2019-07-17 Amended COER Complaint of Case 2:19-cv-01041-MJP

Case 2:19-cv-01041-MJP Document 7 Filed 07/17/19 Page 1 of 25
7
IN THE UNITED STATES DISTRICT COURT
8 FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
9
CITIZENS OF THE EBEY’S RESERVE
10 FOR A HEALTHY, SAFE AND
11 PEACEFUL ENVIRONMENT; NO. 2:19-cv-01041-MJP
ROBERT WILBUR; and MARYON
12 ATTWOOD,
AMENDED COMPLAINT
13 Plaintiffs,
14
v.
15
UNITED STATES DEPARTMENT OF
16 THE NAVY, a military department of the
United States, an agency of the United
17 States,
18
Defendant.
19
20
INTRODUCTION
21
22 1. This is an action against the U.S. Department of the Navy (“Navy”) for violations
23 of the Freedom of Information Act (“FOIA” or “Act”), 5 U.S.C. § 552, as amended. Under the
24 judicial review provisions of both the FOIA and the Administrative Procedure Act (“APA”), 5
25 U.S.C. §§ 701–706, plaintiffs Citizens of the Ebey’s Reserve for a Healthy, Safe, and Peaceful
26
Environment and two of its individual members, Robert Wilbur and Maryon Attwood (collectively
Bricklin & Newman, LLP
Attorneys at Law
1424 Fourth Avenue, Suite 500
Complaint - 1 Seattle WA 98101
Tel. (206) 264-8600
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1 herein, “Citizens of Ebey’s Reserve” or “COER”) seek relief regarding FOIA requests they
2 submitted to the Navy on February 15, 2019, May 1, 2019, and May 14, 2019 (“FOIA Requests”)
3
and regarding an administrative FOIA appeal COER submitted to the Navy on April 2, 2019
4
(“FOIA Appeal”).
5
2. The purpose of FOIA is “to establish a general philosophy of full agency disclosure
6
7 unless information is exempted under clearly delineated statutory language.” S. Rep. No. 89-813,
8 1st Sess., at 3 (1965). FOIA requires federal agencies to disclose records in a timely manner to any
9 person upon request unless the information falls within one of nine narrow disclosure exemptions
10 in the Act. See 5 U.S.C. § 552(a)(3)(A), (b).
11
3. Federal agencies generally must determine within twenty business days whether
12
requested records are exempt from withholding and, if they are not, the agency must promptly
13
disclose the records to the requester. 5 U.S.C. § 552(a)(6)(A)(i); id. at § 552(a)(3)(A), (a)(6)(C)(i).
14
15 If an agency makes an adverse determination on a FOIA request, the requester may appeal that
16 determination to the agency, which must then make a determination on the administrative appeal
17 within twenty days of receiving it. Id. at § 552 (a)(6)(A)(i)(III)(aa), (a)(6)(A)(ii). “If the agency
18
does not make a “determination” within the relevant statutory time period, the requester may file
19
suit without exhausting administrative appeal remedies.” Citizens for Responsibility & Ethics in
20
Washington v. Fed. Election Comm'n, 711 F.3d 180, 185 (D.C. Cir. 2013).
21
4. Citizens of Ebey’s Reserve is filing this lawsuit because the Navy has failed to make
22
23 and communicate its determination on COER’s FOIA Requests; failed to make and communicate
24 the disclosure determinations required by FOIA for the responsive records in its possession; failed
25 to act within applicable deadlines; and failed to comply with its estimated date by which it would
26
complete its response to COER’s FOIA Appeal.
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1 5. The Navy is unlawfully withholding its final appeal determination, as well as the
2 documents sought by COER, documents to which COER is entitled and for which no valid dis-
3
closure exemptions apply. COER seeks a declaration that the Navy has violated FOIA and an order
4
from the Court compelling the Navy to make the required determinations and disclosures by a date
5
certain.
6
7 JURISDICTION AND VENUE
8 6. This Court has jurisdiction pursuant to 5 U.S.C. § 552(a)(4)(B) (FOIA) and 28
9 U.S.C. §§ 1331 (federal question), 1346 (United States as defendant), 2201 (declaratory judgment),
10 and 2202 (further relief).
11
7. This Court is the proper venue for this case because, pursuant to 5 U.S.C. §
12
552(a)(4)(B), the records responsive to COER’s FOIA Requests and Appeal are located in this
13
district and because, under 28 U.S.C. § 1391(e), a substantial part of the events or omissions giving
14
15 rise to plaintiffs’ claims occurred in this district.
16 PARTIES
17 8. Citizens of the Ebey’s Reserve for a Healthy, Safe, and Peaceful Environment is a
18
non-profit public interest organization incorporated in 2012 and dedicated to protecting the health
19
and welfare of the inhabitants of Whidbey Island and surrounding areas, including marine,
20
migratory, and endangered species and preserving the historic northwest communities being
21
threatened by military jet training flights. Its registered office is located in Coupeville, Washington.
22
23 COER brings this action on its own behalf and on behalf of its adversely affected members.
24 9. The information COER seeks through its FOIA requests will assist COER in its
25 mission as a non-profit environmental advocacy organization and in its efforts to catalog and assess
26
the human health and environmental impacts from the Navy’s expanded operations at Naval Air
Attorneys at Law
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1 Station Whidbey Island. COER disseminates the information that it gathers to the public through
2 press releases and online resources including a regularly updated website, blog, and social
3
networking sites.
4
10. The above-described interests of Citizens of Ebey’s Reserve and its members have
5
been, are being, and, unless the relief prayed for herein is granted, will continue to be adversely
6
7 affected by the Navy’s disregard of its statutory duties under FOIA and by the unlawful harm that
8 results. The Navy’s failure to fully implement FOIA injures the interests of COER and its members
9 and the relief requested in this lawsuit can redress these injuries. These harms are traceable to the
10 Navy’s conduct and would be remedied by the relief sought in this action.
11
11. Plaintiff Robert Wilbur is the current president and a director of Citizens of Ebey’s
12
Reserve. Mr. Wilbur submitted the FOIA requests at issue in this lawsuit on both his own behalf
13
and on behalf of Citizens of Ebey’s Reserve.
14
15 12. Plaintiff Maryon Attwood is the past president and a current director of Citizens of
16 Ebey’s Reserve. Ms. Attwood submitted the FOIA requests at issue in this lawsuit on both her own
17 behalf and on behalf of Citizens of Ebey’s Reserve.

