                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

________________________________
                                )
JUDICIAL WATCH, INC.,           )
                                )
               Plaintiff,       )
                                )   Case No. 1:12-CV-00931 (EGS)
          v.                    )
                                )
CONSUMER FINANCIAL              )
PROTECTION BUREAU               )
                                )
               Defendant.       )
________________________________)


                         MEMORANDUM OPINION

     This Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et

seq., case is before the Court on a motion for partial

reconsideration.   On September 30, 2013, the Court issued a

Memorandum Opinion and Order addressing the parties’ cross-

motions for summary judgment.   Doc. Nos. 22 and 23.   The Court

held that the Consumer Financial Protection Bureau (“CFPB” or

the “Bureau”) had discharged its FOIA obligations in response to

plaintiff Judicial Watch, Inc.’s requests for all the documents

at issue except one.    Accordingly, the Court granted in part and

denied in part the cross-motions.

     The Bureau timely filed a motion for reconsideration under

Federal Rule of Civil Procedure 54(b), arguing that it had

properly withheld the one document at issue.   Doc. No. 28.    Upon

consideration of the motion, the opposition, the reply and the
surreply,1 the relevant caselaw and the record as a whole, the

Court will GRANT CFPB’s motion for reconsideration, and will

VACATE the September 30, 2013 Memorandum Opinion and replace it

with this amended Opinion, which is substantively unchanged

except for analysis of the single document at issue.                                       See infra

Section III.B.1.b.                                        Accordingly, because the Court concludes

that the CFPB properly withheld all of the challenged documents

in this case, the defendant’s Motion for Summary Judgment is

GRANTED; the plaintiff’s Cross Motion for Summary Judgment is

DENIED; and this case is DISMISSED.

I. FACTUAL BACKGROUND

              Plaintiff is a non-profit, educational foundation which

regularly requests access to the public records of government

entities and disseminates its findings to the public. Compl. ¶

3.            On January 12, 2012, plaintiff submitted a FOIA request to

CFPB, seeking all records of communications between the CFPB and

various entities concerning President Obama’s visit to the CFPB

and his recess appointment of Richard Cordray as director of the

CFPB.               Declaration of Brett Kitt (“Kitt Decl.”)                          Exh. A.   The

January 12 request was assigned a FOIA tracking number.                                         Id. ¶

3.         On January 25, 2012, plaintiff submitted another FOIA

request to CFPB, seeking all records of communications

concerning Mr. Cordray’s appointment as director of the CFPB and
                                                            
1
    Plaintiff’s motion to file a surreply (Doc. No. 31) is GRANTED.
                                                                      2
 
any documentation reflecting travel and lodging for Mr. Cordray,

his family, and any additional guests.         Id. Exh. B.   The January

25 request was also assigned a FOIA tracking number.          Id. ¶ 4.

        On January 27, 2012 and January 30, 2012, CFPB sent letters

to plaintiff formally acknowledging the receipt of the

requests.     Id. Exhs. C, D.    On March 30, 2012, CFPB issued an

interim response to plaintiff’s January 25 FOIA request,

explaining that the Bureau’s initial search for the requested

documents produced 269 pages, that the Bureau would partially

release 220 pages, and that the Bureau would claim FOIA

Exemptions 5 and 6 for the remaining 49 pages.         Id. Exh. F.

With this response, CFPB partially released 220 pages of

responsive material.       Id.   In April 2012, there were additional

communications between the parties regarding the status of

CFPB’s determinations on the pending FOIA requests.          Id. Exhs.

G, H.    On June 7, 2012, CFPB informed plaintiff by telephone and

by e-mail that the Bureau intended to issue its determination

shortly.     Id. Exh. I.   On the same day, plaintiff brought this

action alleging that CFPB failed to comply with the relevant

timelines set forth in 5 U.S.C. § 552(a)(6)(A) with respect to

both of its requests.       See generally Compl.    On June 8, 2012,

CFPB issued its determination as to both of plaintiff’s FOIA

requests.    Kidd Decl. Exhs. J, K.       With this response, CFPB

partially released an additional 12 pages of responsive material

                                      3
 
and withheld an additional 3 pages under FOIA Exemptions 5 and

6.    Id.     The response letters also informed plaintiff of the

right to administratively appeal the Bureau’s determination.

Id.

