Sherrod v Breitbart - Status Conference Memorandum of United States

8/20/2019 Sherrod v Breitbart - Status Conference Memorandum of United States

1/94

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____

) No. 1:11-cv-00477-RJL

SHIRLEY M. SHERROD, )

) STATUS CONFERENCEPlaintiff, ) MEMORANDUM OF THE UNITED

) STATES

v. )

)

SUSANNAH BREITBART, et al., )

)

Defendants. )

_____ )

Case 1:11-cv-00477-RJL Document 89 Filed 02/20/14 Page 1 of 21


2/94


3/94

ii

TABLE OF CASES

Page

Armstrong v. Thompson, 80 A.3d 177 (D.C. 2013) .........................................................................8

Cheney v. U.S. Dist. Ct., 542 U.S. 367 (2004) ...................................................................11, 12, 14

Food Lion, Inc. v. United Food & Comm’l Workers, 103 F.3d 1007 (D.C. Cir. 1997) ..............7, 8

Reshard v. Lahood , 358 F. App’x 196 (D.C. Cir. 2009) .................................................................7

Watts v. SEC , 482 F.3d 501 (D.C. Cir. 2007) ...........................................................................9, 10



4/94

iii

TABLE OF DOCKET ENTRIES

ECF No. 1 Notice of Removal (Mar. 4, 2011)

ECF No. 1-2 Complaint (Feb. 11, 2011)

ECF No. 37 Answer of Defendant Andrew Breitbart (Aug. 11, 2011)

ECF No. 38 Answer of Defendant Larry O’Connor (Aug. 11, 2011)

ECF No. 68 Plaintiff Shirley Sherrod’s Motion for Substitution of Deceased DefendantAdrew Breitbart (Sept. 18, 2013)



5/94

iv

TABLE OF EXHIBITS

Ex. A USDA Transcript, Rel. No. 0421.10 (Aug. 24, 2010), http://www.usda.gov/wps/portal/usda/usdamediafb?contentid=2010/08/0421.xml&printable=true&contentidonly=true (accessed Feb. 8, 2014)

Ex. B Statement of Secretary of Agriculture Tom Vilsack (July 20, 2010),http://talkingpointsmemo.com/muckraker/agriculture-secretary-stands-by-asking-for-sherrod-s-resignation (accessed Feb. 7, 2014) (advertisingdeleted)

Ex. C USDA Transcript, Rel. No. 0383.10 (July 21, 2010), http://www.usda.gov/wps/portal/usda/usdamediafb?contentid=2010/07/0383.xml&printable=true&contentidonly=true (accessed Feb. 7, 2014)

Ex. D Press Briefing by Press Secretary Robert Gibbs, http://www.whitehouse.

gov/the-press-office/press-briefing-press-secretary-robert-gibbs-7212010(accessed Feb. 8, 2014)

Ex. E Letter Beth A. Williams to Alexis R. Graves (Oct. 30, 2013) (withredactions under Fed. R. Civ. P. 5.2(a))

Ex. F Subpoena Larry O’Connor to United States Department of Agriculture(Nov. 19, 2013)

Ex. G Subpoena Larry O’Connor to Executive Office of the President (Nov. 20,2013)

Ex. H Email Thomas E. Hogan to David Glass (Feb. 3, 2014) & preceding email

Ex. I Email Stephanie S. Thibault to David Glass (Feb. 10, 2014) & precedingemail



6/94

INTRODUCTION

This is an action among private parties for defamation, false light invasion of privacy,

and intentional infliction of emotional distress. ECF No. 1-2 ¶¶ 1-2.1 It does not implicate any

public or governmental interests. Thousands of pages of documents pertaining to plaintiff,

Shirley M. Sherrod, have already been released by the U.S. Department of Agriculture (USDA)

in the ordinary course of business under the Freedom of Information Act (FOIA), 5 U.S.C.

§ 552. Despite that fact, plaintiff and defendant Larry O’Connor seek to enmesh the United

States in a highly-charged private dispute through irrelevant and burdensome third-party

discovery. They thus have issued third-party subpoenas of enormous breadth to USDA and to

the Executive Office of the President (EOP). They also propose to issue third-party deposition

subpoenas to at least 10 current and former government officials. Their doing so is inappropriate

because the sole relevant evidence that the United States can contribute to this action is beyond

dispute and is already in the public domain. For those reasons, compliance with the fishing

expedition upon which plaintiff and defendant O’Connor have embarked would impose

substantial costs and burdens on the United States, and therefore on the taxpayers, without any

discernible benefit to anybody.

