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Case TitleWATERMAN v. INTERNAL REVENUE SERVICE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2016cv01823
Date Filed2016-09-12
Date Closed2021-09-21
JudgeJudge Richard J. Leon
PlaintiffBRADLEY S. WATERMAN
Case DescriptionBradley Waterman submitted a FOIA request to the IRS for a report prepared by the agency concerning allegations that Waterman had engaged in improper conduct during his representation of a client before the IRS. The agency responded by indicating that it would withhold 20 pages from the report in full and two pages with redactions. Waterman appealed the denial, which was upheld by the agency. Waterman then filed suit.
Complaint issues: Litigation - Attorney's fees

DefendantINTERNAL REVENUE SERVICE
AppealD.C. Circuit 18-5037
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Opinion/Order [30]
FOIA Project Annotation: Judge Richard Leon has ruled that the IRS properly withheld portions of the Office of Professional Responsibility's investigation of misconduct by tax attorney Bradley Waterman under Exemption 5 (privileges). After the Tax-Exempt Bond office complained of practitioner misconduct by Waterman, the OPR started an investigation and determined that no further action against Waterman was necessary. After Waterman failed to get a copy of the report through more informal means, he filed a FOIA request with the IRS. The IRS withheld records about its investigation under Exemption 5 and Waterman filed suit. Waterman did not contest that the records were predecisional but argued instead that they were factual accounts and not deliberative. Leon found the factual material contributed to the deliberative process. He noted that "our Circuit has allowed agencies to withhold factual material that has been selected, summarized, or organized for the purposes of assisting in a deliberative process." He pointed out that "requiring the IRS to reveal the particular fact its employees thought warranted a referral of misconduct would expose the employees' deliberative evaluation of Waterman's conduct against IRS rules and standards." He upheld a redaction in an email between an OPR legal analysis manager and an OPR attorney, observing that "the redacted information therefore recounts a 'discussion that took place before any action was taken and describes an action (but not a final action) to be taken in the future.' That kind of conversation involving the planning and evaluation of a 'proposed' agency action, prior to adoption of a final agency position, is by its nature predecisional and deliberative."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative
Opinion/Order [48]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2016-09-121COMPLAINT against INTERNAL REVENUE SERVICE ( Filing fee $ 400 receipt number 0090-4670241) filed by BRADLEY S. WATERMAN. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Boss, L.) (Entered: 09/12/2016)
2016-09-12Case Assigned to Judge Richard J. Leon. (jd) (Entered: 09/15/2016)
2016-09-152SUMMONS (1) Issued Electronically as to INTERNAL REVENUE SERVICE. (Attachment: # 1 Consent Forms)(jd) (Entered: 09/15/2016)
2016-09-163ENTERED IN ERROR.....REQUEST FOR SUMMONS TO ISSUE filed by BRADLEY S. WATERMAN.(Boss, L.) Modified on 9/19/2016 (znmw). (Entered: 09/16/2016)
2016-09-19NOTICE OF ERROR re 3 Request for Summons to Issue; emailed to bboss@cozen.com, cc'd 3 associated attorneys -- The PDF file you docketed contained errors: 1. Please refile document, 2. Incorrect summonses submitted; Please resubmit corrected FOIA summones. (znmw, ) (Entered: 09/19/2016)
