Judicial Watch, Inc. v. U.S. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
v. Civil Action No. 12-01350 (BAH)
Judge Beryl A. Howell
U.S. DEPARTMENT OF JUSTICE, et al.
Defendants.
MEMORANDUM OPINION
The plaintiff Judicial Watch, Inc. brought this case under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, to challenge the processing by the defendants, the U.S. Department of
Justice (“DOJ”) and the U.S. Department of Homeland Security (“DHS”), of the plaintiff’s FOIA
request for records regarding a DHS program announced on June 15, 2012, referred to as the
Deferred Action for Childhood Arrivals (“DACA”). Pending before the Court are cross-motions
for summary judgment as to whether DHS has properly withheld two responsive documents
under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), as subject to attorney-client and deliberative
process privileges.1 For the reasons set out below, the Court grants the defendants’ motion for
summary judgment and denies the plaintiff’s cross-motion for summary judgment.
1
In response to the defendants’ motion for summary judgment, the plaintiff has conceded that the defendants
performed an adequate search and that all but two responsive documents are properly withheld. Pl.’s Mem. Opp’n
Defs.’ Mot. Summ. J. & Supp. Pl.’s Cross-Mot. Partial Summ. J. (“Pl.’s Mem.”) at 5. Consequently, summary
judgment is granted, as conceded, to the defendants as to those issues.
1
I. FACTUAL AND PROCEDURAL BACKGROUND
A. FOIA REQUEST
On June 15, 2012, DHS Secretary Janet Napolitano announced the implementation of a
new DHS program called DACA, under which DHS would, in its exercise of prosecutorial
discretion, consider for relief from removal from this country or from entering into removal
proceedings, “certain young people who were brought to the United States as young children, do
not present a risk to national security or public safety, and meet several key criteria.” See Pl.’s
Mem. Opp’n Defs.’ Mot. Summ. J. & Supp. Pl.’s Cross-Mot. Partial Summ. J. (“Pl.’s Mem.”) at
1, ECF No. 17 (quoting Department of Homeland Security Press Release dated June 15, 2012).
In addition, individuals subject to the DACA program would be “eligible for employment
authorization during the period their removal action is deferred.” Decl. of John R. Sandweg,
Acting General Counsel of DHS (“Sandweg Decl.”) ¶ 4, ECF No. 19-1. Secretary Napolitano
issued a corresponding memorandum to the U.S. Customs and Border Protection, U.S.
Citizenship and Immigration Services, and U.S. Immigration Customs Enforcement agencies
instructing the agencies on implementation of the DACA program. Pl.’s Mem. at 2 –3.
The plaintiff, a non-profit foundation, submitted FOIA requests to DHS and to the DOJ
Office of Legal Counsel (“OLC”) on June 22, 2012, seeking: “[a]ll records concerning,
regarding, or relating to [DHS’] decision to exercise prosecutorial discretion with respect to
individuals who came to the United States as children as outlined in a June 15, 2012,
Memorandum by Secretary Napolitano.” See Decl. of James V. M. L. Holzer (“Holzer Decl.”),
Ex. A at 1, ECF No. 15-3;2 Decl. of Paul P. Colborn (“Colborn Decl.”) Ex. 1 at 1–2, ECF No.
2
The exhibits attached to the Holzer Declaration are not marked with any exhibit number or letter. See Exhibit
Holzer Decl., ECF No. 15-4. Consequently, the exhibits are identified here by letters A–E according to references to
the exhibits in the text of the Holzer Declaration.
2
15-11. The request to DHS specified that this included “communications, meeting notes and
agenda, briefing materials, and policy memoranda,” and also requested “[a]ll records concerning,
regarding, or relating to the legal authority for the DHS decision . . . .” Holzer Decl. Ex. A at 1.
B. THE PLAINTIFF’S LAWSUIT AND AGENCIES’ RESPONSES TO FOIA
REQUESTS
The plaintiff filed suit on August 15, 2012, to compel the defendants to conduct
reasonable searches and produce non-exempt records pursuant to the plaintiff’s FOIA requests,
as well as to award the plaintiff attorneys’ fees and other litigation costs. Complaint (“Compl.”)
¶ 18, ECF No. 1. At that time, DHS and OLC were still reviewing potentially responsive
records. See Holzer Decl. ¶ 12; Colborn Decl. ¶ 9–11.
The following month, OLC informed the plaintiff that, out of the eighty responsive
documents identified in the agency’s search, six documents were produced, one was referred to
the DOJ’s Office of Information Policy, and the remaining records were withheld pursuant to
FOIA Exemption 5. See Colborn Decl., Ex. 3 at 1.
DHS identified 2,039 responsive pages of documents and, in three separate releases on
February 27, 2013, March 1, 2013, and March 4, 2013, produced 387 pages to the plaintiff in
their entirety and 322 pages with redactions. See Holzer Decl., Exs. C–E at 7–12.3 DHS
withheld the remaining pages claiming they were exempt from disclosure under FOIA
Exemption 5, as subject to the deliberative process privilege and/or the attorney-client privilege,
as well as Exemptions 6 and 7E. See 5 U.S.C. § 552(b)(5)–(7). See Holzer Decl. ¶¶ 22–35.
3
The Holzer declaration appears to contain a slight discrepancy in the number of pages released by DHS. According
to the cover letter of DHS’ second interim response, dated March 1, 2013, DHS released 16 pages in their entirety
and partially released 163 pages. See Holzer Decl. Ex. D at 9. By contrast, the Holzer declaration itself summarizes
the second interim response as disclosing 33 pages in full and 162 pages in part. See Holzer Decl. ¶ 20. This
discrepancy is immaterial to resolution of the pending motions.
3
The defendants’ pending motion for summary judgment argues that the search for records
responsive to the plaintiff’s request was adequate, Defs.’ Mem. Supp. Defs.’ Mot. Summ. J.
