The Sierra Club et al v. United States Environmental Protection Agency

Filing 31

ORDER AUGMENTING BRIEFING SCHEDULE. Signed by Judge Maria-Elena James on 2/16/2012. (cdnS, COURT STAFF) (Filed on 2/16/2012)

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MELINDA HAAG (CSBA 132612)
United States Attorney
JOANN M. SWANSON (CSBN 88143)
Chief, Civil Division
ABRAHAM A. SIMMONS (CSBN 146400)
Assistant United States Attorney

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450 Golden Gate Avenue, 9th Floor
San Francisco, California 94102-3495
Telephone:
[phone]
Facsimile:
[phone]
Email:
[e-mail]

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Attorneys for Federal Defendants

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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THE SIERRA CLUB and
ENVIRONMENTAL INTEGRITY
PROJECT,
Plaintiffs,

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v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,

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Defendant.
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Case No. C 11-0846 MEJ
DEFENDANT’S SECOND UNOPPOSED
ADMINISTRATIVE MOTION TO
AUGMENT BRIEFING SCHEDULE;
DECLARATION OF COUNSEL;
[PROPOSED] ORDER

ADMINISTRATIVE MOTION

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Defendant United States Environmental Protection Agency ("EPA") by its attorney, the

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United States Attorney for the Northern District of California, hereby requests a change in this

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Court’s January 25, 2012 briefing schedule. Specifically, Defendant respectfully requests that

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the Court consider defendant’s February 13, 2012 brief as timely filed and extend the time for

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Plaintiffs to file their Opposition and Cross-Motion to March 19, 2012. The remaining dates,

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including the hearing date, would remain the same.
This request is made on the ground that it is unopposed and two of the declarants
providing evidentiary support for defendant’s motion were unavailable to sign their declarations

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in a timely manner.

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FACTS
Plaintiffs filed this action pursuant to the FOIA and the APA on February 23, 2011. The

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matter was referred to mediation on June 6, 2011. [Docket No. 17.] After several attempts to

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resolve the matter, the case did not settle. In their November 17, 2011 status report, the parties

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presented the court with a proposed briefing schedule to resolve the issues by cross-motions for

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summary judgment.[Docket No. 22.] The court adopted the proposed schedule in its November

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21, 2011 order. [Docket No. 23.] According to the schedule, defendant’s motion was due by

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January 13, 2012, plaintiff’s opposition and cross-motion was due February 10, 1012, and replies
were due March 9, 2012 for an April 10, 2010 hearing on the cross motions.
Defendant was been unable to collect the information necessary to prepare its motion for

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summary judgment by the January 13, 2012 due date for motions. On January 25, 2010, this
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court granted defendant’s unopposed motion to adjust the briefing schedule and set the following
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deadlines:
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Defendant's Motion for Summary Judgment: February 3, 2012
Plaintiffs' Opposition, Cross-Motion: March 9, 2012
Defendant's Reply, Opposition: March 30, 2012

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Plaintiffs' Reply: April 27, 2012

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Hearing: May 10, 2012, at 10:00 a.m.

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The defendant’s motion for summary judgment relies principally on the declarations of

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Leticia Lane and Janet Adams. These witnesses were unavailable to sign their declarations in a

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timely matter. A signed version of the Lane declaration did not become available until

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February 8, 2012 and the signed version of the Adams declaration did not become available until

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February 13, 2012.

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Plaintiffs have indicated they would not object to the defendant’s motion to change to

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February 13, 2012 the filing deadline for its summary judgment motion so long as the motion

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FEDERAL DEFENDANT’S SECOND
MOTION FOR EXTENSION OF TIME
C 11-00846 MEJ

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does not change the hearing date for the motions and sets the following deadlines:

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Defendant’s Motion for Summary Judgment:

February 13, 2012

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Plaintiff’s Opposition, Cross-Motion:

March 19, 2012

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Defendant’s Reply:

March 30, 2012

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Plaintiffs’ Reply:

April 27, 2012

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Hearing:

May 10, 2012

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Defendant agreed to submit a request for the court to order these new dates.

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Respectfully submitted,

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MELINDA HAAG
United States Attorney

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Dated: February 15, 2012

/s/
ABRAHAM A. SIMMONS
Assistant United States Attorney
Attorneys for the Federal Defendants

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DECLARATION OF COUNSEL
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I, Abraham A. Simmons, do hereby declare under penalty of perjury the following:

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I am the Assistant United States Attorney assigned to this case. I make this declaration of

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my own knowledge and would competently testify to the facts in this declaration if called upon to

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do so.

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2.

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matter was referred to mediation on June 6, 2011. After several attempts to resolve the matter,

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the case did not settle.

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3.

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briefing schedule to resolve the issues by cross-motions for summary judgment. The court

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adopted the proposed schedule in its November 21, 2011 order. According to the schedule,

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defendant’s motion was due by January 13, 2012, plaintiff’s opposition and cross-motion was

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Plaintiffs filed this action pursuant to the FOIA and the APA on February 23, 2011. The

In their November 17, 2011 status report, the parties presented the court with a proposed

FEDERAL DEFENDANT’S SECOND
MOTION FOR EXTENSION OF TIME
C 11-00846 MEJ

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due February 10, 1012, and replies were due March 9, 2012 for an April 10, 2010 hearing on the

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cross motions.

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4.

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to prepare its motion for summary judgment by the January 13, 2012 due date for motions.

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5.

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to meet this court’s deadline. Mr. Bahr informed me that plaintiff had no objection to defendant

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requesting a three-week extension of time to file its motion.

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6.

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Defendant has been unable to collect and provide to me the information necessary for me

I communicated with plaintiff’s counsel, David A. Bahr, regarding defendant’s inability

The defendant’s motion for summary judgment relies principally on the declarations of

Leticia Lane and Janet Adams. I am informed and believe these witnesses were unavailable to
sign their declarations in a timely matter. On February 10, 2012, Mr. Bahr graciously agreed to
not oppose a request to extend the filing deadline to February 13, 2012 so long as the hearing

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date for the motion did not change and the court ordered the following dates:
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Defendant’s Motion for Summary Judgment:

February 13, 2012

Plaintiff’s Opposition, Cross-Motion:

March 19, 2012

Defendant’s Reply:

March 30, 2012

Plaintiffs’ Reply:

April 27, 2012

Hearing:

May 10, 2012

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The effect of the schedule is to maintain the hearing date but shorten the time for defendants to

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respond to plaintiffs’ opposition and cross-motion.

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and the signed version of the Adams declaration did not become available until February 13,

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2012.

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A signed version of the Lane declaration did not become available until February 8, 2012

I swear under penalty of perjury under the laws of the United States that the foregoing is
true. Sworn this 15th day in February, 2012 in San Francisco, California.

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______________/s/__________________
Abraham A. Simmons

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FEDERAL DEFENDANT’S SECOND
MOTION FOR EXTENSION OF TIME
C 11-00846 MEJ

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[PROPOSED] ORDER

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Defendant’s request to augment the briefing schedule is granted, the parties will observe
the following briefing and hearing schedule:

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Defendant’s Motion for Summary Judgment:

February 13, 2012

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Plaintiff’s Opposition, Cross-Motion:

March 19, 2012

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Defendant’s Reply:

March 30, 2012

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Plaintiffs’ Reply:

April 27, 2012

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Hearing:

May 10, 2012

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Date:

February 16, 2012

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_____________________________________
Chief United States Magistrate Judge

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FEDERAL DEFENDANT’S SECOND
MOTION FOR EXTENSION OF TIME
C 11-00846 MEJ

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