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Chicago Attorney Daniel Hartnett Leading Change to Procedure in Suits Against the Federal Government

October 27, 2021

Chicago Member Daniel Hartnett has successfully convinced the Advisory Committee for the Rules of Civil Procedure to amend a rule that governs how long a federal government defendant may take to respond to Freedom of Information Act (FOIA) lawsuits.

Hartnett’s work on the issue began in April 2019 when he filed a suit in the Northern District of Illinois seeking the IRS’s compliance with a FOIA request. Hartnett needed the information to assist a client.

After initially presenting the court’s Clerk with a summons using the 30-day time limit for the government’s response required by FOIA, Hartnett was informed that Rule 12(a)(2) instead gave the government a 60-day window. Faced with the conflict between the rule and the statute, Hartnett convinced the Clerk that the statute’s 30-day limit took precedence.

“Rule 12(a)(2) was wrong, at least where a specific statute, like FOIA, sets a shorter response deadline,” Hartnett said.

After successfully persuading the Clerk to respect the 30-day timeline, Hartnett then requested the Advisory Committee overseeing the Federal Rules of Civil Procedure to amend Rule 12(a)(2). His letter explained what occurred with his case in Chicago, demonstrated where the rule is incorrect, and provided two solutions to correct the error.

His solution borrows the lead-in language from Rule 12(a)(1), to place the phrase “Unless another time is specified by a federal statute” at the beginning or end of Rule 12(a)(2).

Hartnett was informed on Oct. 5 that the Advisory Committee voted 13-0 to make the change. Still, there are many steps left before the recommendation is adopted by the Supreme Court.

“It takes years from this point for the recommendation to be adopted and to take effect because there are lengthy comment periods,” Hartnett said. “The Advisory Committee action now gets distributed as a proposed amendment to more than 10,000 persons and organizations, and approvals by various bodies of judges and experts are needed before submission to the Supreme Court.”

Despite the work that remains ahead, Hartnett sees the unanimous decision by the Advisory Committee as a step forward in improving this aspect of law. FOIA suits are often brought by pro se plaintiffs who might not be equipped to argue for the right result when the rule of civil procedure conflicts with the statute.

“The Rules of Professional Conduct tell us ‘a lawyer should seek improvement of the law, access to the legal system, the administration of justice, and the quality of service rendered by the legal profession,'” Hartnett said. “In our small way, I think we lived up to that.”

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