(“Defs.’ Mem.”) at 3–9, ECF No. 15-1, and that records were properly withheld under
Exemptions 5, id. at 9–16, 6, and 7E, id. at 17–19. In its cross-motion for partial summary
judgment, the plaintiff “elected not to challenge the reasonableness of the searches and a
majority of the withholdings,” but contends that DHS is improperly withholding two records,
which are listed as Documents 6 and 7 on the Vaughn index produced with DHS’ first interim
response on February 27, 2013. Pl.’s Mem. at 5; see also Vaughn Index, DHS First Release at 2,
ECF No. 15-5. DHS subsequently submitted an updated Vaughn Index, see Pl.’s Mem. at 7 n.1;
id. Ex. A at 3–4 (“Updated Vaughn Index”), which provides additional detail regarding the
justification for the withholding of Documents 6 and 7.4
C. THE TWO CHALLENGED DOCUMENTS
As noted, the plaintiff is challenging the withholding by DHS of only two documents.
According to the Updated Vaughn Index and a supplemental declaration submitted by the Acting
General Counsel of DHS, Document 6 is a four-page, single-spaced memorandum, dated June
14, 2012, for Secretary Napolitano from DHS General Counsel Ivan Fong titled “Authority to
Exercise Deferred Action for a Discrete Class of Individuals.” See Updated Vaughn Index at 3;
Sandweg Decl. ¶ 7. This record was withheld in full under Exemption 5 “to protect from
disclosure deliberative communications and privileged attorney-client communication regarding
the adoption of a new departmental policy pertaining to the Deferred Action Process.” Updated
4
DHS’ initial Vaughn index, released with its February 27, 2013, production of records indicated that Documents 6
and 7 were withheld pursuant to the attorney work product privilege in addition to the deliberative process privilege
and the attorney-client privilege. See Vaughn Index, DHS First Release at 2. DHS’ Updated Vaughn Index,
submitted on March 27, 2013, claimed only the deliberative process privilege and the attorney-client privilege with
regard to Documents 6 and 7, thereby dropping the work product privilege as a basis for withholding. See Updated
Vaughn Index at 3–4.
4
Vaughn Index at 3. It is undisputed that Document 6 is a “summary of a White Paper on
Deferred Action” that “discusses in detail, the Secretaries [sic] authority to grant deferred
action.” Id; see also Sandweg Decl. ¶ 7 (indicating that document 6 summarizes document 7);
Pl.’s Mem. at 8 (“Document 6 is a summary of Document 7.”).
Document 7, also dated June 14, 2012, is described in the Updated Vaughn Index and
supplemental declaration as a 21-page white paper on deferred action. Updated Vaughn Index at
3–4; Sandweg Decl. ¶ 7.5 This White Paper was authored by DHS’ Office of General Counsel
and was withheld in full under Exemption 5 because it contained “deliberative communications
and privileged attorney-client communication.” Updated Vaughn Index at 4; see also Sandweg
Decl. ¶¶ 7–11. The document “outlines the Secretaries [sic] general authority to exercise
prosecutorial discretion as part of her charge to enforce the immigration laws.” Updated Vaughn
Index at 4.
Both documents are marked “PRIVILEGED ATTORNEY-CLIENT
COMMUNICATION,” Sandweg Decl. ¶ 6, and “PREDECISIONAL AND DELIBERATIVE,”
id. ¶ 11, and both discuss the DHS Secretary’s “authority to exercise deferred action” using
“legal issues, relevant case law, assessments of judicial review, statutory responsibilities, legal
authority to enforce immigration laws, and options to reduce legal risk.” Id. ¶ 7. Both
documents were created and submitted to the Secretary of DHS in response to “the Secretary’s
request for legal advice from DHS’s Office of the General Counsel (OGC), and were intended as
confidential legal advice.” Id. ¶ 8. The documents were “concurrent with” and “part of a
discussion about potential approaches to the proposed deferred action policy and legal
considerations.” Id. ¶ 11. The issues “were being considered by Senior Department officials,” id.5
The Bates numbers that identify this document indicate that the document is twenty pages long, not twenty-one
pages. See Updated Vaughn Index at 3–4 (listing Bates numbers for Document 7 as spanning 01057–01077). The
discrepancy does not affect the Court’s analysis.
5
¶ 11, and “helped to inform and guide the Secretary in arriving at the final decision.” Id. ¶ 12.
The plaintiff seeks release of these two documents on grounds that they are improperly withheld
under Exemption 5 or, in the alternative, asks the Court to conduct in camera review of the
documents before ruling on DHS’ exemption claim. Pl.’s Mem. at 8–13.
II. LEGAL STANDARD
A. FOIA
Congress enacted the FOIA to promote transparency across the government and “ ‘permit
access to official information long shielded unnecessarily from public view.’ ” Milner v. U.S.
Dep’t of the Navy, 131 S. Ct. 1259, 1262 (2011) (quoting EPA v. Mink, 410 U.S. 73, 80 (1973)).
The Supreme Court has explained that the FOIA is “a means for citizens to know ‘what their
Government is up to.’ This phrase should not be dismissed as a convenient formalism. It
defines a structural necessity in a real democracy.” Nat’l Archives & Records Admin. v. Favish,
541 U.S. 157, 171–72 (2004) (citation and internal quotation marks omitted). “The basic
purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic
society, needed to check against corruption and to hold the governors accountable to the
governed.” NLRB v. Robbins Tire & Rubber Co, 437 U.S. 214, 242 (1978); see also SEC v. Am.
Int’l Grp., 712 F.3d 1, 3 (D.C. Cir. 2013) (“The public has a fundamental interest in ‘keeping a
watchful eye on the workings of public agencies.’ ” (quoting Wash. Legal Found. v. U.S.
Sentencing Comm’n, 89 F.3d 897, 905 (D.C. Cir. 1996))). To this end, the FOIA requires federal
agencies to release all records responsive to a request for production unless the responsive
records fall within one of nine exemptions. See 5 U.S.C. § 552(a)(3)(A), (b); Mink, 410 U.S. at
79.
6
The exemptions, under 5 U.S.C. § 552(b), permitting agencies to withhold information
from FOIA disclosure, are designed to protect “legitimate governmental and private interests
[that] could be harmed by release of certain types of information.” United Techs. Corp. v. U.S.
