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Case TitleJUDICIAL WATCH, INC. v. U.S. DEPARTMENT OF JUSTICE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2014cv01024
Date Filed2014-06-17
Date Closed2015-07-31
JudgeJudge Beryl A. Howell
PlaintiffJUDICIAL WATCH, INC.
Case DescriptionJudicial Watch submitted a FOIA request to the Department of Justice for records from the Interactive Case Management System detailing the number of hours DOJ Attorney Barbara Bosserman spent on the investigation of the IRS for targeting conservative organizations seeking tax-exempt status during the 2010 and 2012 election cycles. After the agency failed to respond within the 20-day time limit, Judicial Watch filed suit.
Complaint issues: Failure to respond within statutory time limit

DefendantU.S. DEPARTMENT OF JUSTICE
AppealD.C. Circuit 15-5271
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [17]
FOIA Project Annotation: Judge Beryl Howell has ruled that time records of a DOJ attorney assigned to the investigation of whether the IRS improperly targeted conservative groups applying for tax-exempt status are protected by Exemption 5 (attorney work-product privilege). After DOJ identified Barbara Bosserman, a senior legal counsel in the Civil Rights Division, to Congress as one of the attorneys assigned to the IRS investigation, Judicial Watch filed a request for Bosserman's time records. After the agency failed to respond within the statutory time limit, Judicial Watch filed suit. DOJ initially told Judicial Watch that the records were protected by Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records), but indicated in its summary judgment motion that the records were also protected by Exemption 5 under the attorney work-product privilege and the deliberative process privilege. Howell found the records were completely covered by the attorney work-product privilege. She acknowledged that the attorney work-product privilege was generally limited to records created in anticipation of litigation, but pointed out that "although the DOJ's investigation into various IRS employees has yet to proceed to litigation, an investigation may suffice for purposes of the requirement that the legal work be done in anticipation of litigation." Howell found that "the clear weight of authority‚Ä"including prior decisions by judges on this Court‚Ä"holds that attorney time records while not per se protected by the work product privilege, may nonetheless contain protected work product." But, citing the Supreme Court's decision in FTC v. Grolier, Inc., 462 U.S. 19 (1983), Howell observed that "it makes little difference whether a privilege is absolute or qualified in determining how it translates into a discrete category of documents that Congress intended to exempt from disclosure under Exemption 5. Whether its immunity from discovery is absolute or qualified, a protected document cannot be said to be subject to 'routine' disclosure." DOJ described Bosserman's time records as containing "accounts of the tasks as she performed them including notes about locations visited, persons consulted, staff briefings, and other case developments. This material was prepared in contemplation of an ongoing criminal investigation and provided to supervisors to assist them in overseeing the investigation and potential prosecution of certain IRS employees." Howell concluded that "consistent with the great weight of authority at both the federal and state level, the portions of Ms. Bosserman's time records detailing the locations visited, persons contacted, staff briefings, and other case developments are protected from disclosure as attorney work product. . .Accordingly, the defendant need not produce the requested time records even though the plaintiff seeks only the number of hours worked by Ms. Bosserman and not information relating to the activities performed."
Issues: Exemption 5 - Privileges - Attorney work-product privilege
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2014-06-171COMPLAINT against U.S. DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-3750575) filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)(Bekesha, Michael) (Entered: 06/17/2014)
2014-06-172LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JUDICIAL WATCH, INC. (Bekesha, Michael) (Entered: 06/17/2014)
2014-06-17Case Assigned to Judge Beryl A. Howell. (sth, ) (Entered: 06/18/2014)
2014-06-183SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(sth, ) (Entered: 06/18/2014)
2014-06-184STANDING ORDER. Signed by Judge Beryl A. Howell on June 18, 2014. (lcbah2) (Entered: 06/18/2014)
2014-06-305RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/23/2014. ( Answer due for ALL FEDERAL DEFENDANTS by 7/23/2014.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 6/23/2014., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF JUSTICE served on 6/23/2014 (Attachments: # 1 Declaration of C. Rotaru)(Bekesha, Michael) (Entered: 06/30/2014)