18
13. Defendant United States Department of the Navy (“Navy”) is a military department
19
within the United States Department of Defense subject to the authority, direction, and control of
20
the Secretary of Defense. It is an agency of the executive branch of the United States government
21
subject to the FOIA, pursuant to 5 U.S.C. § 552(f), and subject to the judicial review provisions of
22
23 the APA, 5 U.S.C. §§ 701–702. The Navy is in possession or control of public records requested
24 and sought by plaintiffs.

25
26

Attorneys at Law
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1 STATUTORY BACKGROUND
2 14. The purpose of FOIA is “to open agency action to the light of public scrutiny.” U.S.
3
DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772 (1989) (quoting Dep’t of
4
the Air Force v. Rose, 425 U.S. 352, 372 (1976)). “Congress believed that this philosophy, put into
5
practice, would help ‘ensure an informed citizenry, vital to the functioning of a democratic
6
7 society.’” U.S. DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989) (quoting NLRB v. Robbins Tire &
8 Rubber Co., 437 U.S. 214, 242 (1978)).
9 15. FOIA requires federal agencies to make records in their possession or control
10 available to the public upon request unless one of FOIA’s nine specific exemptions applies. 5
11
U.S.C. § 552(a), (b)(1)–(9). Federal agencies bear the burden of demonstrating to a court that any
12
withholding of responsive records is consistent with FOIA. 5 U.S.C. § 552(a)(4)(B). Even if an
13
agency meets its burden to prove that a responsive record contains information that is exempt from
14
15 disclosure, the agency must nevertheless disclose any non-exempt information if it can be
16 segregated from the exempt materials. 5 U.S.C. § 552(b).
17 16. To ensure a requester receives all requested documents, FOIA requires agencies to
18
conduct a search that is reasonably calculated to uncover all records responsive to the request. 5
19
U.S.C. § 552(a)(3)(C)–(D).
20
17. FOIA imposes strict and rigorous deadlines on federal agencies. FOIA requires a
21
federal agency that receives a FOIA request to determine whether the requested records are exempt
22
23 from disclosure under 5 U.S.C. § 552(b) and to communicate that determination to the requester
24 within twenty business days. Id. § 552(a)(6)(A)(i). If the agency determines the requested records
25 are exempt from public disclosure, the agency must also communicate to the requester that they
26
have a right to appeal that determination. Id. If the agency determines the records are not exempt
Attorneys at Law
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1 from public disclosure, the agency is required to make the requested records “promptly available”
2 to the requester. Id. § 552(a)(3)(A), (a)(6)(C)(i).
3
18. FOIA requires that, within the relevant time period, an agency must determine
4
whether a requester will receive all the documents the requester seeks. “It is not enough that, within
5
the relevant time period, the agency simply decide to later decide.” Citizens for Responsibility &
6
7 Ethics in Washington v. Fed. Election Comm'n, 711 F.3d 180, 186 (D.C. Cir. 2013). Within the
8 relevant time period, the agency must at least inform the requester of the scope of the documents
9 that the agency will produce, as well as the scope of the documents that the agency plans to withhold
10 under any FOIA exemptions. Id., See also id. at 186–89 (“If the agency does not adhere to FOIA's
11
explicit timelines, the ‘penalty’ is that the agency cannot rely on the administrative exhaustion
12
requirement to keep cases from getting into court.”).
13
19. If an agency makes an adverse determination on a FOIA request, the requester may
14
15 appeal that determination to the agency, which must then make a determination on the
16 administrative appeal within twenty days of receiving it, absent unusual circumstances. Id.
17 § 552(a)(6)(A)(i)(III)(aa), (a)(6)(A)(ii).
18
20. In addition to imposing response deadlines, FOIA also requires federal agencies to
19
communicate with requesters about the status of the agencies’ efforts to respond to a FOIA request.
20
Specifically, FOIA requires agencies to assign tracking numbers to each request that will take
21
longer than ten days to process; to provide that tracking number to each person making such a
22
23 request; and to establish a telephone line or internet service that provides information about the
24 status of a request to the requester, including an estimated date by which the agency will complete
25 its work. Id. § 552(a)(7). Courts have construed these provisions to include a requirement that
26
agencies, upon request, provide estimated completion dates to requesters. See, e.g., Sierra Club v.
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1 U.S. EPA, 75 F. Supp. 3d 1125, 1146 (N.D. Cal. 2014) (“[T]he Court finds that the EPA acted
2 unreasonably when it failed to inform Plaintiffs of an estimated completion date”).
3
21. A District Court has jurisdiction “to enjoin the agency from withholding agency
4
records and to order the production of any agency records improperly withheld from the
5
complainant.” 5 U.S.C.A. § 552(a)(4)(B).
6
7 22. Agency action under the FOIA is also subject to judicial review under the APA. Or.
8 Natural Desert Ass’n v. Gutierrez, 409 F. Supp. 2d 1237, 1248 (D. Or. 2006) (violation of the
9 FOIA’s decision deadline constitutes agency action that is not in accordance with the law). Under
10 the judicial review provisions of the APA, district courts are authorized to compel agency action
11
unlawfully withheld or unreasonably delayed. 5 U.S.C. § 706(1). District courts should also set
12
aside any agency action found to be arbitrary, capricious, an abuse of discretion, not in accordance
13
with law, or made without observation of required procedures. Id. § 706(2).
14
15 STATEMENT OF FACTS
16 FOIA Requests
17 23. On February 15, 2019, Maryon Attwood submitted a FOIA request to the Navy via
18
email seeking records regarding sampling for chemical components of aqueous film-forming foam
19
(AFFF) at and adjacent to Naval Air Station Whidbey Island and OLF Coupeville. The February
20
10, 2019 FOIA request sought six categories of records:
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a. Results of all soil and surface ground water (upper meter) samples,
22
23 including location and date, chemical components that were analyzed, and
24 the detection limits.

