Case Detail

FOIA Project Annotation: Judge Dabney Friedrich has ruled that the Department of Defense properly withheld records under Exemption 5 (privileges) for records in response to Judicial Watch's request to DOD and the Department of the Navy for records concerning the September 2015 request from then Marine Corps Commandant Joseph Dunford to then Navy Secretary Ray Mabus and then Secretary of Defense Ash Carter that exceptions be made to allowing women to serve in all Marine Corps occupational specialties. The agency disclosed ten documents in full and two documents with redactions. The agency also withheld in full seven documents totaling 29 pages, including two internal memoranda under the deliberative process privilege. Friedrich agreed with the agency's privilege claims. She noted that "there is no question that the memoranda predate any final decision about the implementation of the gender integration policy in the Marines Corps. Second, the documents are deliberative, as they 'reflect the give-and-take of the consultative process.' Indeed, Dunford submitted the memoranda with the very intent to influence the final policy as to the Marine Corps." She pointed out that "Dunford submitted the memoranda to the Secretary before the Secretary had decided whether to grant the request for an exception to full gender integration, and Dunford did so with the intent to influence that decision." Friedrich found the agency had met its burden under the foreseeable harm standard. She observed that "the Department cites multiple foreseeable harms. . .By explaining the issue of gender integration in the military, the candid debate and analysis it produced, as well as the harm that would result from disclosing internal memoranda that raised concerns about the proposed policy, the Department has provided 'context or insight into the specifical decision-making processes or deliberations at issue, and how they in particular would be harmed by disclosure.'" Judicial Watch claimed that some of the material was factual and should not be considered deliberative. But Friedrich noted that "here, any factual materials were inextricably related to the Marine Corps' judgment about the advisability of the gender integration policy. The factual analysis was used to support the broader discussion of the topic, which informed the Commandant's position and eventual deliberations with the Secretary."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Predecisional

Date Filed	Doc #	Docket Text
2019-05-14	1	COMPLAINT against U.S. DEPARTMENT OF DEFENSE ( Filing fee $ 400 receipt number 0090-6121981) filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons U.S. Attorney for the District of Columbia, # 3 Summons U.S. Attorney General, # 4 Summons U.S. Department of Defense)(Peterson, James) (Entered: 05/14/2019)
2019-05-14	2	LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JUDICIAL WATCH, INC. (Peterson, James) (Entered: 05/14/2019)
2019-05-14	3	LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by THE DAILY CALLER NEWS FOUNDATION (Peterson, James) (Entered: 05/14/2019)
2019-05-16		Case Assigned to Judge Dabney L. Friedrich. (zef, ) (Entered: 05/16/2019)
2019-05-16	4	SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF DEFENSE, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Notice and Consent)(zef, ) (Entered: 05/16/2019)
2019-06-24	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/28/2019. ( Answer due for ALL FEDERAL DEFENDANTS by 6/27/2019.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 5/28/2019., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF DEFENSE served on 5/24/2019 (Attachments: # 1 Declaration of Cristina Rotaru)(Peterson, James) (Entered: 06/24/2019)
2019-06-27	6	NOTICE of Appearance by Christopher Charles Hair on behalf of U.S. DEPARTMENT OF DEFENSE (Hair, Christopher) (Entered: 06/27/2019)
2019-06-27	7	ANSWER to Complaint by U.S. DEPARTMENT OF DEFENSE.(Hair, Christopher) (Entered: 06/27/2019)
2019-07-03		MINUTE ORDER requiring the parties to MEET AND CONFER and file a joint status report proposing a schedule for further proceedings. The status report should address the status of the plaintiff's FOIA request, including the anticipated number of documents responsive to the request and the anticipated date(s) for release of the requested documents. The parties shall file the joint status report on or before July 24, 2019. Signed by Judge Dabney L. Friedrich on July 3, 2019. (lcdlf3) (Entered: 07/03/2019)