2014-07-236NOTICE of Appearance by Sam M. Singer on behalf of U.S. DEPARTMENT OF JUSTICE (Singer, Sam) (Entered: 07/23/2014)
2014-07-237ANSWER to Complaint by U.S. DEPARTMENT OF JUSTICE.(Singer, Sam) (Entered: 07/23/2014)
2014-08-018STATUS REPORT (Joint) by JUDICIAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 08/01/2014)
2014-08-01MINUTE ORDER (paperless) ISSUING the following SCHEDULING ORDER in light of the parties' 8 Joint Report and Proposed Scheduling Order: the parties shall, by September 5, 2014, file jointly a status report indicating whether this case should proceed to dispositive motion briefing or if all issues have been resolved. Absent a stipulation of dismissal, the defendant shall, by October 6, 2014, file any dispositive motions; the plaintiff shall, by November 3, 2014, file any cross-motions and/or oppositions; the defendant shall, by December 1, 2014 file any replies and/or oppositions; and the plaintiff shall, by December 15, 2014, file any replies. Signed by Judge Beryl A. Howell on August 1, 2014. (lcbah1) (Entered: 08/01/2014)
2014-08-04Set/Reset Deadlines: Status Report due by 9/5/2014. Dispositive Motions due by 10/6/2014; Cross-Motions/Oppositions to Dispositive Motions due by 11/3/2014; Oppositions to Cross-Motions/Replies to Oppositions to Dispositive Motions due by 12/1/2014; Replies to Oppositions to Cross-Motions. (tg, ) (Entered: 08/04/2014)
2014-09-059STATUS REPORT by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order Proposed Order)(Singer, Sam) (Entered: 09/05/2014)
2014-09-05MINUTE ORDER (paperless) ISSUING the following SCHEDULING ORDER in light of the parties' 9 Joint Report and Proposed Scheduling Order: the defendant shall, by November 3, 2014, file any dispositive motions; the plaintiff shall, by December 5, 2014, file any cross-motions and/or oppositions; the defendant shall, by January 9, 2015 file any replies and/or oppositions; and the plaintiff shall, by January 23, 2015, file any replies. Signed by Judge Beryl A. Howell on September 5, 2014. (lcbah2) (Entered: 09/05/2014)
2014-09-08Set/Reset Deadlines: Dispositive Motions due by 11/3/2014; Cross-Motions/Opposition to Dispositive Motions due by 12/5/2014; Opposition to Cross-Motions/ Reply to Oppositions to Dispositive Motions due by 1/9/2015; Reply to Oppositions to Cross-Motions due by 1/23/2015. (tg, ) (Entered: 09/08/2014)
2014-11-0310MOTION for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Declaration, # 2 Statement of Facts, # 3 Text of Proposed Order)(Singer, Sam) (Entered: 11/03/2014)
2014-11-2511Consent MOTION for Extension of Time to File Response/Reply as to 10 MOTION for Summary Judgment and Cross-Motion for Summary Judgment by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 11/25/2014)
2014-11-26MINUTE ORDER (paperless) GRANTING the plaintiff's 11 Consent Motion for Extension of Time. The plaintiff shall file its opposition to summary judgment and its cross motion for summary judgment by January 16, 2015. The defendant shall file its reply and opposition to the plaintiff's cross motion for summary judgment by February 20, 2015. The plaintiff shall file its reply by March 6, 2015. Signed by Judge Beryl A. Howell on November 26, 2014. (lcbah2) (Entered: 11/26/2014)
2014-11-26Set/Reset Deadlines: The plaintiff shall file its opposition to summary judgment and its cross motion for summary judgment by 1/16/2015. The defendant shall file its reply and opposition to the plaintiff's cross motion for summary judgment by 2/20/2015. The plaintiff shall file its reply by 3/06/2015. (ad) (Entered: 11/26/2014)
2015-01-1412Memorandum in opposition to re 10 MOTION for Summary Judgment filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 01/14/2015)
2015-01-1413Cross MOTION for Summary Judgment by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 01/14/2015)
2015-02-2014Memorandum in opposition to re 13 Cross MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Singer, Sam) (Entered: 02/20/2015)
2015-02-2015REPLY to opposition to motion re 10 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Singer, Sam) (Entered: 02/20/2015)
2015-02-2716REPLY to opposition to motion re 13 Cross MOTION for Summary Judgment filed by JUDICIAL WATCH, INC.. (Bekesha, Michael) (Entered: 02/27/2015)
2015-07-3117MEMORANDUM OPINION regarding the defendant's 10 Motion for Summary Judgment and the plaintiff's 13 Cross-Motion for Summary Judgment. Signed by Judge Beryl A. Howell on July 31, 2015. (lcbah2) (Entered: 07/31/2015)
2015-07-3118ORDER GRANTING the defendant's 10 Motion for Summary Judgment and DENYING the plaintiff's 13 Cross-Motion for Summary Judgment. See Order for further details. The Clerk is directed to close the case. Signed by Judge Beryl A. Howell on July 31, 2015. (lcbah2) (Entered: 07/31/2015)
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by FOIA Project Staff
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