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Case TitleBergeron v. United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives
DistrictDistrict of Nevada
CityReno
Case Number3:2013cv00625
Date Filed2013-11-07
Date Closed2016-03-28
JudgeJudge Miranda M. Du
PlaintiffNormand Bergeron
Case DescriptionBergeron, a BATF employee, requested all records pertaining to a vacancy announcement for a supervisor in the BATF's Reno office. He made several subsequent requests for records related to vacancy announcements, appealing some, but not others. He also contacted the Office of Government Information Services for help in resolving his requests. Dissatisfied with the agency's redactions under Exemption 5 (privileges) and Exemption 6 (invasion of privacy), he filed suit.
Complaint issues: improper withholding, exhaustion of administrative remedies, attorney's fees, sanctions

DefendantUnited States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives
Documents
Docket
Complaint
Complaint attachment 1
Opinion/Order [20]
Opinion/Order [35]
Opinion/Order [40]
FOIA Project Annotation: A federal magistrate in Nevada has found the redacted portion of an email between a manager and an employee of the BATF is not covered by Exemption 5 (deliberative process privilege) because it is neither predecisional nor deliberative. Dealing with the single email as part of a larger request from Normand Bergeron, the agency had submitted the email to the court for in camera inspection. After reviewing the unredacted email, the magistrate judge ruled against the agency. He noted that "the manager is asking directly whether an agency policy exists or not. The redacted portion, with the benefit of in camera review, does not amount to a predecisional decision on its face because it is not a recommendation, proposal, or suggestion made before the implementation of the policy." He added that "the redacted portion is not the agency's predecisional deliberations but rather consisted of an answer and an opinion which needed more substantiation through research. Generally, postdecisional material that explain or justify a decision already made do not fall within the deliberative process privilege." The magistrate judge observed that "significantly, this court's in camera review finds that disclosure of the redacted portion would not enable the public to deduce or reconstruct how the agency arrived at its decision."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional
Opinion/Order [49]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2013-11-071COMPLAINT against Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, filed by Normand Bergeron. Filing fee $400 paid: receipt NVRNO-1973. Certificate of Interested Parties due by 11/17/2013. Proof of service due by 3/7/2014. (Attachments: # 1 Civil Cover Sheet) (KR) (Entered: 11/07/2013)
2013-11-072SUMMONS ISSUED as to Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives re 1 Complaint. (KR) (Entered: 11/07/2013)
2013-11-073NOTICE to Plaintiff from USDC advising case against defendant Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, et al., has been received and assigned case number 3:13-cv-00625 . (KR) (Entered: 11/07/2013)
2013-11-07Case assigned to District Judge Miranda M. Du and Magistrate Judge William G. Cobb. (WJ) (Entered: 11/07/2013)
2013-11-084MINUTE ORDER IN CHAMBERS of the Honorable Judge Miranda M. Du, on 11/8/2013. By Deputy Clerk: Peggie Vannozzi. This case has been assigned to the Honorable Miranda M. Du. Judge Du's Civil Standing Order is posted on the U.S. District Court, District of Nevada public website and may be accessed directly via this hyperlink: www.nvd.uscourts.gov (no image attached) (Copies have been distributed pursuant to the NEF - PAV) (Entered: 11/08/2013)
2013-11-125CERTIFICATE of Interested Parties filed by Normand Bergeron. There are no known interested parties other than those participating in the case. (DRM) (Entered: 11/12/2013)
2013-12-276AMENDED COMPLAINT against United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, filed by Normand Bergeron. No changes to parties. Proof of service due by 4/26/2014. (DRM) (Entered: 12/27/2013)
2013-12-277SUMMONS ISSUED as to United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives. (DRM) (Entered: 12/27/2013)