25
26

Attorneys at Law
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1 b. Results of any water and soil samples taken in Crockett Lake or its
2 adjacent marsh, including location and date, chemical components that
3
were analyzed, and the detection limits.
4
c. Results of any marine waters, any and fluvial waters including
5
location and date, chemical components that were analyzed, and the
6
7 detection limits.
8 d. Results of all wildlife (vertebrate and invertebrate) tested for the
9 presence of AFFF chemicals, including species or lowest identified taxon,

10 sample location and date, chemical components that were analyzed, and the
11
detection limits.
12
e. A list of the chemical components in the new AFFF that replaces the
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old stockpile, and any descriptions from the manufacturer related to the
14
15 toxicity or non-toxicity of the new AFFF chemical components to humans
16 and wildlife, precautions for use, and rate of chemical breakdown.
17 f. All records, policies, and correspondence related to when, where, and

18
under what circumstances the new AFFF will be used.
19
24. On February 20, 2019, Maryon Attwood received a response via email from Richard
20
Mach, from the email address richard.mach@navy.mil, stating in full:
21
“Thank you for forwarding this to us. I have sent this to our FOIA office
22
23 to ensure prompt and properly coordinated response.
24 VR,
25 Richard”
26

Attorneys at Law
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1 25. Maryon Attwood has not, as of the date of this complaint, received any further
2 response from the Navy to her February 15, 2019 FOIA request.
3
26. As of the date of this complaint, the Navy has not assigned a FOIA tracking number
4
to Maryon Attwood’s February 15, 2019 FOIA request.
5
27. As of the date of this complaint, the Navy has not made the initial determination
6
7 required by 5 U.S.C. § 552(a)(6)(A)(i) with regard to Maryon Attwood’s February 15, 2019 FOIA
8 request.
9 28. As of the date of this complaint, the Navy has not made a final determination with
10 regard to Maryon Attwood’s February 15, 2019 FOIA request.
11
29. As of the date of this complaint, the Navy has not provided an estimated date by
12
which it would respond to Maryon Attwood’s February 15, 2019 FOIA request.
13
30. On May 1, 2019, Robert Wilbur submitted a FOIA request to the Navy via email
14
15 with a hard copy following by mail, seeking nine categories of records:
16 a. All documents, including permitting records, pertaining to the siting and
17 operational use of the Radome and the FSQ-T22 Electronic Combat Trainer or of
18
any upgraded version of that equipment (hereafter “ECT”) at Outlying Field
19
Coupeville (OLFC).
20
b. All records of hours and number of days that the ECT at OLFC was used
21
from 2012 through 2018 in simulating radar signals for in-flight aircrew training
22
23 and for troubleshooting of an EA-18 G Growler Tactical Jamming System.
24 c. All records related to any new equipment installed, replaced or upgraded in

25 the Radome since 2008, including, Is any new equipment being added to interface
26
with the Growler’s on-board equipment.
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1 d. All records on how many hours and what times of day the OLFC stationary
2 transmitter transmitted for the years 2016 to the most recent use in 2019, including
3
documentation of
4
i. frequencies transmitted,
5
ii. modulation modes are used, and
6
7 iii. power levels (i.e., peak, instantaneous, pulsed, and average
8 power level).
9 e. All documents related to the Radome/stationary emitter’s receipt of

10 electronic signals from Growlers, including ECT interruptions of electronic
11
equipment functioning on the ground under the OLFC flight paths.
12
f. All documents pertaining to ECT evaluations of aircraft electronic warfare
13
performance to aircraft jamming responses to threat emitters, as well as, operator
14
15 data documenting Measure of Effectiveness.
16 g. Records documenting the most current projection of hours of ECT use at
17 OLFC in 2019, 2020, 2021, including frequencies to be transmitted, modulation

18
modes, as well as peak, instantaneous, pulsed, and average power levels that will be
19
used post-ROD.
20
h. All records, correspondence, meeting minutes, military and other studies and
21
documents related to or examining how the use of the ECT at OLFC and mobile
22
23 transmitters in the Olympic MOA could affect health and safety of individuals
24 exposed in the Coupeville and Olympic National Forest areas. Both brief and long-
25 term exposure are of particular interest.
26

