govinfo:USCOURTS-dcd-1_23-cv-02084-1

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
____________________________________       
      )   
PROTECT THE PUBLIC’S TRUST, ) 
      ) 
   Plaintiff,  ) 
      ) 
 v.     ) Civil Action No. 23-2084 (RBW)  
      )  
NATIONAL LABOR RELATIONS  ) 
BOARD,      ) 
      )    
   Defendant.  )       
       ) 
        
MEMORANDUM OPINION 
The plaintiff, Protect the Public’s Trust, brings this civil action against the defendant, the 
National Labor Relations Board (the “NLRB” or the “Board”), pursuant to the Freedom of 
Information Act (the “FOIA”), 5 U.S.C. § 552, and the Declaratory Judgment Act, 28 U.S.C. 
§§ 2201, 2202, arising out of its FOIA request seeking, inter alia, records in the Board’s 
possession related to the participation of two Board members—Gwynne Wilcox and David 
Prouty—in matters before the Board involving their former employers and/ or clients, see 
Complaint (“Compl.”) at 1, ECF No. 1.  Currently pending before the Court are the parties’ 
renewed cross-motions for summary judgment.  See generally Defendant’s Renewed Motion for 
Summary Judgment (“Def.’s Mot.”), ECF No. 24; Plaintiff’s Renewed Cross-Motion for 
Summary Judgment (“Pl.’s Mot.”), ECF No. 25.  Upon careful consideration of the parties’ 
submissions,
1 the Court concludes for the following reasons that it must grant the defendant’s 
 
1 In addition to the filings already identified, the Court considered the following submissions in rendering its 
decision: (1) the defendant’s Statement of Points and Authorities in Support of Defendant’s Renewed Motion for 
Summary Judgment (“Def.’s Mem.”), ECF No. 24; (2) the Defendant’s Renewed Statement of Undisputed Material 
Facts (“Def.’s Facts”), ECF No. 24; (3) the Declaration of Lori Ketcham (“Ketcham Decl.”), ECF No. 24-2; (4) the 
Declaration of Jamal Allen (“Allen Decl.”), ECF No. 24-4; (5) the Second Declaration of Nancy E. Kessler Platt 
(“2d Platt Decl.”) , ECF No. 24-6; (6) the Combined Statement of Points and Authorities in Support of Plaintiff’s 
(continued . . .) 
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renewed motion for summary judgment and deny the plaintiff’s renewed cross-motion for 
summary judgment. 
I. BACKGROUND 
The Court outlined the factual and procedural background of this case in its earlier 
Memorandum Opinion issued on April 29, 2025, and therefore will not reiterate every fact 
contained in that opinion here.  See Protect the Public’s Trust v. Nat’l Labor Rels. Bd., No. 23-
cv-2084 (RBW), 2025 WL 1233894, at *1–2 (D.D.C. Apr. 29, 2025).  The Court will, however, 
set forth the facts that remain pertinent to the resolution of the parties’ renewed cross-motions for 
summary judgment. 
A. The Board’s Joint Employer Standards and the Service Employees International 
Union Lawsuit 
“The Board has utilized various standards to determine whether two employers, as 
defined in the National Labor Relations Act (‘the Act’) are joint employers of particular 
employees within the meaning of the Act.”  Def.’s Facts ¶ 1.  In 2015, the Board set forth its 
view of the appropriate joint employer standard in Browning-Ferris Industries of California, Inc., 
d/b/a BFI Newby Island Recyclery, 362 NLRB 1599 (2015).  See Def.’s Facts ¶ 2 (citing 87 Fed. 
Reg. 54,641, 54,642 (Sept. 7, 2022)).  However, “[i]n December 2017, after a change in the 
Board’s composition, the new Board majority issued a decision overruling Browning-Ferris and 
 
(. . . continued) 
Renewed Motion for Summary Judgment and Response in Opposition to Defendant’s Renewed Motion for 
Summary Judgment (“Pl.’s Mem.”), ECF No. 25-1; (7) the Plaintiff’s Statement of Undisputed Material Facts 
(“Pl.’s Facts”), ECF No. 25-3; (8) the Plaintiff’s Response to Defendant’s Statement of Allegedly Material Facts 
(“Pl.’s Resp.”), ECF No. 25-4; (9) the defendant’s Statement of Points and Authorities in Opposition to Plaintiff’s 
Renewed Cross-Motion for Summary Judgment and Reply in Support of Defendant’s Renewed Motion for 
Summary Judgment (“Def.’s Reply”), ECF No. 28; and (10) the Defendant’s Response to Plaintiff’s Statement of 
Undisputed Material Facts (“Def.’s Resp.”), ECF No. 28.  The Court also reviewed in camera the unredacted Ethics 
Memorandum. See Notice of In Camera Submission (May 19, 2025), ECF No. 21. 
 
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restoring the preexisting joint employer standard.”  Id. ¶ 3 (citing Hy-Brand Indus. Contractors, 
Ltd., 365 NLRB No. 156 (Dec. 14, 2017)).  In response, “[t]he charging parties in the Board’s 
administrative Hy-Brand case filed a motion for reconsideration, seeking the recusal of [a] 
former Board Member [ ] based on ethics issues they raised[,]” id. ¶ 4, and, in 2018, “[t]he Board 
granted that motion and vacated its earlier decision because of those ethics issues, based on a 
determination by the Agency’s Designated Agency Ethics Official (‘DAEO’)[,]” id. ¶ 5 (citing 
Hy-Brand Indus. Contractors, Ltd., 366 NLRB No. 26 (Feb. 26, 2018), further motion for 
reconsideration denied, 366 NLRB No. 93 (June 6, 2018)). 
Subsequently, on February 26, 2020, the Board promulgated a final rule establishing a 
new joint employer standard.  See Joint Employer Status Under the National Labor Relations 
Act, 85 Fed. Reg. 11,184 (Feb. 26, 2020).  On September 17, 2021, “[t]he Service Employees 
International Union filed a complaint seeking to invalidate” that final rule.  Def.’s Facts ¶ 9; see 
Complaint for Declaratory Judgment and Injunctive Relief, Serv. Emps. Int’l Union v. Nat’l 
Labor Rels. Bd. (“SEIU”), No. 21-cv-2443 (RC), ECF No. 1.2   
B. The Board Members’ Request for Ethics Guidance and the Drafting of the Ethics 
Memorandum 
Shortly after the SEIU filed its complaint seeking to invalidate the Board’s final rule, on 
“[o]n September 22, 2021, Board Member Gwynne Wilcox emailed the Board’s . . . [DAEO, 
Lori Ketcham,] ‘asking for [her] guidance on whether she needed to recuse herself from 
participating in the Board’s decision-making concerning” the just-filed SEIU lawsuit.  Pl.’s Facts 
 
2 The SEIU litigation was “held in abeyance based on the Board’s issuance of a new rule[,]” Def.’s Facts ¶ 9, which 
the Board issued in October 2023, see id.  However, that rule was vacated in 2024, see id. (citing Chamber of Com. 
of the U.S. v. Nat’l Labor Rels. Bd., 723 F. Supp. 3d 498, 518–19 (E.D. Tex. 2024)), and “[t]hus, the currently 
operative joint employer standard remains the 2020 Rule[,]” Def.’s Facts ¶ 9.  The SEIU lawsuit remains 
unresolved.  See Minute Order (May 5, 2025), No. 21-cv-2443. 
