Case Detail

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

FOIA Project Annotation: As has been his apparent habit throughout his career as a district court judge, Senior Judge Richard Leon has once again decided to ignore the criticism leveled against him by the D.C. Circuit and uphold his original decision that the IRS had properly withheld a memo from tax attorney Bradley Waterman, who had requested the contents of an agency investigation of his fitness to continue to practice tax law. After the New Hampshire Health and Education Facilities Authority leveled misconduct charges against Waterman with the IRS Office of Professional Responsibility, the agency investigated the charges and cleared Waterman of wrongdoing. Waterman requested a copy of the investigation informally but was told he would need to request it through FOIA. The agency withheld the analysis contained in the report under Exemption 5 (privileges). Waterman filed suit and Leon upheld the agency's decision. Waterman then filed an appeal to the D.C. Circuit, which ruled that the IRS had not shown why non-exempt information could not be disclosed from the memo and sent the case back to Leon for application of its ruling. Leon apparently viewed the D.C. Circuit's ruling as nothing more than a suggestion and once again affirmed the agency's decision, although with slightly more detailed analysis. He pointed out that "the fact that these memoranda contain summations of the factual allegations concerning Waterman â€" even straightforward recitals of his interactions with the agencies â€" does not alone render the deliberative process privilege inapplicable, as the very choice of which facts to present and rely upon in reaching investigative recommendations and decisions is shielded by the privilege and thus Exemption 5."
Issues: Exemption 5 - Privileges, Segregability - Disclosure of all non-exempt records

Date Filed	Doc #	Docket Text
2016-09-12	1	COMPLAINT 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)
2016-09-12		Case Assigned to Judge Richard J. Leon. (jd) (Entered: 09/15/2016)
2016-09-15	2	SUMMONS (1) Issued Electronically as to INTERNAL REVENUE SERVICE. (Attachment: # 1 Consent Forms)(jd) (Entered: 09/15/2016)
2016-09-16	3	ENTERED IN ERROR.....REQUEST FOR SUMMONS TO ISSUE filed by BRADLEY S. WATERMAN.(Boss, L.) Modified on 9/19/2016 (znmw). (Entered: 09/16/2016)
2016-09-19		NOTICE 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)
2016-09-19	4	REQUEST FOR SUMMONS TO ISSUE filed by BRADLEY S. WATERMAN.(Boss, L.) (Entered: 09/19/2016)
2016-09-20	5	SUMMONS (2) Issued Electronically as to U.S. Attorney and U.S. Attorney General (znmw) (Entered: 09/20/2016)
2016-09-30	6	RETURN 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)
2016-09-30	7	RETURN 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)
2016-09-30	8	RETURN 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)
2016-10-06	9	STANDING ORDER. Signed by Judge Richard J. Leon on 10/06/16. (lcrjl1) (Entered: 10/06/2016)
2016-10-07	10	NOTICE of Appearance by Joycelyn S. Peyton on behalf of All Defendants (Peyton, Joycelyn) (Entered: 10/07/2016)
2016-10-25	11	Consent 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)
2016-10-26		MINUTE 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)
2016-10-27		Set/Reset Deadlines: Answer due by 11/28/2016, Meet & Confer Statement due by 1/13/2017. (tb) (Entered: 10/27/2016)
2016-11-28	12	ANSWER to Complaint by INTERNAL REVENUE SERVICE.(Peyton, Joycelyn) (Entered: 11/28/2016)
2016-12-28	13	RESPONSE 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)
2016-12-30	14	SCHEDULING 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)
2017-03-15	15	MOTION for Extension of Time to File Dispositive Motion by INTERNAL REVENUE SERVICE (Attachments: # 1 Text of Proposed Order)(Peyton, Joycelyn) (Entered: 03/15/2017)
2017-04-07		MINUTE 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)
2017-04-27	16	Consent 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)
2017-05-01	17	ORDER 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)
2017-06-12	18	MOTION 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)
2017-07-12	19	Consent 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)
2017-07-14	20	ORDER 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)
2017-08-02	21	Consent 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)
2017-08-07	22	ORDER. 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)
2017-09-13	23	STIPULATION of Dismissal of Count I with Prejudice by BRADLEY S. WATERMAN. (Boss, L.) (Entered: 09/13/2017)
2017-09-13	24	Cross 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)
2017-09-13	25	Memorandum 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)
2017-09-27	26	REPLY 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)
2017-09-27	27	Memorandum in opposition to re 24 Cross MOTION for Summary Judgment filed by INTERNAL REVENUE SERVICE. (Peyton, Joycelyn) (Entered: 09/27/2017)
2017-10-02	28	Consent 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)
2017-10-13		MINUTE 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)
2017-10-24	29	REPLY 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)
2018-01-24	30	MEMORANDUM OPINION. Signed by Judge Richard J. Leon on 01/24/2018. (jth) (Entered: 01/25/2018)
2018-01-24	31	ORDER 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)
2018-02-07	32	NOTICE 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)
2018-02-08	33	Transmission 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)
2018-02-13		USCA Case Number 18-5037 for 32 Notice of Appeal to DC Circuit Court filed by BRADLEY S. WATERMAN. (zrdj) (Entered: 02/14/2018)
2019-04-05	35	MANDATE 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)
2019-04-08	34	NOTICE of Appearance by Stephanie Glaberson on behalf of BRADLEY S. WATERMAN (Glaberson, Stephanie) (Entered: 04/08/2019)
2019-04-10	36	NOTICE 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)
2019-05-16	37	Second 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)
2019-05-30	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 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)
2019-06-03	39	Memorandum 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)
2019-10-21		MINUTE 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)
2019-10-21		Set/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)
2019-10-21	40	NOTICE of Appearance by Rachel L. Fried on behalf of BRADLEY S. WATERMAN (Fried, Rachel) (Entered: 10/21/2019)
2019-10-23	41	NOTICE OF WITHDRAWAL OF APPEARANCE as to BRADLEY S. WATERMAN. Attorney Stephanie K. Glaberson terminated. (Glaberson, Stephanie) (Entered: 10/23/2019)
2019-11-04		Minute 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)
2020-06-23		MINUTE 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)
2020-07-01	42	NOTICE 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)
2020-11-24	43	Second 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)
2020-12-08	44	Cross 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)
2020-12-10	45	Memorandum 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)
2020-12-17	46	REPLY 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)
2021-08-23	47	NOTICE OF WITHDRAWAL OF APPEARANCE as to BRADLEY S. WATERMAN. Attorney Rachel L. Fried terminated. (Fried, Rachel) (Entered: 08/23/2021)
2021-09-20	48	MEMORANDUM OPINION. Signed by Judge Richard J. Leon on 9/20/2021. (lcrjl1) (Entered: 09/20/2021)
2021-09-20	49	ORDER. Signed by Judge Richard J. Leon on 9/20/2021. (lcrjl1) (Entered: 09/20/2021)
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