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1 i. All records, emails, and websites that provide information in which the Navy
2 has informed the public about the risks of exposure related to the ECT facility and
3
ways to avoid deleterious exposure.
4
31. Robert Wilbur has, as of the date of this complaint, received no response whatsoever
5
from the Navy to his May 1, 2019 FOIA request.
6
7 32. As of the date of this complaint, the Navy has not assigned a FOIA Tracking
8 Number to Robert Wilbur’s May 1, 2019 FOIA request.
9 33. As of the date of this complaint, the Navy has not made the initial determination
10 required by 5 U.S.C. § 552(a)(6)(A)(i) with regard to Robert Wilbur’s May 1, 2019 FOIA request.
11
34. As of the date of this complaint, the Navy has not made a final determination with
12
regard to Robert Wilbur’s May 1, 2019 FOIA request.
13
14
15 which it would respond to Robert Wilbur’s May 1, 2019 FOIA request.
16 36. On May 13, 2019, Robert Wilbur submitted a FOIA request to the Navy seeking
17 “all records pertaining to the number of EA-18G Growlers to be received at NASWI that will be
18
equipped with the F414 Enhanced engine or, if already stationed at NASWI, to be retrofitted with
19
the enhanced engine.”
20
37. On May 14, 2019, Robert Wilbur received a response via email from George
21
Amerson, from the email address george.amerson@navy.mil, which included a FOIA tracking
22
23 number for Robert Wilbur’s May 13, 2019 FOIA request: DON-NAVY-2019-006841. The email
24 from George Amerson stated: “I am writing in reference to the Subject FOIA request, wherein you
25 seek documentation of all records pertaining to the number of EA-18G Growlers to be received at
26
NASWI equipped with F414 Enhanced engines or the number of Growlers that will be retrofitted
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1 with the enhanced engine. We are currently conducting a search for the responsive records that you
2 seek. I will update you within two days on the progress of our search.”
3
38. Robert Wilbur has, as of the date of this complaint, received no further response
4
from the Navy to his May 13, 2019 FOIA request regarding “all records pertaining to the number
5
of EA-18G Growlers to be received at NASWI that will be equipped with the F414 Enhanced
6
7 engine or, if already stationed at NASWI, to be retrofitted with the enhanced engine.”
8 39. As of the date of this complaint, the Navy has not made the initial determination
9 required by 5 U.S.C. § 552(a)(6)(A)(i) with regard to Robert Wilbur’s May 13, 2019 FOIA request.
11
regard to Robert Wilbur’s May 13, 2019 FOIA request.
12
13
which it would respond to Robert Wilbur’s May 13, 2019 FOIA request.
14
15 42. On June 19, 2019, the undersigned attorney Zachary Griefen submitted, on behalf
16 of Citizens of the Ebey’s Reserve for a Healthy, Safe and Peaceful Environment, a FOIA request
17 to the Navy via FOIA Online (https://foiaonline.gov/foiaonline/action/public/home), seeking the

18
following records:
19
a. The Naval Aviation Simulation Model (NASMOD) (ATAC Corporation, 2015)
20
study (herein, “NASMOD Study”) from which the annual flight operations and
21
runway utilization described in the NAS Whidbey Island Complex Growler
22
23 FEIS, Volume 2, Appendix A were derived.
24 b. All modeling files used in the NASMOD Study.

25 c. All communications (including, without limitation, emails, letters, texts,
26
memos, and phone logs) between the preparers of the noise study appearing in
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1 NAS Whidbey Island Complex Growler FEIS, Volume 2, Appendix A (herein,

2 “FEIS Noise Study” and the authors of the NASMOD Study. The requested
3
correspondence includes but is not limited to any records regarding or relating
4
to development of a “translation key” and/or identification or translation of
5
flight tracks, flight operations, runway utilization, or flight profiles as described
6
7 in NAS Whidbey Island Complex Growler FEIS, Volume 2, at A-20.
8 d. All modeling files used in the FEIS Noise Study.
9 e. All records, analyses, documents, or communications created or received by the

10 Navy after March 1, 2018, which include the terms “murrelet” or “murrelets.”
11
f. All records relating to approvals, exemptions, and/or waivers for use of the OLF
12
Coupeville runway, which at 5,500 feet in length is shorter than the 6,000 foot
13
runway length required by Electronic Attack Wing Standard Operating
14
15 Procedures and far shorter than the 8,000 foot length generally required by the
16 Navy for Class B runways.
17 g. Records that would document, or enable tallying of, the following in regard to
18
EA-18G Growler use of Outlying Field (OLF) Coupeville for field carrier
19
landing practice (FCLP) in year 2018; also the same records for January 1
20
through June 19, 2019:
21
h. Number of days scheduled for FCLP operations and number of days when
22
23 FCLPs were actually conducted.
24 i. Number of days when FCLPs were conducted on Path 14; number of days on
25 Path 32.
26
j. Number of FCLP operations on Path 14; number of operations on Path 32.
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1 k. Number of night (after 2200 hours) operations.

2 l. Number of days scheduled for FCLP operations that were cancelled at OLF.
3
m. Records that would document, or enable tallying, the same information as
4
described above in Request No. 7 (and its subparts) for Ault Field FCLP paths
5
in year 2018; also the same Ault Field records for January 1 through May 31,
6
7 2019. The above requested records were previously provided for 2017, and that
8 same format would be preferred if possible (see attachment named: “Bounce
9 Data OLF 2017”).

10 n. All records of near mishaps, including but not limited to near mid-air collisions,
11
involving EA-18G Growlers based at NASWI, including full analysis, time,
12
date, and location of the incident.
13
43. On June 19, 2019, Mr. Griefen received an email from “admin@foiaonline.gov”
14
15 confirming the June 19, 2019 submission date of COER’s FOIA request and assigning FOIA
16 tracking number DON-NAVY-2019-008253 to that request.
17 44. July 1, 2019, Mr. Griefen received an email from Lisa Ellis-Shooks, a Government
18
Information Specialist at the Naval Safety Center in Norfolk, Virginia, stating:
19
Mr. Griefen,
20
North Region Northwest forwarded a portion of your FOIA request (#9) pertaining
21 to the mishap reports for all EA-18G Growlers near mid-air collisions based at
NASWI (full analysis, time, date, and location of the incident) to us to process and
22
we have assigned it an internal tracking number of 2019-NSC-363.
23
If you have any questions or concerns, feel free to contact us at the number listed below.
24
25
26

