Free Answer to Complaint - District Court of California - California

Case 4:07-cv-04212-SBA

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Filed 09/20/2007

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SCOTT N. SCHOOLS (SC 9990) United States Attorney JOANN M. SWANSON (CSBN 88143) Chief, Civil Division ELLEN M. FITZGERALD (NY 2408805) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, CA 94102-3495 Tel: (415) 436-7314 Fax: (415) 436-6748 E-mail: [email protected] Attorneys for Defendant UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 SIERRA CLUB 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ANSWER TO PLAINTIFF'S COMPLAINT FOR INJUNCTIVE RELIEF C 07-4112 EMC 2. Defendant, United States Federal Emergency Management Agency, by and through its undersigned attorneys, hereby answers plaintiffs' Complaint for Injunctive Relief (the "Complaint") as follows: 1. Neither admits nor denies the statement in paragraph 1 of the Complaint because ) ) Plaintiff, ) ) v. ) ) U.S. FEDERAL EMERGENCY ) MANAGEMENT AGENCY, ) ) Defendant. ) ____________________________________) Case No. CV 07-4212 EMC ANSWER TO PLAINTIFF'S COMPLAINT FOR INJUNCTIVE RELIEF

it constitutes the legal basis for the complaint and/or a conclusion of law as to which no answer is required; however, specifically denies that defendant has improperly withheld agency records. JURISDICTION Neither admits nor denies the allegations in paragraph 2 of the Complaint because

they constitute the legal basis for the complaint and/or conclusions of law as to which no answer

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is required. VENUE 3. Neither admits nor denies the allegation in paragraph 3 of the Complaint because

it constitutes the legal basis for the complaint and/or a conclusion of law as to which no answer is required. INTRADISTRICT ASSIGNMENT 4. Neither admits nor denies the allegations in paragraph 4 because they are

jurisdictional allegations to which no response is required. PARTIES 5. Denies knowledge or information sufficient to form a belief as to the truth of the

allegations in paragraph 5 of the Complaint. 6. Denies knowledge or information sufficient to form a belief as to the truth of the

allegations in paragraph 6 of the Complaint. 7. Denies knowledge or information sufficient to form a belief as to the truth of the

allegations in paragraph 7 of the Complaint. 8. Denies the allegations in paragraph 8 of the Complaint except admits that

defendant, the Federal Emergency Management Agency ("FEMA"), is an agency within the meaning of 5 U.S.C. § 552(f), and there are ten regional FEMA offices. FACTS 9. Neither admits nor denies the allegation in paragraph 9 of the Complaint because

it constitutes a conclusion of law as to which no response is required and respectfully refers the Court to the statute as the best statement of its contents. 10. Neither admits nor denies the allegation in paragraph 10 of the Complaint because

it constitutes a conclusion of law as to which no response is required and respectfully refers the Court to the statute as the best statement of its contents. 11. Neither admits nor denies the allegations in paragraph 11 of the Complaint

ANSWER TO PLAINTIFF'S COMPLAINT FOR INJUNCTIVE RELIEF C 07-4112 EMC 2

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because they constitute conclusions of law as to which no response is required and respectfully refers the Court to the statute as the best statement of its contents. 12. Neither admits nor denies the allegation in paragraph 12 of the Complaint because

it constitutes a conclusion of law as to which no response is required and respectfully refers the Court to the statute as the best statement of its contents. 13. Neither admits nor denies the allegation in paragraph 13 of the Complaint because

it constitutes a conclusion of law as to which no response is required and respectfully refers the Court to the statute as the best statement of its contents. 14. Neither admits nor denies the allegations in paragraph 14 of the Complaint

because they constitute conclusions of law as to which no response is required and respectfully refers the Court to the statute as the best statement of its contents. 15. Admits the allegations in paragraph 15 of the Complaint and respectfully refers

the Court to plaintiff's letters, dated July 6, 2007, to defendant's regional offices as the best statement of plaintiff's FOIA requests. 16. 17. Admits the allegations in paragraph 16 of the Complaint. Denies the allegations in the first sentences of paragraph 17 of the Complaint

except admits that, by letter dated July 12, 2007, FEMA Region IV acknowledged receipt of plaintiff's FOIA request and respectfully refers the Court to the July 12, 2007 letter as the best statement of Region IV's response. Admits the remaining allegations in paragraph 17 of the Complaint. 18. Admits that defendant has not provided plaintiff with the records it has requested

but neither admits nor denies the remaining allegation in paragraph 18 regarding "the FOIA requirement" because it constitutes a conclusion of law as to which no response is required.

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COUNT I Denies the allegations in paragraph 19 of the Complaint. REQUESTED RELIEF The balance of the Complaint constitutes a prayer for relief to which no response

is required. To the extent a response is required, defendant denies that plaintiff is entitled to the relief requested. Any allegation set forth in the Complaint not heretofore answered is specifically denied. FIRST AFFIRMATIVE DEFENSE The complaint fails to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE Plaintiff failed to exhaust administrative remedies under the Freedom of Information Act, 5 U.S.C. 522 et seq. THIRD AFFIRMATIVE DEFENSE Upon information and belief, the amount of documents responsive to plaintiff's request for all records concerning flood plain assessments in 69 counties in Louisiana, Texas, California, Alabama, Florida, and Mississippi for the past 13 years is voluminous. Defendant was unable to process this exceptional amount of responsive records within the 20 day time period. See 5 U.S.C. § 1522(a)(6)(C)(I)-(iii). Defendant is exercising due diligence to respond to plaintiff's request but requires additional time to complete its review of the records.

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WHEREFORE, having fully answered the Complaint against it, the United States respectfully prays that this Court enter judgment in its favor and against the plaintiffs and grant such other and further relief as this court deems just and equitable.

Dated: September 20, 2007 Respectfully submitted, SCOTT N. SCHOOLS United States Attorney By: /s/ Ellen M. FitzGerald ELLEN M. FITZGERALD Assistant United States Attorney

ANSWER TO PLAINTIFF'S COMPLAINT FOR INJUNCTIVE RELIEF C 07-4112 EMC