Case Detail

FOIA Project Annotation: A federal court in Texas has ruled that the Department of Treasury properly withheld records pertaining to a ratification notice for the appointment of administrative law judges by Treasury Secretary Steven Mnuchin as the result of the 2018 Supreme Court ruling in Lucia v. SEC, 138 S. Ct. 1044 (2018), holding that the appointment of the SEC's ALJs must comply with the Appointments Clause of the Constitution, under Exemption 5 (privileges). Two months after the Lucia decision was announced, the Office of the Comptroller of the Currency reaffirmed that two ALJs at the Office of Financial Institution Adjudication had been properly appointed under the Appointments Clause. Saul Ortega and David Roberts, who were subject to a pending administrative proceeding, challenged the appointment of the two ALJs. To support their claim, Ortega and Robert submitted a FOIA request for records pertaining to Mnuchin's ratification. The agency disclosed five heavily redacted items, claiming both the deliberative process privilege and the attorney-client privilege. The unredacted portions of the records showed that Mnuchin had not selected the ALJs but that they had been properly appointed by the Comptroller General. After reviewing the records in camera, the court agreed with the agency's privilege claims. Ortega and Roberts argued that disclosing the redacted portions was in the public interest because they would show that Mnuchin had not selected the ALJs. The court found that was irrelevant and upheld the agency's claims, noting that 'plaintiffs have been shown the process by which [the two ALJs] were appointed as OCC ALJs. Thus, Plaintiffs have not been deprived of review of the nature and timing of the government's appointments."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2019-03-22	1	COMPLAINT against All Defendants (Filing fee $ 400 receipt number 0541-22101626) filed by Saul Ortega, David Rogers. (Attachments: # 1 Civil Cover Sheet Civil Cover Sheet, # 2 Exhibit Ex. A, # 3 Exhibit Ex. B, # 4 Exhibit Ex. C)(Brame, Frank) (Entered: 03/22/2019)
2019-03-22	2	Request for Issuance of Summons as to Treasury Department, filed.(Brame, Frank) (Entered: 03/22/2019)
2019-03-25	3	ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 7/12/2019 at 03:00 PM in Courtroom 9B before Judge Sim Lake(Signed by Judge Sim Lake) Parties notified.(ckrus, 4) (Entered: 03/25/2019)
2019-03-26	4	Summons Issued as to Treasury Department, U.S. Attorney and U.S. Attorney General. Issued summons returned to plaintiff by First-class mail, filed.(hlerma, 4) (Entered: 03/26/2019)
2019-03-29	5	CERTIFICATE OF INTERESTED PARTIES by Saul Ortega, David Rogers, filed.(Brame, Frank) (Entered: 03/29/2019)
2019-05-01	6	ANSWER to 1 Complaint, by Treasury Department, filed.(Rodriguez, Jimmy) (Entered: 05/01/2019)
2019-06-27	7	MOTION for Summary Judgment by Treasury Department, filed. Motion Docket Date 7/18/2019. (Attachments: # 1 Exhibit 1 - Levitan Decl., # 2 Vaughn Index, # 3 Exhibit to Levitan Decl., # 4 Proposed Order)(Rodriguez, Jimmy) (Entered: 06/27/2019)
2019-07-02	8	JOINT DISCOVERY/CASE MANAGEMENT PLAN by Saul Ortega, filed.(Brame, Frank) (Entered: 07/02/2019)
2019-07-03	9	Unopposed MOTION for Extension of Time Response to Motion by Saul Ortega, David Rogers, filed. Motion Docket Date 7/24/2019. (Attachments: # 1 Proposed Order)(Brame, Frank) (Entered: 07/03/2019)
2019-07-03	10	ORDER granting 9 Unopposed MOTION for Extension of Time Response to Motion ; Response to 7 MOTION for Summary Judgment due by 8/7/2019. (Signed by Judge Sim Lake) Parties notified.(gclair, 4) (Entered: 07/03/2019)
2019-07-03	11	ORDER REFERRING CASE to Magistrate Magistrate Judge Nancy K Johnson. Initial Conference set for 7/12/2019 at 03:00 PM in Courtroom 9B is cancelled. (Signed by Judge Sim Lake) (Attachments: # 1 Consent to Proceed Before US Magistrate Judge Nancy K Johnson) Parties notified.(gclair, 4) (Entered: 07/03/2019)
2019-08-07	12	RESPONSE to 7 MOTION for Summary Judgment filed by Saul Ortega, David Rogers. (Attachments: # 1 Proposed Order Proposed Order, # 2 Exhibit Exhibit A)(Brame, Frank) (Entered: 08/07/2019)
2019-08-14	13	REPLY in Support of 7 MOTION for Summary Judgment , filed by Treasury Department. (Rodriguez, Jimmy) (Entered: 08/14/2019)
2019-11-21	14	ORDER: Accordingly, Defendant is hereby ORDERED to produce unredacted copies of the October Memorandum and Attachment One for an in camera review within two weeks of this order. (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4) (Entered: 11/21/2019)
2019-12-20	15	MEMORANDUM AND RECOMMENDATION re 7 MOTION for Summary Judgment 12 Motion for Summary Judgment Objections to M&R due by 1/3/2020(Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4) (Entered: 12/20/2019)
2020-01-02	16	OBJECTIONS to 15 Memorandum and Recommendations, filed by Saul Ortega, David Rogers. (Brame, Frank) (Entered: 01/02/2020)
2020-01-16	17	RESPONSE to 16 Objections to Memorandum and Recommendations , filed by Treasury Department. (Rodriguez, Jimmy) (Entered: 01/16/2020)
2020-01-17	18	ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 15 Memorandum and Recommendations, granting 7 MOTION for Summary Judgment , denying 12 Motion for Summary Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4) (Entered: 01/17/2020)
2020-01-17	19	FINAL JUDGMENT. Case terminated on 1/17/2020. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4) (Entered: 01/17/2020)
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