Dep’t of Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (internal quotation marks omitted). “These
exemptions are explicitly made exclusive, and must be narrowly construed.” Milner, 131 S.Ct.
at 1262 (citations and internal quotation marks omitted); see also Pub. Citizen, Inc. v. Office of
Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir. 2010) (“FOIA allows agencies to withhold only
those documents that fall under one of nine specific exemptions, which are construed narrowly in
keeping with FOIA’s presumption in favor of disclosure.”) (citation omitted). Upon exhaustion
of administrative remedies, a FOIA requester may file a civil action challenging an agency’s
response to its request. See 5 U.S.C. § 552(a)(4)(B); Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir.
2004). Once such an action is filed, the agency generally has the burden of demonstrating that
its response to the plaintiff’s FOIA request was appropriate. See id. at 678. Federal courts are
authorized under the FOIA “to enjoin the agency from withholding agency records and to order
the production of any agency records improperly withheld from the complainant.” 5 U.S.C. §
552(a)(4)(B).
B. Summary Judgment
“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.
Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). When an agency’s response
to a FOIA request is to withhold responsive records, either in whole or in part, the agency “bears
the burden of proving the applicability of claimed exemptions.” Am. Civil Liberties Union v.
U.S. Dep’t of Def. (“ACLU/DOD ”), 628 F.3d 612, 619 (D.C. Cir. 2011). The government may
sustain its burden of establishing that requested records were appropriately withheld through the
7
submission of declarations detailing the reason that a FOIA exemption applies, along with an
index, as necessary, describing the materials withheld. See, e.g., id. at 619; Students Against
Genocide v. U.S. Dep’t of State, 257 F.3d 828, 840 (D.C. Cir. 2001); Vaughn v. Rosen, 484 F.2d
820, 827–28 (D.C. Cir. 1973). “If an agency’s affidavit describes the justifications for
withholding the information with specific detail, demonstrates that the information withheld
logically falls within the claimed exemption, and is not contradicted by contrary evidence in the
record or by evidence of the agency’s bad faith, then summary judgment is warranted on the
basis of the affidavit alone.” ACLU/DOD, 628 F.3d at 619; see also Judicial Watch, Inc. v. U.S.
Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (“ ‘[S]ummary judgment may be granted on the
basis of agency affidavits if they contain reasonable specificity of detail rather than merely
conclusory statements, and if they are not called into question by contradictory evidence in the
record or by evidence of agency bad faith.’ ” (quoting Consumer Fed’n of Am. v. U.S. Dep’t of
Agric., 455 F.3d 283, 287 (D.C. Cir. 2006) and Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir.
1994))). While the burden remains on the moving party to demonstrate that there is an “absence
of a genuine issue of material fact” in dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986), in FOIA cases, “an agency’s justification for invoking a FOIA exemption is sufficient if
it appears ‘logical’ or ‘plausible.’ ” ACLU/DOD, 628 F.3d at 619 (quoting Larson v. U.S. Dep’t
of State, 565 F.3d 857, 862 (D.C. Cir. 2009)).
III. DISCUSSION
The two challenged documents that remain at issue in this litigation, Documents 6 and 7,
as identified in DHS’ Updated Vaughn Index, are being withheld by DHS pursuant to the
deliberative process privilege and the attorney-client privilege under Exemption 5. Pl.’s Mem.at
8
7. FOIA Exemption 5 allows agencies to withhold “inter-agency or intra-agency memorandums
or letters which would not be available by law to a party other than an agency in litigation with
the agency.” 5 U.S.C. § 552(b)(5). In construing “this somewhat Delphic provision,” U.S. Dep’t
of Justice v. Julian, 486 U.S. 1, 11 (1988), the Supreme Court has held that, to be properly
withheld under Exemption 5, “a document must . . . satisfy two conditions: its source must be a
Government agency, and it must fall within the ambit of a privilege against discovery under
judicial standards that would govern litigation against the agency that holds it.” U.S. Dep’t of
Interior v. Klamath Water Users Protective Ass’n (“Klamath Water”), 532 U.S. 1, 8 (2001).
The challenged documents were drafted by DHS’ Office of General Counsel or the DHS
General Counsel and directed to DHS Secretary Napolitano. Sandweg Decl. ¶ 7–8. Thus, the
plaintiff does not dispute that they are “inter-agency or intra-agency memorandums or letters.”
See 5 U.S.C. § 552(b)(5); Pl.’s Mem. at 8–13. The only issue is whether the documents “fall
within the ambit of a privilege against discovery.” Klamath Water, 532 U.S. at 8. Exemption 5
incorporates those civil discovery privileges enjoyed by any private party in litigation, including
the attorney-client and attorney work product privileges, and the deliberative process privilege,
which “covers ‘documents reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are formulated.’ ” Id.
at 8 (quoting NLRB v. Sears, Roebuck & Co. (“Sears”) , 421 U.S. 132, 150 (1975)); see also
Loving v. U.S. Dep’t of Def., 550 F.3d 32, 38 (D.C. Cir. 2008); Baker & Hostetler LLP v. U.S.
Dep’t of Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006); Rockwell Int’l Corp. v. U.S. Dep’t of
Justice, 235 F.3d 598, 601 (D.C. Cir. 2001). The Supreme Court has acknowledged that “[t]he
deliberative process privilege rests on the obvious realization that officials will not communicate
candidly among themselves if each remark is a potential item of discovery and front page news”
9
and, thus, “its object is to enhance ‘the quality of agency decisions,’ by protecting open and
frank discussion among those who make them within the Government.” Klamath Water, 532
U.S. at 8–9 (citations omitted); see also Tax Analysts v. IRS, 117 F.3d 607, 617 (D.C. Cir. 1997)
(“the deliberative process privilege . . . reflect[s] the legislative judgment that ‘the quality of
administrative decision-making would be seriously undermined if agencies were forced to
operate in a fishbowl because the full and frank exchange of ideas on legal or policy matters
would be impossible’” (internal quotation marks omitted) (quoting Mead Data Cent., Inc. v. U.S.
Dep’t of Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977))).
