Case Detail

FOIA Project Annotation: Judge Beryl Howell has ruled that the Department of Homeland Security properly withheld two memos sent to Secretary Janet Napolitano from legal counsel concerning the Obama administration's decision not to deport children of illegal immigrants under Exemption 5 (deliberative process privilege). Judicial Watch sued both Homeland Security and the Department of Justice for withholding records. DHS located 2,039 responsive pages, disclosing 387 pages entirely and 322 pages with redactions. Judicial Watch did not challenge the agencies' search, but ultimately decided to focus only on the two DHS memos, both dated June 14, 2012â€"a four-page memo to Napolitano from DHS General Counsel Ivan Fong entitled "Authority to Exercise Deferred Action for a Discrete Class of Individuals" and a 21-page White Paper on the deferred action program. Judicial Watch claimed that because the documents were dated the day before the final decision was announced it was unlikely that they were predecisional because, very likely, the final decision had already been made. Judicial Watch pointed to two other contemporaneous documents concerning a draft press release and a draft media communications strategy and argued such topics would not have been addressed unless the final decision on the program had been made. But Howell noted that the evidence showed otherwise. "The drafting of the challenged documents in the weeks leading to their issuance on June 14, 2012 was concurrent with discussions on legal and policy considerations of the program. . .Indeed, the fact that the media and communications strategy are both described as draft documents on the Updated Vaughn Index confirms, rather than undercuts, the agency declarant's assertion that 'substantive legal and policy aspects of the [deferred action] decision were under review at the time the communications plan was developed.'" Judicial Watch also pointed to DHS emails suggesting the decision had been made. Howell, however, observed that "the emails do not contain 'undisputable evidence' contradicting DHS' claim that the final decision was made on June 15, 2012, but instead reflect the deliberative process as described by DHS, namely, that the final policy decision and communications and media strategies were developed concurrently and the policy was being edited up until June 15, 2012." Finding that both memos were deliberative, she noted that they were from subordinates to their superior and pointed out that "the fact that the authors of these documents were lawyers whose role is to provide legal advice also confirms that these records were deliberative." She explained that "the contents of the two challenged documents were 'part of a discussion about potential approaches to the proposed deferred action policy and legal considerations' and 'were created as part of the decision-making process.' Such legal advice is highly indicative that the records contributed to the Secretary's decisionmaking."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2012-08-15	1	COMPLAINT against U.S. DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 350 receipt number 0090-3038144) filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Orfanedes, Paul) (Entered: 08/15/2012)
2012-08-15	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JUDICIAL WATCH, INC. (Orfanedes, Paul) (Entered: 08/15/2012)
2012-08-15		Case Assigned to Judge Beryl A. Howell. (ls, ) (Entered: 08/16/2012)
2012-08-16	3	ELECTRONIC SUMMONS (4) Issued as to U.S. DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Consent Notice)(ls, ) (Entered: 08/16/2012)
2012-08-16	4	NOTICE of Appearance by Michael Bekesha on behalf of JUDICIAL WATCH, INC. (Bekesha, Michael) (Entered: 08/16/2012)
2012-08-29	5	STANDING ORDER. Signed by Judge Beryl A. Howell on 08/29/2012. (lcbah2) (Entered: 08/29/2012)
2012-09-06	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/21/2012. Answer due for ALL FEDERAL DEFENDANTS by 9/20/2012. (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) (Entered: 09/06/2012)
2012-09-06	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 08/21/12. (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) (Entered: 09/06/2012)
2012-09-06	8	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF JUSTICE served on 8/21/2012 (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) (Entered: 09/06/2012)
2012-09-06	9	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF HOMELAND SECURITY served on 9/5/2012 (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) (Entered: 09/06/2012)
2012-09-20	10	NOTICE of Appearance by Peter T. Wechsler on behalf of All Defendants (Wechsler, Peter) (Entered: 09/20/2012)
2012-09-20	11	Unopposed MOTION for Extension of Time to File Answer re 1 Complaint, by U.S. DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Wechsler, Peter) (Entered: 09/20/2012)
2012-09-20		MINUTE ORDER (paperless) granting 11 Defendants' Unopposed Request for Extension of Time. Defendants shall file a response to Plaintiff's 1 Complaint by October 11, 2012. Signed by Judge Beryl A. Howell on 09/20/2012.(lcbah2) (Entered: 09/20/2012)