2013-12-278AFFIDAVIT OF PROCESS SERVER filed by Normand Bergeron. United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives served Summons, Civil Cover Sheet, and Complaint on 11/8/2013, answer due 1/7/2014. (DRM) (Entered: 12/27/2013)
2014-01-039MOTION for Vaughn Index by Plaintiff Normand Bergeron. Responses due by 1/20/2014. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(JC) (Entered: 01/03/2014)
2014-01-1410AFFIDAVIT OF PROCESS SERVER by Plaintiff Normand Bergeron. (JC) (Entered: 01/14/2014)
2014-01-2211NOTICE - DEFAULT, filed by Normand Bergeron. (KR) (Entered: 01/22/2014)
2014-02-1412ANSWER to 6 Amended Complaint filed by United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives. Certificate of Interested Parties due by 2/24/2014. Discovery Plan/Scheduling Order due by 3/31/2014.(Addington, Gregory) (Entered: 02/14/2014)
2014-03-0613RESPONSE to 12 Answer entitled Memorandum of Points and Authorities in Opposition to Defendant's Motion to Dismiss ; filed by Plaintiff Normand Bergeron. (JC) (Entered: 03/06/2014)
2014-03-0714MOTION to Strike 13 Response - Other by Defendant United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives. Responses due by 3/24/2014. (Addington, Gregory) (Entered: 03/07/2014)
2014-03-2415RESPONSE to 14 MOTION to Strike 13 Response, filed by Plaintiff Normand Bergeron. Replies due by 4/3/2014. (JC) (Entered: 03/24/2014)
2014-03-2416MOTION for Leave to File Supplemental Pleading, by Plaintiff Normand Bergeron. Motion ripe 3/24/2014. Image identical to 15 Response . (JC) (Entered: 03/24/2014)
2014-03-3117REPLY to Response to 14 MOTION to Strike 13 Response - Other filed by Defendant United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives. DEFENDANT'S REPLY MEMORANDUM IN SUPPORT OF MOTION TO STRIKE (#14) (Addington, Gregory) (Entered: 03/31/2014)
2014-03-3118RESPONSE to 16 MOTION for Leave to File, filed by Defendant United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives. DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO FILE SUPPLEMENTAL PLEADING (#16) Replies due by 4/10/2014. (Addington, Gregory) (Entered: 03/31/2014)
2014-04-0419REPLY BRIEF in Support of Plaintiff's 9 Motion for Vaughn Index, filed by Plaintiff Normand Bergeron. (KR) (Entered: 04/04/2014)
2014-06-1020ORDER denying as moot Defendant's 14 Motion to Strike. Signed by Magistrate Judge William G. Cobb on 6/10/2014. (Copies have been distributed pursuant to the NEF - KR) (Entered: 06/10/2014)
2014-06-1021MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge William G. Cobb, on 6/10/2014, directing the parties to contact the Courtroom Administrator no later than 6/20/2014 to schedule a case management conference to be held within 45 days. See order for details. (Copies have been distributed pursuant to the NEF - KR) (Entered: 06/10/2014)
2014-06-1322MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge William G. Cobb, on 6/13/2014. By Deputy Clerk: Katie Lynn Ogden. Pursuant to 21 Minute Order a Case Management Conference is hereby set for Thursday, July 24, 2014, at 10:00 a.m. , in Reno Courtroom 2 before Magistrate Judge William G. Cobb. The parties shall jointly file the case management repot with the Clerk of the Court not later than the close of business Tuesday, July 15, 2014 . IT IS SO ORDERED. (no image attached) (Copies have been distributed pursuant to the NEF - KO) (Entered: 06/13/2014)
2014-07-0323MOTION for Pro Se Litigant to File Electronically; proposed order attached, by Plaintiff Normand Bergeron. Motion ripe 7/3/2014. (DRM) (Entered: 07/03/2014)
2014-07-0824MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge William G. Cobb, on 7/8/2014, granting Plaintiff's 23 Motion for Pro Se Litigant to File Electronically. Plaintiff must comply with the following procedures in order to activate his CM/ECF account (see order for specifics). (Copies have been distributed pursuant to the NEF - KR) (Entered: 07/08/2014)
2014-07-1525STATUS REPORT Joint Case Management Report by Defendant United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives. (Addington, Gregory) (Entered: 07/15/2014)
2014-07-1626NOTICE - Certification of Completion of CM/ECF Tutorial, by Normand Bergeron re 24 Order on Motion for Pro Se Litigant to File Electronically. (KR) (Entered: 07/16/2014)