By minute order dated February 3, 2014, as amended, this Court has scheduled a status

conference for February 20, 2014, and directed the United States to appear through counsel. The

United States anticipates that one of the subjects of the status conference will be the third-party

subpoenas that plaintiff and defendant O’Connor have issued and propose to issue to the United

States. The United States considers those subpoenas to be objectionable for three separate

1 A table docket entries cited in this memorandum appears at p.iii, supra.



7/94

2

reasons. First, the subpoenas seek documents and information having no relevance to this action.

Second, the subpoenas seek to embroil the United States in a campaign of discovery

inappropriate to its role as a third-party witness. Third, the subpoenas seek discovery from EOP

without meeting the high burden required by controlling law.

Although the United States thus objects to the third-party subpoenas that plaintiff and

defendant O’Connor have issued and propose to issue to it, it has sought to cooperate by

voluntarily producing certain of the documents covered by those subpoenas. While the United

States is prepared to continue doing so to the extent that it considers doing so reasonable and

appropriate, it is also prepared to move to quash any and all such subpoenas unless plaintiff and

defendant O’Connor limit substantially the documents and information that they seek from the

United States.

BACKGROUND

A. USDA Rural Development (USDA RD)

USDA RD is a component of USDA. Committed to helping improve the economy and

quality of life in rural America, USDA RD operates financial programs that support certain

essential public facilities and services; promotes economic development by supporting loans to

businesses through banks, credit unions and community-managed lending pools; offers technical

assistance and information to help agricultural producers and cooperatives get started and

improve the effectiveness of their operations; and provides technical assistance to help

communities undertake community empowerment programs.

USDA RD maintains offices in 47 states and Puerto Rico. The director of each of those

offices is known as the “state director of USDA RD” for the state, possession, or group of states

and possessions that his or her office covers.



8/94

3

B. Plaintiff and Her Speech to the National Association for the Advancement of

Colored People (NAACP)

Plaintiff was the state director of USDA RD for Georgia from August 17, 2009, until July

29, 2010. ECF No. 1-2 ¶¶ 22, 72, 77.

2

She was a political appointee.

3

See Ex. A at 2.

4

An

African-American, she gave a speech to an NAACP banquet in Douglas, Georgia, on March 27,

2010. ECF No. 1-2 ¶¶ 71; ECF No. 38 ¶ 25. Lasting for 43 minutes, plaintiff’s speech featured

an anecdote about her alleged experience “helping two white farmers, Roger and Eloise Spooner,

save their farm from foreclosure more than twenty years earlier.” ECF No. 1-2 ¶¶ 27, 43. The

alleged point of the anecdote was to “underscore[] the importance of providing assistance to

those in need, regardless of race.” Id. ¶ 26.

Prior to his death in 2012, defendant Andrew Breitbart was “a well-known blogger,

author, publisher, and media figure.”5 ECF No. 37 ¶ 10; ECF No. 68 at 1. On July 19, 2010,

defendant Breitbart published a blog post, entitled Video Proof: The NAACP Awards Racism-

2010, on his website, BigGovernment.com. ECF No. 1-2 ¶ 30; ECF No. 37 ¶ 30. Embedded in

the blog post was a video of a short excerpt of the speech that plaintiff had given to the NAACP

banquet. ECF No. 37 ¶¶ 3, 30. Slides introducing the video said the following:

On July 25, 2009 Agriculture Secretary Tom Vilsack appointed Shirley Sherrodas Georgia Director of Rural Development[.] USDA Rural Development spendsover $1.2 billion in the State of Georgia each year. On March 27, 2010, whilespeaking at the NAACP Freedom Fund Banquet . . . Ms. Sherrod admit[ted] that

2 A table of docket entries cited in this memorandum appears at p. v, supra.

3

State directors of USDA RD are typically political appointees. See House Committee on Oversight andGovernment Reform, United States Government Policy and Supporting Positions (Plum Book), 2012at 13(available at http://www.gpo.gov/fdsys/pkg/GPO-PLUMBOOK-2012/pdf/GPO-PLUMBOOK-2012.pdf).

4 References to exhibits are to the exhibits to this memorandum. A table of exhibits appears at p. iv, supra.

5 As discussed below, the widow of defendant Breitbart has been substituted for defendant Breitbart as a defendantin this action. The term “defendant Breitbart” is nonetheless used in this memorandum to refer to Andrew Breitbart.