Nevertheless, “[i]n keeping with the Act’s policy of the fullest responsible disclosure,
Congress intended Exemption 5 to be as narrow as is consistent with efficient Government
operations.” FTC v. Grolier, Inc., 462 U.S. 19, 23 (1983) (citation omitted); see also Sears, 421
U.S. at 149 (“[I]t is reasonable to construe Exemption 5 to exempt those documents, and only
those documents, normally privileged in the civil discovery context.”).
As explained below, DHS has met its burden of showing that invocation of the
deliberative process privilege is appropriate and that the two challenged documents are exempt
from disclosure.
A. Parameters of the Deliberative Process Privilege
Before evaluating whether the two challenged documents fall within the deliberative
process privilege, the Court first examines the prerequisites for invocation of this privilege. The
D.C. Circuit has explained that “[t]o qualify for Exemption 5 protection under the deliberative
process privilege, ‘an agency’s materials must be both predecisional and a part of the
deliberative process.’ ” Nat’l Inst. of Military Justice v. U.S. Dep’t of Def., 512 F.3d 677, 680
n.4 (D.C. Cir. 2008) (internal quotation marks omitted) (quoting Formaldehyde Inst. v. U.S.
10
Dep’t of Health & Human Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989)). “[T]he word
‘deliberative’ as used in the law of Exemption 5 is considerably narrower than the colloquial
meaning; as a consequence, the ‘deliberative’ and ‘predecisional’ requirements tend to merge.
Both terms have come to apply only to documents that contribute to an ongoing deliberative
process within an agency.” Access Reports v. U.S. Dep’t of Justice, 926 F.2d 1192, 1195 (D.C.
Cir. 1991) (emphasis in original). Consequently, the law is well-settled that “[t]he agency must
establish ‘what deliberative process is involved, and the role played by the documents in issue in
the course of that process.’ ” Senate of P.R. v. U.S. Dep’t of Justice, 823 F.2d 574, 585–86 (D.C.
Cir. 1987) (quoting Coastal States Gas Corp. v. Dep’t of Energy (“Coastal States”), 617 F.2d
854, 868 (D.C. Cir. 1980)). Merely stamping on the face of the documents that they are subject
to the deliberative process privilege is not sufficient. See Fox News Network, LLC v. U.S. Dep’t
of the Treasury, 678 F. Supp. 2d 162, 168 (S.D.N.Y. 2009) (finding that it is not “an article of
faith that a document labeled ‘Draft’ is automatically protected by the deliberative process
privilege”) (citing New York Times Co. v. U.S. Dep’t of Def., 499 F. Supp. 2d 501, 515 (S.D.N.Y.
2007)). Instead, at least four inter-related factors may be gleaned from the case law as
significant in making the fact-specific determination that a responsive document is properly
withheld under the deliberative process privilege.
First, courts determine whether a document is predecisional by looking at the timing of
the document’s release relative to the date the decision is made. See Judicial Watch, Inc. v.
FDA, 449 F.3d 141, 151 (D.C. Cir. 2006) (finding “a document predecisional if ‘it was generated
before the adoption of an agency policy’ ”) (citing Coastal States, 617 F.2d at 866); COMPTEL
v. FCC, 910 F. Supp. 2d 100, 121 (D.D.C. 2012) (same); Am. Immigration Council v. U.S. Dep’t
of Homeland Sec., 905 F. Supp. 2d 206, 217–18 (D.D.C. 2012) (predecisional means “antecedent
11
to the adoption of an agency policy” (quoting Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 774
(D.C. Cir. 1978) (en banc), overruled in part on other grounds, Crooker v. ATF, 670 F.2d 1051(D.C. Cir. 1981) (en banc))); Nat’l Right to Work Legal Def. & Educ. Found., Inc. v. U.S. Dep’t
of Labor, 828 F. Supp. 2d 183, 189 (D.D.C. 2011) (“The timing of a record is important in the
analysis; communications made after a decision has been made and designed to explain that
decision are not privileged under Exemption 5.”) (citing Sears, 421 U.S. at 151–52).
Second, courts look to the relationship between the author and recipient of the document
to determine whether a person in the author’s position, particularly a subordinate, would
typically provide advice to a person in the recipient’s position as part of the decision-making
process. See Schlefer v. United States, 702 F.2d 233, 238 (D.C. Cir. 1983) (“Intra-agency
memoranda from ‘subordinate’ to ‘superior’ on an agency ladder are likely to be more
‘deliberative’ in character than documents emanating from superior to subordinate,” and finding
that with respect to Chief Counsel opinions sought in FOIA request, “the Chief Counsel and
requesting officials ultimately occupy a superior-subordinate relationship” rendering deliberative
process privilege inapplicable); Taxation With Representation Fund v. IRS, 646 F.2d 666, 679
(D.C. Cir. 1981) (“[F]actor to be considered in determinations with respect to . . . the deliberative
process privilege is the nature of the decisionmaking authority vested in the office or person
issuing the disputed document.”); Vaughn v. Rosen, 523 F.2d 1136, 1146 (D.C. Cir. 1975)
(finding that “Exemption 5 is designed to protect subordinates’ advice to superiors”); Arthur
Andersen & Co. v. IRS, 679 F.2d 254, 259 (D.C. Cir. 1982) (noting that documents were
deliberative in part because the “flow of the documents was from subordinate to superior”);
Brinton v. U.S. Dep’t of State, 636 F.2d 600, 605 (D.C. Cir. 1980) (noting that the “flow of
12
advisory material is exactly opposite to the paradigm of ‘final opinions,’ which typically flow
from a superior with policy-making authority to a subordinate who carries out the policy”).
The D.C. Circuit stressed this second factor over twenty years ago in considering
Exemption 5, explaining that:
[a] key feature under both the ‘predecisional’ and ‘deliberative’ criteria is the
relation between the author and recipients of the document. A document from a
junior to a senior is likely to reflect his or her own subjective opinions and will
clearly have no binding effect on the recipient. By contrast, one moving from
senior to junior is far more likely to manifest decisionmaking authority and to be
the denouement of the decisionmaking rather than part of its give-and-take.
