Judicial Watch, Inc. v. Consumer Fin. Prot. Bureau, No. 12-00931, 2014 WL 1245303 (D.D.C. Mar. 27, 2014) (Sullivan, J.)

Judicial Watch, Inc. v. Consumer Fin. Prot. Bureau, No. 12-00931, 2014 WL 1245303 (D.D.C. Mar. 27, 2014) (Sullivan, J.)

Re: Request for records of communications between CFPB and various entities concerning President Obama's visit to CFPB and his recess appointment of Richard Cordray as director of CFPB

Disposition: Granting defendant's motion for reconsideration; vacating previous memorandum opinion; granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court "finds that CFPB failed to issue its determination within the statutory time period or before plaintiff brought this action, and that plaintiff has therefore constructively exhausted its administrative remedies."
   
• Exemption 5, Deliberative Process Privilege:  First, the court finds that "[i]nternal communications regarding how to respond to media and Congressional inquiries have repeatedly been held to be protected under the deliberative process privilege."  The court relates that "the withheld documents contain talking points and briefing materials, including recommendations for how to answer questions about the CFPB, that were prepared by Bureau employees for the consideration of decision makers at Treasury."  Additionally, "[a]lthough the Court previously found that the Bureau was not entitled to summary judgment with respect to [one] document, upon further consideration pursuant to Bureau's motion for reconsideration, the Court concludes that justice requires it to reconsider its September 30, 2013 Opinion and Order."  The court now finds that "the CFPB's declaration and Vaughn index indicate that the communication at issue involved advice on preparing for an upcoming Congressional hearing regarding Mr. Cordray.  As previously noted in Section III.B.1.a, internal communications as part of an Executive Branch decision-making process regarding Congressional hearings are protected under the deliberative process privilege."
   
• Exemption 5, Attorney-Work Product Privilege:  The court holds that "the records [at issue] fall within the attorney work product privilege."  The court finds that "CFPB's affidavit and Vaughn index consistently demonstrate that the documents were prepared in reasonable anticipation of litigation challenging the appointment of Director Cordray."
   
• Exemption 5, Presidential Communications Privilege:  The court "concludes that summary judgment should be granted to the Bureau with respect to the withholding of these documents."  The court finds that "the withheld communications were either to or from 'important, senior members of the President's staff,' . . . who were involved in advising the President on his appointment powers generally and Director Cordray's appointment specifically . . . It is further undisputed that the withheld communications related to the President's appointment of Director Cordray, and they occurred before and immediately after the appointment."
   
• Litigation Considerations, "Reasonably Segregable" Requirement:  The court "finds that the Bureau's Vaughn index and declaration satisfy its segregabilty burden."