Case Detail

FOIA Project Annotation: Judge Reggie Walton has ruled that the Justice Department properly invoked Exemption 5 (privileges) to withhold records concerning its decision to dismiss civil claims that had been filed against the New Black Panther Party for an alleged voter intimidation incident in Philadelphia. The agency claimed the records were protected by both the attorney work-product privilege and the deliberative process privilege. Judicial Watch argued the attorney work-product privilege could not apply to any records created after the agency's decision to dismiss the charges since such records were not created in anticipation of litigation. After finding the agency's affidavits provided an adequate explanation of the attorney work-product claims, Walton rejected Judicial Watch's assertion that many of the disputed emails pertained not to attorney work-product but dealt instead with "overseeing and staying informed about the work of their employees." Walton indicated that he did "not agree that this is a fair characterization of these documents. The Vaughn index reflects that, along with real-time litigation updates concerning the New Black Panther Party case, the documents withheld also convey candid assessments of the evidence and case law as well as commentary and analyses pertaining to draft memoranda and proposed court filings." Reviewing the post-dismissal documents, Walton expressed sympathy with the government's position. He noted that "the documents reiterate and memorialize information that is itself attorney work product, and in that sense are arguably seen as work product in their own right. Moreover, disclosing information that reveals a behind-the-scenes account of the DOJ's litigation decisions could also undermine the adversary process, something the work-product privilege is designed to protect." Ultimately, however, he concluded that "the filing of the motion for voluntary dismissal largely marked the end of the litigation. As such, the documents prepared subsequent to that event were not prepared in contemplation of litigation and are thus outside the scope of the work-product privilege." Pointing out that the post-decisional documents might still be protected under the deliberative process privilege, he observed that "given the nature of the post-decisional documents discussed in detail earlier, the Court concludes that they were appropriately withheld under the deliberative-process privilege." Walton found the agency had not adequately explained why non-exempt information could not be segregated and disclosed. Sending the case back to the agency for further segregability review, he indicated that "as it stands now, the description of DOJ's segregation efforts is too general for the Court, and the plaintiff, to evaluate whether any factual material in these documents is 'inextricably intertwined' with the deliberative material and would thus permit the DOJ to withhold the documents in their entirety."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Attorney work-product privilege

FOIA Project Annotation: Judge Reggie Walton has ruled that Judicial Watch is both eligible and entitled to attorney's fees for its suit against the Justice Department for records pertaining to the agency's investigation of charges of voter intimidation by the New Black Panther Party, but because of the organization's relative lack of success on the merits, has reduced its requested amount by more than 90 percent. In response to Judicial Watch's original request, DOJ indicated it would withhold the records under Exemption 5 (privileges). However, the Civil Rights Division disclosed some records in response to Judicial Watch's administrative appeal. After Judicial Watch filed suit, the agency disclosed a few more records. Walton ruled in favor of the agency's Exemption 5 claims, but also found the agency had failed to provide an adequate description of the records and ordered it to further address the issue of segregability. As a result, the agency released redacted records previously withheld in full. Judicial Watch then filed a motion for attorney's fees. DOJ argued Judicial Watch was not eligible for fees because its claim was "clearly insubstantial" because only a handful of documents had been disclosed. But Walton noted that "for purposes of determining fee eligibility, the DOJ's 'discretionary' disclosure of documents that it had previously withheld as exempt plainly constitutes 'a voluntary or unilateral change in position by the agency' caused by this litigation. It follows, then, that Judicial Watch is a substantially prevailing party eligible for attorneys' fees and costs." Although DOJ argued the later disclosures did not constitute a public interest benefit, Walton pointed out that "the documents reveal that political appointees within DOJ were conferring about the status and resolution of the New Black Panther Party case in the days preceding the DOJ's dismissal of claims in that case, which would appear to contradict Assistant Attorney General Perez's testimony that political leadership was not involved in that decision. Surely the public has an interest in documents that cast doubt on the accuracy of government officials' representations regarding the possible politicization of agency decisionmaking." DOJ argued that much of the information disclosed was already in the public domain. But Walton pointed out that "the Court is perplexed as to why the DOJ believes that its withholding of these documents was legally correct. If anything, the fact that the information was already in the public domain indicates that the DOJ was legally required to disclose the documents. . .The DOJ therefore has not discharged its burden of showing that its withholding of documents that were already in the public domain was legally correct or even had a reasonable basis in law." Judicial Watch had asked for more than $20,000 for litigating the case. But Walton agreed with the agency that Judicial Watch had only prevailed on a small number of issues and reduced its request to $1,040, or 5.3 percent of the requested amount.
