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Judicial Watch • Mckinley v Fhfa Repinsupportofcm4sj 02022011

Mckinley v Fhfa Repinsupportofcm4sj 02022011

Mckinley v Fhfa Repinsupportofcm4sj 02022011

Page 1: Mckinley v Fhfa Repinsupportofcm4sj 02022011

Category:General

Number of Pages:5

Date Created:February 2, 2011

Date Uploaded to the Library:February 20, 2014

Tags:freddie, deliberative, Opposition, Judgment, Reply, decision, MCKINLEY, support, summary, process, motion, AGENCY, documents, defendant, plaintiff, document, michael, federal, department, states, court, EPA, ICE, CIA


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  • demand_answers

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THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

VERN McKINLEY,  
Plaintiff,  Civil Action No. 10-cv-01165 (HHK)  
FEDERAL HOUSING FINANCE  
AGENCY, 
 Defendant.  

______________________________) 
PLAINTIFFS REPLY SUPPORT ITS CROSS-MOTION FOR SUMMARY JUDGMENT 
Plaintiff Vern McKinley, counsel and pursuant Rule 56(c) the Federal Rules Civil Procedure, respectfully submits this reply support his cross-motion for summary judgment. grounds thereof, Plaintiff states follows: Introduction. 
Plaintiff sent Freedom Information Act request Defendant Federal Housing Finance Agency seeking information about why Defendant chose place Fannie Mae and Freddie Mac into conservatorship.  Defendant has searched for and located two memoranda  totaling thirteen pages  which were prepared assist senior policymakers with analyzing the various policy options receivership and conservatorship.  Defendant now withholds these two documents pursuant unsubstantiated claims the attorney work product doctrine and the deliberative process privilege. 
II. Argument. Defendant Improperly Applies the Attorney Work Product Doctrine. 
Defendant asserts that Documents and were created for meetings with senior executives FHFA discuss various policy options that the agency could take with regard [Fannie Mae and Freddie Mac] and were provided these senior policymakers order assist their decision making.  Reply Support Defendants Summary Judgment Motion and Opposition Plaintiffs Motion for Summary Judgment (Defs Reply) 11.  Yet, Defendant also asserts that although portions these documents are focused assisting policymakers their policy decision-making process, the documents themselves were prepared due reasonably anticipated litigation resulting from any the contemplated courses action.  Defs Reply 
Defendant cannot have both ways.  The documents either were prepared assist policy makers they were prepared anticipation litigation.  Based Defendants own description the documents, clear that the primary purpose the documents was assist policymakers their policy decision making process.  See Plaintiffs Memorandum Opposition Defendants Motion for Summary Judgment and Support Plaintiffs Cross-Motion for Summary Judgment 7-8. 
Moreover, the possibility legal challenge exists with almost every decision made government agency. not unique this particular decision that Fannie Mae and Freddie Mac had statutory right bring legal challenge.  Defs Reply that were the standard for withholding documents under the attorney work product doctrine, then document that happened prepared by, the direction of, attorney would subject disclosure.  Government agencies would have limitless power withhold responsive documents.  
Coastal States Gas Corporation Department Energy, 617 F.2d 854, 865 (D.C. Cir. 1980) (The mere fact that [documents] deal with specific factual situations not sufficient; agency were entitled withhold any document prepared any person the Government with law degree simply because litigation might someday occur, the policies the FOIA would largely defeated.) Instead, has been held repeatedly that [t]he work-product rule does not extend every written document generated attorney; does not shield from disclosure everything that lawyer does.  Its purpose more narrow, its reach more modest.  Coastal States, 617 F.2d 864 (D.C. Cir. 1980) (quoting Jordan U.S. Department Justice, 591 F.2d 753, 775 (D.C. Cir. 1978)). Defendant not authorized withhold the two documents simply because they were prepared attorneys.  Because Defendants claim attorney work product too broad, Document Nos. and must produced Defendant Improperly Applies the Deliberative Process Privilege. 
Instead demonstrating that Plaintiff allegedly asking the Court apply incorrect legal standard, Defendant merely asserts that Plaintiff wrong.  Although Judge Huvelle may have held that, under the deliberative process privilege, government agency not required show that the release documents would harm the decision making process (McKinley FDIC, No. 09-1263 (D.D.C. Sept. 29, 2010)), that specific ruling currently appeal. McKinley Board Governors the Federal Reserve System, No. 10-5353 (D.C. Cir.). Plaintiff established his opening brief, the law the Circuit clear. For documents withheld pursuant the deliberative process privilege, government agency must demonstrate that the documents are predecisional and deliberative.  Horowitz Peace Corps., 428 F.3d 271, 276 (D.C. Cir. 2005); see also, Public Citizen, Inc. Office Management and Budget, 598 F.3d 865, 874 (D.C. Cir. 2010). the instant matter, undisputed that the two documents are predecisional.  The issue whether the two documents are deliberative nature. determine whether document deliberative, courts must ask whether the disclosure [the document] would expose agencys decision making process such way discourage candid discussion within the agency and thereby undermine the agencys ability perform its functions.  Horowitz, 428 F.3d 276 (quoting Dudman Communications Corp. Department Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987)). 
Defendants argument fails address twenty-four years binding precedent the D.C. Circuit. his opening brief, Plaintiff explained how the deliberative process privilege has evolved over the years prohibit government agency from withholding documents simply asserting that those documents are deliberative.  Since 1987, has been clear that government agency must show that the release the withheld documents would cause harm the agencys decision making process.  Because Defendant has not demonstrated that the disclosure Document Nos. and would expose agencys decision making process such way discourage candid discussion within the agency and thereby undermine the agencys ability perform its functions, its attempted assertion the deliberative process privilege fails and the documents must produced. Camera Review the Withheld Documents Appropriate. 
For Defendant withhold Document Nos. and pursuant the deliberative process privilege, must show that the release these documents would harm Defendants decision making process.  Defendant failed make this showing.  With respect the attorney work product doctrine, the parties dispute the content the documents.  Based Defendants own description, the documents are not attorney work product, but instead were prepared assist policymakers with their decision-making.  Yet, Defendant argues that the documents are protected from disclosure the attorney work product doctrine.  Given this discrepancy between Defendants description the documents and its own legal argument, camera review the two documents  which total only thirteen pages  appropriate because may assist the Court assessing the content these documents.  Quinon Strafer Federal Bureau Investigation, F.3d 1222, 1228 (D.C. Cir. 1996) ([W]hen the dispute turns the contents the withheld documents, and not the parties interpretations those documents, camera review may more appropriate.). minimum, Plaintiff requests that the Court conduct camera review the two documents. 

III. Conclusion. 

For the reasons set forth Plaintiffs opening memorandum and the additional reasons set forth above, Defendants motion for summary judgment should denied, Plaintiffs cross-motion for summary judgment should granted, and Defendant should compelled produce Document Nos. and   Dated: February 2011 Respectfully submitted, 
       Paul Orfanedes (D.C. Bar No. 429716) 
/s/ Michael Bekesha 
Michael Bekesha (D.C. Bar No. 995749) 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington, 20024 

(202) 646-5172 
Attorney for Plaintiff