        Subsequently, while this litigation was pending, the CFFB

conducted another search for records responsive to both FOIA

requests.         Kidd Decl. Exh. L.   On September 28, 2012 it released

a supplemental production to plaintiff consisting of 17 pages of

responsive records released in full and 8 pages released in

part.       Id.    Eight hundred eighty pages were withheld in full.

Id.     While preparing its Vaughn index, the Bureau identified a

small amount of previously withheld material which it later

determined could be partially released.             Id. Exh. N.   It

released those records to plaintiff.          Id.

        On November 9, 2012, the Bureau moved for summary judgment,

claiming that plaintiff did not exhaust its administrative

remedies.         Def.’s Mot for Summ. J. at 8-15.     The Bureau also

argues that its search was adequate and that all of the material

it did not release was properly withheld. See generally Id.              On

January 18, 2013, the plaintiff filed a cross motion for summary

judgment.         Plaintiff does not challenge the adequacy of the

search, nor does it challenge “the majority of CFPB’s withheld

documents.”        Pl.’s Combined Cross Mot. for Summ J./Opp’n to

Def.’s Mot. Summ. J. (“Pl.’s Combined Cross Mot./Opp’n”) at 1.

                                        4
 
Plaintiff argues that it exhausted its administrative remedies,

and further argues that the Bureau improperly invoked Exemption

5 for several records.    Id. at 2.

II. STANDARD OF REVIEW

       A.        Summary Judgment in a FOIA Case

     Summary judgment is granted when there is no genuine issue

of material fact and the movant is entitled to judgment as a

matter of law.   Fed. R. Civ. P. 56(c); Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. Dist. of

Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002).      In determining

whether a genuine issue of fact exists, the court must view all

facts in the light most favorable to the non-moving party.      See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986). Under FOIA, all underlying facts and inferences are

analyzed in the light most favorable to the FOIA requester; as

such, only after an agency proves that it has fully discharged

its FOIA obligations is summary judgment appropriate.      Moore v.

Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Weisberg v.

U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)).

FOIA cases are typically and appropriately decided on motions

for summary judgment.    Gold Anti-Trust Action Comm., Inc. v. Bd.

of Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130

(D.D.C. 2011) (citations omitted).



                                  5
 
     In reviewing a motion for summary judgment under the FOIA,

the court must conduct a de novo review of the record. See 5

U.S.C. § 552(a)(4)(B) (2012).   The court may award summary

judgment solely on the basis of information provided by the

department or agency in affidavits or declarations that describe

“the documents and the justifications for nondisclosure with

reasonably specific detail, demonstrate that the information

withheld logically falls within the claimed exemption, and are

not controverted by either contrary evidence in the record nor

by evidence of agency bad faith.” Military Audit Project v.

Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v.

Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415

U.S. 977 (1974). Agency affidavits or declarations must be

“relatively detailed and non-conclusory.” SafeCard Services v.

SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Such affidavits or

declarations are accorded “a presumption of good faith, which

cannot be rebutted by purely speculative claims about the

existence and discoverability of other documents.” Id. (internal

citation and quotation omitted).


III. DISCUSSION

     A. Exhaustion of Administrative Remedies

     “Exhaustion of administrative remedies is generally

required before filing suit in federal court so that the agency



                                   6
 
has an opportunity to exercise its discretion and expertise on

the matter and to make a factual record to support its

decision.”     Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 61

(D.C. Cir. 1990) (citing McKart v. United States, 395 U.S. 185,

194 (1969)).    In the FOIA context, this exhaustion requirement

is triggered when an agency issues a response to a FOIA request

within the relevant statutory timelines – within 20 working days

of receiving the FOIA request, or within 30 working days in

“unusual circumstances.”    5 U.S.C. § 552(a)(6)(A)(i),

(a)(6)(B)(i).    To trigger the exhaustion requirement, the agency

must at least:

     (i) [G]ather and review the documents; (ii) determine and
     communicate the scope of the documents it intends to
     produce and withhold, and the reasons for withholding any
     documents; and (iii) inform the requester that it can
     appeal whatever portion of the “determination” is adverse.

Citizens for Responsibility and Ethics in Washington (“CREW”) v.

FEC, 711 F.3d 180, 188 (D.C. Cir. 2013); see also 5 U.S.C.