Issues: Litigation - Attorney's fees - Entitlement - Calculation of award, Litigation - Attorney's fees - Prevailing party

Date Filed	Doc #	Docket Text
2010-05-24	1	COMPLAINT against U.S. DEPARTMENT OF JUSTICE ( Filing fee $ 350, receipt number 4616029940) filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Civil Cover Sheet)(dr) (Entered: 05/24/2010)
2010-05-24		SUMMONS (3) Issued as to U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (dr) (Entered: 05/24/2010)
2010-05-24	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by JUDICIAL WATCH, INC. (dr) (Entered: 05/24/2010)
2010-06-08	3	NOTICE of Change of Address by Paul J. Orfanedes (Orfanedes, Paul) (Entered: 06/08/2010)
2010-06-14	4	SUMMONS Returned Executed by JUDICIAL WATCH, INC.. U.S. DEPARTMENT OF JUSTICE served on 6/4/2010, answer due 7/6/2010. (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) (Entered: 06/14/2010)
2010-07-06	5	ANSWER to 1 Complaint by U.S. DEPARTMENT OF JUSTICE.(Coleman Snead, Jacqueline) (Entered: 07/06/2010)
2010-07-14	6	ORDER. The parties in this matter shall appear before the Court at 11:45 a.m. on July 28, 2010, for a status conference. Signed by Judge Reggie B. Walton on 7/14/2010 (lcrbw1). (Entered: 07/14/2010)
2010-07-14		Set/Reset Hearings: Status Conference set for 7/28/2010 11:45 AM in Courtroom 16 before Judge Reggie B. Walton. (mpt, ) (Entered: 07/14/2010)
2010-07-16	7	Unopposed MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Michael Bekesha, :Firm- Judicial Watch, Inc., :Address- 425 Third St., SW, Suite 800. Phone No. - (202) 646-5172. Fax No. - (202) 646-5199 by JUDICIAL WATCH, INC. (Attachments: # 1 Declaration of Michael Bekesha, # 2 Text of Proposed Order)(Orfanedes, Paul) (Entered: 07/16/2010)
2010-07-23		MINUTE ORDER granting 7 Motion for Leave to Appear Pro Hac Vice. The Court having considered the plaintiff's Motion for Permission to Allow Michael Bekesha to Appear Pro Hac Vice, and it appearing to the Court that there is good casue to grant the relief requested therein, it is ORDERED that the motion is GRANTED. It is further ORDERED that Michael Bekesha, 425 Third Street, S.W., Suite 800, Washington, D.C. 20024, is admitted to practice before this Court pro hac vice. Signed by Judge Reggie B. Walton on 7/23/2010 (lcrbw1). (Entered: 07/23/2010)
2010-07-28	8	ORDER. The defendant shall produce to the plaintiff a Vaughn index on or before September 15, 2010. Furthermore, the parties shall appear before the Court for a status conference at 9:00 a.m. on October 5, 2010. Signed by Judge Reggie B. Walton on 7/28/2010 (lcrbw1). (Entered: 07/28/2010)
2010-07-28		Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference held on 7/28/2010, ( Vaughn Index due by 9/15/2010., Status Conference set for 10/5/2010 09:00 AM in Courtroom 16 before Judge Reggie B. Walton.). (Court Reporter Cathryn Jones.) (mpt, ) (Entered: 07/28/2010)
2010-10-05	9	ORDER. The defendant shall file its motion for summary judgment, if it intends to file such a motion, on or before November 2, 2010. The plaintiff shall file its memorandum in opposition to the defendant's summary judgment motion, as well as its cross-motion for summary judgment, if it intends to file these submissions, on or before December 2, 2010. The defendant shall file its brief in reply to the plaintiff's opposition memorandum, as well as its memorandum in opposition to the plaintiff's summary judgment motion, if it intends to file these submissions, on or before January 6, 2011. The plaintiff shall file its brief in reply to the defendant's opposition memorandum, if it intends to file a reply, on or before January 20, 2011. Finally, the parties shall appear before the Court for a status conference at 9:15 a.m. on April 15, 2011. Signed by Judge Reggie B. Walton on 10/5/2010 (lcrbw1). (Entered: 10/05/2010)
2010-10-05		Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference held on 10/5/2010, (Motion for Summary Judgment due by 11/2/10; Opposition to Motion for Summary Judgment and Cross Motion due by 12/2/10; Reply to Opposition to Motion for Summary Judgment and Opposition to Cross Motion due by 1/6/11; Reply to Opposition to Cross Motion due by 1/20/11; Further Status Conference set for 4/15/2011 09:15 AM in Courtroom 16 before Judge Reggie B. Walton.). (Court Reporter Cathryn Jones.) (mpt, ) (Entered: 10/06/2010)
2010-11-02	10	NOTICE of Appearance by John Russell Tyler on behalf of All Defendants (Tyler, John) (Entered: 11/02/2010)
