Case Detail

FOIA Project Annotation: Judge Emmet Sullivan has ruled that the Consumer Financial Protection Bureau properly withheld several documents under Exemption 5 (privileges), but that it failed to show that one email exchange with a White House staffer qualified under the exemption's "inter- or intra-agency" threshold. Judicial Watch filed two related requests concerning the recess appointment of Richard Cordray to head the CFPB. Although the agency contacted Judicial Watch concerning its processing of the request, Judicial Watch filed suit before the agency's final response. The agency argued that Judicial Watch had failed to exhaust its administrative remedies. Judicial Watch argued that because neither the agency's two acknowledgement letters nor its interim response provided Judicial Watch with notice of its right to appeal, the agency's responses did not qualify as a determination under CREW v. FEC, 711 F.3d 180 (D.C. Cir. 2013). Although Sullivan became the first district court judge since the CREW v. FEC decision to indicate that the requirement in Oglesby v. Dept of Army that a requester file an appeal if the agency responded before suit was filed was still good law, he nevertheless sided with Judicial Watch. He agreed that "CFPB's letters issued prior to the initiation of this case are insufficient to trigger the exhaustion requirement [because they failed to give notice of Judicial Watch's right to appeal]. CFPB only provided plaintiff with the notice of the right to appeal in its June 8 letter. However, because this letter was issued after plaintiff initiated this lawsuit, it cannot be used to cure CFPB's failure to timely respond to FOIA requests." Sullivan found that briefing materials prepared for Secretary Timothy Geithner were protected by the deliberative process privilege. He indicated that "internal communications regarding how to respond to media and Congressional inquiries have repeatedly been held to be protected under the deliberative process privilege." But he found the agency so far had failed to justify the privilege for an email exchange with a White House staffer. He pointed out that "because FOIA's deliberative process privilege applies to certain employees working in the White House but not to all, the application of the privilege hinges on what capacity in the White House [the staffer] worked, and for what office. The Bureau's declaration and Vaughn index do not provide this information." Judicial Watch argued that exchanges between the agency and its DOJ attorneys concerning Cordray's appointment were not protected by the attorney work-product privilege. Sullivan disagreed, noting that "the documents were prepared in reasonable anticipation of litigation challenging the appointment of Director Cordray. . .The emails at issue here were written within one to four weeks following the recess appointment" and "they involve the Justice Department attorneys authorized to represent the Bureau in litigation." Sullivan rejected Judicial Watch's contention that email exchanges between White House counsel and CFPB employees were too far removed to be protected by the presidential communications privilege. Instead, he observed that "it is. . .undisputed that the withheld communications related to the President's appointment of Director Cordray, and they occurred before and immediately after the appointment. Communications generated in the course of advising the President in the exercise of his appointment and removal power are clearly protected by the presidential communication privilege."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Inter- or intra-agency record

FOIA Project Annotation: Judge Emmet Sullivan granted the Consumer Financial Protection Bureau's motion to reconsider his prior opinion in this case. Indicating that the new opinion was the same as the prior one except for remaining disputed documents, Sullivan found that CFPB had properly withheld the remaining records under the Presidential communications privilege.
Issues: Exemption 5 - Privileges

Date Filed	Doc #	Docket Text
2012-06-07	1	COMPLAINT against CONSUMER FINANCIAL PROTECTION BUREAU ( Filing fee $ 350 receipt number 0090-2961725) filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Orfanedes, Paul) (Entered: 06/07/2012)
2012-06-07	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JUDICIAL WATCH, INC. (Orfanedes, Paul) (Entered: 06/07/2012)
2012-06-07	3	NOTICE of Appearance by Julie B. Axelrod on behalf of JUDICIAL WATCH, INC. (Axelrod, Julie) (Entered: 06/07/2012)
2012-06-07		Case Assigned to Judge Emmet G. Sullivan. (sth) (Entered: 06/07/2012)
2012-06-07	4	ELECTRONIC SUMMONS (3) Issued as to CONSUMER FINANCIAL PROTECTION BUREAU, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons)(sth) (Entered: 06/07/2012)