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¶ 1; see Def.’s Resp. ¶ 1.  And, “[o]n October 5, 2021, the National Right to Work Legal Defense 
Foundation, Inc., sent a letter to the Board’s Inspector General and the . . . [DAEO] expressing 
concern about the ethical propriety of two Board Members, David Prouty and Gwynne Wilcox, 
participating in decision making regarding” the SEIU lawsuit.  Pl.’s Facts ¶ 2; see Def.’s Resp. 
¶ 2; see also Ketcham Decl., Exhibit (“Ex.”) 1 (Letter from Right to Work Foundation to David 
P. Berry, Inspector General, National Labor Relations Board, and Lori Ketcham, Associate 
General Counsel, National Labor Relations Board (Oct. 5, 2021) (“Right to Work Letter”)) at 1, 
ECF No. 11-3.  That same day, “the Chief Counsel for Board Member Prouty sent an email 
[to the DAEO] containing the Right to Work Letter and seeking ethics guidance.”  Pl.’s Facts 
¶ 4; see Def.’s Resp. ¶ 4. 
Then, “[o]n October 13, 2021, DAEO Lori Ketcham and Senior Ethics Counsel Jamal M. 
Allen sent a memorandum” to Members Wilcox and Prouty, with the subject line “Service 
Employees International Union v. NLRB, Lauren McFerran, John Ring, Marvin Kaplan, 
Gwynne Wilcox and David Prouty, Civil Action No. 21-2443[,]” Pl.’s Facts ¶ 6; see Def.’s Resp. 
¶ 6, in which the DAEO provided guidance on the Members’ ethical obligations and ultimately 
concluded that Members Wilcox and Prouty were not prohibited from participating in the 
Board’s consideration of how to respond to the SEIU lawsuit, see generally Compl., Ex. 5 
(Memorandum from Lori Ketcham, Associate General Counsel, Ethics, and Jamal M. Allen, 
Special Ethics Counsel, Ethics, to Gwynne A. Wilcox, Board Member, and David M. Prouty, 
Board Member, re: Service Employees International Union v. NLRB, Lauren McFerran, John 
Ring, Marvin Kaplan, Gwynne Wilcox and David Prouty, Civil Action No. 21-2443 (“Ethics 
Memo”)), ECF No. 1-5. 
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C. The Plaintiff’s FOIA Request 
On December 1, 2021, the plaintiff submitted a request to the Board pursuant to the 
FOIA seeking records relating to Board Members Wilcox and Prouty’s participation in future 
lawsuits or challenges to the joint employer rule, see Compl. ¶ 6, and after the parties conferred 
and the defendant produced responsive records, the only document remaining at issue was the 
Ethics Memo, which the defendant produced with redactions pursuant to FOIA Exemptions 5 
and 7(A), see Pl.’s Facts ¶¶ 11–17; Def.’s Facts ¶¶ 13–19.  On July 18, 2023, after the Board 
granted in part and denied in part the plaintiff’s administrative appeal, see Pl.’s Facts ¶ 18; Def.’s 
Facts ¶ 20, the plaintiff filed its Complaint against the Board, seeking an unredacted copy of the 
Ethics Memo, see generally Compl. 
On April 29, 2025, the Court issued a Memorandum Opinion and Order denying without 
prejudice the defendant’s motion for summary judgment and granting in part and denying 
without prejudice in part the plaintiff’s cross-motion for summary judgment.  See generally 
Protect the Public’s Trust, 2025 WL 1233894.  The Court granted the plaintiff’s cross-motion for 
summary judgment to the extent that it sought to have the Court review in camera the unredacted 
version of the Ethics Memo to determine whether it was appropriately protected by the attorney 
work product privilege, based on the Court’s conclusion that, from its review of the redacted 
Ethics Memo, the Court could not determine whether the defendant had adequately established 
that it was drafted in anticipation of litigation, rather than for the purpose of satisfying the 
Members’ independent legal obligation to seek and obtain ethical guidance regarding recusal 
obligations, and thus, further inquiry by the Court was necessary.  See id. at *7–10.   
As directed by the Court, the defendant submitted the unredacted Ethics Memo to the 
Court for its in camera review on May 19, 2025.  See Notice of In Camera Submission at 1 (May 
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19, 2025), ECF No. 21.  In compliance with the Court’s renewed scheduling order, the defendant 
filed its renewed motion for summary judgment on July 18, 2025.  See Def.’s Mot. at 1.  On 
August 22, 2025, the plaintiff filed its renewed cross-motion for summary judgment and 
opposition to the defendant’s renewed motion for summary judgment.  See Pl.’s Mot. at 1.  And, 
on September 19, 2025, the defendant filed its combined opposition to the plaintiff’s renewed 
cross-motion for summary judgment and reply in further support of its own renewed motion.  
See Def.’s Opp’n at 1.  The plaintiff has not filed a reply in support of its cross-motion for 
summary judgment. 
II. STANDARD OF REVIEW 
“FOIA cases typically are resolved on a motion for summary judgment.”  Ortiz v. U.S. 
Dep’t of Just., 67 F. Supp. 3d 109, 116 (D.D.C. 2014) (citation omitted).  The “FOIA requires 
federal agencies to disclose, upon request, broad classes of agency records unless the records are 
covered by the statute’s exemptions.”  Students Against Genocide v. U.S. Dep’t of State, 257 
F.3d 828, 833 (D.C. Cir. 2001) (citing 5 U.S.C. § 552(a)(3)(A), (b)); see also Wash. Post Co. v. 
U.S. Dep’t of Just., 863 F.2d 96, 101 (D.C. Cir. 1988) (citation omitted) (“[The] FOIA is to be 
interpreted with a presumption favoring disclosure and exemptions are to be construed 
narrowly.”).  In a FOIA action, the defendant agency has “[the] burden of demonstrating that the 
withheld documents are exempt from disclosure[,]” Boyd v. U.S. Dep’t of Just., 475 F.3d 381, 
385 (D.C. Cir. 2007) (citation omitted), and the district court must “determine the matter de 
novo,” 5 U.S.C. § 552(a)(4)(B); see also U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the 
Press, 489 U.S. 749, 755 (1989) (“[T]he FOIA expressly places the burden ‘on the agency to 
sustain its action’ and directs the district courts to ‘determine the matter de novo.’”).  The 
defendant’s burden “cannot be met by mere conclusory statements.”  Wash. Post Co., 863 F.2d 
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at 101 (citation omitted).  “The agency may meet this burden by filing affidavits describing the 
material withheld and the manner in which it falls within the exemption claimed,” King v. U.S. 