§ 552(a)(6)(A)(i) (providing that the response must include the

agency’s “determination” on whether to comply with the request

and “the reasons therefor,” and notice of the requester’s right

to appeal any adverse determination).    An agency response that

does not include all the necessary components may be deemed

insufficient to trigger the exhaustion requirement.       See CREW,

711 F.3d at 188 (stating that more than “an initial statement

that the agency will generally comply with a FOIA request and

                                   7
 
will produce non-exempt documents and claim exemptions in the

future” is required); Oglesby, 920 F.2d at 67 (finding that an

agency response that does not provide notice of FOIA requester’s

right to appeal was insufficient to trigger the exhaustion

requirement).

     Where the agency fails to issue a determination sufficient

to trigger the exhaustion requirement within the statutory

timelines, the FOIA requester is deemed to have exhausted

administrative remedies.   5 U.S.C. § 552(a)(6)(C)(i).   However,

if the agency cures its failure to timely respond before the

requester files suit, the constructive exhaustion provision does

not apply and the requester must first administratively appeal

any adverse determination.    Oglesby, 920 F.2d at 63-64.   Thus,

to determine whether plaintiff must satisfy the exhaustion

requirement in the instant case, it is necessary to determine

whether CFPB has issued its determination within the relevant

time period, or at least before plaintiff filed suit.

     Plaintiff, in its Notice of Supplemental Authority, cites

to the D.C. Circuit’s decision in CREW to support its argument

that CFPB’s acknowledgement letters on January 27 and January

30, and CFPB’s interim response letter on March 20 cannot

trigger the administrative exhaustion requirement because the

Bureau failed to notify plaintiff of the right to appeal.    Pl.’s

Notice of Supp. Auth. at 2.   CFPB does not attempt to refute

                                  8
 
plaintiff’s arguments.   The Court agrees with plaintiff that

CFPB’s letters issued prior to the initiation of this case are

insufficient to trigger the exhaustion requirement for this

reason.    CFPB only provided plaintiff with the notice of the

right to appeal in its June 8 letter.    However, because this

letter was issued after plaintiff initiated this lawsuit, it

cannot be used to cure CFPB’s failure to timely respond to FOIA

requests.   Thus, 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.

     B. Exemption 5

     Exemption 5 permits an agency to withhold documents such as

“inter-agency or intra-agency memorandums or letters which would

not be available by law to a party . . . in litigation with the

agency.”    5 U.S.C. § 552(b)(5).   Judicial Watch challenges

CFPB’s withholding of certain records based on the deliberative

process, attorney-client, attorney work product, and the

presidential communications privileges.

     The 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, and its object is to enhance the quality of

agency decisions by protecting open and frank discussion among

                                    9
 
those who make them within the government.”     DOI v. Klamath

Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001) (citations

omitted).   To qualify for withholding under the deliberative

process privilege, the withheld material must be both

predecisional and deliberative.    “A document is predecisional if

it was prepared in order to assist an agency decisionmaker in

arriving at his decision, rather than to support a decision

already made.   Material is deliberative if it reflects the give-

and-take of the consultative process.”     Petroleum Info Corp. v.

Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992)

(citations and quotation marks omitted).


     The attorney client privilege is meant “to assure that a

client’s confidences to his or her attorney will be protected,

and therefore encourage clients to be as open and honest as

possible with attorneys.”   Coastal States Gas Corp. v. Dep’t of

Energy, 617 F.2d 854, 862 (D.C. Cir. 1980).    The privilege “is

not limited to communications made in the context of litigation

or even a specific dispute, but extends to all situations in

which an attorney’s counsel is sought on a legal matter.”        Id.

The attorney work product privilege, by contrast, is “limited to

documents prepared in contemplation of litigation.”     Id. at 864.

While obviously related, the privileges have different goals:

“the attorney client privilege exists to protect confidential



                                  10
 
communications,” while the work product privilege “promote[s]

the adversary system by safeguarding the fruits of an attorney's

trial preparations.” United States v. AT&T Co., 642 F.2d 1285,

1299 (D.C. Cir. 1980).

     The purpose of the presidential communications privilege is

to “guarantee the candor of presidential advisers and to provide

‘[a] President and those who assist him . . . [with] freedom to

explore alternatives in the process of shaping policies and

making decisions and to do so in a way many would be unwilling

to express except privately.”   In re Sealed Case, 121 F.3d 729,

743 (D.C. Cir. 1997) (quoting U.S. v. Nixon, 418 U.S. 683, 708

(1974)).   “This privilege extends to communications authored or

received in response to a solicitation by members of a

presidential adviser’s staff, since in many instances advisers

must rely on their staff to investigate and issue and formulate

the advice to be given to the President.”      ACLU v. DOJ, Case No.