Access Reports, 926 F.2d at 1195. In that case, the Circuit reversed the district court and found
that Exemption 5’s deliberative process privilege justified the withholding of a memorandum,
which was drafted by a staff attorney at the request of superiors and contained legal analysis
about pending legislation that had already been forwarded by the agency to Congress. Id. at
1193, 1197. The Court noted the deliberative nature of the challenged document since it was
“ammunition for the expected fray, in part as advice on whether and when to duck.” Id. at 1196.
Notably, as in Access Reports, documents generated by legal counsel within agencies to advise
more senior officials regarding a decision to be made by the latter have regularly been found
subject to the deliberative process privilege. See, e.g., Arthur Andersen & Co., 679 F.2d at 259(finding that drafts of documents reviewed by the Office of Chief Counsel and others were
deliberative because “all the participants [reviewing the document] up to the Commissioner were
without authority to make a final determination”); Brinton, 636 F.2d at 602 (exempting from
disclosure memoranda containing legal advice from the Legal Adviser to the Secretary of State
in part because documents “originated in the Office of the Legal Adviser, who has no authority
to make final decisions . . . [i]nstead, his role is to give advice to those in the State Department
who do make the policy decisions”); Murphy v. U.S. Dep’t of Army, 613 F.2d 1151, 1154 (D.C.
13
Cir. 1979) (holding that privilege covers memoranda from Army General Counsel to Assistant
Secretary advising on whether to enter into a contract).
Even if the relationship between the author and recipient of challenged records is not one
of subordinate and superior officials, when the role of the author is as an advice-giver rather than
a decision-maker, this militates in favor of the document qualifying as part of the deliberative
process. See, e.g., Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 8 (D.C. Cir. 2014)
(finding that OLC legal memorandum prepared at request of FBI did not “establish the ‘working
law’ of the FBI” and was covered under the deliberative process privilege); Renegotiation Bd. v.
Grumman Aircraft Eng’g Corp., 421 U.S. 168, 185 (1975) (holding that Regional Board Reports
were predecisional and deliberative in part because the authors “had no legal authority to decide”
the particular issue which “only the [Renegotiation] Board could decide”).
Due to the significance of this second factor, the agency “must describe ‘the nature of
the decisionmaking authority vested in the office or person issuing the disputed document(s), and
the positions in the chain of command of the parties to the documents.’ ” Elec. Frontier Found.
v. U.S. Dep’t of Justice, 826 F. Supp. 2d 157, 168 (D.D.C. 2011) (quoting Arthur Andersen &
Co., 679 F.2d at 258).
Third, courts assess the nature of the discussion in the challenged document and,
specifically, whether it sets out the author’s view of options and considerations regarding an
agency’s policy or, rather, explains or expresses the policy itself. See Coastal States, 617 F.2d at
866 (deliberative documents include “recommendations, draft documents, proposals,
suggestions, and other subjective documents which reflect the personal opinions of the writer
rather than the policy of the agency”); Elec. Frontier Found., 739 F.3d at 8 (“[T]he deliberative
process privilege does cover legal memoranda that concern the advisability of a particular policy,
14
but do not authoritatively state or determine the agency’s policy.” (emphasis in original));
Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Justice, 949 F. Supp. 2d 225,
234, 236 (D.D.C. 2013) (emails among agency lawyers discussing how to respond to press
inquiry was deliberative) (collecting cases). “Virtually all of the courts that have thus far applied
Exemption 5 have recognized that it requires different treatment for materials reflecting
deliberative or policy-making processes on the one hand, and purely factual, investigative
matters on the other.” Mink, 410 U.S. at 89. Consequently, the privilege does not apply to “final
statements of agency policy or to statements that explain actions that an agency has taken. . . .
[I]t protects ‘predecisional communications’ reflecting an agency’s internal deliberations, but not
communications that explain a decision that has already been made.” Tax Analysts v. IRS, 294
F.3d 71, 80 (D.C. Cir. 2002) (citing Sears, 421 U.S. at 151–52) (internal citations omitted). See
also Elec. Frontier Found., 739 F.3d at 10 (OLC opinion for FBI was deliberative because it did
not establish “working law” of the FBI). Thus, even records created in response to internal
requests for “advice” from agency lawyers may not be properly withheld under the deliberative
process privilege when the records merely reflect statements of extant agency policy. See Tax
Analysts, 117 F.3d at 617 (“FSAs [Field Service Advice memoranda] are themselves statements
of an agency’s legal position. . . .[and] do not reflect the ‘give-and-take’ that characterizes
deliberative materials.”); Schlefer, 702 F.2d at 235, 244 (“summary-indexes of significant
written opinions” prepared by the Maritime Administration’s Chief Counsel are not deliberative
because they were statements of agency policy not advisory opinions).
Finally, courts inquire as to whether the document was responsive to a request,
particularly a request from a senior official with decision-making authority to a subordinate in an
advisory position. See Murphy, 613 F.2d at 1154 (finding “classic case of the deliberative
15
process at work” where Assistant Secretary with decision-making power “sought advice from the
General Counsel of his department on the legal questions” raised by impending decision); Ctr.
for Nat. Sec. Studies v. I.N.S., No. 87-2068(RCL), 1990 WL 236133, at *4–5 (D.D.C. Dec. 19,
1990) (finding that challenged documents were predecisional in part because they were drafted
by a committee that was asked to produce the documents “to the Attorney General and the White
House”).
Set against these four factors, the Court now turns to analysis of the application of the
deliberative process privilege to the two challenged documents.
B. THE CHALLENGED DOCUMENTS ARE PREDECISIONAL AND
DELIBERATIVE
The plaintiff challenges the withholding of the two documents under the deliberative
process privilege on grounds, first, that they could not have formed part of the deliberative
process because of their timing; and, second, that DHS has presented insufficient information to
evaluate whether they are either deliberative or predecisional. Each of these challenges is
addressed seriatim below.
1. Timing of Challenged Documents
The two challenged documents are dated June 14, 2012, the day before the Secretary
made the public announcement of her final decision on June 15, 2012. See Sandweg Decl. ¶ 11.
