Case Detail

FOIA Project Annotation: Judge Amy Berman Jackson has ruled that the Defense Department did not waive its Exemption 5 (privileges) claim for a memo prepared for Assistant Secretary of Defense Michael Lumpkin concerning the transfer of five detainees from Guantanamo Bay to Qatar in exchange for Sergeant Bowe Bergdahl, who was held captive in Afghanistan. Jackson had previously held that the memo was covered by the deliberative process privilege, but asked the Defense Department to respond to Judicial Watch's assertion that the agency had failed to consider whether any portions were segregable. After reviewing the memo in camera, Jackson noted that she was satisfied that the entire memo qualified for the privilege. Judicial Watch then argued that the memo was adopted as the official government position when the exchange took place. Jackson disagreed, observing that "the Congressional testimony to which plaintiff directs the Court does not show that the Secretary expressly adopted or relied on the Lumpkin Memorandum. Instead, it shows, at most, that it may have been used as part of the larger decision-making process. Absent some showing that the agency either expressly or implicitly utilized the Lumpkin Memorandum in connection with its communication of its decision to the public, there is no basis to call for its release." She pointed out that "under plaintiff's approach, no memorandum containing recommendations would remain privileged after a decision in accordance with that document has been made, and that is not the state of the law."
Issues: Exemption 5 - Privileges - Waiver of privilege

Date Filed	Doc #	Docket Text
2014-11-18	1	COMPLAINT against U.S. DEPARTMENT OF DEFENSE ( Filing fee $ 400 receipt number 0090-3909203) filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Department of Defense, # 3 Summons U.S. Attorney, # 4 Summons U.S. Attorney General)(Aldrich, Jason) (Entered: 11/18/2014)
2014-11-18	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JUDICIAL WATCH, INC. (Aldrich, Jason) (Entered: 11/18/2014)
2014-11-18		Case Assigned to Judge Amy Berman Jackson. (md, ) (Entered: 11/19/2014)
2014-11-19	3	SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF DEFENSE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons 2nd, # 2 Summons 3rd, # 3 Notice of Consent, # 4 Consent Form) (md, ) (Entered: 11/19/2014)
2014-12-01	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 12/1/2014. ( Answer due for ALL FEDERAL DEFENDANTS by 12/31/2014.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 12/1/2014., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF DEFENSE served on 11/28/2014 (Attachments: # 1 Declaration of Cristina Rotaru)(Aldrich, Jason) (Entered: 12/01/2014)
2014-12-18	5	NOTICE of Appearance by Robin Frances Thurston on behalf of U.S. DEPARTMENT OF DEFENSE (Thurston, Robin) (Entered: 12/18/2014)
2014-12-31	6	ANSWER to Complaint by U.S. DEPARTMENT OF DEFENSE.(Thurston, Robin) (Entered: 12/31/2014)
2014-12-31	7	ORDER. It is ORDERED that defendant shall file a dispositive motion or, in the alternative, a schedule for completing its production of documents to plaintiff, by January 28, 2015. See Order for details. Signed by Judge Amy Berman Jackson on 12/31/14. (DMK) (Entered: 12/31/2014)
2015-01-04		Set/Reset Deadlines: Defendant shall either file a dispositive motion or, in the alternative, a schedule for its completion of production of documents to Plaintiff, by 1/28/2015. (jth) (Entered: 01/04/2015)
2015-01-28	8	STATUS REPORT by U.S. DEPARTMENT OF DEFENSE. (Thurston, Robin) (Entered: 01/28/2015)
2015-01-29		MINUTE ORDER. In light of 8 defendant's status report, it is ORDERED that defendant shall complete its search and production of documents to plaintiff on or before April 13, 2015 and, to the extent necessary, provide a draft Vaughn Index to plaintiff on or before April 28, 2015. It is FURTHER ORDERED that the parties file an additional status report and propose a further schedule, if necessary, on or before May 12, 2015. Signed by Judge Amy Berman Jackson on 1/29/2015. (lcabj2) (Entered: 01/29/2015)
2015-01-29		Set/Reset Deadlines: Defendant to complete its search and production of documents to plaintiff by 4/13/2015; to the extent necessary, Defendant is to provide a draft Vaughn Index to Plaintiff by 4/28/2015; If necessary, the parties are to file an additional status report and propose a further schedule by 5/12/2015. (jth) (Entered: 01/29/2015)