2012-06-27	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/18/2012. Answer due for ALL FEDERAL DEFENDANTS by 7/18/2012. (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) (Entered: 06/27/2012)
2012-06-27	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 06/12/2012. (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) (Entered: 06/27/2012)
2012-06-27	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CONSUMER FINANCIAL PROTECTION BUREAU served on 6/11/2012 (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) (Entered: 06/27/2012)
2012-07-18	8	NOTICE of Appearance by Wendy M. Doty on behalf of CONSUMER FINANCIAL PROTECTION BUREAU (Doty, Wendy) (Entered: 07/18/2012)
2012-07-18	9	ANSWER to Complaint by CONSUMER FINANCIAL PROTECTION BUREAU.(Doty, Wendy) (Entered: 07/18/2012)
2012-07-23		MINUTE ORDER directing the parties to submit a proposed scheduling order by no later than August 6, 2012. In the event that counsel are unable to agree on a joint recommendation, each party shall file an individual recommendation by that time. Signed by Judge Emmet G. Sullivan on July 23, 2012. (lcegs4) (Entered: 07/23/2012)
2012-07-24		Set/Reset Deadlines: proposed scheduling order due by 8/6/2012. (clv, ) (Entered: 07/24/2012)
2012-08-06	10	STATUS REPORT (Joint) by CONSUMER FINANCIAL PROTECTION BUREAU, JUDICIAL WATCH, INC.. (Doty, Wendy) (Entered: 08/06/2012)
2012-08-07		MINUTE ORDER. Upon consideration of 10 the Joint Proposed Scheduling Order, the parties are directed to comply with the following schedule: defendant shall file its motion for summary judgment by no later than October 26, 2012. Plaintiff shall file its opposition by no later than November 30, 2012. Defendant's reply shall be filed no later than December 14, 2012. Signed by Judge Emmet G. Sullivan on August 7, 2012. (lcegs4) (Entered: 08/07/2012)
2012-08-08		Set/Reset Deadlines: Summary Judgment motions due by 10/26/2012. Response to Motion for Summary Judgment due by 11/30/2012. Reply to Motion for Summary Judgment due by 12/14/2012. (clv, ) (Entered: 08/08/2012)
2012-10-24	11	Unopposed MOTION for Extension of Time to File Motion for Summary Judgment by CONSUMER FINANCIAL PROTECTION BUREAU (Attachments: # 1 Text of Proposed Order)(Doty, Wendy) (Entered: 10/24/2012)
2012-10-26		MINUTE ORDER granting 11 defendant's unopposed motion for extension of time to file its motion for summary judgment. Defendant shall file its motion for summary judgment by no later than November 9, 2012, plaintiff shall file its response by no later than December 21, 2012, Defendant shall file its reply by no later than January 18, 2013. Signed by Judge Emmet G. Sullivan on October 26, 2012. (lcegs4) (Entered: 10/26/2012)
2012-10-31		Set/Reset Deadlines: Summary Judgment motions due by 11/9/2012. Response to Motion for Summary Judgment due by 12/21/2012. Reply to Motion for Summary Judgment due by 1/18/2013. (clv, ) (Entered: 10/31/2012)
2012-11-09	12	MOTION for Summary Judgment by CONSUMER FINANCIAL PROTECTION BUREAU (Attachments: # 1 Memorandum in Support, # 2 Declaration Decl. of Brett M. Kitt, # 3 Exhibit Exs. A-L to Kitt Decl., # 4 Exhibit Ex. M, Part 1, to Kitt Decl., # 5 Exhibit Ex. M, Pt. 2, to Kitt Decl., # 6 Exhibit Ex. M, Pt. 3, to Kitt Decl., # 7 Exhibit Ex. N to Kitt Decl., # 8 Declaration Decl. of Edward N. Siskel, # 9 Statement of Facts, # 10 Text of Proposed Order)(Doty, Wendy) (Entered: 11/09/2012)
2012-12-21	13	Consent MOTION for Extension of Time to File Opposition to Summary Judgment by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Axelrod, Julie) (Entered: 12/21/2012)
2012-12-26		MINUTE ORDER granting 13 consent motion for extension of time. Plaintiff's opposition to the motion for summary judgment shall be filed by no later than January 18, 2013, and defendant's reply shall be filed by no later than February 15, 2013. Signed by Judge Emmet G. Sullivan on December 26, 2012. (lcegs4) (Entered: 12/26/2012)
2012-12-27		Set/Reset Deadlines: Response to Motion for Summary Judgment due by 1/18/2013. Reply to Motion for Summary Judgment due by 2/15/2013. (clv, ) (Entered: 12/27/2012)
2013-01-07	14	NOTICE of Appearance by Bradley Heath Cohen on behalf of All Defendants (Cohen, Bradley) (Entered: 01/07/2013)
2013-01-18	15	Memorandum in opposition to re 12 MOTION for Summary Judgment with Response to Statement of Material Facts filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Declaration of Lisette Garcia, # 2 Exhibit A, # 3 Exhibit B, # 4 Text of Proposed Order)(Axelrod, Julie) (Entered: 01/18/2013)
2013-01-18	16	Cross MOTION for Summary Judgment With Statement of Material Facts by JUDICIAL WATCH, INC. (Attachments: # 1 Declaration of Lisette Garcia, # 2 Exhibit A, # 3 Exhibit B, # 4 Text of Proposed Order)(Axelrod, Julie) (Entered: 01/18/2013)