DHS contends that this timing establishes that the documents were predecisional. See id. ¶¶ 11–
12; Defs.’ Opp’n Pl.’s Summ. J. Mot. & Reply Supp. Defs.’ Mot. (“Defs.’ Reply”) at 5, ECF No.
19. The plaintiff disputes this, claiming that submission of the challenged documents so close in
time to the public announcement of the DACA program cuts against finding that the documents
are predecisional. See Pl.’s Mem. at 10–11. The Court disagrees with the plaintiff.
16
The plaintiff relies on two sources of evidence to support its assertion that the challenged
documents are not predecisional. First, the plaintiff points to Documents 8 and 10 on the
Updated Vaughn Index that are described, respectively, as a draft press release regarding the
DACA, dated June 14, 2012, and a draft media communications strategy, dated June 12, 2012.
Updated Vaughn Index at 4, 5–6. The plaintiff does not challenge the withholding of documents
8 and 10 but notes that these documents are dated on or before June 14, 2012, the dates of the
two challenged documents. Pl.’s Mem. at 10–11. The plaintiff reasons that “it is illogical that a
media strategy be developed prior to any final decision on a new program,” Pl.’s Mem. at 11,
and that by the dates of the draft communications strategy on June 12, 2012 or draft press release
on June 14, 2012, DHS must, therefore, have made a final decision. Id. Based on this reasoning,
the plaintiff contends that the challenged documents “were clearly created after Secretary
Napolitano made a decision to exercise prosecutorial discretion with respect to DACA” and must
be “no more than an explanation of the new program.” Id. (emphasis in original); see also
Updated Vaughn Index at 3–6. As such, according to the plaintiff, the challenged documents are
post-decisional and not exempt under the deliberative process privilege. Pl.’s Mem. at 9.
The fact that the challenged documents were dated a day before the DHS Secretary
publicly announced the DACA program on June 15, 2012, does not automatically render them
post-decisional. See Fox News Network, LLC v. U.S. Dep’t of The Treasury, 739 F. Supp. 2d
515, 558 (S.D.N.Y. 2010) (noting that portions of email thread reflecting “Treasury legal’s
suggestion to Treasury decisionmakers regarding their final sign-off” “the day prior to its final
release” was “both deliberative and predecisional” and, thus, was properly redacted under
Exemption 5). On the contrary, this chronology shows that the documents were “generated
before the adoption of an agency policy.” Judicial Watch Inc., 449 F.3d at 151 (quoting Coastal
17
States, 617 F.2d at 866). 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. Sandweg Decl. ¶ 11. Moreover, DHS has confirmed that the documents formed
part of a discussion weeks before they were issued and “were being considered” up to the June
15, 2012 announcement. Id. DHS has explained that the concurrent development of a media and
communications strategy and the legal analysis of the DACA program were a part of the
agency’s deliberative process. Id. ¶ 12. 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 “[s]ubstantive legal and policy aspects of
the DACA decision were under review at the time the communications plan was developed.” Id.
Second, the plaintiff points to internal DHS email exchanges leading up to June 15, 2012.
Pl.’s Reply Supp. Cross-Mot. Partial Summ. J. (“Pl.’s Reply”) at 3. According to the plaintiff,
these emails contain “undisputable evidence” “clearly show[ing] that a decision was made prior
to June 14, 2012.” Id. Contrary to the plaintiff’s characterization of “undisputable evidence,”
review of these emails indicate that the DACA policy was evolving up until the very date of the
announcement. See Decl. of Matthew S. Kownacki (“Kownacki Decl.”) Exs. A–B, ECF No. 20-
1. For example, emails generated the day before the announcement and the same day the
challenged documents were delivered to the Secretary on June 14, 2012, show that edits were
still underway on the new policy. See Kownacki Decl. Ex. B at 48 (email dated June 14, 2012,
at 1:27 PM noting White House counsel’s edits to a directive and asking for a discussion of the
changes); id. at 87 (email dated June 14, 2012, at 5:26 PM discussing the “most recent criteria”);
id. at 108 (email dated June 12, 2012, 1:41 PM proposing “a road map of what needs to be done
and the documents that we need to prepare, as well as to clarify the policy decisions that we will
18
need to discuss further”); see also Kownacki Decl. Ex. A at 27–28 (email thread dated June 13,
2012, at 11:44 AM with the subject line “Re: Draft Release,” discussing adding edits “on the
back end,” and mentioning that it “[s]till needs some work”).
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.
See Sandweg Decl. ¶¶ 11–12.
Thus, the timing of the submission to the Secretary of the two challenged documents
before the Secretary’s final announcement, together with the information supplied by DHS
regarding the process of finalizing the DACA program, adequately shows that the records were
predecisional and “part of a clear ‘process’ leading to a final decision on the issue.” Coastal
States, 617 F.2d at 868.
2. Sufficiency of DHS’ Information To Determine if Challenged Documents Are
Deliberative
The plaintiff claims that DHS has not included enough information in the original and
Updated Vaughn Indices describing the documents to warrant a determination that the documents
are deliberative because the agency makes “barren assertions” that the documents were part of
the deliberative process and “quot[es] the statutory language of the exemption.” Pl.’s Mem. at 9
–10 (citations omitted). In response, DHS submitted with its opposition a declaration by DHS’
Acting General Counsel supplementing the information about Documents 6 and 7. See generally
Sandweg Decl. Having already determined, first, that the timing of the challenged documents
with respect to the final decision indicates that the documents are predecisional, the Court next
considers the remaining three factors outlined in Section III.A., supra, to determine whether
19
DHS has met its burden of showing that the challenged documents “were created as part of the
decision-making process, and [] helped to inform and guide the Secretary in arriving at the final
decision.” Id. ¶ 12.