2019-07-03		Set/Reset Deadlines: Joint Status Report due by 7/24/2019. (zcal) (Entered: 07/03/2019)
2019-07-24	8	Joint STATUS REPORT by U.S. DEPARTMENT OF DEFENSE. (Hair, Christopher) (Entered: 07/24/2019)
2019-07-25		MINUTE ORDER. Upon consideration of the parties' 8 Joint Status Report, it is ORDERED that the parties shall file another joint status report on or before August 30, 2019. Signed by Judge Dabney L. Friedrich on July 24, 2019. (lcdlf3) (Entered: 07/25/2019)
2019-07-25		Set/Reset Deadlines: Joint Status Report due by 8/30/2019. (kh) (Entered: 07/25/2019)
2019-08-30	9	Joint STATUS REPORT by U.S. DEPARTMENT OF DEFENSE. (Hair, Christopher) (Entered: 08/30/2019)
2019-09-03		MINUTE ORDER. Upon consideration of the parties' 9 Joint Status Report, it is ORDERED that the parties shall file another joint status report on or before October 29, 2019. So Ordered by Judge Dabney L. Friedrich on September 3, 2019. (lcdlf3) (Entered: 09/03/2019)
2019-10-29	10	Joint STATUS REPORT by U.S. DEPARTMENT OF DEFENSE. (Hair, Christopher) (Entered: 10/29/2019)
2019-10-29		MINUTE ORDER. Upon consideration of the parties' 10 Joint Status Report, it is ORDERED that the parties shall file another joint status report on or before December 30, 2019. So Ordered by Judge Dabney L. Friedrich on October 29, 2019. (lcdlf3) (Entered: 10/29/2019)
2019-12-30	11	PROPOSED BRIEFING SCHEDULE and Joint Status Report by U.S. DEPARTMENT OF DEFENSE. (Hair, Christopher) (Entered: 12/30/2019)
2020-01-02		MINUTE ORDER. Upon consideration of the parties' 11 Proposed Briefing Schedule, it is ORDERED that the following schedule shall govern further proceedings: the defendant shall file its motion for summary judgment on or before February 14, 2020; the plaintiff shall file its opposition and cross-motion for summary judgment on or before March 6, 2020; the defendnat shall file its opposition and reply on or before March 27, 2020; and the plaintiff shall file its reply on or before April 10, 2020. So Ordered by Judge Dabney L. Friedrich on January 2, 2020. (lcdlf3) (Entered: 01/02/2020)
2020-01-02		Set/Reset Deadlines: Summary Judgment motions due by 2/14/2020. Response to Motion for Summary Judgment and Cross Motions due by 3/6/2020. Reply to Motion for Summary Judgment and Response to Cross Motions due by 3/27/2020. Reply to Cross Motions due by 4/10/2020. (zjch) (Entered: 01/02/2020)
2020-02-12	12	Consent MOTION for Extension of Time to file motion for summary judgment by U.S. DEPARTMENT OF DEFENSE (Hair, Christopher) (Entered: 02/12/2020)
2020-02-13	13	NOTICE OF WITHDRAWAL OF MOTION by U.S. DEPARTMENT OF DEFENSE re 12 Consent MOTION for Extension of Time to file motion for summary judgment (Hair, Christopher) (Entered: 02/13/2020)
2020-02-13	14	Consent MOTION for Extension of Time to file motion for summary judgment by U.S. DEPARTMENT OF DEFENSE (Hair, Christopher) (Entered: 02/13/2020)
2020-02-13		MINUTE ORDER granting the defendant's 14 Consent Motion for Extension of Time. Accordingly, the following schedule shall govern further proceedings: the defendant shall file its motion for summary judgment on or before March 9, 2020; the plaintiffs shall file their opposition and cross-motion for summary judgment on or before March 27, 2020; the defendant shall file its opposition and reply on or before April 17, 2020; and the plaintiffs shall file their reply on or before May 1, 2020. So Ordered by Judge Dabney L. Friedrich on February 13, 2020. (lcdlf3) (Entered: 02/13/2020)
2020-02-13		Set/Reset Deadlines: Cross Motions due by 3/27/2020. Response to Cross Motions due by 4/17/2020. Reply to Cross Motions due by 5/1/2020. (zjch) (Entered: 02/14/2020)
2020-03-09	15	MOTION for Summary Judgment by U.S. DEPARTMENT OF DEFENSE (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Text of Proposed Order, # 4 Declaration of Robert D. Hogue, # 5 Declaration of William D. Byrne, Jr., # 6 Vaughn Index)(Hair, Christopher) (Entered: 03/09/2020)
2020-03-26	16	Consent MOTION for Extension of Time to File Response/Reply and Reset Briefing Schedule by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Peterson, James) (Entered: 03/26/2020)
