Skip to content

Case Detail

[Subscribe to updates]
Case TitleCITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON v. U.S. POSTAL SERVICE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2020cv02927
Date Filed2020-10-13
Date Closed2021-12-03
JudgeJudge John D. Bates
PlaintiffCITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON
Case DescriptionCitizens for Responsibility and Ethics in Washington submitted a FOIA request to U.S. Postal Service for records concerning ethics agreements and guidance pertaining to Postmaster Paul DeJoy. CREW also requested a fee waiver. The agency acknowledged receipt of the request. The agency told CREW it had found 11 responsive pages but was withholding them all under Exemption 6 (invasion of privacy). CREW filed an administrative appeal of the denial. After hearing nothing further from the agency, CREW filed suit.
Complaint issues: Litigation - Attorney's fees, Failure to respond within statutory time limit

DefendantU.S. POSTAL SERVICE
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [21]
FOIA Project Annotation: Judge John Bates has ruled that the U.S. Postal Service failed to show that seven documents it withheld from CREW were protected by Exemption 3 (other statutes), Exemption 5 (privileges), and Exemption 6 (invasion of privacy) concerning Postmaster General Louis DeJoy's conflicts of interests arising out of his investments in USPS contractors and competitors. USPS located seven responsive documents â€" four of which pertained to a request for a certificate of divestiture for DeJoy, while the other three documents related to DeJoy's recusal from USPS matters in which he had a conflict of interest. CREW filed an administrative appeal, but USPS affirmed its denial. The agency claimed 39 U.S.C. § 410(c)(2) of the Postal Reorganization Act, which allows the agency to withhold information of a commercial nature, which under good business practice would not normally be disclosed to the public, as an Exemption 3 statute. Bates observed that the case law applying this provision indicated that "commercial records contain the kind of information that a private company not subject to FOIA would seek to protect to maintain a competitive advantage." But Bates noted that "here, the withheld documents detailing DeJoy's financial disclosures, recusal and divestiture obligations, and related communications with [the Office of Government Ethics] are government-specific documents regarding USPS's accountability to the public, not its business operations. By documenting the postmaster general's financial ties in an effort to avoid conflicts of interest and maintain public trust in the agency, USPS is acting in its 'public character' by providing a governmental service accountable to the taxpayers who fund its operations." He indicated that "but there can be little doubt that the proccesual documentation of DeJoy's ethical compliance 'reflects directly on what the government is up to â€" the core of what FOIA was designed to address.'" USPS argued that if the information was disclosed "it would have difficulty attracting qualified candidates for agency positions if it were required to disclose their financial information obtained in connection with ethics compliance." But Bates explained that "the requested materials were only generated because of ethical rules applicable to federal employment and are not the type of commercial information the PRA seeks to protect." He noted that 'because the Court finds that the requested materials fall outside the PRA's definition of commercial information, they cannot be shielded from FOIA disclosure under Exemption 3." The agency also claimed the records were protected by the attorney-client privilege. CREW argued that "the attorney-client privilege does not protect communications between the ethics counsel of a government agency and an agency employee because the 'client' for privilege purposes in that dynamic is the agency itself." Bates also found that since the Ethics in Government Act required public disclosure of such information, disclosure to third parties waived any privilege. He indicated that "without establishing a plausible attorney-client relationship between DeJoy and ethics counsel or accounting for the high likelihood of third-party disclosure of the documents at issue, USPS cannot invoke the attorney-client privilege to shield any of the requested documents under FOIA Exemption 5." Bates found that Exemption 6 did not apply either. He noted that "public inquiries into DeJoy's financial portfolio denote a public interest in matters relating to his conflicts based on 'more than mere speculation,' which therefore warrants 'permitting the public to decide for itself whether government action' on DeJoy's watch 'is proper.'"