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1 45. The July 1, 2019 email that attorney Griefen received Lisa Ellis-Shooks included,
2 below her signature, an email to Ms. Ellis-Shooks from Craig Thedwall, Region Environmental
3
Counsel for Navy Region Northwest, stating:
4
Ma’am,
5
Thanks for chatting with me today. Here is the request from COER, and the line
6 item that I think you are responsive for is #9. In my opinion, the other line items are
7 likely to have other units/commands as responders. I’m working with those other
units/commands on those line items.
8
Thanks very much…ccing Mr. Chuck VanCleave, the FOIA officer for NAVFAC
9 Northwest.
10 46. On July 1, 2019, Mr. Griefen relied to Ms. Ellis-Shooks via email, stating:
11
Dear Ms. Ellis-Shooks,
12
Thank you for your email. Please provide me with an estimated completion date for
13 your processing of the portion of COER’s FOIA request (#9) pertaining to the
mishap reports for all EA-18G Growlers near mid-air collisions based at NASWI
14
(full analysis, time, date, and location of the incident), to which you have assigned
15 an internal tracking number of 2019-NSC-363.
16 I have copied David Bricklin on this reply, please cc him on emails going forward.
17 Sincerely,
18
Zak Griefen
19
47. On July 1, 2019, Ms. Ellis-Shooks responded via email to Mr. Griefen’s request for
20
an estimated completion date for the portion of FOIA request No. DON-NAVY-2019-008253 that
21
she was processing, stating:
22
23 Mr. Griefen,
24 Thank you for your email. Unfortunately, I am unable to give you an approximate
completion date at this point. Until we receive the data back from our data personnel,
25 I have no way of knowing how much information is involved in this request. Please
26 know that we have received over 365 requests since January 1st so we are extremely
busy but please rest assured we are processing requests as quickly as possible.
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1 Please feel free to contact us back in a couple weeks to see where we are with the
response. If you have any further concerns or questions, feel free to contact us at the
2 number listed below.
3
Thank you.
4
48. On July 16, 2019, attorney Griefen received an email from “admin@foiaonline.gov”
5
with the title “FOIA Fee Waiver Disposition Reached for DON-NAVY-2019-008253.” The email
6
7 stated that a fee waiver had been granted for this request and noted a “request created” date of June
8 19, 2019.
9 49. Also on July 16, 2019, attorney Griefen received an email from
10 “admin@foiaonline.gov” with the title “FOIA Request DON-NAVY-2019-009108 Submitted.”
11
The body of this email provided “request information,” including that the Navy had assigned
12
tracking number DON-NAVY-2019-009108 to the request, that the request was submitted on July
13
5, 2019, and that the request was for “All records, analyses, documents, or communications created
14
15 or received by the Navy after March 1, 2018, which include the terms ‘murrelet’ or ‘murrelets.’”
16 50. Attorney Griefen did not submit any FOIA request on July 5, 2019.
17 51. The description of the records requested in the email titled “FOIA Request DON-
18
NAVY-2019-009108 Submitted” is identical to the fifth numbered paragraph in the FOIA request
19
submitted by attorney Griefen on June 19, 2019 and assigned tracking number DON-NAVY-2019-
20
008253.
21
52. Upon information and belief, after the Navy received attorney Griefen’s FOIA
22
23 request on June 19, 2019 and assigned it tracking number DON-NAVY-2019-008253, the Navy,
24 for reasons unknown and unexplained, took the fifth numbered paragraph from that June 19, 2019
25 request, assigned that portion of the request its own tracking number (DON-NAVY-2019-009108),
26

Attorneys at Law
Tel. (206) 264-8600
Fax. (206) 264-9300
1 and provided a new “date submitted” of July 5, 2019, sixteen days after the request was actually
2 submitted.
3
53. Citizens of Ebey’s Reserve has, as of the date of this complaint, received no further
4
response from the Navy to its June 19, 2019 FOIA request No. DON-NAVY-2019-008253.
5
54. As of the date of this complaint, the Navy has not made the initial determination
6
7 required by 5 U.S.C. § 552(a)(6)(A)(i) with regard to COER’s FOIA request No. DON-NAVY-
8 2019-008253.
10 regard to COER’s FOIA request No. DON-NAVY-2019-008253.
11
12
which it would respond to COER’s FOIA request No. DON-NAVY-2019-008253.
13
FOIA Appeal
14
15 57. On May 15, 2018, Maryon Attwood submitted a FOIA request to the Navy seeking
16 three categories of records regarding the EA-18G “Growler” aircraft destined for naval Air Station
17 Whidbey Island, including records relating to noise tests of new engines that the Navy proposes to
18
install in the “Growler” aircraft.
19
58. On June 20, 2018, the Navy’s Barbara Nimmerrichter responded to Maryon
20
Attwood via email, assigning FOIA tracking number DON-NAVY-2018-008291 to Maryon
21
Attwood’s May 15, 2018 FOIA request, asking a question about the request, and stated: “We have
22
23 a significant FOIA backlog and that we are currently processing on a first in, first out basis. We
24 will provide monthly status updates to all requestors. We apologize ahead of time for delayed
25 responses but appreciate your patience as we work through our backlog.”
26

Attorneys at Law
Tel. (206) 264-8600
Fax. (206) 264-9300
1 59. Maryon Attwood and Barbara Nimmerrichter exchanged emails on June 26 and July
2 18, 2018, regarding the scope of Maryon Attwood’s FOIA request.
3
60. On September 17, 2018, Maryon Attwood sent Barbara Nimmerrichter an email
4
stating, in part: “Since 4 months have elapsed, we hope our overdue FOIA request is given
5
appropriate priority.”
6
7 61. On September 21, 2018, Maryon Attwood and Barbara Nimmerrichter spoke on the
8 phone and Ms. Nimmerrichter sent Ms. Attwood an email summarizing Ms. Attwood’s FOIA
9 request as seeking three categories of records, only the third of which is relevant to this lawsuit:
10 “3. Records and test results of loudness (i.e., decibels on A scale and if available, C-scale) of the
11
F414 enhanced engine and the F414-400 series engine.”
12
62. On January 7, 2019, the Navy responded to the request for information described in
13
the preceding paragraph by producing (under a cover letter) a single document, a PDF version of a
14
15 slideshow. The PDF version of a slideshow was redacted under FOIA exemption 6. The Navy’s
16 cover letter stated “You may consider this to be an adverse determination that may appealed” and
17 provided instructions for appealing the adverse determination.