2016-09-194REQUEST FOR SUMMONS TO ISSUE filed by BRADLEY S. WATERMAN.(Boss, L.) (Entered: 09/19/2016)
2016-09-205SUMMONS (2) Issued Electronically as to U.S. Attorney and U.S. Attorney General (znmw) (Entered: 09/20/2016)
2016-09-306RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. INTERNAL REVENUE SERVICE served on 9/19/2016 (Attachments: # 1 Exhibit 1)(Boss, L.) (Entered: 09/30/2016)
2016-09-307RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 9/26/2016. Answer due for ALL FEDERAL DEFENDANTS by 10/26/2016. (Attachments: # 1 Exhibit 1)(Boss, L.) (Entered: 09/30/2016)
2016-09-308RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 09/26/2016. (Attachments: # 1 Exhibit 1)(Boss, L.) (Entered: 09/30/2016)
2016-10-069STANDING ORDER. Signed by Judge Richard J. Leon on 10/06/16. (lcrjl1) (Entered: 10/06/2016)
2016-10-0710NOTICE of Appearance by Joycelyn S. Peyton on behalf of All Defendants (Peyton, Joycelyn) (Entered: 10/07/2016)
2016-10-2511Consent MOTION for Extension of Time to File Answer re 1 Complaint by INTERNAL REVENUE SERVICE (Attachments: # 1 Text of Proposed Order)(Peyton, Joycelyn) (Entered: 10/25/2016)
2016-10-26MINUTE ORDER: Upon consideration of Defendant's Motion for Extension of Time to Answer or Otherwise Respond to Complaint 11 , it is hereby ORDERED that the Motion is GRANTED and that defendant shall answer or otherwise respond to plaintiff's Complaint 1 on or before 11/28/16. It is further ORDERED that the parties will file their Joint Meet and Confer Statement on or before 01/13/17. Signed by Judge Richard J. Leon on 10/26/16. (lcrjl1) (Entered: 10/26/2016)
2016-10-27Set/Reset Deadlines: Answer due by 11/28/2016, Meet & Confer Statement due by 1/13/2017. (tb) (Entered: 10/27/2016)
2016-11-2812ANSWER to Complaint by INTERNAL REVENUE SERVICE.(Peyton, Joycelyn) (Entered: 11/28/2016)
2016-12-2813RESPONSE TO ORDER OF THE COURT re 9 Order Joint Statement Pursuant to the Court's Order Dated October 6, 2016 filed by BRADLEY S. WATERMAN. (Attachments: # 1 Text of Proposed Order)(Boss, L.) (Entered: 12/28/2016)
2016-12-3014SCHEDULING ORDER: Defendant shall file its Motion for Summary Judgment and Vaughn Index by 3/15/2017; Plaintiff shall file its combined Opposition to Defendant's Motion for Summary Judgment and Cross-Motion for Summary Judgment by 4/17/2017; Defendant shall file its combined Opposition to Plaintiff's Cross-Motion for Summary Judgment and Reply in support of its Motion for Summary Judgment by 5/1/2017; Plaintiff shall file its Reply in support of its Cross-Motion for Summary Judgment by 5/15/2017. Signed by Judge Richard J. Leon on 12/28/2016. (jth) (Entered: 12/30/2016)
2017-03-1515MOTION for Extension of Time to File Dispositive Motion by INTERNAL REVENUE SERVICE (Attachments: # 1 Text of Proposed Order)(Peyton, Joycelyn) (Entered: 03/15/2017)
2017-04-07MINUTE ORDER: Upon consideration of defendant's Motion for Extension of Time to File Dispositive Motion 15 , it is hereby ORDERED that the Motion is GRANTED nunc pro tunc, and it is further ORDERED that the following schedule shall govern the filing of dispositive motions: (1) defendant's motion for summary judgment and Vaughn Index shall be filed on or before 04/27/17; (2) plaintiff's combined opposition and cross-motion for summary judgment shall be filed on or before 06/12/17; (3) defendant's combined reply and opposition to plaintiff's cross-motion shall be filed on or before 06/26/17; and (4) plaintiff's reply in support of its cross-motion shall be filed on or before 07/11/17. Signed by Judge Richard J. Leon on 04/07/17. (lcrjl1) (Entered: 04/07/2017)