Dep’t of Just., 830 F.2d 210, 217 (D.C. Cir. 1987) (citations omitted), and by “show[ing] how 
release of the particular material would have the adverse consequence that the Act seeks to guard 
against,” Wash. Post Co., 863 F.2d at 101 (citation omitted). 
Courts will grant summary judgment to the government in a FOIA case only if the 
agency can prove “that it has fully discharged its obligations under the FOIA, after the 
underlying facts and the inferences to be drawn from them are construed in the light most 
favorable to the FOIA requester.”  Friends of Blackwater v. U.S. Dep’t of Interior, 391 F. Supp. 
2d 115, 119 (D.D.C. 2005) (quoting Greenberg v. U.S. Dep’t of Treasury, 10 F. Supp. 2d 3, 11 
(D.D.C. 1998)).  Thus, in a lawsuit brought to compel the production of documents under the 
FOIA, “an agency is entitled to summary judgment if no material facts are in dispute and if it 
demonstrates ‘that each document that falls within the class requested either has been 
produced . . . or is wholly[, or partially,] exempt [from disclosure].’”  Students Against 
Genocide, 257 F.3d at 833 (omission in original) (quoting Goland v. Cent. Intel. Agency, 607 
F.2d 339, 352 (D.C. Cir. 1978)).  However, “[t]he burden upon the requester is merely ‘to 
establish the absence of material factual issues before a summary disposition of the case could 
permissibly occur.’”  Pub. Citizen Health Rsch. Grp. v. Food & Drug Admin., 185 F.3d 898, 
904–05 (D.C. Cir. 1999) (quoting Nat’l Ass’n of Gov’t Emps. v. Campbell, 593 F.2d 1023, 1027 
(D.C. Cir. 1978)). 
In 2016, Congress amended the FOIA to add a “foreseeable harm” requirement, which 
allows withholding of information “only if the agency reasonably foresees that disclosure would 
harm an interest protected by an exemption” or the “disclosure is prohibited by law.”  5 U.S.C. 
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§ 552(a)(8)(A)(i).  “Stated differently, ‘pursuant to the FOIA Improvement Act, an agency must 
release a record— even if it falls within a FOIA exemption—if releasing the record would not 
reasonably harm an exemption-protected interest’ and if the law does not prohibit the 
disclosure.”  Judicial Watch, Inc. v. U.S. Dep’t of Com., 375 F. Supp. 3d 93, 98 (D.D.C. 2019) 
(quoting Rosenberg v. U.S. Dep’t of Def., 342 F. Supp. 3d 62, 72 (D.D.C. 2018)). 
III. ANALYSIS 
In its renewed motion for summary judgment, the defendant argues that it is entitled to 
summary judgment on the plaintiff’s claims because: (1) it properly withheld the Ethics Memo 
pursuant to Exemption 5 of the FOIA by invoking the attorney work product privilege due to the 
fact that the Ethics Memo was drafted “not only to respond to the requests for ethics guidance 
from Members Wilcox and Prouty, but also, because of the (still-) pending SEIU v. NLRB 
litigation, challenging the Board’s 2020 Joint Employer Rule[,]” see Def.’s Mem. at 20; and (2) 
it has satisfied the FOIA’s foreseeable harm requirement by explaining how disclosure of the full 
Ethics Memo would impair its litigation positions and the ethics recusal process more generally, 
see id. at 26–27.  In support of its position, the defendant has submitted sworn declarations from 
(1) Lori Ketcham, then the Associate General Counsel, Ethics, and the Board’s Designated 
Agency Ethics Official (DAEO),3 see Ketcham Decl. ¶ 1; (2) Jamal Allen, the Independent 
Special Ethics Counsel and the Board’s Alternate DAEO, see Allen Decl. ¶ 1; and (3) Nancy E. 
Kessler Platt, the Associate General Counsel for the Board’s Division of Legal Counsel and the 
Board’s Chief FOIA Officer, see 2d Platt Decl. ¶ 1. 
 
3 The defendant represents that, since the submission of its initial motion for summary judgment, Ms. Ketcham has 
“retired from the NLRB.”  Def.’s Mem. at 21 n.8.  Thus, the Ketcham Declaration submitted in support of its 
renewed motion for summary judgment is the same declaration previously submitted.  
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In its renewed cross-motion for summary judgment, the plaintiff again contends that the 
defendant has improperly withheld the requested information because “[t]he record in this case 
still shows that the Ethics Memo was created to satisfy Members Prouty and Wilcox’s 
requirements under federal ethics regulations and provide [them] any additional protection from 
potential criminal conflict of interest liability[,]” and therefore, was not created “because of” 
litigation.  Pl.’s Mem. at 9.  The plaintiff further argues that, even if the privilege applies, the 
defendant nonetheless improperly withheld the information because (1) the privilege “was 
waived when the Board summarized the conclusions of the Ethics Memo and used it as a shield 
in response to Congressional inquiries into the propriety of Members’ Wilcox and Prouty’s 
conduct[,]” id.; (2) and “the Board has failed to show that the disclosure of the full memorandum 
would harm the interests the exemption is designed to protect[,]” id.  Finally, in the alternative, 
the plaintiff argues that even if “the Board has met its burden to show that any part of the Ethics 
Memo is protected by the work-product privilege . . . , the Board has failed to segregate exempt 
and non-exempt material properly[,]” id. at 27, and therefore, having reviewed in camera the 
unredacted Ethics Memo, the Court should “order immediate disclosure of all remaining non-
privileged text, if any exists[,]” id. at 28.
4 
In reply, the defendant argues that it has not waived the attorney work product privilege 
because the Board “has already released to [the p]laintiff the portions of the Ethics Memo which 
 
4 Although the Complaint purports to raise a claim under the Declaratory Judgment Act, see  Compl. ¶ 1, the plaintiff 
failed to advance this claim in its cross-motion for summary judgment and opposition to the defendant’s motion for 
summary judgment, despite the defendant’s arguments that the Declaratory Judgment Act is inapplicable in this case 
because the plaintiff has failed to raise a “policy or practice” challenge under the FOIA, see Def.’s Mem. at 31 n.11 
(citing Middle East Forum, v. U.S. Dep’t of Treasury, 317 F. Supp. 3d 257, 265 (D.D.C. 2018)).  The Court agrees 
with the defendant, and therefore treats the plaintiff’s request for relief pursuant to the Declaratory Judgment Act as 
conceded.  See Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) 
(Walton, J.) (“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and 
addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed 
to address as conceded.”) (citations omitted). 
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contain the exact information disclosed in” the Board Chairman’s one-paragraph summary of the 
Ethics Memo conclusions in a letter she sent to several members of Congress, Def.’s Reply at 11, 
and because the Board “has never sought to use the Ethics Memo in any adversary process 
against [the p]laintiff[,]” id., such that it used the Ethics Memo as both as sword and a shield, as 
the plaintiff argues. 
A. FOIA Exemption 5 
Exemption 5 protects “inter-agency or intra-agency memorandums or letters that would 
not be available by law to a party other than an agency in litigation with the agency.”  5 U.S.C. 