2010-11-02	11	MOTION for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum of Law, # 2 Statement of Material Facts Not in Genuine Dispute, # 3 Hermilla Declaration, # 4 Brinkmann Declaration, # 5 Snead Declaration)(Coleman Snead, Jacqueline) (Entered: 11/02/2010)
2010-11-23	12	Unopposed MOTION for Extension of Time to File Response/Reply as to 11 MOTION for Summary Judgment by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 11/23/2010)
2010-12-01		MINUTE ORDER granting 12 Motion for Extension of Time. The Court having considered the Plaintiff's Unopposed Motion for Extension of Time, and it appearing to the Court that there is good cause to grant the relief requested therein based upon the consent of the defendant as represented to the Court by the plaintiff, it is ORDERED that the motion is GRANTED. It is further ORDERED that the plaintiff shall file its memorandum in opposition to the defendant's motion for summary judgment, as well as its cross-motion for summary judgment, if it intends to file these submissions, on or before December 7, 2010. It is further ORDERED that the defendant shall file its brief in reply to the plaintiff's opposition memorandum, as well as its memorandum in opposition to the plaintiff's summary judgment motion, if it intends to file these submissions, on or before January 10, 2011. It is further ORDERED that the plaintiff shall file its brief in reply to the defendant's opposition memorandum, if it intends to file a reply, on or before January 25, 2011. Signed by Judge Reggie B. Walton on 12/1/2010 (lcrbw1). (Entered: 12/01/2010)
2010-12-02		Set/Reset Deadlines: Opposition to motion for summary judgment and cross motion due on or before 12/7/10; reply to the opposition to motion for summary judgment and opposition to cross motion due on or before 1/10/11; reply to cross motion due on or before 1/25/11.(ad) (Entered: 12/02/2010)
2010-12-07	13	Memorandum in opposition to re 11 MOTION for Summary Judgment (with Statement of Material Facts) filed by JUDICIAL WATCH, INC.. (Bekesha, Michael) (Entered: 12/07/2010)
2010-12-07	14	Cross MOTION for Summary Judgment (with Statement of Material Facts and Proposed Order) by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 12/07/2010)
2011-01-10	15	REPLY to opposition to motion re 11 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Supplemental Brinkmann Declaration, # 2 Supplemental Hermilla Declaration)(Coleman Snead, Jacqueline) (Entered: 01/10/2011)
2011-01-10	16	Memorandum in opposition to re 14 Cross MOTION for Summary Judgment (with Statement of Material Facts and Proposed Order) filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Supplemental Brinkmann Declaration, # 2 Supplemental Hermilla Declaration, # 3 Counterstatement of Material Facts)(Coleman Snead, Jacqueline) (Entered: 01/10/2011)
2011-01-25	17	REPLY to opposition to motion re 14 Cross MOTION for Summary Judgment (with Statement of Material Facts and Proposed Order) filed by JUDICIAL WATCH, INC.. (Bekesha, Michael) (Entered: 01/25/2011)
2011-04-11	18	NOTICE by U.S. DEPARTMENT OF JUSTICE re 11 MOTION for Summary Judgment (Coleman Snead, Jacqueline) (Entered: 04/11/2011)
2011-04-14		MINUTE ORDER. Given that there is no need to hold a status conference in this case in light of the fact that the parties' respective motions for summary judgment remain pending, it is ORDERED that the status conference originally scheduled for 9:15 a.m. on April 15, 2011, is CONTINUED until 10:15 a.m. on June 24, 2011. Signed by Judge Reggie B. Walton on 4/14/2011 (lcrbw1). (Entered: 04/14/2011)
2011-04-14		Set/Reset Hearings: Status Conference reset for 6/24/2011 10:15 AM in Courtroom 16 before Judge Reggie B. Walton. (mpt, ) (Entered: 04/14/2011)
2011-06-09	19	NOTICE OF SUPPLEMENTAL AUTHORITY by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Exhibit A)(Coleman Snead, Jacqueline) (Entered: 06/09/2011)
2011-06-23		MINUTE ORDER. Given that there is no need to hold a status conference in this case in light of the fact that the parties' respective motions for summary judgment remain pending, it is ORDERED that the status conference originally scheduled for 10:15 a.m. on June 24, 2011, is CONTINUED until 12:00 p.m. on August 5, 2011. Signed by Judge Reggie B. Walton on 6/23/2011 (lcrbw1). (Entered: 06/23/2011)