2017-04-2716Consent MOTION for Extension of Time to File Dispositive Motion by INTERNAL REVENUE SERVICE (Attachments: # 1 Text of Proposed Order)(Peyton, Joycelyn) (Entered: 04/27/2017)
2017-05-0117ORDER Granting 16 Defendant's Second Motion for Extension of Time to File Dispositive Motions. The deadlines are extended as follows: Defendant's Motion for Summary Judgment and Vaughn Index are due by 6/12/2017; Plaintiff's Combined Opposition to Defendant's Motion for Summary Judgment and Cross-Motion for Summary Judgment is due by 7/13/2017; Defendant's Combined Opposition to Plaintiff's Cross-Motion for Summary Judgment and Reply in support of its Motion for Summary Judgment is due by 7/28/2017; Plaintiff's Reply in support of its Cross-Motion for Summary Judgment by 8/14/2017. Signed by Judge Richard J. Leon on 4/28/2017. (jth) (Entered: 05/01/2017)
2017-06-1218MOTION for Summary Judgment as to Count II , MOTION to Dismiss as to Count I by INTERNAL REVENUE SERVICE (Attachments: # 1 Memorandum in Support of Motion to Dismiss and Summary Judgment, # 2 Declaration of B. Herring, # 3 Declaration of K. Ott, # 4 Declaration of E. Rawlins, # 5 Vaughn Index, # 6 Statement of Facts, # 7 Exhibit A, # 8 Exhibit B, # 9 Exhibit C, # 10 Exhibit D, # 11 Exhibit E, # 12 Exhibit F, # 13 Exhibit G, # 14 Exhibit H)(Peyton, Joycelyn) (Entered: 06/12/2017)
2017-07-1219Consent MOTION for Extension of Time to File combined Opposition to Defendant's Motion for Summary Judgment and Cross-Motion for Summary Judgment by BRADLEY S. WATERMAN (Attachments: # 1 Text of Proposed Order)(Boss, L.) (Entered: 07/12/2017)
2017-07-1420ORDER Granting 19 Plaintiff's Consent Motion for Extension of Time to File. The deadlines shall be extended as follows: Plaintiff's combined Opposition to Defendant's Motion for Summary Judgment and Cross-Motion for Summary Judgment is due by 8/14/2017; Defendant's combined Reply in support of its Motion for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Summary Judgment is due by 8/28/2017; Plaintiff's Reply in support of its Cross-Motion for Summary Judgment is due by 9/13/2017. Signed by Judge Richard J. Leon on 7/14/2017. (jth) (Entered: 07/17/2017)
2017-08-0221Consent MOTION for Extension of Time to File combined Opposition to Defendant's Motion for Summary Judgment and Cross-Motion for Summary Judgment by BRADLEY S. WATERMAN (Attachments: # 1 Text of Proposed Order)(Boss, L.) (Entered: 08/02/2017)
2017-08-0722ORDER. The Court having considered Plaintiff's 21 Consent Motion for Extension of Time, it is ORDERED that Plaintiff's 21 Consent Motion for Extension of Time is GRANTED; and it is further ORDERED, that the motion deadlines shall be extended as follows: Plaintiff's combined Opposition to Defendant's Motion for Summary Judgment and Cross-Motion for Summary Judgment is now due by 9/13/2017; Defendant's combined Opposition to Plaintiff's Cross-Motion for Summary Judgment and Reply in support of its Motion for Summary Judgment is due by 9/27/2017; Plaintiff's Reply in support of its Cross-Motion for Summary Judgment is due by 10/13/2017. Signed by Judge Richard J. Leon on 8/5/2017. (jth) (Entered: 08/07/2017)
2017-09-1323STIPULATION of Dismissal of Count I with Prejudice by BRADLEY S. WATERMAN. (Boss, L.) (Entered: 09/13/2017)
2017-09-1324Cross MOTION for Summary Judgment by BRADLEY S. WATERMAN (Attachments: # 1 Exhibit A, # 2 Declaration of B. Waterman, # 3 Text of Proposed Order)(Boss, L.) (Entered: 09/13/2017)
