The federal government has asked a federal court to reject a request by plaintiffs in a First Responder Network Authority (FirstNet) Freedom of Information Act lawsuit to appeal a recent decision of the court even though the case is not final. A U.S. District Court judge in Vermont last month granted a motion to dismiss or grant summary judgment in favor of the government on all but one of 18 counts in the lawsuit, which is seeking FirstNet records (TR Daily, Jan. 2). The court said FirstNet was exempt from FoIA under the Middle Class Tax Relief and Job Creation Act of 2012, which created FirstNet.

On the last count, Judge Geoffrey W. Crawford reserved making a decision pending a supplemental briefing. The count “requests injunctive relief prohibiting FirstNet from collecting personally identifiable information until proper privacy impact assessments are complete,” the judge noted in his Dec. 20 decision. “The defendant moved to dismiss count 18 for lack of jurisdiction and failure to state a claim.”

On Dec. 22, the plaintiffs filed a motion for certification of an interlocutory appeal. In a response filed yesterday on behalf of the Commerce Department, the government asked the court to reject the plaintiffs’ request. “Ever since filing their original complaint, Plaintiffs have attempted to dress this FOIA case up as something out of the ordinary by adding policy and practice claims, seeking expedited review of the entire case, and by styling the case as a class action. In fact, this case is a run-of-the-mill FOIA case in which Plaintiffs requested documents, and Defendant, through this litigation, has provided support for its responses to Plaintiffs’ FOIA requests,” the government said. “Following this Court’s December 20, 2017 Decision (Doc. No. 32), which dismissed Counts 1-17 of Plaintiffs’ Amended Complaint and ordered supplemental briefing on Count 18, Plaintiffs’ Motion for Certification of Interlocutory Appeal (Doc. No. 33) is their latest attempt to argue that this case requires special treatment. Yet again, Plaintiffs have failed in their effort. As explained fully below, Plaintiffs have not satisfied any of the requirements for an interlocutory appeal under 28 U.S.C. § 1292(b). Therefore, Plaintiffs’ Motion should be denied, and this case should proceed to final judgment following the already-ordered supplemental briefing on Count 18.”

The government’s filing said that the “[p]laintiffs fail to establish that this is an exceptional case that should create a rare exception to the final judgment rule.” It added that they “do not identify a pure question of law for efficient appellate review” and that Judge Crawford’s “rulings were plainly correct.”

“An immediate appeal would likely complicate and draw out the litigation,” the government also said.

The suit (“Stephen Whitaker and David Gram v. Department of Commerce,” case 5:17-cv-192) was filed by Stephen Whitaker, a Vermont resident and government accountability advocate, and David Gram, a reporter for “VTDigger,” a non-profit web-based publication (TR Daily, Oct. 6, 2017).- Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily