Case 1:10-cv-00420-EGS Document 19 Filed 02/22/11 Page 1 of 4

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
VERN McKINLEY, )
)
Plaintiff, )
)
v. ) No. 1:10-cv-00420-EGS
)
FEDERAL DEPOSIT INSURANCE )
CORPORATION, )
)
Defendant. )
)

SECOND JOINT STATUS REPORT

On December 23, 2010, the Court denied the FDIC’s motion to dismiss and granted in

part Mr. McKinley’s motion for summary judgment, and remanded this matter to the FDIC for

further action. Dkt. 16. The Court further ordered that “the parties shall file a joint status report,

including recommendations for further proceedings, within thirty days of the issuance of this

Order.” Id. On January 20, 2011, the parties submitted their first joint status report. Dkt. 18.

That same day, the Court entered a minute order stating that the parties “continue to confer . . .

and that they file a joint recommendation for further proceedings by no later than February 22,

2011.” Accordingly, the parties hereby submit their second joint status report and

recommendation for further proceedings.

Since the filing of the first status report, other events have occurred that affect this case.

On January 27, 2011, the Financial Crisis Inquiry Commission (FCIC), an independent panel

created in May 2009 as part of the Fraud Enforcement and Recovery Act (Pub. L. No. 111-21) to

"examine the causes, domestic and global, of the current financial and economic crisis in the

United States" released its report. Concurrently, the FCIC publicly released a large number of

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documents obtained from agencies, including the FDIC, as part of its inquiry. Included in the

unredacted materials publicly released by the FCIC were two of the six documents provided to

plaintiff in redacted form in response to his original FOIA requests. Those documents are the

“Case Memoranda” relating to aid to the Bank of America and aid to Citigroup. Two other

documents provided to McKinley in response to his original FOIA requests were the Minutes of

the two FDIC Board of Directors meetings at which those Case Memoranda were considered and

the determinations regarding Bank of America and Citigroup were made. While the FCIC did

not publicly release those Board Minutes, it did publicly release the unredacted transcripts of

those meetings. Because the Board Minutes in this case contain substantially the same

information found in the transcripts, the FDIC has determined that, because of the FCIC release

of the transcripts, the information previously withheld as exempt has been released by FCIC.

Accordingly, those unredacted Board Minutes have been provided to plaintiff.

The two remaining redacted documents provided to plaintiff in response to his original

FOIA requests were the Case Memorandum and Board Minutes relating to the creation of the

Temporary Liquidity Guarantee Program (TLGP). While the FCIC did not release those

documents, the FDIC has determined that, in light of the extensive disclosures by the FCIC on

agency responses to the financial crisis, and expiration of the TLGP as of December 31, 2010,

that it is now appropriate to release substantially unredacted1 copies of the TLGP materials.

The document releases dicussed above account for all six documents originally provided

in redacted form to Mr. McKinley in response to his three FOIA requests.

1
The FDIC has retained two small redactions in the TLGP materials, consisting of Deputy General Counsel John V.
Thomas advising the FDIC Board of Directors concerning potential litigation risks if the TLGP were to be
challenged in court. These redactions were taken pursuant to exemption (b)(5) of the FOIA as privileged attorney-
client communications and attorney work product. Plaintiff does not object to these redactions.

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Those releases do not address the issue whether the FDIC satisfied its obligation to

conduct a reasonable search for responsive materials. The parties have conferred on this issue

but have been unable to reach an agreement that would finally dispose of this matter. In

accordance with the Court’s December 23, 2010 Order (Dkt. 16), the FDIC intends to submit

declarations that demonstrate that the agency employed search methods reasonably likely to lead

to discovery of records responsive to the plaintiff’s requests. Should the Court determine that the

FDIC’s original search was not sufficient, the parties anticipate further proceedings concerning

the results of any new search ordered by the Court, exemptions claimed, and reasonableness of

the new search.

The parties recommend the following schedule for further proceedings: The FDIC will

file an abbreviated motion for summary judgment, with its declarations concerning the original

search, by March 18, 2011. Plaintiff’s opposition and cross-motion for summary judgment

would be due by April 13, 2011. The FDIC’s reply and opposition would be due by May 9,

2011. Plaintiff’s reply would be due by May 20, 2011.

Respectfully submitted,

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COLLEEN J. BOLES JUDICIAL WATCH, INC.

Assistant General Counsel

BARBARA SARSHIK /s/ Michael Bekesha

Senior Counsel D.C. Bar No. 995749

BARBARA KATRON 425 Third Street. S.W., Suite 800

Counsel Washington, D.C. 20024
Tel: (202) 646-5171
Fax: (202) 646-5199
/s/ Daniel H. Kurtenbach Email: mbekesha@judicialwatch.org
DANIEL H. KURTENBACH, Counsel Attorney for Plaintiff
D.C. Bar No. 426590
dkurtenbach@fdic.gov
Federal Deposit Insurance Corporation
3501 Fairfax Drive, Room VS-D7026
Arlington, VA 22226
dkurtenbach@fdic.gov
703-562-2465 (office)
703-562-2477 (fax)