2014-07-2427MINUTES OF PROCEEDINGS - Case Management Conference held on 7/24/2014 before Magistrate Judge William G. Cobb. Crtrm Administrator: Katie Lynn Ogden ; Pla Counsel: Normand Bergeron, In Pro Per ; Def Counsel: Greg Addington, Esq. ; FTR #: 9:59:54 a.m. - 10:27:31 a.m. ; Time of Hearing: 10:00 a.m. ; Courtroom: 2 . The court notes Plaintiff has filed certification that he has completed CM/ECF tutorial and is now eligible to file electronically in this matter. Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Motion to Strike and Request to File Supplemental Pleading is DENIED as moot in accordance with court order Doc. # 20 . The court and parties address the parties' 25 Joint Case Management Report . The Plaintiff's 9 Motion for Vaughn Index and Memorandum of Points and Authorities is GRANTED to the extent the Vaughn Index/Declaration shall be prepared and responded to no later than Tuesday, September 2, 2014 (originally set for Monday, September 1, 2014; however, this is considered a court holiday). Thereafter the Vaughn Index/Declaration is fully responded to, the parties shall meet and confer in good faith to resolve any disputes that may be identified after the Government responds the FOIA requests. After personal consultation is completed, the parties shall file a joint status report summarizing the parties' respective positions with regard to any remaining disputes. The court further directs the parties to identify in the status report what discovery, if any, is necessary in this action. If discovery is necessary, the parties shall note a proposed deadline for completion of discovery. The court will then hold a status conference to address the outstanding disputes on Tuesday, September 16, 2014, at 10:00 a.m. , in Reno Courtroom 2 before Magistrate Judge Cobb. Formal discovery in this matter is STAYED at this time. The discovery stay will also be readdressed at the September 16th status conference. (Copies have been distributed pursuant to the NEF - KO) (Entered: 08/01/2014)
2014-09-0228DECLARATION of Stephanie M. Boucher by Defendant United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives. (Attachments: # 1 Exhibit A - 10-7-2011 FOIA request 12-46, # 2 Exhibit B - 10-25-2011 acknowledgment of receipt 12-46, # 3 Exhibit C - 11-14-2011 letter re 12-46, # 4 Exhibit D - 11-18-2011 - appeal re 12-46, # 5 Exhibit E - 2-14-2011 - letter re appeal 12-46, # 6 Exhibit F - 11-18-2011 - FOIA request 12-200(a), # 7 Exhibit G - 11-21-2011 - FOIA request 12-200(b), # 8 Exhibit H - 11-21-2011 FOIA erquest 12-210, # 9 Exhibit I - 12-9-2011 acknowledgment of receipt 12-210, # 10 Exhibit J - 11-29-2011 - FOIA request 12-235, # 11 Exhibit K - 12-9-2011 acknowledgment of receipt 12-235, # 12 Exhibit L - 1-4-2012 - letter response re 12-200(a), 12-200(b), 12-210, 12-235, # 13 Exhibit M - 7-5-2012 - lette re appeal closed 12-46, # 14 Exhibit N - 5-22-2012 FOIA request 12-867, # 15 Exhibit O - 6-22-2012 - letter response re 12-867, # 16 Exhibit P - 6-29-2012 - transmittal of check re 12-867, # 17 Exhibit Q - 10-11-2012 - letter response re 12-867, # 18 Exhibit R - 12-3-2012 - appeal re 12-867, # 19 Exhibit S - 3-20-2013 - appeal remand 12-867, # 20 Exhibit T - 3-20-2013 - remand instructions 12-867, # 21 Exhibit U - 7-24-2013 - letter response 12-867, # 22 Exhibit V - Vaughn Index re 12-867 and 12-1302, # 23 Exhibit W - 6-12-2012 FOIA request 12-917, # 24 Exhibit X - 6-20-2012 acknowledgment of receipt 12-917, # 25 Exhibit Y - 9-11-2012 letter response 12-917, # 26 Exhibit Z - 8-14-2012 FOIA request 12-1302, # 27 Exhibit AA - 9-19-2012 letter response re 12-1302, # 28 Exhibit BB - 11-7-2013 appeal remand 12-1302, # 29 Exhibit CC - 11-7-2013 letter re remand 12-1302, # 30 Exhibit DD - 3-28-2014 letter re remand response 12-1302, # 31 Exhibit EE - 5-14-2013 - FOIA request 13-1019, # 32 Exhibit FF - 6-13-2013 acknowledgment of receipt 13-1019, # 33 Exhibit GG - 10-28-2013 - letter response 13-1019, # 34 Exhibit HH - 11-6-2013 appeal re 13-1019, # 35 Exhibit II - 1-13-2014 letter re appeal closed 13-1019, # 36 Exhibit JJ - e-mail correspondence ATF Ombudsman Office, # 37 Exhibit KK - email corespondence re 13-1019)(Addington, Gregory) (Entered: 09/02/2014)
2014-09-1129Joint STATUS REPORT by Defendant United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives. (Addington, Gregory) (Entered: 09/11/2014)