18
63. The Navy assigned FOIA tracking number DON-NAVY-2018-008291 to Maryon
19
Attwood’s May 15, 2018 FOIA request, as amended on September 21, 2018.
20
64. On April 2, 2019, Bricklin & Newman, LLP filed an appeal of the Navy’s adverse
21
determination on behalf of Maryon Attwood. The following day, April 3, 2019, Bricklin &
22
23 Newman, LLP filed an amended appeal.
24 65. The April 3, 2019 amended appeal concerned “the failure of the Navy to provide
25 any other documents beside the single redacted document[.]”
26

Attorneys at Law
Tel. (206) 264-8600
Fax. (206) 264-9300
1 66. The April 3, 2019 amended appeal noted: “This is not a case where the Navy has
2 identified other documents and advised our client that they were being withheld under an
3
exemption. Rather, the Navy has not made reference to any other documents at all in its possession
4
which would be responsive to the above-quoted request. It strains credulity to believe that the Navy
5
has no other documents. For instance, there must be documents that form the basis for the slide
6
7 show document that was produced (with redactions).”
8 67. On April 30, 2019, the Navy’s Richard Zeigler responded to the April 3, 2019
9 amended FOIA appeal by letter and assigned the FOIA Appeal tracking number DON-NAVY-
10 2019-005768.
11
68. The Navy’s April 30, 2019 response letter stated that Mr. Zeigler had coordinated
12
with the Navy’s “Initial Denial Authority (IDA)” and that after his discussion with IDA’s FOIA
13
staff and legal office, “the IDA agreed to reconsider the action taken in this matter and conduct an
14
15 additional search.”
16 69. The Navy’s April 30, 2019 response letter went on to state: “Accordingly, I hereby
17 close your appeal to permit the IDA to reconsider the action (and, by copy of this letter, I remand
18
it to the IDA for appropriate action). […] If, upon receipt of the IDA’s final action, you wish to
19
appeal, you may do so to this office.”
20
70. In April 2019, the Navy’s Barbara Nimmerrichter communicated with David
21
Bricklin and told him that the Navy would resume its search for responsive records, as later
22
23 confirmed by the Navy’s April 30, 2019 response letter.
24 71. The Navy’s April 30, 2019 response letter was received by Bricklin & Newman,
25 LPP on May 7, 2019. On that day, after receiving the letter, David Bricklin wrote to the Navy’s
26
Barbara Nimmerrichter via email, stating:
Attorneys at Law
Tel. (206) 264-8600
Fax. (206) 264-9300
1 Several weeks ago, you told me you were resuming the search for documents
responsive to our request. Consistent with that, today I received the
2 attached letter from the FOIA appeal office, stating the appeal was being
3 dismissed based on the Navy's promise to resume searching for responsive
documents. But I still have no documents from you. Please advise of the
4 status of your efforts and a date by which I can expect the documents you
locate.
5
6 72. On May 8, 2019, Barbara Nimmerrichter replied to David Bricklin via email,
7 stating:
8
We are in the process of conducting a thorough search for responsive
9 documents. To date, we have not been able to locate any other documents.
We will continue to search and keep you posted.
10 Thank you for your patience.
11
73. On May 8, 2019, David Bricklin replied to Barbara Nimmerrichter via email,
12
stating:
13
14 It is hard to understand how it could take this long to find the documents.
Who created the slide shows you sent? That person had access to the
15 underlying documents which were used to create the slide shows. Contact
that person and get the documents that were used to create the slideshow.
16 And ask him/her, who provided those and then contact that person for any
other documents they have responsive to our request. This should take two
17 days not six months.
18
What is your estimate for a response? At some point soon, I will be forced
19 to construe the delay as a willful failure to respond. I'd obviously like to
avoid getting to that point. Please help me. Thank you.
20
74. On May 9, 2019, Barbara Nimmerrichter replied to David Bricklin via email,
21
22 stating:
23 We consulted with the creator of the briefs we provided to you and below is
his response:
24
"I have not found any other documents than these NNT reports, as the event
25
was so long ago. There are no other reports showing the "Results" i.e. the
26 sound levels that I am aware of. I was responsible for compiling and
writing these reports.
Attorneys at Law
Tel. (206) 264-8600
Fax. (206) 264-9300
1
The results were developed on a very tight timetable to answer the question
2 as to whether the Chevrons noise reduction solution worked or not. This kept
3 it from being developed in a more Official format. Once it was discovered
that Chevrons did not work as expected, it was thought that further work
4 would be done to fix the Chevron prototypes and retest. That has not
happened yet as of this date due to funding limitations."
5
We have made contact with other individuals who may have additional
6 information. I understand your frustration, but hopefully this provides some
7 reassurance that we are doing our best to track down the records.
Unfortunately, it was not as simple as going to the creator of the
8 PowerPoint and having him send underlying data.
9 Thank you for your patience and understanding as we continue our search.
10
75. On May 9, 2019, David Bricklin relied to Barbara Nimmerrichter stating:
11
Thank you for that explanation. That's very helpful. Please keep me posted
12
on your efforts.
13
14 76. On June 2, 2019, Barbara Nimmerrichter replied to David Bricklin stating:
15 We have located some documents that we believe could be responsive to your