10-123, 2011 U.S. Dist. LEXIS 156267, *30 (D.D.C. Feb. 14, 2011)

(citing In re Sealed Case, 121 F.3d at 752).

           1. Deliberative Process Privilege

     Judicial Watch challenges the CFPB’s withholding of two

records for which the Bureau cites only the deliberative process

privilege as grounds for the withholding.      The Court addresses

each in turn.



                                11
 
                   a. Briefing Materials

        Plaintiff challenges the CFPB’s withholding of two emails

within a chain dated December 6, 2011, which discuss draft

briefing materials for the Deputy Secretary of the Treasury.

Pl.’s Combined Cross Mot./Opp’n at 10-11; Def.’s Vaughn Index at

78-79, Bates 1149-1172.      Plaintiff argues that the attachment to

those two emails is labeled “final.dox,” which indicates that

the document is a final document, not a draft, and is therefore

not predecisional.      Id. at 11.   The CFPB responds that “even

final versions of briefing materials are predecisional and

subject to the deliberative process to the extent they . . .

propose talking points for agency officials to incorporate into

their presentations or question-and-answer-sessions.”         Def.’s

Opp’n to Cross Motion/Reply in Support of Summ. J. Mot. at 9-10

(“Def.’s Combined Opp’n/Reply”).          The CFPB points out that the

full name of the attachment is “CFPB - TFG QA – fall 2011 –

final.dox.”      Id. at 11; Vaughn Index at 78-79.      Defendant

explains that TFG stands for then Treasury Secretary Timothy

Geithner and QA stands for question and answer regarding the

CFPB.     Id.   The document therefore “reflect[s] potential or

suggested responses to a range of questions that Treasury may

receive regarding the Bureau, which may or may not reflect

[Treasury’s] ultimate public statement or position.”          Id.



                                     12
 
     The Court finds the Bureau has carried its burden to prove

the applicability of its claimed exemption.    Internal

communications regarding how to respond to media and

Congressional inquiries have repeatedly been held to be

protected under the deliberative process privilege.       Judicial

Watch, Inc. v. U.S. Dep’t of the Treasury, 796 F. Supp. 2d 13,

31 (D.D.C. 2011); Judicial Watch, Inc. v. U.S. Dep’t of Homeland

Sec., 736 F. Supp. 2d 202, 208 (D.D.C. 2010); Judicial Watch,

Inc. v. U.S. Dep’t of Commerce, 337 F. Supp. 2d 146, 174 (D.D.C.

2004).   The CFPB’s declaration and Vaughn index indicate 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.     Judicial Watch’s

selective quoting of name of the attachment listed in the Vaughn

index does not convince the Court otherwise.

                b. Email Between White House Official and CFPB

     The second document challenged by plaintiff is an email

from Nicole Isaac, a White House staffer, to CFPB employee Lisa

Konwinski.   Vaughn Index at 12 (Bates 390-91).    Although the

Court previously found that the Bureau was not entitled to

summary judgment with respect to this document, upon further

consideration pursuant to Bureau’s motion for reconsideration,

the Court concludes that justice requires it to reconsider its

                                13
 
September 30, 2013 Opinion and Order.   See Fed. R. Civ. P. 54(b)

(providing, in relevant part, that “any order or other decision,

however designated, that adjudicates fewer than all the claims

or the right and liabilities . . . may be revised at any time

before the entry of a judgment adjudicating all the claims and

all the parties’ rights and liabilities.”); see also Wannall v.

Honeywell Int’l, Inc., 292 F.R.D. 26, 30 (D.D.C. 2013) (“the

considerations embedded in [Rule 54(b)’s] “as justice required”

standard leave a great deal of room for the court’s discretion

and, accordingly, the “as justice requires” standard amounts to

determining whether relief upon reconsideration is necessary

under the relevant circumstances.”)(citations omitted).   The

Court therefore will grant the Bureau’s motion for

reconsideration with respect to this document and will consider

anew its motion for summary judgment.