Issues: Exemption 3 - Limited agency discretion, Exemption 5 - Privileges - Deliberative process privilege - Deliberative
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2020-10-131COMPLAINT against U.S. POSTAL SERVICE ( Filing fee $ 400 receipt number ADCDC-7705546) filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Attorney General, # 3 Summons U.S. Attorney, # 4 Summons USPS)(Sus, Nikhel) (Attachment 1 replaced on 10/22/2020) (znmw). (Entered: 10/13/2020)
2020-10-132LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Sus, Nikhel) (Entered: 10/13/2020)
2020-10-13Case Assigned to Judge John D. Bates. (adh, ) (Entered: 10/13/2020)
2020-10-133SUMMONS (3) Issued Electronically as to U.S. POSTAL SERVICE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(adh, ) (Entered: 10/13/2020)
2020-10-264RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 10/22/2020. ( Answer due for ALL FEDERAL DEFENDANTS by 11/21/2020.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. POSTAL SERVICE served on 10/22/2020, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 10/22/20. (Sus, Nikhel) (Entered: 10/26/2020)
2020-11-305Consent MOTION for Leave to File Answer by U.S. POSTAL SERVICE (Attachments: # 1 Exhibit Answer, # 2 Text of Proposed Order)(Brudy-Everett, Kristin) (Entered: 11/30/2020)
2020-11-306ORDER granting 5 defendant's consent motion for leave to late-file its answer. See text of Order for details. Signed by Judge John D. Bates on 11/30/2020. (lcjdb1) (Entered: 11/30/2020)
2020-12-017ANSWER to Complaint by U.S. POSTAL SERVICE.(ztd) (Entered: 12/01/2020)
2021-01-048PROPOSED BRIEFING SCHEDULE by U.S. POSTAL SERVICE. (Attachments: # 1 Text of Proposed Order)(Brudy-Everett, Kristin) (Entered: 01/04/2021)
2021-01-069SCHEDULING ORDER: See text of Order for details. Signed by Judge John D. Bates on 1/6/2021. (lcjdb1) (Entered: 01/06/2021)
2021-01-06Set/Reset Deadlines: Cross Motion due by 3/1/2021. Response to Cross Motion due by 3/15/2021. Reply to Cross Motion due by 3/29/2021. Summary Judgment motion due by 1/29/2021. Response to Motion for Summary Judgment due by 3/1/2021. Reply to Motion for Summary Judgment due by 3/15/2021. (tb) (Entered: 01/06/2021)
2021-01-2810Consent MOTION to Modify the Briefing Schedule by U.S. POSTAL SERVICE. (Attachments: # 1 Text of Proposed Order)(Brudy-Everett, Kristin) (Entered: 01/28/2021)
2021-02-01MINUTE ORDER: Upon consideration of 10 the consent motion to modify the briefing schedule, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; it is further ORDERED that the parties' proposed briefing scheduled is adopted as follows: defendant's motion for summary judgment shall be filed by not later than February 3, 2021; plaintiff's combined cross-motion for summary judgment and opposition to defendant's motion shall be filed by not later than March 4, 2021; defendant's combined opposition to plaintiff's cross-motion and reply shall be filed by not later than March 18, 2021; and plaintiff's reply shall be filed by not later than April 1, 2021. SO ORDERED. Signed by Judge John D. Bates on 2/1/2021. (lcjdb1) (Entered: 02/01/2021)
2021-02-01Set/Reset Deadlines: Cross Motion due by 3/4/2021. Response to Cross Motion due by 3/18/2021. Reply to Cross Motion due by 4/1/2021. Summary Judgment motion due by 2/3/2021. Response to Motion for Summary Judgment due by 3/4/2021. Reply to Motion for Summary Judgment due by 3/18/2021. (tb) (Entered: 02/01/2021)
2021-02-0311MOTION for Summary Judgment by U.S. POSTAL SERVICE. (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Declaration of Janine Castorina, # 4 Exhibit 1 - Postal Service Vaughn Index, # 5 Text of Proposed Order)(Brudy-Everett, Kristin) (Entered: 02/03/2021)
2021-03-0412Cross MOTION for Summary Judgment by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Text of Proposed Order)(Sus, Nikhel) (Entered: 03/04/2021)
2021-03-0413Memorandum in opposition to re 11 MOTION for Summary Judgment (duplicate of Dkt. No. 12-1) filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Sus, Nikhel) (Entered: 03/04/2021)
2021-03-1614Consent MOTION to Modify the Briefing Schedule by U.S. POSTAL SERVICE. (Attachments: # 1 Text of Proposed Order)(Brudy-Everett, Kristin) (Entered: 03/16/2021)