2017-09-1325Memorandum in opposition to re 18 MOTION for Summary Judgment as to Count II MOTION to Dismiss as to Count I filed by BRADLEY S. WATERMAN. (See Docket Entry 24 to view document). (nmw) (Entered: 09/14/2017)
2017-09-2726REPLY to opposition to motion re 18 MOTION for Summary Judgment filed by INTERNAL REVENUE SERVICE. (Peyton, Joycelyn) Modified on 9/28/2017 to correct linkage (zrdj). (Entered: 09/27/2017)
2017-09-2727Memorandum in opposition to re 24 Cross MOTION for Summary Judgment filed by INTERNAL REVENUE SERVICE. (Peyton, Joycelyn) (Entered: 09/27/2017)
2017-10-0228Consent MOTION for Extension of Time to File Response/Reply as to 24 Cross MOTION for Summary Judgment by BRADLEY S. WATERMAN (Attachments: # 1 Text of Proposed Order)(Boss, L.) (Entered: 10/02/2017)
2017-10-13MINUTE ORDER granting 28 Consent Motion for Extension of Time. It is hereby ORDERED that the Motion is GRANTED. Plaintiff shall file his reply in support of his cross-motion for summary judgment on or before October 27, 2017. SO ORDERED. Signed by Judge Richard J. Leon on 10/13/2017. (lcrjl1) (Entered: 10/13/2017)
2017-10-2429REPLY to opposition to motion re 24 Cross MOTION for Summary Judgment filed by BRADLEY S. WATERMAN. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Boss, L.) (Entered: 10/24/2017)
2018-01-2430MEMORANDUM OPINION. Signed by Judge Richard J. Leon on 01/24/2018. (jth) (Entered: 01/25/2018)
2018-01-2431ORDER for the reasons set forth in the Memorandum Opinion accompanying this Order, it is hereby ORDERED that, pursuant to the parties' 23 Joint Stipulation of Dismissal of Count I with Prejudice, Count I of plaintiff's complaint is DISMISSED; and it is further ORDERED that Defendant's 18 Motion for Summary Judgment on Count II is GRANTED; and it is further ORDERED that Plaintiff's 24 Cross-Motion for Summary Judgment on Count II is DENIED. SO ORDERED. Signed by Judge Richard J. Leon on 01/24/2018. (jth) (Entered: 01/25/2018)
2018-02-0732NOTICE OF APPEAL TO DC CIRCUIT COURT as to 31 Order on Motion for Summary Judgment,,,,, by BRADLEY S. WATERMAN. Filing fee $ 505, receipt number 0090-5323468. Fee Status: Fee Paid. Parties have been notified. (Boss, L.) (Entered: 02/07/2018)
2018-02-0833Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 32 Notice of Appeal to DC Circuit Court. (znmw) (Entered: 02/08/2018)
2018-02-13USCA Case Number 18-5037 for 32 Notice of Appeal to DC Circuit Court filed by BRADLEY S. WATERMAN. (zrdj) (Entered: 02/14/2018)
2019-04-0535MANDATE of USCA as to 32 Notice of Appeal to DC Circuit Court filed by BRADLEY S. WATERMAN ; USCA Case Number 18-5037. (Attachments: # 1 USCA Judgment)(ztd) (Entered: 04/10/2019)
2019-04-0834NOTICE of Appearance by Stephanie Glaberson on behalf of BRADLEY S. WATERMAN (Glaberson, Stephanie) (Entered: 04/08/2019)
2019-04-1036NOTICE of Appearance by David C. Vladeck on behalf of BRADLEY S. WATERMAN (Vladeck, David) (Main Document 36 replaced on 4/15/2019) (zjf). (Entered: 04/10/2019)
2019-05-1637Second MOTION for Summary Judgment by BRADLEY S. WATERMAN (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibit, # 4 Exhibit, # 5 Text of Proposed Order, # 6 Certificate of Service)(Vladeck, David) (Entered: 05/16/2019)
2019-05-3038MOTION to Stay Further Briefing , Consent MOTION for Telephone Conference , MOTION for Extension of Time to File Response/Reply to Plaintiff's Renewed Motion for Summary Judgment, In the Alternative by INTERNAL REVENUE SERVICE (Attachments: # 1 Text of Proposed Order for Stay and Telephonic Conference, # 2 Text of Proposed Order for Extension of Time)(Peyton, Joycelyn) (Entered: 05/30/2019)