DHS has shown that the second factor, the relationship between the originating author
and the recipient of the document, supports a finding that the documents were deliberative. The
Updated Vaughn Index and DHS’ declarations identify the author and recipient of the
documents: Document 6 was drafted by DHS General Counsel Ivan Fong, and Document 7 was
drafted by DHS’ General Counsel’s Office at the request of the DHS Secretary, and both
documents are directed to the DHS Secretary. See Updated Vaughn Index at 3–4; Sandweg
Decl. ¶ 8. The General Counsel’s Office and the DHS General Counsel are subordinate to the
Secretary, who had the final authority to issue the DACA program. See Schlefer, 702 F.2d at
238 (noting flow of agency record “from ‘subordinate’ to ‘superior’ on an agency ladder” “more
‘deliberative’ in character”) (citing Sears, 421 U.S. at 155). This “flow of the documents [] from
subordinate to superior,” is strong evidence that these documents were part of a deliberative
process and were considered by those who had the authority to make a final decision. See Arthur
Andersen & Co., 679 F.2d at 259. Cf. Muttitt v. U.S. Dep’t of State, 926 F. Supp. 2d 284, 306–07
(D.D.C. 2013) (finding that defendant did not include requisite detail to show that documents
were deliberative where agency failed to identify the official or agency engaging in a series of
email exchanges, the topic, or the date of the exchanges”).
Moreover, the fact that the authors of these documents were lawyers whose role is to
provide legal advice also confirms that these records were deliberative. Brinton, 636 F.2d at
602. DHS has also shown that the documents were intended as legal advice, Sandweg Decl. ¶¶
8, 11, 13, and “[t]here can be no doubt that such legal advice, given in the form of intra-agency
20
memoranda prior to any agency decision on the issues involved, fits exactly within the
deliberative process rationale for Exemption 5.” Elec. Frontier Found., 739 F.3d at 9 (citing
Brinton, 636 F.2d at 604); see also Vaughn, 523 F.2d at 1143–44 (observing that a deliberative
document is “a direct part of the deliberative process” and makes “recommendations or
expresses opinions on legal or policy matters”). DHS has demonstrated that the documents
helped “inform and guide the Secretary in arriving at the final decision . . . on June 15, 2012,”
Sandweg Decl. ¶ 12, and that the issues were considered “by senior Department officials up
until” the Secretary’s announcement on June 15, 2012. Id. ¶¶ 11–12. This confirms DHS’ claim
that the documents were part of the deliberative process.
The third factor regarding the nature of the discussion within the challenged documents
also supports a finding that they are deliberative. As noted, the challenged documents contain
legal advice, which is typically considered part of a deliberative process. See Elec. Frontier
Found., 739 F.3d at 8 (noting that “the deliberative process privilege does cover legal
memoranda that concern the advisability of a particular policy” (emphasis in original)). DHS
further describes the contents of the two challenged documents as discussing legal issues and
legal authorities as well as “options to reduce legal risk.” See Sandweg. Decl. ¶ 7. 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.” Sandweg Decl. ¶¶ 11–12. Such legal advice is highly indicative that
the records contributed to the Secretary’s decisionmaking. Thus, consideration of this factor also
shows that these documents were part of a deliberative process.
Finally, the defendants have shown that the challenged documents were created in
response to the Secretary’s request for legal advice regarding her DACA decision. See Sandweg
21
Decl. ¶ 8. Since the Secretary sought out legal advice to inform her final policy decision, this
further confirms that this decision was intended to form part of her decisionmaking process. See
Murphy, 613 F.2d at 1154.
The cases relied upon by the plaintiff to support its contention that DHS’ description of
the documents is insufficient are inapposite. Pl.’s Mem. at 9–10, 12. Founding Church of
Scientology of Wash., D.C., Inc., v. Nat’l Sec. Agency, 610 F.2d 824 (D.C. Cir. 1979), is
distinguishable not only because exemption 3, not 5, was at issue, but also because the affidavit
in that case summarily stated that disclosure would “reveal certain functions and activities . . .
which are protected from mandatory disclosure” and which “would jeopardize national security
functions.” Id. at 831. The conclusory statement and lack of specificity in the agency affidavit in
Founding Church are distinguishable from the factual assertions and detail produced in DHS’
declaration here. See Sandweg Decl. ¶¶ 7–8, 11–12. As noted, the Sandweg Declaration details
the author and recipient of the documents, the nature of the discussions within the document, and
how the document formed part of the agency’s process in the weeks leading up to the
announcement of the final decision on June 15, 2012.
The plaintiff also relies on Army Times Pub. Co. v. U.S. Dep’t of Air Force, 998 F.2d
1067, 1070 (D.C. Cir. 1993), as support for its view that the agency declarations are insufficient,
Pl.’s Mem. at 10, but that case is also distinguishable. The plaintiff claims that in Army Times
Pub. Co., the Circuit found it insufficient for an affidavit to merely “parrot[] the case law.” Id. at
1070; see also Pl.’s Mem. at 10. The Circuit, however, did not decide that the affidavit was
insufficient because it restated the legal standard. Id. at 1071–72. Rather, in that case, the
agency claimed that documents related to internal poll results had to be withheld to avoid
harming the Air Force’s deliberative process even though the agency had already disclosed
22
portions of the documents without ill result. Id. at 1068, 1070–71. The affidavit was thus
insufficient because the agency’s action undercut its own justifications for withholding. Id. No
such circumstances are present here.
Finally, the plaintiff further contends that the Sandweg declaration “simply cannot satisfy
DHS’ burden under FOIA” because it is “self-serving.” See Pl.’s Reply at 2. To the contrary, in
FOIA cases, agency declarations or affidavits are viewed with “a presumption of good faith,
which will withstand purely speculative claims about the existence and discoverability of other
documents.” See Ground Saucer Watch v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981) (dismissing
plaintiff’s barren assertions of bad faith in the agency’s affidavits regarding its search for
records).
In sum, DHS has sufficiently demonstrated that the two challenged documents were
predecisional and part of the deliberative process, and therefore properly withheld from
disclosure under Exemption 5.6 With this finding, the Court need not decide whether the
documents were also properly withheld under the attorney-client privilege. See Elec. Frontier
Found., 739 F.3d at 4 (court did not discuss other reasons for withholding after concluding that
deliberative process privilege applied to withheld document); Brinton, 636 F.2d at 606 (“Further
development of the record . . . [to] show that the attorney-client privilege applies” “is not now
necessary” because the deliberative process privilege was applicable); Darui v. U.S. Dep’t of
6
The plaintiff requests, in the alternative, that the Court conduct an in camera review of the documents before ruling
on the applicability of any exemptions. See Pl.’s Mem. at 13. In camera review of withheld documents is “generally
disfavored,” see PHE, Inc. v. U.S. Dep’t of Justice, 983 F.2d 248, 253 (D.C. Cir. 1993), and should not be “a
substitute for the government’s obligation to justify its withholding in publicly available and debatable documents.”