2014-09-1630MINUTES OF PROCEEDINGS - Status Conference held on 9/16/2014 before Magistrate Judge William G. Cobb. Crtrm Administrator: Katie Lynn Ogden ; Pla Counsel: Normand Bergeron, In Pro Per ; Def Counsel: Greg Addington ; FTR #: FTR ; Time of Hearing: 10:01:29 a.m. - 10:20:17 a.m. ; Courtroom: 2 . The court and parties address the 29 Joint Status Report and confer regarding the proposed date ATF anticipates completing its review and, if appropriate, release of the potentially responsive material (740 pages). The court finds ATF's proposed date for completion of review and release of potential responsive material appropriate. IT IS ORDERED ATF shall complete its review of the potentially responsive material (740 pages) and, if appropriate release of material (or explanation of why material is not being released) no later than Monday, December 1, 2014 . The court will not favorably receive any request for an extension of time regarding this matter. The court imposes a meet and confer obligation, directing the parties they must first attempt to informally resolve any challenges raised after the potentially responsive material are produced and before any motion for summary judgment is submitted. The court schedules a status conference for Monday, December 8, 2014 at 10:00 a.m. , in Reno Courtroom 2, before Magistrate Judge William G. Cobb. The court notes it will address the time in which Plaintiff shall have to review the responsive material produced by ATF during the December 8th status conference. (no image attached) (Copies have been distributed pursuant to the NEF - KO) (Entered: 09/18/2014)
2014-12-0831MINUTES OF PROCEEDINGS - Status Conference held on 12/8/2014 before Magistrate Judge William G. Cobb. Crtrm Administrator: Katie Lynn Ogden ; Pla Counsel: Normand Bergeron, In Pro Per ; Def Counsel: Greg Addington ; FTR #: 10:01:12 a.m. - 10:20:16 a.m. ; Time of Hearing: 10:00 a.m. ; Courtroom: 2 . The court is advised that the ATF has released additional responsive materials to Plaintiff for his review. Plaintiff requests a minimum of sixty (60) days to review the materials and comply with the meet and confer obligation to informally resolve any challenges that may surface as a result of his review. The court agrees additional time to review the materials is appropriate. The court directs that the parties file a joint status report identifying any outstanding FOIA disputes (if any) no later than Monday, 3/2/15 . The court suggests the parties include a statement in the status report whether involvement of the magistrate judge is appropriate regarding any outstanding FOIA requests. The court schedules a status conference for Wednesday, 3/11/2015 at 10:00 a.m. , in Reno Courtroom 2 before Magistrate Judge William G. Cobb. IT IS SO ORDERED. (no image attached) (Copies have been distributed pursuant to the NEF - KO) (Entered: 12/08/2014)
2015-03-0232Joint STATUS REPORT by Defendant United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives. (Addington, Gregory) (Entered: 03/02/2015)
2015-03-0633MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge William G. Cobb, on 3/6/2015. By Deputy Clerk: Katie Lynn Ogden. The parties' joint proposal that further proceedings in this action be deferred until after Plaintiff and ATF complete their respective actions in paragraph 3 of the 32 Joint Status Report is GRANTED . The Status Conference scheduled for Wednesday, 5/11/2015, at 10:00 a.m., is VACATED and RESCHEDULED to Monday, 4/27/2015, at 10:00 a.m. , in Reno Courtroom 2 before Magistrate Judge William G. Cobb. The parties shall file a joint status no later than Thursday, 4/23/2015 . IT IS SO ORDERED. (no image attached) (Copies have been distributed pursuant to the NEF - KO) (Entered: 03/06/2015)
2015-04-1634Joint STATUS REPORT and Joint Request to Continue Status Conference by Defendant United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives. (Addington, Gregory) (Entered: 04/16/2015)
2015-04-1635ORDER on 34 Status Report and Joint Request to Continue Status Conference. Status conference, currently set for 4/27/2015, to be continued to date in late May or early June, 2015. Signed by Magistrate Judge William G. Cobb on 4/16/15. (Copies have been distributed pursuant to the NEF - JC) (Entered: 04/16/2015)
2015-04-1736MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge William G. Cobb, on 4/17/2015. By Deputy Clerk: Katie Lynn Ogden. Pursuant to 35 Order, the status conference originally set for Monday, 4/27/2015, is CONTINUED and RESCHEDULED to Wednesday, 5/27/2015, at 1:30 p.m. , in Reno Courtroom 2 before Magistrate Judge William G. Cobb. IT IS SO ORDERED. (no image attached) (Copies have been distributed pursuant to the NEF - KO) (Entered: 04/17/2015)