2019-06-0339Memorandum in opposition to re 38 MOTION to Stay Further Briefing Consent MOTION for Telephone Conference MOTION for Extension of Time to File Response/Reply to Plaintiff's Renewed Motion for Summary Judgment, In the Alternative filed by BRADLEY S. WATERMAN. (Attachments: # 1 Text of Proposed Order)(Glaberson, Stephanie) (Entered: 06/03/2019)
2019-10-21MINUTE ORDER. Upon consideration of plaintiff's 37 Renewed Motion for Summary Judgment, it is hereby ORDERED that the motion is DENIED without prejudice. It is further ORDERED that defendant's 38 Motion for Stay and a Telephonic Status Conference or, in the alternative, Motion for Extension of Time is DENIED AS MOOT. It is further ORDERED that a status conference is set for November 4, 2019 at 3:00 PM in Courtroom 18 before Judge Richard J. Leon. SO ORDERED. Signed by Judge Richard J. Leon on 10/21/19. (lcrjl1) (Entered: 10/21/2019)
2019-10-21Set/Reset Hearings: A Status Conference is set for 11/4/2019 at 3:00 PM in Courtroom 18 before Judge Richard J. Leon. (jth) (Entered: 10/21/2019)
2019-10-2140NOTICE of Appearance by Rachel L. Fried on behalf of BRADLEY S. WATERMAN (Fried, Rachel) (Entered: 10/21/2019)
2019-10-2341NOTICE OF WITHDRAWAL OF APPEARANCE as to BRADLEY S. WATERMAN. Attorney Stephanie K. Glaberson terminated. (Glaberson, Stephanie) (Entered: 10/23/2019)
2019-11-04Minute Entry for proceedings held before Judge Richard J. Leon: Status Conference held on 11/4/2019. A ruling will be issued by the Court after in camera review of documents provided to the Court by the defendant in open court. (Court Reporter Elizabeth Saint-Loth.) (tg) (Entered: 11/04/2019)
2020-06-23MINUTE ORDER. On November 4, 2019, the Government provided the Court with the documents at issue in this case for in camera review. It is hereby ORDERED that within 7 days of this Order, the Government shall file the redacted versions of those documents as they were originally provided to plaintiff. SO ORDERED. Signed by Judge Richard J. Leon on 6/23/2020. (lcrjl1) (Entered: 06/23/2020)
2020-07-0142NOTICE of Filing Redacted Documents by INTERNAL REVENUE SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Peyton, Joycelyn) (Entered: 07/01/2020)
2020-11-2443Second Renewed MOTION for Summary Judgment by BRADLEY S. WATERMAN (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Statement of Facts, # 4 Text of Proposed Order, # 5 Certificate of Service)(Fried, Rachel) Modified on 11/24/2020 to correct docket text (zjf). (Entered: 11/24/2020)
2020-12-0844Cross MOTION to Strike 43 Second Renewed MOTION for Summary Judgment by INTERNAL REVENUE SERVICE (Attachments: # 1 Text of Proposed Order)(Peyton, Joycelyn) (Entered: 12/08/2020)
2020-12-1045Memorandum in opposition to re 44 Cross MOTION to Strike 43 Second Renewed MOTION for Summary Judgment filed by BRADLEY S. WATERMAN. (Attachments: # 1 Text of Proposed Order)(Fried, Rachel) (Entered: 12/10/2020)
2020-12-1746REPLY to opposition to motion re 44 Cross MOTION to Strike 43 Second Renewed MOTION for Summary Judgment filed by INTERNAL REVENUE SERVICE. (Peyton, Joycelyn) (Entered: 12/17/2020)
2021-08-2347NOTICE OF WITHDRAWAL OF APPEARANCE as to BRADLEY S. WATERMAN. Attorney Rachel L. Fried terminated. (Fried, Rachel) (Entered: 08/23/2021)
2021-09-2048MEMORANDUM OPINION. Signed by Judge Richard J. Leon on 9/20/2021. (lcrjl1) (Entered: 09/20/2021)
2021-09-2049ORDER. Signed by Judge Richard J. Leon on 9/20/2021. (lcrjl1) (Entered: 09/20/2021)
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