2015-04-09	9	Consent MOTION for Extension of Time to produce documents by U.S. DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Thurston, Robin) (Entered: 04/09/2015)
2015-04-10		MINUTE ORDER granting 9 Motion for Extension of Time. Defendant shall complete its search and production to plaintiff by April 27, 2015. Defendant shall complete its search and production of documents to plaintiff by April 27, 2015, and to the extent necessary, defendant shall provide a draft Vaughn Index to plaintiff by May 12,2015. Additionally, the parties shall file an additional status report and propose a further schedule, if necessary, on or before May 26, 2015. SO ORDERED. Signed by Judge Amy Berman Jackson on 4/10/2015. (lcabj2) (Entered: 04/10/2015)
2015-04-12		Set/Reset Deadlines: Defendant to complete its search and production of documents to plaintiff by 4/27/2015; to the extent necessary, Defendant is to provide a draft Vaughn Index to Plaintiff by 5/12/2015; If necessary, the parties are to file an additional status report and propose a further schedule by 5/26/2015. (jth) (Entered: 04/12/2015)
2015-05-26	10	Joint MOTION for Extension of Time to File Status Report by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Aldrich, Jason) (Entered: 05/26/2015)
2015-05-27		MINUTE ORDER granting 10 Motion for Extension of Time to File. The parties' status report and proposed schedule for further proceedings in this action shall be due on or before June 12, 2015. Signed by Judge Amy Berman Jackson on 5/27/2015. (lcabj2) (Entered: 05/27/2015)
2015-05-27		Set/Reset Deadlines: The parties' status report and proposed schedule for further proceedings in this action is due by 6/12/2015. (jth) (Entered: 05/27/2015)
2015-06-12	11	STATUS REPORT JOINT by U.S. DEPARTMENT OF DEFENSE. (Attachments: # 1 Text of Proposed Order)(Thurston, Robin) (Entered: 06/12/2015)
2015-06-15		MINUTE ORDER. In light of 11 the joint status report filed by the parties, it is ORDERED that defendant's motion for summary judgment shall be due on or before August 19, 2015; plaintiff's response shall be due on or before September 16, 2015; and defendant's reply in support of its motion shall be due on or before September 30, 2015. Signed by Judge Amy Berman Jackson on 6/15/2015. (lcabj2) (Entered: 06/15/2015)
2015-06-15		Set/Reset Deadlines: Defendant's Motion for Summary Judgment is due by 8/19/2015; Plaintiff's Response is due by 9/16/2015; Defendant's reply is due by 9/30/2015. (jth) (Entered: 06/15/2015)
2015-08-18	12	Consent MOTION for Extension of Time to file Motion for Summary Judgment by U.S. DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Thurston, Robin) (Entered: 08/18/2015)
2015-08-19		MINUTE ORDER granting 12 Motion for Extension of Time. Defendant's motion for summary judgment is due on or before August 26, 2015; plaintiff's opposition is due on or before September 23, 2015; and defendant's reply is due on or before October 7, 2015. Signed by Judge Amy Berman Jackson on 8/19/2015. (lcabj2) (Entered: 08/19/2015)
2015-08-19		Set/Reset Deadlines: Defendant's Motion for Summary Judgment is due by 8/26/2015; Plaintiff's Opposition is due by 9/23/2015; Defendant's reply is due by 10/7/2015. (jth) (Entered: 08/19/2015)
2015-08-26	13	MOTION for Summary Judgment by U.S. DEPARTMENT OF DEFENSE (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Statement of Facts, # 4 Text of Proposed Order)(Thurston, Robin) (Entered: 08/26/2015)
2015-09-21	14	Consent MOTION for Extension of Time to File Opposition to Defendant's Motion for Summary Judgment by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Aldrich, Jason) (Entered: 09/21/2015)
2015-09-22		MINUTE ORDER granting 14 Motion for Extension of Time to File. Plaintiff shall file its opposition to defendant's motion for summary jdugment on or before September 30, 2015. Signed by Judge Amy Berman Jackson on 9/22/2015. (lcabj2) (Entered: 09/22/2015)
2015-09-22		MINUTE ORDER. Any Reply by the Defendant in support of its 13 Motion for Summary Judgment is due by 10/14/2015. Signed by Judge Amy Berman Jackson on 9/22/2015. (jth) (Entered: 09/22/2015)
2015-09-30	15	Second MOTION for Extension of Time to File Opposition to Defendant's Motion for Summary Judgment by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Aldrich, Jason) (Entered: 09/30/2015)