FOIA request. These documents are currently being reviewed by another
16 office at this time. Unfortunately, I will be out of the office next week
but hope to have an answer on these documents once I return. I will keep
17 you posted.
18 Thank you for your patience and understanding.
19 77. As of the date of this complaint, there has been no further response from the Navy
20 to FOIA Appeal No. DON-NAVY-2019-005768 or to the FOIA request underlying that appeal,
21
No. DON-NAVY-2018-008291.
22
78. As of the date of this complaint, the Navy has not made an initial determination that
23
complies with 5 U.S.C. § 552(a)(6)(A)(i) regarding FOIA Request No. DON-NAVY-2018-008291
24
(on remand) that resulted in FOIA Appeal No. DON-NAVY-2019-005768.
25
26

Attorneys at Law
Tel. (206) 264-8600
Fax. (206) 264-9300
2 regard to FOIA request No. DON-NAVY-2018-008291 (on remand).
3
80. As of the date of this complaint, the Navy has not provided a meaningful estimated
4
date by which it would respond to Maryon Attwood’s May 15, 2018 FOIA request No. DON-
5
NAVY-2018-008291 (on remand), has not complied with the less-than-meaningful “estimated
6
7 date” provided in Barbara Nimmerrichter’s June 2, 2019 email (“Unfortunately, I will be out of the
8 office next week but hope to have an answer on these documents once I return”), and has not
9 provided a new estimated date by which it would respond.

10 81. Having already filed an administrative appeal of the Navy’s action with regard to
11
Maryon Attwood’s May 15, 2018 FOIA request No. DON-NAVY-2018-008291 once, resulting in
12
the Navy closing the appeal and remanding the FOIA request back to the Navy’s Initial Denial
13
Authority, FOIA office and legal staff for reconsideration, and facing renewed failures by the Navy
14
15 to comply with FOIA and unlawful delays under FOIA on remand, Maryon Attwood seeks redress
16 from this court, rather filing a new FOIA administrative appeal.
17
CAUSES OF ACTION
18
19 CLAIM 1
20 VIOLATIONS OF THE FREEDOM OF
INFORMATION ACT IN RESPONDING TO COER’S FOIA
REQUESTS: VIOLATION OF THE DECISION
21 DEADLINES IN THE FOIA
22
23 82. Plaintiffs hereby incorporate by reference the allegations in the preceding
24 paragraphs.
25 83. Plaintiffs have a statutory right to have the Navy process their FOIA Requests in a
26 manner that complies with the FOIA. The Navy violated plaintiffs’ rights in this regard when the

Attorneys at Law
Tel. (206) 264-8600
Fax. (206) 264-9300
1 Navy unlawfully delayed its response to plaintiffs’ FOIA Requests beyond the deadlines imposed
2 by the FOIA.
3
84. The Navy violated and is violating the FOIA by failing to respond to plaintiffs’
4
FOIA Requests with a “determination” within the deadline set forth in 5 U.S.C. § 552(a)(6)(A)(i).
5
85. Plaintiffs have a statutory right to have the Navy process their FOIA Appeal in a
6
7 manner that complies with the FOIA. The Navy violated plaintiffs’ rights in this regard when the
8 Navy unlawfully delayed its response to their FOIA Appeal beyond the deadlines imposed by the
9 FOIA.
10 86. The Navy’s violations of the FOIA with respect to its response to plaintiffs’ FOIA
11
Requests and FOIA Appeal entitle plaintiffs to an award of reasonable attorneys’ fees and other
12
litigation costs pursuant to 5 U.S.C. § 552(a)(4)(E).
13
CLAIM 2
14
VIOLATION OF THE FREEDOM OF INFORMATION ACT:
15 UNLAWFUL CONSTRUCTIVE DENIAL/UNLAWFUL WITHHOLDING
16 87. Plaintiffs hereby incorporate by reference the allegations in the preceding
17 paragraphs.
18
88. Plaintiffs have a statutory right to the records, or portions of records, they seek.
19
There is no legal basis for the Navy to withhold the records responsive to plaintiffs’ FOIA Requests
20
and FOIA Appeal.
21
89. The Navy has violated and is violating plaintiffs’ rights by unlawfully withholding
22
23 non-exempt documents responsive to their FOIA Requests and FOIA Appeal. The Navy’s actions,
24 or lack of action, in response to plaintiffs’ FOIA Requests and FOIA Appeal constitute constructive
25 and/or unlawful denials of their FOIA Requests and FOIA Appeal.
26

Attorneys at Law
Tel. (206) 264-8600
Fax. (206) 264-9300
1 90. The Navy’s violations of the FOIA with respect to its response to plaintiffs’ FOIA
2 Requests and FOIA Appeal entitle plaintiffs to an award of reasonable attorneys’ fees and other
3
litigation costs pursuant to 5 U.S.C. § 552(a)(4)(E).
4
PRAYER FOR RELIEF
5
6 WHEREFORE, plaintiffs respectfully request that the Court:
7 A. Adjudge and declare that the Navy has violated the FOIA for the reasons set forth
8 above;
9
B. Order the Navy to comply immediately with the FOIA by providing plaintiffs with
10
the required determinations, estimated completion dates, and non-exempt public records subject to
11
plaintiffs’ FOIA Requests and FOIA Appeal;
12
13 C. Declare that plaintiffs are the prevailing parties and/or substantially prevailing
14 parties in this matter under FOIA, 5 U.S.C. § 552(a)(4)(E).
15 D. Declare that plaintiffs are the prevailing parties, that the position of the government
16
in this action was not substantially justified, and that there are no special circumstances that make
17
an award of costs and reasonable attorneys’ fees to plaintiffs unjust under the Equal Access to
18
Justice Act, 28 U.S.C. § 2412;
19
E. Award plaintiffs their reasonable attorneys’ fees and litigation costs under FOIA, 5
20
21 U.S.C. § 552(a)(4)(E); and/or award plaintiffs their reasonable fees, expenses, costs, and
22 disbursements, including attorneys’ fees associated with this litigation, under the Equal Access to
23 Justice Act, 28 U.S.C. § 2412;
24
F. Grant plaintiffs such additional relief as the Court may deem just or proper.
25
26