2011-06-23		Set/Reset Hearings: Status Conference reset for 8/5/2011 12:00 PM in Courtroom 16 before Judge Reggie B. Walton. (mpt, ) (Entered: 06/23/2011)
2011-08-04	20	MEMORANDUM OPINION. Signed by Judge Reggie B. Walton on 8/4/2011 (lcrbw1). (Entered: 08/04/2011)
2011-08-04	21	ORDER granting in part and denying in part and without prejudice 11 Motion for Summary Judgment; denying in part and with prejudice and denying in part and without prejudice 14 Motion for Summary Judgment. The plaintiff's motion for summary judgment is denied in part and with prejudice as to all documents withheld by the defendant under Exemption 5 of the Freedom of Information Act, except for document 37a-c and the documents post-dating the filing of the defendant's notice of voluntary dismissal in the New Black Panther Party case. The plaintiff's motion for summary judgment is denied in part and without prejudice as to document 37a-c and the documents post-dating the filing of the defendant's notice of voluntary dismissal in the New Black Panther Party case due to the defendant's failure to sufficiently demonstrate the non-segregability of these documents. The defendant's motion for summary judgment is granted in part as to all documents withheld by the defendant under Exemption 5 of the Freedom of Information Act, except for document 37a-c and the documents post-dating the filing of the defendant's notice of voluntary dismissal in the New Black Panther Party case. The defendant's motion for summary judgment is denied in part and without prejudice as to document 37a-c and the documents post-dating the filing of the defendant's notice of voluntary dismissal in the New Black Panther Party case due to the defendant's failure to sufficiently demonstrate the non-segregability of these documents. Signed by Judge Reggie B. Walton on 8/4/2011 (lcrbw1). (Entered: 08/04/2011)
2011-08-05	22	ORDER. The defendant shall file its renewed motion for summary judgment, if it intends to file a summary judgment motion, on or before September 30, 2011. The plaintiff shall file its memorandum in opposition to the defendant's summary judgment motion, if it intends to oppose the motion, on or before October 21, 2011. The defendant shall file its brief in reply to the plaintiff's opposition memorandum, if it intends to file a reply brief, on or before November 4, 2011. Finally, the parties shall appear before the Court for a status conference at 9:30 a.m. on February 3, 2012. Signed by Judge Reggie B. Walton on 8/5/2011 (lcrbw1). (Entered: 08/05/2011)
2011-08-05		Minute Entry for proceedings held before Judge Reggie B. Walton: Status Conference held on 8/5/2011. Summary Judgment motions due by 9/30/2011, Opposition to Motion for Summary Judgment due by 10/21/2011, Reply to Motion for Summary Judgment due by 11/4/2011. Status Conference set for 2/3/2012 09:30 AM in Courtroom 16 before Judge Reggie B. Walton. (Court Reporter Cathryn Jones.) (mpt, ) (Entered: 08/05/2011)
2011-09-30	23	MOTION for Summary Judgment on Segregability by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum of Points and Authorities, # 2 Statement of Material Facts not in Genuine Dispute, # 3 Hermilla Second Supplemental Declaration, # 4 Brinkmann Second Supplemental Declaration)(Coleman Snead, Jacqueline) (Entered: 09/30/2011)
2011-10-20	24	STIPULATION of Dismissal with Prejudice by JUDICIAL WATCH, INC., U.S. DEPARTMENT OF JUSTICE. (Bekesha, Michael) (Entered: 10/20/2011)
2011-10-20	25	Unopposed MOTION for Extension of Time to File Motion for Attorneys Fees and Related Costs by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 10/20/2011)
2011-10-21		MINUTE ORDER granting 25 Motion for Extension of Time. The Court having considered the plaintiff's unopposed motion for an extension of time, and the Court finding good cause to grant the relief requested therein, it is ORDERED that the motion is GRANTED. It is further ORDERED that the plaintiff shall file its motion for attorneys' fees and related costs, if any, by December 22, 2011. It is further ORDERED that the parties shall appear before the Court for a status conference at a time to be determined by the Clerk. Signed by Judge Reggie B. Walton on 10-21-11 (lcrbw3). (Entered: 10/21/2011)
2011-10-21		Set/Reset Deadlines/Hearings: Motion for Attorney Fees due by 12/22/2011. Status Conference set for 1/27/2012 11:45 AM in Courtroom 16 before Judge Reggie B. Walton. (mpt) (Entered: 10/21/2011)
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