2015-10-01		MINUTE ORDER granting 15 Second Motion for Extension of Time to File. Plaintiff shall file its opposition to 13 defendant's motion for summary judgment on or before October 9, 2015. Any reply by the defendant shall be due on or before October 23, 2015. Signed by Judge Amy Berman Jackson on 10/1/2015. (lcabj2) (Entered: 10/01/2015)
2015-10-02		Set/Reset Deadlines: Response to Motion for Summary Judgment due by 10/9/2015. Reply to Motion for Summary Judgment due by 10/23/2015. (tb) (Entered: 10/02/2015)
2015-10-09	16	Third MOTION for Extension of Time to file Opposition to Motion for Summary Judgment by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Aldrich, Jason) (Entered: 10/09/2015)
2015-10-14		MINUTE ORDER granting 16 Third Motion for Extension of Time to File. Plaintiff shall file its opposition to 13 defendant's motion for summary judgment on or before December 4, 2015. Any reply by defendant shall be due on or before December 18, 2015. Signed by Judge Amy Berman Jackson on 10/14/2015. (lcabj2) (Entered: 10/14/2015)
2015-10-14		Set/Reset Deadlines: Plaintiff shall file its Opposition to 13 the Defendant's Motion for Summary Judgment by 12/4/2015. Any Reply by the Defendant is due by 12/18/2015. (jth) (Entered: 10/14/2015)
2015-12-04	17	RESPONSE re 13 MOTION for Summary Judgment Plainitff's Opposition to Defendant's Motion for Summary Judgment filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Exhibit Exhibit 1, # 2 Text of Proposed Order Proposed Order)(Aldrich, Jason) (Entered: 12/04/2015)
2015-12-07		MINUTE ORDER. In 17 plaintiff's opposition to 13 defendant's motion for summary judgment, plaintiff indicated that while "it will not challenge the scope of Defendant's search" and that it "is not challenging any of the redactions made to the record produced by Defendant," it takes the position that summary judgment is not appropriate at this time because defendant has identified an additional responsive record that it has not produced and for which it has not provided a declaration or Vaughn Index justifying its withholding. Thus, to assist the Court in resolving the pending motion for summary judgment, it is ORDERED that defendant shall deliver the following record for the Court's in camera review on or before December 14, 2015: the document described in [13-2] the declaration of Mark H. Herrington as "a cover memorandum with attachments to the Secretary of Defense from Assistant Secretary of Defense Michael D. Lumpkin... for consideration of approving the transfer of the five detained individuals." See Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). Signed by Judge Amy Berman Jackson on 12/7/2015. (lcabj2) (Entered: 12/07/2015)
2015-12-07		Set/Reset Deadlines: Defendant's In Camera submission is due by 12/14/2015. (jth) (Entered: 12/07/2015)
2015-12-14	18	NOTICE of Filing by U.S. DEPARTMENT OF DEFENSE (Thurston, Robin) (Entered: 12/14/2015)
2015-12-18	19	REPLY to opposition to motion re 13 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF DEFENSE. (Attachments: # 1 Affidavit)(Thurston, Robin) (Entered: 12/18/2015)
2015-12-18	20	ERRATA -- Second Herrington Declaration attached to Reply brief by U.S. DEPARTMENT OF DEFENSE 13 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF DEFENSE. (Thurston, Robin) (Entered: 12/18/2015)
2015-12-18	21	ERRATA Second Herrington Declaration by U.S. DEPARTMENT OF DEFENSE 13 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF DEFENSE. (Attachments: # 1 Exhibit)(Thurston, Robin) (Entered: 12/18/2015)
2015-12-22		MINUTE ORDER. Upon review of the document which was provided to the Court for ex parte, in camera review, the Court concludes: 1) the record is responsive to plaintiff's FOIA request; but 2) it is covered by the deliberative process privilege, and nothing other than the TO:, FROM:, and SUBJECT: lines at the top can reasonably be segregated. So, it is ORDERED that by January 8, 2016, defendant shall produce that much to plaintiff and may redact the rest. And, because it appears that the release of this record was the only ground upon which plaintiff opposed defendant's motion for summary judgment, it is FURTHER ORDERED that by January 15, 2016, the parties shall file a joint report advising the Court whether any issues remain to be resolved in this matter or whether the release of this redacted document resolves the entire controversy. SO ORDERED. Signed by Judge Amy Berman Jackson on 12/22/2015. (lcabj2) Modified on 12/22/2015 to reflect that the correct due date for the Joint Report is January 15, "2016" (jth). (Entered: 12/22/2015)