     The email from Ms. Isaac, a White House staffer, to CFPB

employee Lisa Konwinski is titled “HJC February 15th on Cordray,”

and the Bureau claims it is subject to the deliberative process

privilege because it constitutes “a request of the White House

for advice regarding a Congressional hearing and [to] discuss

suggestions for responding to that request.”   Vaughn Index at 12

(Bates 390-91).   Judicial Watch argues that the email is not

subject to the privilege because under FOIA, the deliberative

process privilege is limited to “inter-agency or intra-agency”

                                14
 
records, 5 U.S.C. § 552(b)(5), and “[g]enerally, the White House

staff is not considered to be an agency for purposes of FOIA.”

Pl.’s Combined Cross Mot./Opp’n at 9-10.   The Bureau concedes

that the White House is not an agency for the purposes of FOIA,

but argues that Exemption 5 nevertheless applies to

communications between agencies and the White House that would

otherwise be privileged in civil discovery.    Def.’s Combined

Opp’n/Reply at 13-14.

     The initial consideration under Exemption 5 is whether the

record is of the type intended to be covered by “inter-agency or

intra-agency memorandums.”   5 U.S.C. § 552(b)(5).   This Circuit

has found the threshold requirement satisfied for communications

exchanged between agencies and the Office of the President, even

though that office is not an agency for the purposes of FOIA.

See Judicial Watch Inc. v. DOJ, 365 F.3d 1108, 1110 n.1 (D.C.

Cir. 2004); In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997).

Moreover, upon reconsideration, the Court agrees with defendant

that Circuit precedent in Judicial Watch, Inc. v. Dep’t of

Energy, 412 F.3d 125 (D.C. Cir. 2005), supports its claim for

withholding.   In that case, the Circuit held the deliberations

of a Presidential Advisory Group, the National Energy Policy

Development Group, were protected from disclosure even though

the NEPDG was not an agency subject to FOIA.    Judicial Watch,

Inc. v. Dep’t of Energy, 412 F.3d at 129 (although “the NEPDG is

                                15
 
not itself an “agency” subject to the FOIA because its sole

function is to advise and assist the President . . . [t]he

district court erred . . . in thinking that Exemption 5

therefore does not protect the deliberations of the NEPDG.”).

The Court stated:

     [W]e think it inconceivable [that] Congress intended
     Exemption 5 to protect the decision-making processes of the
     Executive Branch when the decision is to be made by
     “agency” officials subject to oversight by the President
     and not when the decision is to be made by the President
     himself and those same agency officials are acting in aid
     of his decision-making processes. . . . That the President,
     rather than an agency, initiated the policy development
     process is of no moment; what matters is whether a document
     will expose the pre-decisional and deliberative processes
     of the Executive Branch.

Id. at 130-31.   Based upon the foregoing, it is clear that

communications between the CFPB and White House staff may be

“inter-agency or intra-agency memorandums” for the purposes of

Exemption 5’s deliberative process privilege.

     In this case, 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.     Judicial Watch v. U.S. Dep’t of

Commerce, 337 F. Supp. 2d at 174.      Judicial Watch does not argue

otherwise, either in its original filings or its responses to

                                  16
 
the Motion for Reconsideration.                                    Accordingly, upon

reconsideration the Court concludes that summary judgment should

be granted with respect to the withholding of this document.

                             2. Attorney Client and Attorney Work Product Privilege:
                                Communications with Department of Justice
              Plaintiff challenges the Bureau’s withholding of four

communications between employees at the Bureau and attorneys at

the Department of Justice.2                                    See Pl.’s Combined Cross Mot./Opp’n

at 12.                 These communications took place on January 12, 19 and

27, 2012.                       Id.; see also Vaughn Index at 9 (Bates 339-382), 16

(Bates 423), 28 (Bates 578-79), 30 (Bates 658), 31 (Bates 666-

69).             Plaintiff argues that the Bureau has not demonstrated the

attorney client privilege applies because it has not

specifically established the lawyer client relationship.                                    Id.

Plaintiff also argues the CFPB has not met its burden to show

the work product doctrine applies because it has not shown the

DOJ lawyers were working “in the capacity of [the CFPB’s]

attorney[s] . . . for any specific litigation.”                                    Id. at 12.