§ 552(b)(5).  In order to be covered by Exemption 5, a document’s “source must be a 
[g]overnment agency, and it must fall within the ambit of a privilege against discovery under 
judicial standards that would govern litigation against the agency that holds it.”  Dep’t of Interior 
& Bureau of Indian Affs. v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001); see 
also Burka v. Dep’t of Health & Hum. Servs., 87 F.3d 508, 516 (D.C. Cir. 1996) (“[T]he 
parameters of Exemption 5 are determined by reference to the protections available to litigants in 
civil discovery; if material is not ‘available’ in discovery, it may be withheld from FOIA 
requesters.”).  “Exemption 5 incorporates the privileges that the [g]overnment may claim when 
litigating against a private party, including the . . . attorney work product privilege . . . .”  Abtew 
v. U.S. Dep’t of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015) (citation omitted).  Upon 
consideration of the parties’ renewed submissions, the defendant’s supplemental declarations, 
and having reviewed in camera the unredacted Ethics Memo, the Court concludes that the Ethics 
Memo is protected from disclosure under the attorney work product privilege and Exemption 5. 
1. Attorney Work Product Privilege 
The defendant invokes the attorney work product privilege as the basis for withholding 
the redacted portions of the Ethics Memo.  See Def.’s Mem. at 8.  The attorney work product 
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privilege “shields materials prepared in anticipation of litigation or for trial by or for another 
party or by or for that other party’s representative (including the other party’s attorney, 
consultant, surety, indemnitor, insurer, or agent).”  McKinley v. Bd. of Governors of the Fed. 
Rsrv. Sys., 647 F.3d 331, 341 (D.C. Cir. 2011) (internal quotations and citation omitted).  This 
privilege protects “factual materials prepared in anticipation of litigation, as well as mental 
impressions, conclusions, opinions, and legal theories.”  Heggestad v. U.S. Dep’t of Just., 182 F. 
Supp. 2d 1, 8 (D.D.C. 2000) (citing Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 620 
(D.C. Cir. 1997)). 
“Not every document created by a government lawyer, however, qualifies for the 
pr
ivilege (and thus, the exemption).”  Nat’l Ass’n of Crim. Def. Laws. v. Dep’t of Just. Exec. 
Off. for U.S. Att’ys, 844 F.3d 246, 251 (D.C. Cir. 2016).  Rather, the District of Columbia 
Circuit “ha[s] long required a case-specific determination that a particular document in fact was 
prepared in anticipation of litigation before applying the privilege to government records.”  Id. 
(citing Senate of P.R. v. U.S. Dep’t of Just., 823 F.2d 574, 586–87 (D.C. Cir. 1987)).  To 
determine whether a particular document was prepared in anticipation of litigation, the Circuit 
has adopted a “‘because of’ test, asking ‘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 or 
obtained because of the prospect of litigation.’”  United States v. Deloitte LLP, 610 F.3d 129, 
137 (D.C. Cir. 2010) (quoting In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998)).  “For that 
standard to be met, the attorney who created the document must have ‘had a subjective belief 
that litigation was a real possibility,’ and that subjective belief must have been ‘objectively 
reasonable.’”  Nat’l Ass’n of Crim. Def. Laws., 844 F.3d at 251 (quoting Sealed Case, 146 F.3d 
at 884).  However, the party invoking the privilege does not have to show that “anticipation of 
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litigation [was] the ‘primary motivating purpose’ behind the document’s creation[,]” Deloitte 
LLP, 610 F.3d at 136–37, meaning “a document can contain protected work-product material 
even though it serves multiple purposes, so long as the protected material was prepared because 
of the prospect of litigation[,]” id. at 138. 
The government bears the burden of establishing that the document was prepared in 
anticipation of litigation and thus qualifies for the privilege and the exemption under the FOIA, 
see Boyd, 475 F.3d at 385, which—as with all FOIA exemptions —must be “narrowly 
construed[,]” Nat’l Ass’n of Crim. Def. Laws., 844 F.3d at 249 (quoting Milner v. Dep’t of 
Navy, 562 U.S. 562, 565 (2011) (internal citations and quotation marks omitted)).  The privilege 
does not apply, for example, to “a government attorney’s ‘advice on political, strategic, or policy 
issues, valuable as it may [be,]’” Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Just., 538 
F. Supp. 3d 124, 135 (D.D.C. 2021) (citation omitted), nor does it apply where a document 
“would have been created ‘in substantially similar form’ regardless of the litigation,” Ellis v. 
U.S. Dep’t of Just., 110 F. Supp. 3d 99, 108 (D.D.C. 2015) (quoting Deloitte LLP, 610 F.3d at 
138).  “The government cannot satisfy [its] burden with affidavits that are vague or conclusory, 
or merely parrot the statutory standard.”  Env’t Integrity Project v. Small Bus. Admin., 151 F. 
Supp. 3d 49, 53 (D.D.C. 2015) (citing Consumer Fed’n of Am. v. U.S. Dep’t of Agric., 455 F.3d 
283, 287 (D.C. Cir. 2006)).   
Moreover, t he government “bears a heavier burden when seeking work-product 
protection for a multi-purpose document because the D.C. Circuit has also recognized that ‘the 
[work-product] privilege has no applicability to documents prepared by lawyers in the ordinary 
course of business or for other non-litigation purposes.’”  United States v. ISS Marine Servs., 
Inc., 905 F. Supp. 2d 121, 134 (D.D.C. 2012) (quoting Sealed Case, 146 F.3d at 887) (internal 
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quotation marks and citation omitted).  In such circumstances, the government “must ‘explain 
with reasonable particularity’ how the documents withheld as work product were prepared in 
their particular form ‘because of the prospect of litigation’ or why they would have been 
prepared in a different form in the ordinary course of business.”  U.S. Equal Emp. Opportunity 
Comm’n v. Geo. Wash. Univ., 342 F.R.D. 161, 182 (D.D.C. 2022) (quoting U.S. Equal Emp. 
Opportunity Comm’n v. Geo. Wash. Univ., No. 17-cv-1978 (CKK), 2021 WL 7907064, at *5 
(D.D.C. Sept. 23, 2021)).   
In its prior Memorandum Opinion, this Court concluded that, based on the record before 
it at that time, the defendant had not explained “with reasonable particularity” how the Ethics 
Memo was “drafted with the specific perspective of Ms. Ketcham’s anticipation of litigation, 
distinct from how the Ethics Memo would have been drafted under normal circumstances where 
a Member merely sought recusal guidance.”  Protect the Public’s Trust, 2025 WL 1233894, at 
*9.  Further, the Court noted that while the Ketcham Declaration indicated “that the Ethics 
Memo served as a ‘roadmap for addressing ethics issues that could arise in anticipated future 
litigation[,]’” id., “nothing in the unredacted portion of the Ethics Memo appear[ed] to reference 
litigation strategies or defenses[,]” id.5  The Court then determined that although the Ethics 
Memo appeared to address various government ethics regulations and legal ethics rules, the 
redactions to the Ethics Memo left unclear whether the Ethics Memo’s analysis “reference[d] 
anticipated arguments in litigation, as opposed to merely offering guidance as to the applicability 
and effect of those ethical rules, independent of any litigation.”  Id.  Nonetheless, the Court 
 
5 The Court noted its opposition to the defendant’s argument “that the mere existence of litigation concerning 
contentious rulemaking, such as the joint employer rule, renders the withheld portions of the Ethics Memo protected 
by [the] work product privilege[,]” id. at *9 n.6 (citation omitted), because “[a]dopting such a holding would run 
afoul of this Circuit’s requirement that a district court make ‘a case-specific determination that a particular 
document in fact was prepared in anticipation of litigation before applying the privilege to government records[,]’” 
id. (quoting Nat’l Ass’n of Crim. Def. Laws., 844 F.3d at 251). 
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concluded that “because it is certainly possible that at least some of the withheld portions of the 
Ethics Memo could indicate that the privilege and exemption apply, the Court believe[d] further 
inquiry on its part is necessary.”  Id. at *10.   
Now, with the benefit of the defendant’s renewed motion for summary judgment and 
supplemental declarations, as well as the Court’s own in camera review of the Ethics Memo 
itself, the Court concludes that the defendant has satisfied its burden of invoking the attorney 
work product privilege.  Specifically, for the following reasons, the Court concludes that when 
DAEO Ketcham and Alternate DAEO Allen drafted the Ethics Memo, they believed that 
litigation regarding the Members’ participation in defending the Board’s Joint Employer Rule—
whether in the context of the SEIU lawsuit, a future challenge to the 2020 Joint Employer Rule, 
or an administrative adjudication—“was a real possibility[,]” N at’l Ass’n of Crim. Def. Laws., 
844 F.3d at 251 (quoting Sealed Case, 146 F.3d at 884), and that this belief was “objectively 
reasonable[,]” id.   
First, the defendant’s renewed motion for summary judgment and the supplemental 
declarations provide more context regarding the process employed in drafting the Ethics Memo.  
Specifically, the Allen Declaration details in greater depth the Board’s response to the requests 
from Members Wilcox and Prouty, which included both the Ethics Office and other agency 
components.  According to the Allen Declaration, upon receipt of the request for guidance 
submitted by Member Wilcox on September 22, 2021, the Ethics Office began coordinating with 
the Division of Legal Counsel “to discuss the SEIU litigation and Member[] Wilcox’s request.”  
Allen Decl. ¶ 3.  Mr. Allen and other members of the Ethics Office then met with Ms. Kessler 
Platt, the Associate General Counsel of the Division of Legal Counsel; and Dawn Goldstein, who 
was “head of the Contempt, Compliance, and Special Litigation Branch, which has the 
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responsibility for defending the SEIU lawsuit.”  Id.; see 2d Platt Decl. ¶ 21 (describing the same 
meeting).  The Allen Declaration represents that “[i]n that meeting, [the participants] discussed 
the status of and allegations in the SEIU . . . Joint Employer Rule litigation.”  Allen Decl. ¶ 3.  
Thus, even before the Board received Member Prouty’s request and the Right to Work Letter on 
October 5, 2021, the Ethics Office and several litigating components had already started to 
confer about potential recusal concerns in regards to the SEIU litigation.  
However, the Allen Declaration reaffirms that the Ethics Memo was drafted “in 
respon[se] to the two Board Member requests[,]” and that it “considered, among other issues, the 
arguments that the [Right to Work Letter] made” arguing for the Board Members’ recusal.  Id. 
¶ 5.  The Allen Declaration further represents that the Ethics Office drafted the Ethics Memo 
with the appreciation that recusal arguments had been previously litigated in the Board’s joint 
employer adjudications, see id. ¶ 7, and that comments submitted in response to the 2020 Joint 
Employer Rule had similarly raised recusal arguments relating to various Members, see id. ¶ 6.  
Thus, the Ethics Memo served “not only to assist the Board Members in [complying with] their 
ethical obligations, but also in order to ensure that the [Board]’s litigation defense would not be 
challenged based on ethics grounds and therefore jeopardize the defense of the validity of the 
Joint Employer rule.”  Id. 
The defendant’s renewed motion for summary judgment and supplemental declarations 
also make clear the extent to which the Board was concerned with any challenges to its actions 
based on ethics concerns.  Specifically, the Allen Declaration represents that the Board has been 
forced to defend its rulemakings, including those relating to its joint employer standards, in 
federal district court, and that comments submitted in response to proposed rules have 
highlighted Members’ recusal concerns.  See id. ¶¶ 6–7.  Further, the defendant notes that 
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because the Board’s adjudications are not self-enforcing, see Def.’s Reply at 6 n.6, they must be 
affirmed by a federal circuit court of appeals, which provides another avenue for challenging 
Members’ decision to recuse themselves from participation in adjudications, see, e.g., District 
Hosp. Partners, L.P. v. Nat’l Labor Rels. Bd., 141 F.4th 1279, 1295–96 (D.C. Cir. 2025) 
(rejecting recusal arguments relating to Member Prouty’s participation under federal ethics 
regulations and administrative law due process principals).  Thus, based on the Board’s reliance 
on federal court litigation to defend and enforce its actions, the prior litigation of Members’ 
recusal obligations in the Joint Employer Rule context, and the continued scrutiny of Members’ 
recusal obligations in that context, underscored by the Right to Work Letter, the drafters of the 
Ethics Memo reasonably believed that litigation regarding the participation of Members Prouty 
and Wilcox in defending the Joint Employer Rule “was a real possibility[.]”  Nat’l Ass’n of 
Crim. Def. Laws., 844 F.3d at 251 (quoting Sealed Case, 146 F.3d at 884). 
Second, the content of the unredacted Memo itself confirms that it was drafted “because 
of” current and anticipated litigation.  Specifically, the Allen Declaration and the Court’s own in 
camera review of the unredacted Ethics Memo clarify how the Ethics Memo was drafted as “a 
roadmap for addressing ethics issues that could arise” both potentially in the SEIU lawsuit or 
other anticipated future litigation regarding the Joint Employer Rule.  Allen Decl. ¶ 8.  The Allen 
Declaration represents, and the Court agrees, that “[w]hile the SEIU litigation was broadly 
discussed throughout the Ethics Memo, certain redacted portions were drafted with the specific 
perspective of the anticipation of litigation concerning these ethics issues,” such as 
contextualizing the application of government ethics regulations and legal ethics rules within the 
SEIU litigation or federal court litigation more generally.  Id. ¶ 9.  The Allen Declaration further 
states that, unlike “a memorandum drafted in the ordinary course of general DAEO 
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responsibilities,” the Ethics Memo includes discussion of legal ethics rules and prejudgment.6  
Id. (citing Ethics Memo at 12–14).  And, the Court’s in camera review of those portions of the 
Ethics Memo, read in conjunction with the unredacted portions, makes clear that the Ethics 
Memo was drafted with an eye toward recusal arguments the Ethics Office anticipated would 
arise in legal challenges, rather than merely offering guidance as to the applicability and effect of 
those ethical rules, independent of any litigation. 
Nonetheless, th
 e plaintiff argues that the defendant has still failed to satisfy its burden of 
establishing that the Ethics Memo was drafted “because of” litigation.  The plaintiff first argues 
that employees have a strong interest, independent of litigation, to seek prophylactic ethics 
guidance to protect themselves from potential sanctions, see Pl.’s Mem. at 12–13, and that the 
timing of the Ethics Memo indicates that it was drafted for that purpose and not to protect the 
Board from litigation risk, see id. at 13.  Relatedly, the plaintiff argues that because the Ethics 
Memo was addressed to the Members and not to the Board or litigation staff, it was clearly for 
the individual Members’ benefit and not the Board’s.  See id.  Finally, the plaintiff argues that, 
despite the Allen Declaration’s representations, the portions of the Ethics Memo addressing legal 
ethics rules and prejudgment “reasonably fall into [the] DAEO’s ordinary statutory requirement 
to give advice on government ethics laws to current employees[,]” id. at 17 (citing 5 C.F.R. 
§ 2638.104(c)(4)), and therefore would have been created in the DAEO’s ordinary course of 
business.  Nor, according to the plaintiff, should the Right to Work Letter change the Court’s 
assessment because it “did not threaten litigation[,]” and “is best viewed as an administrative 
 
6 Although administrative rulemakers and adjudicators are presumed to be neutral, see  United States v. Morgan, 313 
U.S. 409, 421 (1941), parties may seek to disqualify those administrators by identifying evidence of bias or the risk 
of bias or prejudgment of the parties or issues, see, e.g., Meta Platforms, Inc. v. Fed. Trade Comm’n, 723 F. Supp. 
3d 64, 89 (D.D.C. 2024). 
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complaint, as reflected by the fact that it was addressed to the Inspector General and the agency 
ethics officer.”  Id. at 20. 
For the following reasons, none of these arguments are persuasive.  First, while federal 
employees, including Board Members, may be required to seek ethics guidance or may otherwise 
wish to do so as a prophylactic against potential sanctions, and while the DAEO may be required 
to provide ethics guidance and counseling regarding applicable ethics laws and regulations, not 
all ethics guidance is the same.  As indicated above, the context surrounding the drafting of the 
Ethics Memo and content of the Ethics Memo itself make clear that it was drafted with an 
appreciation of the recusal arguments based on federal ethics regulations and administrative law 
that might be raised in litigation challenging the Board’s actions.   
Moreover, as the Allen Declaration makes clear, the Ethics Office drafted the Ethics 
Memo after consulting with members of the Division of Legal Counsel and the head of the 
Contempt, Compliance, and Special Litigation Branch, which is responsible for defending the 
SEIU lawsuit.  See Allen Decl. ¶ 3.  That context is consistent with the content of the Ethics 
Memo and underscores the extent to which the Ethics Office sought to anticipate recusal 
arguments and legal risk to the Board’s actions that were specific to the then-pending SEIU 
lawsuit and similar anticipated challenges to the 2020 Joint Employer Rule.  Although the 
plaintiff argues that adopting the defendant’s position that the attorney work product privilege 
applies to the Ethics Memo “would create an exception that swallows the rule in nearly every 
mildly controversial regulatory action[,]” Pl.’s Mem. at 19–20, the Court’s conclusion does not 
rest on the contentious nature of the Joint Employer Rule as a whole, but rather on the drafters’ 
attention to the specific scrutiny of individual Members’ participation in joint employer 
adjudications and rulemaking, as well as litigation regarding Members’ recusal obligations in 
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that context.  Further, although the plaintiff argues that there is a distinction between the Board’s 
adjudications and its participation in litigation, see id. at 20, as indicated above, the Board relies 
in both contexts on federal court litigation to defend and enforce its actions, and thus concerns 
regarding due process, bias, and prejudgment of the issues can arise in either scenario.   
Finally, the Court disagrees with the plaintiff’s 
 attempts to downplay the Right to Work 
Letter as merely “an administrative complaint[.]”  Id. at 20.  It is clear based on the now-
supplemented record that the drafters of the Ethics Memo believed, based on both prior scrutiny 
of Members’ recusal obligations and the arguments raised in the Right to Work Letter, that there 
was a real possibility that Right to Work or another organization would raise similar recusal 
arguments to challenge the Board’s rulemaking or enforcement actions through litigation.  And, 
the fact that the Right to Work Letter does not expressly threaten litigation does not undermine 
the drafters’ belief that recusal arguments would be made in the SEIU lawsuit or other 
anticipated litigation.  Thus, the Court concludes that the defendant has now provided document-
specific justifications for why the Ethics Memo was drafted in anticipation of litigation, and the 
Court’s own in camera review of the Ethics Memo’s contents are consistent with the defendant’s 
justifications.  Accordingly, the Court concludes that the full Ethics Memo is protected by the 
attorney work product privilege and can be withheld pursuant to FOIA Exemption 5. 
B. Whether the Board Waived the Attorney Work-Product Privilege by 
Communicating with Congress 
The plaintiff next argues that the Board has waived any applicable privilege because it 
“has effectively asserted an advice of counsel defense in response to Congressional and public 
concerns that Members Wilcox and Prouty should have recused themselves, relying on 
affirmative statements that the [DAEO] examined and cleared their participation, then attempting 
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to hide behind the privilege when asked what the [DAEO] actually wrote.”  Pl.’s Mem. at 21.  
Specifically, the plaintiff argues that because Chairman McFerran’s letter to Congress 
summarized the conclusions of the Ethics Memo in response to Congressional recusal concerns, 
the Board “put the Ethics Memo at issue in the public debate through their selective 
disclosure[,]” and may not now “retreat behind the shield of work-product privilege to hide the 
Ethics Memo from the public.”  Id. at 23.  The defendant responds that “[t]he one-paragraph 
description of the DAEO’s conclusions in the letter to Congress [ ], taken from the [fourteen]-
page Memo, does not nearly approach the required specificity for a finding of waiver by official 
disclosure[,]” Def.’s Reply at 8 (citations omitted); and it has not otherwise “sought to use the 
Ethics Memo in any adversary process against [the p]laintiff[,]” id. at 11. 
Although the Board “cannot rely on an otherwise valid exemption claim to justify 
withholding information that has been ‘officially acknowledged’ or is in the ‘public domain,’” 
Davis v. U.S. Dep’t of Just., 968 F.2d 1276, 1279 (D.C. Cir. 1992) (citing Afshar v. Dep’t of 
State, 702 F.2d 1125, 1130–34 (D.C. Cir. 1983)), “the fact that information exists in some form 
in the public domain does not necessarily mean that official disclosure will not cause harm 
cognizable under a FOIA exemption,” Wolf v. Cent. Intel. Agency, 473 F.3d 370, 378 (D.C. Cir. 
2007) (citation omitted), and “a plaintiff asserting a claim of prior disclosure must bear the initial 
burden of pointing to specific information in the public domain that appears to duplicate that 
being withheld,” Afshar, 702 F.2d at 1130; see also Wolf, 473 F.3d at 378 (“[T]he inquiry turns 
on the match between the information requested and the content of the prior disclosure.”). 
Here, the plaintiff does not meaningfully argue that the publicly-disclosed one-paragraph 
summary of the Ethics Memo “appears to duplicate that being withheld,” Afshar, 702 F.2d at 
1130, “mirror[s] precisely the information that [it has] requested,” Cottone v. Reno, 193 F.3d 
Case 1:23-cv-02084-RBW     Document 29     Filed 03/27/26     Page 20 of 27
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550, 555 (D.C. Cir. 1999), or “precisely track[s] the records sought to be released,” 
Assassination Archives & Rsch. Ctr. v. Cent. Intel. Agency, 334 F.3d 55, 60 (D.C. Cir. 2003).  
Nor could it, because the plaintiff has “not shown that the information previously disclosed is as 
specific as, or matches, the information that [it] now demand[s,]” Dongkuk Int’l, Inc. v. U.S. 
Dep’t of Just., 204 F. Supp. 3d 18, 29 (D.D.C. 2016), which is confirmed by the Court’s in 
camera review of the Ethics Memo. 
Instead, the plaintiff argues, relying on a different line of legal authority, that the Board 
has waived attorney work product privilege by attempting to “use the attorney work-product 
privilege as both a sword and a shield.”  Pl.’s Mem. at 21.  “[W]hile the mere showing of a 
voluntary disclosure to a third person will generally suffice to show waiver of the attorney-client 
privilege, it should not suffice in itself for waiver of the work product privilege.”  United States 
v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980).  However, “disclosing work 
product to a third party can waive protection if such disclosure, under the circumstances, is 
inconsistent with the maintenance of secrecy from the disclosing party’s adversary.”  Deloitte, 
610 F.3d at 140 (internal quotation marks omitted).  In other words, “voluntary disclosure of 
attorney work product to an adversary or a conduit to an adversary waives work-product 
protection.”  Id.  Further, a party may waive the privilege by putting a particular record or 
communication at issue if it “selectively disclose[s] part of a privileged communication in order 
to gain an advantage in litigation[,]” Koch v. Cox, 489 F.3d 384, 390 (D.C. Cir. 2007) (citations 
omitted), because parties may not “employ privileges both as a sword and as a shield[,]” id. 
(citation omitted); see also Rockwell Int’l Corp. v. U.S. Dep’t of Just., 235 F.3d 598, 605–06 
(D.C. Cir. 2001) (noting that privilege may be waived where a party “attempts to make a 
testimonial use of th[e privileged] materials”). 
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However, the plaintiffs have failed to identify any testimonial or other use of the 
privileged Ethics Memo in any adversary or quasi-adversary process, such that disclosure would 
be “necessary to protect the adversary system.”  Rockwell, 235 F.3d at 606.  Rather, as the 
plaintiff acknowledges, see Pl.’s Mem. at 29, Chairman McFerran’s letter was addressed to 
members of Congress in response to their concerns about the participation of Members Wilcox 
and Prouty in responding to the SEIU lawsuit, and specifically the need to “preserv[e] the 
integrity of the National Labor Relations Board’s decisionmaking process[,]” Pl.’s Mot., Ex. A 
(Letter from Lauren McFerran, Chairman, National Labor Relations Board, to Hon. Mike Braun, 
et al. (“McFerran Letter”) (Nov. 5, 2021)) at 1, ECF No. 25-2.  Chairman McFerran’s letter, 
which summarized in a single paragraph the DAEO’s conclusions in the Ethics Memo, see id. 
at 1, emphasized the Board’s “comfort” with the Members’ participation, and thus, to the extent 
it made any use of the conclusions in the Ethics Memo, it did so “in a dispute with a co-equal 
branch of government” regarding congressional concerns about the Board’s integrity and not in 
the context of any adversary proceeding, Rockwell, 235 F.3d at 607.  Further, the one-paragraph 
summary of the Ethics Memo’s conclusions contained in the letter to Congress is virtually 
identical to the unredacted paragraph summarizing the Ethics Memo’s conclusions.  Compare 
Pl.’s Mot., Ex. A (McFerran Letter) at 2, ECF No. 25-2, with Compl., Ex. 5 (Ethics Memo) 
at 14.   
Therefore, t he Court concludes that the plaintiff has failed to establish that the  Board 
waived the attorney work product privilege applicable to the Ethics Memo.  And, because the 
Ethics Memo is “fully protected as work product, [ ] segregability is not required.”  Jud. Watch 
v. Dep’t of Just., 432 F.3d 366, 371 (D.C. Cir. 2005). 
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C. Whether the Board Has Complied with the FOIA’s Foreseeable Harm Requirement 
Finally, the defendant argues that it has complied with the FOIA’s foreseeable harm 
requirement because: (1) as a general matter, courts have regularly concluded that the 
foreseeable harm of disclosing records protected by the attorney work product privilege is self-
evident, see Def.’s Mem. at 26–27; and (2), in any event, the Board has adequately explained 
that the full release of the Ethics Memo would cause foreseeable harm both to the Board’s 
“ability to prepare for and present its position on anticipated legal challenges[]” to its Members’ 
participation in ongoing and anticipated litigation surrounding the Joint Employer Rule, id. at 26 
(quoting Ketcham Decl. ¶ 6), as well as “to the Board’s ethics recusal process as a whole[,]” id. 
at 27.  In response, the plaintiff argues that the Board’s “generalized assertions” about the work-
product privilege and conclusory assertions of the harm to the Board’s ability to prepare for 
anticipated litigation are “insufficient to satisfy the Board’s burden[]” under the FOIA’s 
foreseeable harm requirement.  Pl.’s Mem. at 24.   
Congress adopted the foreseeable harm requirement to prevent “the withholding of 
ma
terials unless the agency can ‘articulate both the nature of the harm [that would result from its 
release] and the link between the specified harm and specific information contained in the 
material withheld.’”  Reps. Comm. for Freedom of the Press v. Fed. Bureau of Investigation, 3 
F.4th 350, 369 (D.C. Cir. 2021) (quoting H.R. Rep. No. 114-391, at 9 (2016)).  Thus, the 
foreseeable harm requirement “impose[s] an independent and meaningful burden on agencies.”  
Ctr. for Investigative Reporting v. U. S. Customs & Border Prot., 436 F. Supp. 3d 90, 106 
(D.D.C. 2019) (citation omitted).   
Although this requirement applies to any invocation of a FOIA Exemption, “Congress 
added the distinct foreseeable harm requirement” specifically to limit “increasing agency overuse 
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and abuse of Exemption 5 and the deliberative process privilege.”  Reps. Comm for Freedom of 
the Press, 3 F.4th at 369 (citing H.R. Rep. No. 114-391, at 9–10).  Thus, “an agency’s burden . . . 
may be more easily met when invoking other privileges and exemptions for which the risk of 
harm through disclosure is more self-evident and the potential for agency overuse is attenuated.”  
Reps. Comm. for Freedom of the Press v. U.S. Customs & Border Prot., 567 F. Supp. 3d 97, 120 
(D.D.C. 2021).  Although establishing that a privilege applies “will go a long way to show the 
risk of foreseeable harm[,]” id. at 124, “an agency must still provide a non-generalized 
explanation on the foreseeable harm that would arise from disclosure of” the privileged records, 
id. 
Here, the plaintiff makes several arguments as to why the concerns underlying the 
attorney work product privilege “do not apply to the Ethics Memo.”  Pl.’s Mem. at 25.  The crux 
of the plaintiff’s position is that ethics memoranda are “already presumptively disclosable” and 
drafted not “to benefit the ethics office or even the Board itself[,]” but instead are prepared at the 
request of individual members to protect them “against personal disciplinary actions.”  Id. at 26.  
Thus, according to the plaintiff, the defendant’s “boilerplate rationale” regarding the chilling 
effect release of the full Ethics Memo would have on agency deliberations and sharing of advice 
are insufficient to justify withholding.  Id.  However, for several reasons, the Court finds these 
arguments unpersuasive and ultimately concludes that the defendant has satisfied its burden of 
establishing the foreseeable harm that would arise from disclosure of the complete Ethics Memo.   
As the Supreme Court has recognized, the work-pr
 oduct privilege is a cornerstone of our 
legal system and protects lawyers’ ability to “assemble information, sift what [they] consider[] to 
be the relevant from the irrelevant facts, prepare [their] legal theories and plan [their strategy] 
without undue and needless interference.”  Hickman v. Taylor, 329 U.S. 495, 511 (1947).  Other 
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members of this Court have found foreseeable harm from disclosing attorney work product to be 
“self-evident” based on the “context and purpose” of the privileged records, even where the 
agency’s articulation of harm is lacking.  Louise Trauma Ctr. LLC v. U.S. Dep’t of Homeland 
Sec., No. 20-cv-1128 (TNM), 2022 WL 1081097, at *6 (D.D.C. Apr. 11, 2022); see also Citizens 
for Resp. & Ethics in Wash. v. U.S. Dep’t of Just., No. 19-cv-2267 (LLA), 2025 WL 2829203, at 
*7 (D.D.C. Oct. 6, 2025); Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Just., No. 23-cv-
26 (JEB), 2024 WL 3858560, at *9 (D.D.C. Aug. 19, 2024); Machado Amadis v. Dep’t of Just., 
388 F. Supp. 3d 1, 20 (D.D.C. 2019), aff’d, 971 F.3d 364 (D.C. Cir. 2020). 
Contrary to the plaintiff’s assertions, the defendant has provided more than boilerplate 
justifications for the withholding of the complete Ethics Memo.  While the Board’s explanation 
of the chilling effects the release of ethics memoranda would have on its ethics recusal 
assessment processes as a whole are indeed more generalized, the Ketcham, Allen, and Second 
Platt Declarations all emphasize the specific and concrete foreseeable harm that would arise from 
the release of the unredacted Ethics Memo at issue in this case.  Specifically, the Ketcham and 
Allen Declarations represent that releasing the complete Ethics Memo, including its internal 
legal analyses of issues related to ongoing and future litigation, including the active SEIU 
lawsuit, would “impair the NLRB’s ability to prepare for and present its position on anticipated 
legal challenges[]” to Board Members’ participation in the litigation and rulemaking process by 
disclosing in advance the Board’s legal arguments to potential litigants.  Ketcham Decl. ¶ 6; see 
Allen Decl. ¶ 11.  The Second Platt Declaration confirms as much, indicating that Ms. Platt 
“anticipated that these recusal issues could be raised in the pending SEIU litigation seeking to 
invalidate the 2020 Joint Employer Rule (or in another challenge to the 2020 Joint Employer 
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Rule), and I did not want to prematurely release what the [Board] would say in response to any 
recusal allegations.”  2d Platt Decl. ¶ 18. 
Although the plaintiff argues that the defendant’s representations are undermined by the 
statutory requirements regarding the provision of ethics advice as a prophylactic against 
disciplinary action, see Pl.’s Mem. at 25–26, those general requirements do not undermine the 
defendant’s representations that releasing the Ethics Memo at issue in this case would impair the 
Board’s ability to defend its actions in ongoing and anticipated litigation based on arguments that 
Members Wilcox and Prouty were required to recuse themselves.
7  Thus, the Court is now 
satisfied that the defendant’s representations about the foreseeable harm that would result from 
releasing the complete Ethics Memo at issue in this case, separate and apart from ethics 
memoranda in general, have sufficiently “articulate[d] both the nature of the harm [that would 
result from its release] and the link between the specified harm and specific information 
contained in the material withheld.”  Reps. Comm. for Freedom of the Press, 3 F.4th at 369 
(quoting H.R. Rep. No. 114-391, at 9).  Accordingly, the Court concludes that the defendant has 
satisfied its burden of demonstrating foreseeable harm.
8 
 
7 In support of its argument, the plaintiff relies on a decision by another member of this Court rejecting the 
applicability of the attorney-client and deliberative process privileges to a final ethics memorandum.  See Pl.’s Mem. 
at 25 (citing Citizens for Resp. & Ethics in Wash. v. U.S. Postal Serv., 557 F. Supp. 3d 145, 154–57 (D.D.C. 2021)).  
However, the Board has not asserted these privileges in regards to the Ethics Memo here, and the concerns 
underpinning the attorney work product privilege are distinct.  Thus, this argument is inapposite. 
  
8 The plaintiff’s Complaint also contends that the defendant “improperly invoked Exemption 5 as applicable to 
subsections of the Memorandum” because the Ethics Memo is a “final opinion” and, thus, Exemption 5 cannot 
apply.  Compl. ¶ 35.  However, in its cross-motion for summary judgment, the plaintiff instead argues that, even if 
the Ethics Memo is “a final agency opinion” or “working law[,]” the Board must nonetheless disclose portions of the 
Ethics Memo not protected by the attorney work product privilege and a concrete assertion of foreseeable harm.  See  
Pl.’s Mem. at 15–16.  Because the Court has concluded that the Board has: (1) properly withheld the Ethics Memo 
pursuant to the work product privilege and Exemption 5; and (2) demonstrated the foreseeable harm of releasing the 
complete Ethics Memo, it concludes that the defendant has properly withheld the redacted portions of the Ethics 
Memo, even assuming arguendo that it constitutes a final agency opinion.  See Tax Analysts v. Internal Revenue 
Serv., 294 F.3d 71, 76 (D.C. Cir. 2002) (affirming the district court’s determination that the defendant agency “need 
not segregate and release agency working law from [records] withheld in their entirety pursuant to the attorney work 
product privilege”). 
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IV. CONCLUSION 
For the foregoing reasons, the Court concludes that it must grant the defendant’s renewed 
motion for summary judgment and deny the plaintiff’s renewed cross-motion for summary 
judgment. 
SO ORDERED this 27th day of March, 2026.9 
            
        REGGIE B. WALTON 
        United States District Judge 
 
 
9 The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.  
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