2015-12-23		Set/Reset Deadlines: The parties shall file a Joint Report by 1/15/2016 advising the Court whether any issues remain to be resolved in this matter or whether the release of the redacted document resolves the entire controversy. (jth) (Entered: 12/23/2015)
2016-01-15	22	Joint STATUS REPORT by U.S. DEPARTMENT OF DEFENSE. (Thurston, Robin) (Entered: 01/15/2016)
2016-01-19		MINUTE ORDER. In 22 the parties' status report, plaintiff takes the position that additional briefing is required on the issue of whether the "Lumpkin memorandum," which was provided to the Court for ex parte, in camera review, is subject to the deliberative process privilege. Specifically, plaintiff expresses concern that "Defendant has yet to make a formal claim of exemption" regarding the redacted portions of that document, and it requests "a further round of briefing in which Defendant makes formal claims of exemption and Plaintiff is afforded an opportunity to respond." The Court observes that defendant has described the disputed document at length throughout its summary judgment pleadings, see [13-1] at 8; [13-2] paras 12-13, 15 & n.1; and 19 at 2-4, and it concludes that these descriptions are sufficient to put plaintiff on notice of the grounds for defendant's assertion of the deliberative process privilege, despite the fact that defendant did not "formally" assert that privilege in a Vaughn Index or similar affidavit. Further, the Court emphasizes that it has already ruled, based on in camera review, that the document is subject to the deliberative process privilege with the exception of the TO:, FROM:, and SUBJECT: lines. See Min. Order (Dec. 22, 2015). But, in an abundance of caution, it is ORDERED that: (1) by January 22, 2016, defendant shall file a notice indicating whether it is formally asserting that the deliberative process privilege applies to the redacted portions of the Lumpkin memorandum, and it shall provide any necessary supporting documents; (2) by January 29, 2016, plaintiff shall file a pleading of no more than five pages explaining its position on why the Lumpkin memorandum should not be found to be subject to the deliberative process privilege; and (3) by February 5, 2016, defendant may file a reply of no more than five pages in support of its assertion of the privilege. It is FURTHER ORDERED that defendant shall have until February 16, 2016, to file any additional documentation regarding the classified status of the Lumpkin memorandum, should it choose to do so. No further pleadings shall be filed absent an order of the Court. SO ORDERED. Signed by Judge Amy Berman Jackson on 1/19/2016. (lcabj2) (Entered: 01/19/2016)
2016-01-19		Set/Reset Deadlines: Defendant shall file a notice by 1/22/2016 indicating whether it is formally asserting that the deliberative process privilege applies to the redacted portions of the Lumpkin memorandum, and it shall provide any necessary supporting documents; Plaintiff shall file by 1/29/2016 a pleading of no more than five pages explaining its position on why the Lumpkin memorandum should not be found to be subject to the deliberative process privilege; Defendant may file by 2/5/2016 a reply of no more than five pages in support of its assertion of the privilege; Defendant shall have until 2/16/2016, to file any additional documentation regarding the classified status of the Lumpkin memorandum, should it choose to do so. No further pleadings shall be filed absent an Order of this Court. (jth) (Entered: 01/19/2016)
2016-01-22	23	NOTICE by U.S. DEPARTMENT OF DEFENSE (Attachments: # 1 Declaration)(Thurston, Robin) (Entered: 01/22/2016)
2016-01-22	24	ERRATA Third Declaration of Mark H. Herrington by U.S. DEPARTMENT OF DEFENSE 23 Notice (Other) filed by U.S. DEPARTMENT OF DEFENSE. (Thurston, Robin) (Entered: 01/22/2016)
2016-01-29	25	RESPONSE TO ORDER OF THE COURT re Order,,,,,,,,, Plaintiff's Response to the Court's Minute Order of January 19, 2016 filed by JUDICIAL WATCH, INC.. (Aldrich, Jason) (Entered: 01/29/2016)
2016-02-02	26	ORDER granting 13 Motion for Summary Judgment. See Order for details. Signed by Judge Amy Berman Jackson on 2/2/2016. (lcabj2) (Entered: 02/02/2016)
2016-02-02	27	MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 2/2/2016. (lcabj2) (Entered: 02/02/2016)
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