2015-05-2737MINUTES OF PROCEEDINGS - Status Conference held on 5/27/2015 before Magistrate Judge William G. Cobb. Crtrm Administrator: Katie Lynn Ogden ; Pla Counsel: Normand Bergeron, In Pro Per ; Def Counsel: Greg Addington ; FTR #: 1:34:46 p.m. - 2:02:05 p.m. ; Time of Hearing: 1:30 p.m. ; Courtroom: 2 . The court hold today's hearing to discuss the current status of the case. The parties are directed to submit briefing as to the disputes addressed during today's hearing. Government's brief due: Wed. 6/10/2015 ; Plaintiff's response brief due: Wed. 6/17/2015 . The court further schedules a hearing for Monday, 6/29/2015, at 11:00 a.m. , in Reno Courtroom 2 before Magistrate Judge William G. Cobb. Should the parties briefing materials satisfy the court's inquiries regarding the outstanding disputes, the court will vacate the June 29th hearing. IT IS SO ORDERED. (Copies have been distributed pursuant to the NEF - KO) (Entered: 06/03/2015)
2015-06-1038MEMORANDUM of Law Regarding Deliberative Process Privilege as Applied to Withheld Material filed by Defendant United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives. (Addington, Gregory) (Entered: 06/10/2015)
2015-06-1739RESPONSE to 38 Memorandum of Law Regarding Deliberative Process Privilege, filed by Plaintiff Normand Bergeron. (DRM) (Entered: 06/17/2015)
2015-06-2640ORDER re ## 38 , 39 Memorandums : The court orders that Defendant disclose to Plaintiff the e-mail message without redactions. Signed by Magistrate Judge William G. Cobb on 6/25/2015. (Copies have been distributed pursuant to the NEF - DRM) (Entered: 06/26/2015)
2015-06-2641MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge William G. Cobb, on 6/26/2015. Defendant's request in its # 38 Memorandum of Law that the court either return or destroy Defendant's in Camera submission is GRANTED; the document submitted is being returned. ( Document mailed to ASUA Addington together with instant Order on 6/26/2015. ) (Copies have been distributed pursuant to the NEF - DRM) (Entered: 06/26/2015)
2015-06-28MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge William G. Cobb, on 6/28/2015. By Deputy Clerk: Katie Lynn Ogden. In view of the court's 40 order regarding Defendant's 38 Memorandum and Plaintiff's 39 Response to the Government's memorandum, the hearing scheduled for Monday, 6/29/2015, at 11:00 a.m. is hereby VACATED . IT IS SO ORDERED. (Copies have been distributed pursuant to the NEF - KO) (Entered: 06/28/2015)
2015-08-2642MOTION to Dismiss by Defendant United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives. Responses due by 9/12/2015. (Addington, Gregory) (Entered: 08/26/2015)
2015-08-2743MINUTE ORDER IN CHAMBERS Regarding the Requirements of Klingele v. Eikenberry and Rand v. Rowland as to 42 Motion to Dismiss: Opposition due fourteen (14) days from the date of this Minute Order, and reply due seven (7) days after the filing of the opposition. Signed by Judge Miranda M. Du on 8/27/15. (Copies have been distributed pursuant to the NEF - JC) (Entered: 08/27/2015)
2015-09-0944RESPONSE to 42 Motion to Dismiss, filed by Plaintiff Normand Bergeron. Replies due by 9/19/2015. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Certificate of Service)(Bergeron, Normand) (Entered: 09/09/2015)
2015-09-1345First MOTION for Attorney Fees by Plaintiff Normand Bergeron. Responses due by 9/30/2015. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Certificate of Service)(Bergeron, Normand) (Entered: 09/13/2015)
2015-09-1646REPLY to Response to 42 Motion to Dismiss filed by Defendant United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives. (Addington, Gregory) (Entered: 09/16/2015)
2015-09-1647RESPONSE to 45 Motion for Attorney Fees, filed by Defendant United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives. Replies due by 9/26/2015. (Addington, Gregory) (Entered: 09/16/2015)
2015-09-2348REPLY to Response to 45 Motion for Attorney Fees filed by Plaintiff Normand Bergeron. (Attachments: # 1 Certificate of Service)(Bergeron, Normand) (Entered: 09/23/2015)
2016-03-2849ORDER granting 42 Motion to Dismiss and denying 45 Motion for Attorney Fees. Clerk instructed to close case. Signed by Judge Miranda M. Du on 3/28/16. (Copies have been distributed pursuant to the NEF - JC) (Entered: 03/28/2016)
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