2020-03-27		MINUTE ORDER granting the plaintiff's 16 Consent Motion for Extension of Time. Accordingly, it is ORDERED that the following schedule shall govern further proceedings: the plaintiff shall file its opposition and cross-motion for summary judgment on or before April 27, 2020; the defendants shall file their opposition and reply on or before May 18, 2020; and the plaintiff shall file its reply on or before June 2, 2020. So Ordered by Judge Dabney L. Friedrich on March 27, 2020. (lcdlf3) (Entered: 03/27/2020)
2020-03-27		Set/Reset Deadlines: Cross Motions due by 4/27/2020. Response to Cross Motions due by 5/18/2020. Reply to Cross Motions due by 6/2/2020. (zjch) (Entered: 03/30/2020)
2020-04-27	17	Memorandum in opposition to re 15 MOTION for Summary Judgment filed by DAILY CALLER NEWS FOUNDATION, JUDICIAL WATCH, INC.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Text of Proposed Order)(Peterson, James) (Entered: 04/27/2020)
2020-04-27	18	Cross MOTION for Summary Judgment by DAILY CALLER NEWS FOUNDATION, JUDICIAL WATCH, INC. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Text of Proposed Order)(Peterson, James) (Entered: 04/27/2020)
2020-05-15	19	Consent MOTION for Extension of Time to File Response/Reply as to 18 Cross MOTION for Summary Judgment , 15 MOTION for Summary Judgment by U.S. DEPARTMENT OF DEFENSE (Hair, Christopher) (Entered: 05/15/2020)
2020-05-15		MINUTE ORDER granting the defendant's 19 Consent Motion for Extension of Time. Accordingly, the defendant shall file a reply in support of its 15 Motion for Summary Judgment and opposition to the plaintiffs' 18 Cross Motion for Summary Judgment on or before June 1, 2020; and the plaintiffs shall file a reply in support of their 18 Cross Motion for Summary Judgment on or before June 16, 2020. So Ordered by Judge Dabney L. Friedrich on May 15, 2020. (lcdlf3) (Entered: 05/15/2020)
2020-05-29	20	Consent MOTION for Extension of Time to File Response/Reply as to 18 Cross MOTION for Summary Judgment , 15 MOTION for Summary Judgment by U.S. DEPARTMENT OF DEFENSE (Hair, Christopher) (Entered: 05/29/2020)
2020-05-30		MINUTE ORDER granting the defendant's 20 Consent Motion for Extension of Time. Accordingly, the defendant shall file a reply in support of its 15 Motion for Summary Judgment and opposition to the plaintiffs' 18 Cross Motion for Summary Judgment on or before June 15, 2020; and the plaintiffs shall file a reply in support of their 18 Cross Motion for Summary Judgment on or before June 30, 2020. The Court is not inclined to grant any further extensions of time. So Ordered by Judge Dabney L. Friedrich on May 30, 2020. (lcdlf3) (Entered: 05/30/2020)
2020-05-30		Set/Reset Deadlines: Response to Cross Motions due by 6/15/2020. Reply to Cross Motions due by 6/30/2020. Reply to Motion for Summary Judgment due by 6/15/2020. (zjch) (Entered: 06/01/2020)
2020-06-15	21	Memorandum in opposition to re 18 Cross MOTION for Summary Judgment filed by U.S. DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration of Robert D. Hogue (signed version), # 2 Declaration of William D. Byrne Jr. (signed version), # 3 Declaration (Second) of Robert D. Hogue, # 4 Statement of Facts (in response to Plaintiffs' Statement))(Hair, Christopher) (Entered: 06/15/2020)
2020-06-15	22	REPLY to opposition to motion re 15 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF DEFENSE. (Hair, Christopher) (Entered: 06/15/2020)
2020-06-30	23	REPLY to opposition to motion re 15 MOTION for Summary Judgment filed by DAILY CALLER NEWS FOUNDATION, JUDICIAL WATCH, INC.. (Peterson, James) (Entered: 06/30/2020)
2021-01-27	24	ORDER granting the defendant's 15 Motion for Summary Judgment and denying the plaintiffs' 18 Cross Motion for Summary Judgment. See text for details. Signed by Judge Dabney L. Friedrich on January 27, 2021. (lcdlf3) (Entered: 01/27/2021)
2021-01-27	25	MEMORANDUM OPINION regarding the 15 Motion for Summary Judgment and 18 Cross Motion for Summary Judgment. See text for details. The Clerk of Court is directed to close this case. Signed by Judge Dabney L. Friedrich on January 27, 2021. (lcdlf3) (Entered: 01/27/2021)
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