Attorneys at Law
Tel. (206) 264-8600
Fax. (206) 264-9300
1
Dated this 17th day of July, 2019.
2
3 Respectfully submitted,
4 CITIZENS OF THE EBEY’S RESERVE FOR A

HEALTHY, SAFE AND PEACEFUL
5 ENVIRONMENT; ROBERT WILBUR; and
MARYON ATTWOOD,
6
7 By and through their attorneys,
8
BRICKLIN & NEWMAN, LLP
9
By: /s/ Zachary Griefen
10 /s/ David A. Bricklin
11 /s/ Claudia M. Newman
David A. Bricklin, WSBA No. 7583
12 Claudia M. Newman, WSBA No. 24928
Zachary K. Griefen, WSBA No. 48608
13 1424 Fourth Avenue, Suite 500
Seattle, WA 98101
14
Telephone: 206-264-8600
15 Facsimile: 206-264-9300
E-mail: bricklin@bnd-law.com
16 E-mail: newman@bnd-law.com
E-mail: griefen@bnd-law.com
17 Attorneys for Plaintiffs
18
19
20
21
22
23
24
25
26

Attorneys at Law
Tel. (206) 264-8600
Fax. (206) 264-9300

2019-07-17 Amended COER Complaint of Case 2:19-cv-01041-MJP

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2019-07-17 Amended COER Complaint of Case 2:19-cv-01041-MJP

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Case 2:19-cv-01041-MJP Document 7 Filed 07/17/19 Page 1 of 25

7 JURISDICTION AND VENUE

8 6. This Court has jurisdiction pursuant to 5 U.S.C. § 552(a)(4)(B) (FOIA) and 28

15 rise to plaintiffs’ claims occurred in this district.

17 behalf and on behalf of Citizens of Ebey’s Reserve.

24 and sought by plaintiffs.

Bricklin & Newman, LLP

8 Rubber Co., 437 U.S. 214, 242 (1978)).

16 segregated from the exempt materials. 5 U.S.C. § 552(b).

24 the detection limits.

Bricklin & Newman, LLP

8 d. Results of all wildlife (vertebrate and invertebrate) tested for the

9 presence of AFFF chemicals, including species or lowest identified taxon,

15 toxicity or non-toxicity of the new AFFF chemical components to humans

16 and wildlife, precautions for use, and rate of chemical breakdown.

17 f. All records, policies, and correspondence related to when, where, and

23 to ensure prompt and properly coordinated response.

Bricklin & Newman, LLP

15 with a hard copy following by mail, seeking nine categories of records:

16 a. All documents, including permitting records, pertaining to the siting and

23 and for troubleshooting of an EA-18 G Growler Tactical Jamming System.

24 c. All records related to any new equipment installed, replaced or upgraded in

7 iii. power levels (i.e., peak, instantaneous, pulsed, and average

9 e. All documents related to the Radome/stationary emitter’s receipt of

15 data documenting Measure of Effectiveness.

16 g. Records documenting the most current projection of hours of ECT use at

17 OLFC in 2019, 2020, 2021, including frequencies to be transmitted, modulation

Bricklin & Newman, LLP

8 Number to Robert Wilbur’s May 1, 2019 FOIA request.

15 which it would respond to Robert Wilbur’s May 1, 2019 FOIA request.

17 to the Navy via FOIA Online (https://foiaonline.gov/foiaonline/action/public/home), seeking the

23 FEIS, Volume 2, Appendix A were derived.

24 b. All modeling files used in the NASMOD Study.

1 NAS Whidbey Island Complex Growler FEIS, Volume 2, Appendix A (herein,

7 in NAS Whidbey Island Complex Growler FEIS, Volume 2, at A-20.

8 d. All modeling files used in the FEIS Noise Study.

9 e. All records, analyses, documents, or communications created or received by the

16 Navy for Class B runways.

23 FCLPs were actually conducted.

1 k. Number of night (after 2200 hours) operations.

8 same format would be preferred if possible (see attachment named: “Bounce

9 Data OLF 2017”).

16 tracking number DON-NAVY-2019-008253 to that request.

Bricklin & Newman, LLP

Bricklin & Newman, LLP

Bricklin & Newman, LLP

17 provided instructions for appealing the adverse determination.

23 Newman, LLP filed an amended appeal.

Bricklin & Newman, LLP

7 show document that was produced (with redactions).”

23 confirmed by the Navy’s April 30, 2019 response letter.

14 76. On June 2, 2019, Barbara Nimmerrichter replied to David Bricklin stating:

15 We have located some documents that we believe could be responsive to your

Bricklin & Newman, LLP

9 provided a new estimated date by which it would respond.

16 from this court, rather filing a new FOIA administrative appeal.

23 82. Plaintiffs hereby incorporate by reference the allegations in the preceding

Bricklin & Newman, LLP

16 87. Plaintiffs hereby incorporate by reference the allegations in the preceding

Bricklin & Newman, LLP

6 WHEREFORE, plaintiffs respectfully request that the Court:

14 parties in this matter under FOIA, 5 U.S.C. § 552(a)(4)(E).

Bricklin & Newman, LLP

4 CITIZENS OF THE EBEY’S RESERVE FOR A