United States District Court, N.D. California
ORDER GRANTING MOTION TO TRANSFER
RICHARD SEEBORG, UNITED STATES DISTRICT JUDGE.
2019, the United States Environmental Protection Agency
(“EPA”) published a rule updating the processes
and guidelines by which it would manage Freedom of
Information Act (“FOIA”) requests. Organizational
plaintiffs Ecological Rights Foundation
(“EcoRights”) and Our Children's Earth
Foundation (“OCE”) quickly brought this action
averring that the new rule violates various provisions of the
FOIA and the Administrative Procedure Act
(“APA”). Within days, other plaintiffs had also
brought litigation challenging the rule under similar
statutory provisions in the United States District Court for
the District of Columbia (“D.D.C.”). The EPA now
requests, pursuant to 28 U.S.C. § 1404(a), that the
present case be transferred to D.D.C. Pursuant to Civil Local
Rule 7-1(b), the motion is suitable for disposition without
oral argument, and the hearing set for November 7, 2019 is
vacated. For the reasons set forth below, the motion is
and OCE are both nonprofit environmental groups based in
Northern California. They frequently submit FOIA requests to
the EPA as part of their advocacy work. Earlier this year,
the EPA promulgated a new rule updating how it would manage
FOIA requests. See FOIA Regulations Update, 84 Fed.
Reg. 30, 028 (June 26, 2019) (codified at 40 C.F.R. § 2)
(“the Rule”). The Rule was issued without
notice-and-comment procedures by invoking an APA exception.
It makes numerous changes to the EPA's processes and
guidelines for FOIA requests, including: (1) centralizing all
FOIA requests at the EPA's national headquarters, as
opposed to its field offices; (2) allowing the Administrator
of the EPA, a political appointee, to make final FOIA
determinations; (3) setting the day the request is received
as the presumptive search cut-off date for all FOIA requests;
(4) withholding portions of requested records based on an
internal determination that they are nonresponsive; and (5)
changing certain regulatory language.
24, 2019, plaintiffs sued in the Northern District of
California averring that the Rule violates various provisions
of the APA and the FOIA. Procedurally, plaintiffs argue, the
Rule's promulgation without notice-and-comment procedures
violates the APA and the FOIA, as the Rule does not fall
squarely into either of the notice-and-comment exceptions.
Substantively, according to plaintiffs, some of the changes
that the Rule makes are unreasonable, arbitrary, capricious,
and otherwise not in accordance with law, again violating
both the APA and the FOIA.
before plaintiffs filed their lawsuit, organizational
plaintiff Citizens for Responsibility and Ethics in
Washington filed a similar lawsuit against the EPA in D.D.C.
Citizens for Responsibility and Ethics in Washington
(“CREW”) v. EPA, No. 19-cv-02181 (D.D.C.
filed July 23, 2019). The CREW complaint similarly
challenges the Rule by averring violations of the APA's
procedural and substantive requirements, i.e. that the Rule
should have been promulgated pursuant to notice and comment
and is arbitrary, capricious, and contrary to law, and of the
FOIA's unlawful policy or practice provision. It
highlights many of the same elements of the Rule as does the
complaint in this case: the centralization requirement, the
Administrator's final FOIA determination power, and the
bypass of notice-and-comment procedures. The CREW
complaint also takes issue with parts of the Rule that the
complaint in this case does not, for example the new power of
EPA political appointees to delegate final FOIA
the same day that the present case was filed, plaintiffs
Center for Biological Diversity and the Environmental
Integrity Project filed yet another lawsuit, also in D.D.C.,
challenging the Rule. Center for Biological Diversity
(“CBD”) v. EPA, No. 19-cv-02198 (D.D.C.
filed July 24, 2019). That complaint again stems from the
promulgation of the Rule and avers violations of the APA and
the FOIA's rulemaking requirements, as well as
substantive violations of the APA. It mentions some of the
same facts as the CREW complaint and the complaint
in the present case-for example the centralization
requirement-but also alleges facts that neither of the other
complaints do: for example that the EPA has unlawfully
bypassed APA and FOIA procedures in issuing other directives
besides the Rule.
than two months after the complaint in this case had been
filed-before the EPA had answered it-plaintiffs filed a
Motion for Summary Judgment. The EPA then filed the present
Motion to Transfer this case to D.D.C., or alternatively to
stay it while the CREW and CBD proceedings
are ongoing. The EPA has expressed an intent to move to
consolidate the cases in D.D.C. should the transfer be
granted; in fact, parties in CREW and CBD
have already filed notices that those cases are related to
the convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to
any other district or division where it might have been
brought or to any district or division to which all parties
have consented.” 28 U.S.C. § 1404(a). If the
action could have been brought in the target district,
Hoffman v. Blaski, 363 U.S. 335, 343-44 (1960),
courts then weigh a variety of factors including:
(1) where the relevant agreements were negotiated and
executed, (2) which state is most familiar with governing
law, (3) the plaintiff's choice of forum, (4) the
parties' contacts with each forum, (5) the parties'
contacts with each forum that are related to the cause of
action, (6) the relative costs of litigating in each forum,
(7) the availability of compulsory process in each forum, and
(8) access to evidence in each forum.
See Jones v. GNC Franchising, Inc., 211 F.3d 495,
498-99 (9th Cir. 2000). Consistent with the above, courts in
this district have articulated additional factors such as
feasibility of consolidation with other claims, local
interest in the controversy, and relative court congestion.
See Vu v. Ortho-McNeil Pharmaceutical, Inc., 602
F.Supp.2d 1151, 1156 (N.D. Cal. 2009). Whether to transfer is
generally left to the discretion of the district court.
See Ventress v. Japan Airlines, 486 F.3d 1111, 1118
(9th Cir. 2007); Commodity Futures Trading Comm'n v.
Savage, 611 F.2d 270, 279 (9th Cir. 1979)
(“Weighing of the factors for and against transfer
involves subtle considerations and is best left to the
discretion of the trial judge.”).