2013-02-07	17	Consent MOTION for Extension of Time to File Response/Reply as to 16 Cross MOTION for Summary Judgment With Statement of Material Facts by CONSUMER FINANCIAL PROTECTION BUREAU (Attachments: # 1 Text of Proposed Order)(Cohen, Bradley) (Entered: 02/07/2013)
2013-02-07		MINUTE ORDER granting 17 defendant's consent motion for extension of time. Defendant shall file its combined opposition and reply by no later than March 1, 2013 and plaintiff shall file its reply by no later than March 28, 2013. Signed by Judge Emmet G. Sullivan on February 7, 2013. (lcegs4) (Entered: 02/07/2013)
2013-02-08		Set/Reset Deadlines: Defendants Combined Opposition and Reply due by 3/1/2013 and plaintiff Reply due by 3/28/2013. (mac) (Entered: 02/08/2013)
2013-03-01	18	Memorandum in opposition to re 16 Cross MOTION for Summary Judgment With Statement of Material Facts filed by CONSUMER FINANCIAL PROTECTION BUREAU. (Attachments: # 1 Statement of Facts Response to Plaintiff's Undisputed SMF in support of its Cross-Motion)(Cohen, Bradley) (Entered: 03/01/2013)
2013-03-01	19	REPLY to opposition to motion re 12 MOTION for Summary Judgment filed by CONSUMER FINANCIAL PROTECTION BUREAU. (Cohen, Bradley) (Entered: 03/01/2013)
2013-03-28	20	REPLY to opposition to motion re 16 Cross MOTION for Summary Judgment With Statement of Material Facts filed by JUDICIAL WATCH, INC.. (Orfanedes, Paul) (Entered: 03/28/2013)
2013-03-29		NOTICE OF ERROR re 20 Reply to opposition to Motion; emailed to porfanedes@judicialwatch.org, cc'd 4 associated attorneys -- The PDF file you docketed contained errors: 1. Invalid attorney signature (jf, ) (Entered: 03/29/2013)
2013-04-04	21	NOTICE OF SUPPLEMENTAL AUTHORITY by JUDICIAL WATCH, INC. (Attachments: # 1 Exhibit Opinion of Circuit Court: CREW v. FEC)(Axelrod, Julie) (Entered: 04/04/2013)
2013-09-30	22	ORDER granting in part and denying in part 12 Motion for Summary Judgment; granting in part and denying in part 16 Motion for Summary Judgment; directing the parties to file a joint recommendation for further proceedings by no later than October 15, 2013. Signed by Judge Emmet G. Sullivan on September 30, 2013. (lcegs4) (Entered: 09/30/2013)
2013-09-30	23	MEMORANDUM AND OPINION. Signed by Judge Emmet G. Sullivan on September 30, 2013. (lcegs4) (Entered: 09/30/2013)
2013-09-30		Set/Reset Deadlines: Joint Recommendation due by 10/15/2013. (mac) (Entered: 09/30/2013)
2013-10-04	24	Consent MOTION to Stay re Set/Reset Deadlines in Light of Lapse of Appropriations by CONSUMER FINANCIAL PROTECTION BUREAU (Attachments: # 1 Text of Proposed Order)(Cohen, Bradley) (Entered: 10/04/2013)
2013-10-07		MINUTE ORDER granting 24 consent motion for extension of time for the parties to file their response to the Court's September 30, 2013 Order in light of the lapse of appropriations. The parties shall file their joint response by no later than 14 days after Congress appropriates funds for the Department. Signed by Judge Emmet G. Sullivan on October 7, 2013. (lcegs4) (Entered: 10/07/2013)
2013-10-10	25	NOTICE OF WITHDRAWAL OF APPEARANCE as to JUDICIAL WATCH, INC.. Attorney Julie B. Axelrod terminated. (Axelrod, Julie) (Entered: 10/10/2013)
2013-10-29	26	NOTICE of Appearance by Michael Bekesha on behalf of JUDICIAL WATCH, INC. (Bekesha, Michael) (Entered: 10/29/2013)
2013-10-31	27	STATUS REPORT by CONSUMER FINANCIAL PROTECTION BUREAU. (Cohen, Bradley) (Entered: 10/31/2013)
2013-10-31	28	MOTION for Reconsideration re 23 Memorandum & Opinion by CONSUMER FINANCIAL PROTECTION BUREAU (Attachments: # 1 Text of Proposed Order)(Cohen, Bradley) (Entered: 10/31/2013)
2013-11-14	29	Memorandum in opposition to re 28 MOTION for Reconsideration re 23 Memorandum & Opinion filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 11/14/2013)
2013-11-21	30	REPLY to opposition to motion re 28 MOTION for Reconsideration re 23 Memorandum & Opinion filed by CONSUMER FINANCIAL PROTECTION BUREAU. (Cohen, Bradley) (Entered: 11/21/2013)
2013-11-22	31	MOTION for Leave to File to File Surreply by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Surreply Brief)(Bekesha, Michael) (Entered: 11/22/2013)
2014-03-27	32	ORDER granting 31 Motion for Leave to File Surreply; granting 28 Motion for Reconsideration; Dismissing Case with Prejudice. Signed by Judge Emmet G. Sullivan on March 27, 2014. (lcegs4) (Entered: 03/27/2014)
2014-03-27	33	MEMORANDUM AND OPINION. Signed by Judge Emmet G. Sullivan on March 27, 2014. (lcegs4) (Entered: 03/27/2014)
2014-03-27	34	SURREPLY to re 28 MOTION for Reconsideration re 23 Memorandum & Opinion filed by JUDICIAL WATCH, INC.. (jf, ) (Entered: 03/27/2014)
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