CFPB responds that all of these emails concern anticipated

litigation challenging President Obama’s January 4, 2012 recess


                                                            
2
  Plaintiff also challenged the withholding of an email exchange
between the CFPB and the Treasury pursuant to the attorney
client and work product privileges. Pl.’s Combined Cross
Mot./Opp’n at 11-12, Vaughn Index at 77-78 (Bates 1135-48). The
Bureau subsequently released the document to the plaintiff.
Def.’s Combined Opp’n/Reply at 12, n.5. Accordingly, it is no
longer a subject of dispute between the parties.
                                                                 17
 
appointment of Director Cordray.       Def.’s Mot. at 21-22; Kitt

Decl. ¶ 26-27 (explaining that Department of Justice attorneys

are authorized to represent the Bureau in litigation, and that

the communications occurred “for the purpose of defending the

CFPB in litigation challenging the recess appointment of the

Director.”).   The government argues that litigation over

Director Cordray’s recess appointment was reasonably foreseeable

in light of immediate litigation challenging other Presidential

recess appointments made on the same day as Director Cordray’s.

Def.’s Mot. at 2-3, 23-24; Def.’s Combined Opp’n/Reply at 12-13.

     In assessing whether the proponent has carried its burden

to show a document is protected as work-product, the relevant

inquiry is “whether, in light of the nature of the document and

the factual situation in the particular case, the document can

fairly be said to have been prepared . . . because of the

prospect of litigation.”     EEOC v. Lutheran Soc. Servs., 186 F.3d

959, 968 (D.C. Cir. 1999).    Although an agency need not have a

specific claim in mind when preparing the documents, there must

exist some articulable claim that is likely to lead to

litigation in order to qualify the documents as attorney work-

product.   Coastal States Gas Corp., 617 F.2d at 865; Am.

Immigration Council v. Dep’t of Homeland Security, 905 F. Supp.

2d 206, 221 (D.D.C. 2012) (work product encompasses documents

prepared for litigation that is “foreseeable,” if not

                                  18
 
necessarily imminent; “documents that . . . advise the agency of

the types of legal challenges likely to be mounted to a proposed

program, potential defenses available to the agency, and the

likely outcome,” are covered).

    In this case, the CFPB’s affidavit and Vaughn index

consistently demonstrate that the documents were prepared in

reasonable anticipation of litigation challenging the

appointment of Director Cordray.      It is a matter of public

record that the legality of the appointment was immediately

questioned by some members of Congress, and the recess

appointments of three members of the National Labor Relations

Board made on the same day as Director Cordray’s were the

subject of litigation in this court within two weeks thereafter.

Def.’s Mot. at 3.   The emails at issue here were written within

one to four weeks following the recess appointment; they involve

the Justice Department attorneys authorized to represent the

Bureau in litigation; and they are described in the Vaughn index

as containing advice and analysis regarding potential legal

challenges to the appointment.   Kitt Decl. ¶¶ 25-27, Vaughn

Index at 9 (Bates 339-382), 16 (Bates 423), 28 (Bates 578-79),

30 (Bates 658), 31 (Bates 666-69).     Accordingly, the records

fall within the attorney work product privilege.     As a result,




                                 19
 
the court does not reach the question whether they are also

protected by the attorney-client privilege.3

                             3. Presidential Communications Privilege

              Finally, Judicial Watch challenges the Bureau’s

withholding, under the presidential communications privilege, of

two email exchanges between White House counsel and CFPB

employees.4                          Pl.’s Combined Cross Mot./Opp’n at 14-16; see also

Vaughn Index at 4 (Bates 281-82); 49 (Bates 384).                                   Plaintiff

claims that the presidential communications privilege “does not

protect the communications between the President or his advisors

and the staff of Federal agencies; it protects confidential

communications between the President’s advisors, or between the

President and his advisors.”                                   Pl.’s Combined Cross Mot./Opp’n at

16.           This is not the law of this Circuit.                         In In re Sealed Case,

121 F.3d 729, the circuit considered the question “How far down

the line does the presidential communications privilege go?”



                                                            
3
  The CFPB asserts an additional basis for withholding one of the
emails in a chain dated January 12, 2012, identified at Bates
666-669; and the January 19, 2012 email, identified at Bates
423, claiming they are exempt under the deliberative process
privilege. See Vaughn Index at 16, 31-32. Notably, Plaintiff
does not challenge the withholding under the deliberative
process privilege.
4
  The Bureau asserts other bases for withholding the documents as
well, see Vaughn index at 4 (Bates 281-82); 49 (Bates 834);
however, because the court finds they are properly withheld
under the presidential communications privilege, the court does
not reach these additional asserted bases for withholding.