2021-03-16MINUTE ORDER: Upon consideration of 14 the consent motion to modify the briefing schedule, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; it is further ORDERED that the parties' proposed briefing schedule is adopted as follows: defendant's combined opposition to plaintiff's cross-motion and reply shall be filed by not later than March 25, 2021; and plaintiff's reply shall be filed by not later than April 8, 2021. SO ORDERED. Signed by Judge John D. Bates on 3/16/2021. (lcjdb1) (Entered: 03/16/2021)
2021-03-17Set/Reset Deadlines: Response to Cross Motion due by 3/25/2021. Reply to Cross Motion due by 4/8/2021. Reply to Motion for Summary Judgment due by 3/25/2021. (tb) (Entered: 03/17/2021)
2021-03-2415Consent MOTION to Modify the Briefing Schedule by U.S. POSTAL SERVICE. (Attachments: # 1 Text of Proposed Order)(Brudy-Everett, Kristin) (Entered: 03/24/2021)
2021-03-24MINUTE ORDER: Upon consideration of 15 the consent motion to modify the briefing schedule, and the entire record herein, it is hereby ORDERED that the motion is GRANTED, and it is further ORDERED that the parties' proposed briefing schedule is adopted as follows: defendant's combined opposition to plaintiff's cross-motion and reply shall be filed by not later than April 5, 2021, and plaintiff's reply shall be filed by not later than April 19, 2021. SO ORDERED. Signed by Judge John D. Bates on 3/24/2021. (lcjdb1) (Entered: 03/24/2021)
2021-03-25Set/Reset Deadlines: Response to Cross Motion due by 4/5/2021. Reply to Cross Motion due by 4/19/2021. Reply to Motion for Summary Judgment due by 4/5/2021. (tb) (Entered: 03/25/2021)
2021-04-0516REPLY to opposition to motion re 11 MOTION for Summary Judgment and in Further Support of Defendant's Motion for Summary Judgment filed by U.S. POSTAL SERVICE. (Attachments: # 1 Declaration of Jessica Brewster-Johnson, # 2 Statement of Facts (Response), # 3 Text of Proposed Order)(Brudy-Everett, Kristin) (Entered: 04/05/2021)
2021-04-0517Memorandum in opposition to re 12 Cross MOTION for Summary Judgment (duplicate of Dkt. No. 16) filed by U.S. POSTAL SERVICE. (Brudy-Everett, Kristin) (Entered: 04/05/2021)
2021-04-1518REPLY to opposition to motion re 12 Cross MOTION for Summary Judgment , 11 MOTION for Summary Judgment filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Sus, Nikhel) (Entered: 04/15/2021)
2021-07-0819NOTICE OF SUBSTITUTION OF COUNSEL by Jeremy S. Simon on behalf of U.S. POSTAL SERVICE Substituting for attorney Kristin Brudy-Everett (Simon, Jeremy) (Entered: 07/08/2021)
2021-08-1720ORDER granting 12 Plaintiff's Cross-Motion for Summary Judgment and denying 11 Defendant's Motion for Summary Judgment. See text of Order and accompanying Memorandum Opinion for details. Signed by Judge John D. Bates on 8/17/2021. (lcjdb1) (Entered: 08/17/2021)
2021-08-1721MEMORANDUM OPINION. Signed by Judge John D. Bates on 8/17/2021. (lcjdb1) (Entered: 08/17/2021)
2021-08-18Set/Reset Deadlines: Joint Status Report due by 9/17/2021. (tb) (Entered: 08/18/2021)
2021-08-3022Unopposed MOTION for Extension of Time to File Motion for Attorney's Fees by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Text of Proposed Order)(Sus, Nikhel) (Entered: 08/30/2021)
2021-08-30MINUTE ORDER: Upon consideration of 22 plaintiff's unopposed motion for extension of time, and the entire record herein, it is hereby ORDERED that the motion is GRANTED, and it is further ORDERED that plaintiff shall file any motion for attorney's fees by not later than October 22, 2021. SO ORDERED. Signed by Judge John D. Bates on 8/30/2021. (lcjdb1) (Entered: 08/30/2021)
2021-08-31Set/Reset Deadlines: Motion for attorney's fees due by 10/22/2021. (tb) (Entered: 08/31/2021)
2021-09-1523Joint STATUS REPORT by U.S. POSTAL SERVICE. (Simon, Jeremy) (Entered: 09/15/2021)
2021-10-2024Consent MOTION for Extension of Time to File Motion for Attorney's Fees by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Text of Proposed Order)(Sus, Nikhel) (Entered: 10/20/2021)
2021-10-20MINUTE ORDER: Upon consideration of 24 plaintiff's consent motion for an extension of time to file a motion for attorney's fees, and the entire record herein, it is hereby ORDERED that the motion is granted; and it is further ORDERED that plaintiff shall file any motion for attorney's fees by not later than December 6, 2021. SO ORDERED. Signed by Judge John D. Bates on 10/20/21 (lcjdb1) (Entered: 10/20/2021)
2021-10-21Set/Reset Deadlines: Motion for attorney's fees due by 12/6/2021. (tb) (Entered: 10/21/2021)
2021-12-0325STIPULATION of Dismissal by U.S. POSTAL SERVICE. (Simon, Jeremy) (Entered: 12/03/2021)
Hide Docket Events
by FOIA Project Staff
Skip to toolbar