2012-09-20		Set/Reset Deadlines: Answer to the Complaint due by 10/11/2012. (tg, ) (Entered: 09/21/2012)
2012-10-11	12	ANSWER to 1 Complaint by U.S. DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY.(Wechsler, Peter) (Entered: 10/11/2012)
2012-11-13		MINUTE ORDER (paperless) directing the plaintiff to SHOW CAUSE why this case should not be dismissed for failure to prosecute. Pursuant to paragraph 3 of the 5 Standing Order, the parties were required to jointly prepare and submit, by October 25, 2012, "a statement to the Court indicating whether they believe the matter will be resolved solely through the filing of dispositive motions and proposing a schedule for the filing of such motions to the Court. Counsel should also indicate whether or not they believe an appearance before the Court will be necessary prior to resolution of the dispositive motions." No such joint statement has been provided. Accordingly, the plaintiff must file, by November 23, 2012, the joint statement along with a written explanation for why the joint statement was not timely filed. If the Court determines that the plaintiff has not shown good cause for failure to prosecute, this case will be dismissed pursuant to Local Civil Rule 83.23. Signed by Judge Beryl A. Howell on 11/13/2012. (lcbah2) (Entered: 11/13/2012)
2012-11-13		Set/Reset Deadlines: Response to Show Cause due by 11/23/2012. (tg, ) (Entered: 11/14/2012)
2012-11-21	13	RESPONSE TO ORDER TO SHOW CAUSE by JUDICIAL WATCH, INC. re Order,,,, . (Bekesha, Michael) (Entered: 11/21/2012)
2012-11-21	14	STATUS REPORT Regarding Briefing Schedule by JUDICIAL WATCH, INC., U.S. DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 11/21/2012)
2012-11-21		MINUTE ORDER (paperless) Upon consideration of the parties' 14 Joint Statement Regarding Briefing Schedule, the Court enters the following SCHEDULING ORDER at the request of the parties: Defendants shall file their Motion for Summary Judgment by March 4, 2013. Plaintiff shall file its Opposition to Defendants' Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment by April 8, 2013. Defendants shall file their Reply and Opposition to Plaintiff's Cross-Motion for Summary Judgment by May 6, 2013. Plaintiff shall file its Reply by May 20, 2013. Signed by Judge Beryl A. Howell on 11/21/2012. (lcbah2) (Entered: 11/21/2012)
2013-03-04	15	MOTION for Summary Judgment by U.S. DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration James Holzer, # 4 Exhibit Holzer Declaration, # 5 Vaughn index, DHS first release, # 6 Vaughn idex, DHS first release, part 2, # 7 Vaughn index, DHS second release, # 8 Vaughn index, DHS second release, part 2, # 9 Vaughn index, DHS third release, # 10 Vaughn index, DHS third release, part 2, # 11 Declaration Paul Colborn, # 12 Exhibit Colborn Declaration, # 13 Vaughn index, OLC)(Wechsler, Peter) (Entered: 03/04/2013)
2013-04-01	16	Consent MOTION for Extension of Time to File Response/Reply as to 15 MOTION for Summary Judgment and to file Cross-Motion for Summary Judgment by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 04/01/2013)
2013-04-01		MINUTE ORDER (paperless) granting 16 Plaintiff's Unopposed Motion for Extension of Time. The SCHEDULING ORDER in this case is hereby revised as follows: the plaintiff shall file its Opposition/Cross-Motion for Summary Judgment by April 22, 2013. The defendants shall file their Opposition/Reply by May 20, 2013. The plaintiff shall file its Reply by June 3, 2013. Signed by Judge Beryl A. Howell on 04/01/2013. (lcbah2) (Entered: 04/01/2013)
2013-04-01		Set/Reset Deadlines: Opposition to Motion for Summary Judgment/Cross-Motion due by 4/22/2013; Reply in Support of Motion for Summary Judgment/Opposition to Cross-Motion due by 5/20/2013. Reply to Opposition to Cross Motion due by 6/3/2013. (tg, ) (Entered: 04/02/2013)
2013-04-19	17	Memorandum in opposition to re 15 MOTION for Summary Judgment filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Bekesha, Michael) (Entered: 04/19/2013)
2013-04-19	18	Cross MOTION for Summary Judgment by JUDICIAL WATCH, INC. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Bekesha, Michael) (Entered: 04/19/2013)
2013-05-01	19	Memorandum in opposition to re 18 Cross MOTION for Summary Judgment , 15 MOTION for Summary Judgment consolidated reply filed by U.S. DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Declaration, # 2 Statement of Facts)(Wechsler, Peter) (Entered: 05/01/2013)
2013-06-03	20	REPLY to opposition to motion re 18 Cross MOTION for Summary Judgment filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Declaration of Matthew S. Kownacki)(Bekesha, Michael) (Entered: 06/03/2013)
2014-02-28	21	MEMORANDUM OPINION regarding the defendants' 15 Motion for Summary Judgment and the plaintiff's 18 Cross-Motion for Summary Judgment. Signed by Judge Beryl A. Howell on February 28, 2014.(lcbah2) (Entered: 02/28/2014)
2014-02-28	22	ORDER GRANTING the defendants' 15 Motion for Summary Judgment and DENYING the plaintiff's 18 Cross-Motion for Summary Judgment. See Order for further details. Signed by Judge Beryl A. Howell on February 28, 2014. (lcbah2) (Entered: 02/28/2014)
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