Id; see also Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 955 F. Supp. 2d 4, 13 (D.D.C.
2013) (same). Since DHS’ declarations and Updated Vaughn Index are sufficiently clear to show that challenged
documents 6 and 7 were properly withheld under the deliberative process privilege, such a review is unnecessary.
See Brinton, 636 F.2d at 606 (“[D]istrict court was entirely correct in granting summary judgment without
conducting an in camera inspection of the documents” where “Department affidavits made a detailed showing of the
applicability of the deliberative process ground of Exemption 5 . . . [and] there is no contradictory evidence or
evidence of Department bad faith”).
23
State, 798 F. Supp. 2d 32, 39 (D.D.C. 2011) (“[T]he Court need not reach” applicability of
alternative exemptions once it has concluded that document is properly withheld under one
exemption).
C. Segregability
The FOIA requires that “[a]ny reasonably segregable portion of a record shall be
provided to any person requesting such record after deletion of the portions which are exempt.”
5 U.S.C. § 552(b). Even when a plaintiff does not challenge the segregability efforts of an
agency, the Court has “an affirmative duty to consider the segregability issue sua sponte.”
Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999);
see also Juarez v. U.S. Dep’t of Justice, 518 F.3d 54, 60 (D.C. Cir. 2008) (“Under this Circuit’s
law, the district court’s failure to address segregability in its memorandum opinion is reversible
error.”). The D.C. Circuit has acknowledged that establishing the non-segregability of non-
exempt material “presents problems for the agency since ... segregability depends entirely on
what information is in a document and how it is presented.” Mead Data, 566 F.2d at 261.
Therefore, although “agencies should not be forced to provide such a detailed justification that
would itself compromise the secret nature of potentially exempt information,” agencies “must be
required to provide the reasons behind their conclusions in order that they may be challenged by
FOIA plaintiffs and reviewed by the courts.” Id.To this end, the Circuit has said that “[i]n addition to a statement of its reasons, an agency
should also describe what proportion of the information in a document is non-exempt and how
that material is dispersed throughout the document.” Id. Under Mead Data, if a small
proportion of the information is non-exempt, the agency’s explanatory burden is less, and if a
larger proportion of the information is non-exempt, “the courts should require a high standard of
24
proof for an agency claim that the burden of separation justifies nondisclosure or that disclosure
of the non-exempt material would indirectly reveal the exempt information.” Id. Since Mead
Data, the Circuit has relaxed this standard, holding that “[a]gencies are entitled to a presumption
that they complied with the obligation to disclose reasonably segregable material,” which must
be overcome by some “quantum of evidence” by the requester. Sussman v. U.S. Marshals Serv.,
494 F.3d 1106, 1117 (D.C. Cir. 2007). Indeed, more recent decisions from the D.C. Circuit have
held that an agency may satisfy its segregability obligations by (1) providing a Vaughn index that
adequately describes each withheld document and the exemption under which it was withheld;
and (2) submitting a declaration attesting that the agency released all segregable material. See,
e.g., Loving, 550 F.3d at 41 (stating that “the description of the document set forth in the Vaughn
index and the agency’s declaration that it released all segregable material” are “sufficient for [the
segregability] determination”); Johnson v. Exec. Office for U.S. Att’ys, 310 F.3d 771, 776 (D.C.
Cir. 2002) (upholding agency’s segregation efforts based on “comprehensive Vaughn index” and
“the affidavits of” agency officials).
In the instant case, the defendants have shown that they “conducted a document-by-
document review, inspecting each document for any non-exempt ‘reasonably segregable’
information” and that DHS “released any such reasonable [sic] segregable information” and
withheld certain documents entirely if “DHS determined that any factual information contained
in those records was not reasonably segregable because the selection of the facts was an integral
part of the legal advice and analysis.” See Holzer Decl. ¶ 36; see also Defs.’ Mem. at 19–20.
The Updated Vaughn Index, in conjunction with the agency declarations, provide sufficient
detail of the contents of these documents and the steps undertaken by DHS to comply with its
segregation obligations, for the Court to conclude that the defendants examined Documents 6
25
and 7 and disclosed any material that was reasonably segregable. See Sussman, 494 F.3d at
1117; Muttitt, 926 F. Supp. 2d at 302 (the defendants may satisfy their obligation by providing
an adequate description of the withheld documents in the Vaughn index and “submitting a
declaration attesting that the agency released all segregable material”) (citing Loving, 550 F.3d at
41).
The plaintiff does not address segregability in its briefs and, thus, fails to present “some
‘quantum of evidence’” to suggest that the defendants did not comply with their obligation. See
Sussman, 494 F.3d at 1117. Accordingly, the Court finds that DHS has satisfied its burden of
demonstrating that Documents 6 and 7 were examined and withheld only after considering
whether they could disclose any “reasonably segregable portion[s]” of the documents pursuant to
their obligation under 5 U.S.C. § 552(b).
IV. CONCLUSION
For the foregoing reasons, the Court concludes that DHS has sufficiently demonstrated
that the two challenged documents are subject to the deliberative process privilege under
Exemption 5 of FOIA and, thus, are exempt from disclosure. Accordingly, the defendants’
motion for summary judgment is GRANTED, and the plaintiff’s cross-motion for partial
summary judgment is DENIED. An appropriate Order accompanies this memorandum opinion.
Digitally signed by Hon. Beryl A.
Date: February 28, 2014 Howell
DN: cn=Hon. Beryl A. Howell,
o=District of Columbia, ou=U.S.
District Court for the,
email=Howell_Chambers@dcd.usc
ourts.gov, c=US
__________________
Date: 2014.02.28 11:18:29 -05'00'
BERYL A. HOWELL
United States District Judge
26