. See generally Id. OCM's complaint alleges that OIG wrongfully withheld records by making overbroad claims of exemption from disclosure and that OIG exceeded the time limits for making its final determinations as to OCM's FOIA request. Id. ¶¶ 40-48.

         Pursuant to a joint status report OIG and OCM subsequently filed with the Court, the parties agreed that OIG would produce responsive documents to OCM on a rolling monthly basis. See Joint Status Report, ECF No. 12. The Court, in turn, ordered OIG to file monthly status reports summarizing its monthly production and overall progress in relation to fulfilling OCM's FOIA request. See Minute Entry of April 15, 2015. Over the course of the next 16 months, it appeared that OIG was progressing towards finalizing its production of documents to OCM. See, e.g., Joint Status Report, ECF No. 27; Joint Status Report, ECF No. 29. However, in late August of this year, OIG transmitted 9, 358 additional responsive pages to AMS for an AMS review that will take place prior to any of those pages being produced by OIG to OCM. Declaration of William Allen (“Allen Decl.”), ECF No. 33-2 ¶ 15. Those 9, 358 pages appear to be in addition to approximately 14, 000 pages AMS still has to review based on prior transfers of documents from OIG to AMS. Id. Apparently AMS did not review the bulk of those 14, 000 earlier-received pages because it thought OIG had determined that they were not responsive or were duplicates of other documents. Id. ¶ 11.

         Meanwhile, on September 13, 2016, NCBA filed a motion to intervene as a defendant in this matter. See generally Mot. to Intervene, ECF No. 34. Although NCBA was “vaguely aware that there may have been a FOIA request to AMS relating to” the 2011 OIG audit, NCBA was not notified of this FOIA request until August 3, 2016, when an AMS FOIA specialist submitted a document to NCBA for its review. Mem. Supp. at 4. Then on August 31, 2016, NCBA received 500 additional pages from AMS for its review. Id. at 5. NCBA alleges that it was then first made aware of this litigation on September 6, 2016, when “its attorneys searched for and identified the case and the docket sheet.” Id. Concerned that many of the responsive documents at issue contain confidential and proprietary NCBA information, NCBA filed its motion to intervene “so as to protect from disclosure its business confidential and proprietary information.” Id. at 6. NCBA's motion to intervene is now ripe and ready for the Court's adjudication.

         II. Analysis

         NCBA seeks to intervene as a matter of right under Federal Rule of Civil Procedure 24(a) or, in the alternative, under Rule 24(b)'s permissive intervention standard. See generally Mem. Supp. Because this Court finds that NCBA is entitled to intervene as of right, permissive intervention need not be addressed. See Hardin v. Jackson, 600 F.Supp.2d 13, 15 (D.D.C. 2009) (citing Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003)).

         Rule 24(a)(2) provides in relevant part:

On timely motion, the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

Fed. R. Civ. P. 24(a). Thus the party applying to intervene must satisfy four conditions: (1) its motion must be timely; (2) it must demonstrate an interest relating to the property or transaction which is the subject of the action; (3) it must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) it must demonstrate that its interest cannot adequately be represented by the existing parties. Hardin, 600 F.Supp.2d at 15 (citing Fund for Animals, 322 F.3d at 731). In addition, “a party seeking to intervene as of right must demonstrate that it has standing under Article III of the Constitution.” Fund for Animals, 322 F.3d at 731-32.

         A. ...

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