                                                                20
 
Id. at 746, and concluded it does not stop at communications

between his immediate advisers.

              Given the need to provide sufficient elbow room for
              advisers to obtain information from all knowledgeable
              sources, the privilege must apply both to communications
              which these advisers solicited and received from others as
              well as those they authored themselves. The privilege must
              also extend to communications authored or received in
              response to a solicitation by members of a presidential
              adviser's staff, since in many instances advisers must rely
              on their staff to investigate an issue and formulate the
              advice to be given to the President.

Id. at 752 (emphasis added).5                                  In this case, it is undisputed

that the withheld communications were either to or from

“important, senior members of the President’s staff,” Pl.’s

Reply at 3, who were involved in advising the President on his

appointment powers generally and Director Cordray’s appointment

specifically.                               Decl. of Edward N. Siskel ¶¶ 6 a, b.     It is

further undisputed that the withheld communications related to

the President’s appointment of Director Cordray, and they


                                                            
5
  The Circuit goes on to state that the privilege should not
extend to staff in agencies outside the White House who may be
providing advice on a matter which may ultimately become one for
presidential decisionmaking.   Id. However, read within context
of the entire passage, it is clear that this refers to agency
communications which do not involve the president’s advisers at
all, but rather are only between and among agency personnel.
Id.; see also Judicial Watch Inc. v. DOJ, 365 F.3d at 1114-15,
1121 (declining to extend presidential communications privilege
to documents prepared and circulated only within the Justice
Department, and explaining that in these circumstances, “the
ultimate goal of protecting the President’s . . . access to
candid advice is achieved under the deliberative process
privilege for those working documents that never make their way
to the Office of the President.”).
                                                               21
 
occurred before and immediately after the appointment.     Vaughn

Index at 4 (Bates 281-82); 49 (Bates 834).   Communications

generated in the course of advising the President in the

exercise of his appointment and removal power are clearly

protected by the presidential communications privilege.    The

appointment and removal power are “a quintessential and non-

delegable Presidential power. . . . the President himself must

directly exercise the presidential power of appointment or

removal.   As a result, in this case there is assurance that even

if the President were not a party to the communications over

which the government is asserting presidential privilege, these

communications nonetheless are intimately connected to his

presidential decisionmaking.”    In re Sealed Case, 121 F.3d at

752-53.    The Court therefore concludes that summary judgment

should be granted to the Bureau with respect to the withholding

of these documents.

     C. Segregability

     Under FOIA, “[i]f a document contains exempt information,

the agency must still release any reasonably segregable portion

after deletion of the nondisclosable portions.”    Oglesby v. U.S.

Dep’t of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996).     Though

not specifically raised by Judicial Watch, the Court has an

“affirmative duty to consider the segregability issue sua

sponte.”    Trans-Pacific Policing Agreement v. U.S. Customs

                                 22
 
Serv., 177 F.3d 1022, 28 (D.C. Cir. 1999).    The reviewing court

may rely on the description of the withheld records set forth in

the Vaughn index and the agency’s declaration that it released

all segregable information.     Loving v. U.S. Dep’t of Def., 550

F.3d 32, 41 (D.C. Cir. 2008).    In this case, particularly in the

absence of any contrary argument by Judicial Watch, the Court

finds that the Bureau’s Vaughn index and declaration satisfy its

segregabilty burden.   Kitt Decl. ¶¶ 17-18; see generally Vaughn

Index.

IV.   CONCLUSION

      For the foregoing reasons, the Court will GRANT the

Bureau’s motion for reconsideration, and will vacate the

Memorandum Opinion and Order dated September 30, 2013.    The

Memorandum Opinion is replaced with this amended Opinion, which

is substantively unchanged except as relates to the single

document at issue.   Accordingly, because the Court concludes

that the CFPB properly withheld all of the challenged documents

in this case, the defendant’s Motion for Summary Judgment is

GRANTED; the plaintiff’s Cross Motion for Summary Judgment is

DENIED; and this case is DISMISSED.     An appropriate order

accompanies this memorandum opinion.

SIGNED:    Emmet G. Sullivan
           United States District Judge
           March 27, 2014



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