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Jud. Watch, Inc. v. DOD, No. 19-1384, 2021 WL 270503 (D.D.C. Jan. 27, 2021) (Friedrich, J.)


Jud. Watch, Inc. v. DOD, No. 19-1384, 2021 WL 270503 (D.D.C. Jan. 27, 2021) (Friedrich, J.)

Re:  Requests for communications relating to issue of women being permitted to serve in all Marine Corps occupational specialties

Disposition:  Granting defendant's motion for summary judgment; denying plaintiffs' motion for summary judgment

  • Exemption 5, Deliberative Process Privilege:  The court holds that "[t]he Department properly invokes Exemption 5 to withhold [two memoranda] as they are both predecisional and deliberative."  The court relates that these memoranda were "a memorandum by [the] then-Marine Corps Commandant . . . to the then-Secretary of Navy, which outlined his request that the Marine Corps be granted an exception to the policy that women be permitted to serve in all occupational specialties, as well as his analysis on the relationship between gender integration and combat effectiveness," as well as "another memorandum from [the then-Marine Corps Commandant] to the Secretary explaining the practical implications of his request to limit certain roles to male Marines."  The court finds that "[f]irst, there is no question that the memoranda predate any final decision about the implementation of the gender integration policy in the Marine Corps."  "Second, [the court finds that] the documents are deliberative, as they 'reflect[] the give-and-take of the consultative process.'"  "[The then-Marine Corps Commandant] submitted the memoranda with the very intent to influence the final policy as to the Marine Corps."  In particular regarding the deliberative process privilege, the court finds that "[defendant's] declaration explains that the Marine Corps is part of the Department of the Navy, and 'in many instances . . . may not make unilateral decisions without support from the Department of the Navy.'"  "As to the specific policy at issue, '[g]iven that [the] gender integration policy was applicable to all the armed services, the [Marine Corps] needed to seek permission from the [Navy] preliminarily about receiving an exception to the policy.'"  "[I]n other words, 'the Commandant would not be able to proceed without approval from the Secretary of the Navy.'"

    The court relates that "plaintiffs also challenge the withholding of several documents related to the two . . . memoranda."  "The first group of documents is a set of slides entitled 'Recommended Standards' created by the Marine Corps Training and Education Command for the Marine Commandant to aid his decision on the gender integration policy."  "The second is an information paper entitled 'USMC Gender Integration Long-Term Study & Assessment,' written by a team serving under the Deputy Commandant for Manpower and Reserve Affairs and provided to the Commandant."  "The third is a chart that listed occupational specialties that the Marine Corps recommended be closed off to female Marines."  "The final document lists various units and support billets; it was also attached to the second . . . memorandum."  The court holds that "[h]ere again, the Department properly invokes Exemption 5 as these supporting documents are predecisional and deliberative."  "The documents served either as support for the Commandant's initial decisionmaking process on gender integration, . . . or as attachments to his memoranda to the Secretary of the Navy."  "Thus, like the memoranda they supported, these documents predate the Secretary's decision on the topic."  "And, also like the memoranda they support, these documents are deliberative, as they 'reflect[ ] the give-and-take of the consultative process,' . . . both within the Marine Corps in the context of the initial formulation of the Commandant’s opinion and in the context of the Commandant's later deliberation with the Secretary of the Navy."  "Like the memoranda, the supporting documents all appear to have been drafted by subordinates to a superior, the Commandant of the Marine Corps, either for his own analysis or for attachment to his memoranda."  "And they all concern 'options and considerations regarding an agency's policy' . . . and its 'advisability.'"  The court also finds that "'[t]o the extent that predecisional materials, even if "factual" in form, reflect an agency's preliminary positions or ruminations about how to exercise discretion on some policy matter, they are protected under Exemption 5.'"  "Because that is the case here, the Department's reliance on Exemption 5 is proper."
  • Exemption 5, Foreseeable Harm:  The court holds that "the Department has met its burden to show a foreseeable harm from disclosure."  "The Department cites to multiple foreseeable harms."  "It states first that disclosure 'would have a chilling effect on future advice and discourage open and frank discussions among senior officials on critical and sensitive military matters.'"  "By explaining the issue of gender integration in the military, the candid debate and analysis it produced, as well as the harm that would result from disclosing internal memoranda that raised concerns about that proposed policy, the Department has provided 'context or insight into the specific decision-making processes or deliberations at issue, and how they in particular would be harmed by disclosure.'"

    Regarding the supporting documentation the court finds that "the same foreseeable harms that would arise from release of the memoranda would also arise from release of these supporting documents, including the chilling of candid internal military analysis and discussion on controversial issues."
  • Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "the Department has satisfied its segregability obligations."  The court finds that "[t]he Vaughn index catalogs in detail which documents or passages were withheld, the extent to which they were withheld (in full or in part), the exemptions covering the information, as well as a description of why any information was withheld."  "Further, [defendant's] declaration attests that the agency released non-exempt material and that all 'remaining redactions in the records [were] justified under Exemption 5.'"
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Litigation Considerations, Foreseeable Harm Showing
Litigation Considerations, “Reasonably Segregable” Requirements
Updated November 9, 2021