9/94

4

in her federally appointed position, overseeing over a billion dollars . . . [s]hediscriminates against people due to their race.

Id. ¶¶ 32-36.

On July 19, 2010, Secretary Vilsack responded to the video that defendant Breitbart had

embedded in his blog post by asking for, and accepting, plaintiff’s resignation. Ex. B; Ex. C at 2.

Explaining why he had done so, Secretary Vilsack gave the following two reasons:

First, for the past 18 months, we have been working to turn the page on the sordidcivil rights record at USDA and this controversy could make it more difficult tomove forward on correcting injustices. Second, state rural development directorsmake many decisions and are often called to use their discretion. The controversysurrounding her comments would create situations where her decisions, rightly or

wrongly, would be called into question making it difficult for her to bring jobs toGeorgia.

Ex. B. Responding to questions, Secretary Vilsack said that “[t]here was no pressure from the

White House” and that “[t]his was my decision.” Ex. C at 1, 2. The White House Press

Secretary gave a similar response when asked similar questions. Ex. D at 1.

On July 20, 2010, “the NAACP released the full video of Plaintiff’s speech.” ECF No.

38 ¶ 80. The release of the video made it apparent to Secretary Vilsack that “this was a

circumstance and situation where [plaintiff’s] comments were taken totally and completely out of

context, and that [her] main message * * * was very supportive of what we’re trying to do at

USDA.” Ex. A at 3. Viewing plaintiff as someone with “a unique set of skills” that would “lend

themselves to assisting and helping USDA as we deal with trying to turn the page on our civil

rights chapter,” Secretary Vilsack offered plaintiff an alternative position at USDA during a

conversation that he had with her on July 21, 2010, and later offered to reinstate her to her old

position. Id. at 1; Ex. C at 1, 4. Though describing herself as “tempted,” plaintiff turned down

both offers on August 24, 2010. Ex. A at 4.



10/94

5

C. The Requests under FOIA

Following the publication of defendant Breitbart’s blog post, USDA began receiving a

series of requests under FOIA for documents pertaining to plaintiff. One such request, dated

July 28, 2010, asked USDA to produce the following:

[1] Any and all emails, phone logs, or communications of any sort betweenMarch 1, 2010 and July 28, 2010 regarding former USDA employee Shirley Sherrod andher March 27, 2010 speech to a local NAACP meeting in Georgia. This includes but isnot limited to any communications within USDA or between USDA and parties insideand outside government regarding preparation of the speech, delivery of the speech, herefforts to inform superiors of potential fallout from the speech and communications aboutthe request to ask her to resign, efforts to contact her, the decision to offer her a new joband discussions about the new job.

[2] Any and all emails, phone logs, or communications of any sort within USDAor with outside parties that mention the words “Shirley Sherrod” or “Sherrod” betweenJuly 18-28.

[3] Any and all emails, phone logs, or communications of any sort regardingShirley Sherrod involving Agriculture Secretary Tom Vilsack, Deputy UndersecretaryCheryl Cook, Chief of Staff Karen Ross, and the office of White House liaison.

USDA responded to the FOIA requests by releasing 900 pages on October 5, 2010, and

another 1,964 another pages on February 24, 2012. USDA withheld certain material from the

pages as released pursuant to the exemption provisions to FOIA, 5 U.S.C. § 552. A set of the

pages as released was sent to plaintiff on February 23, 2012. Defendant O’Connor has obtained

a set of those pages.

D. This Action

This action against defendants Breibart and O’Connor and against defendant John Doe

was commenced in the Superior Court of the District of Columbia on February 11, 2011.

Defendant O’Connor describes himself as a “blog[ger] for websites operated by Breitbart.” ECF

No. 38 ¶ 11. The United States is not a party to this action.



11/94

6

By notice dated March 4, 2011, defendants Breitbart and O’Connor removed this action

to this Court because of the alleged diversity of citizenship among the parties. On August 11,

2011, defendant O’Connor filed an answer in which he asserted 23 affirmative defenses. On the

same day, defendant Breitbart filed an answer in which he asserted 17 affirmative defenses,

including the defense that “[plaintiff] is barred from recovery because her damages, if any, * * *

were caused by the acts of others.” ECF No. 37 at 15. With the possible exception of that

defense, none of the affirmative defenses asserted by either defendant implicates any act of the

United States.

Defendant Breibart died on or about March 1, 2012. ECF No. 68 at 1. On September

18, 2013, plaintiff moved to make his widow a defendant in his stead. The Court granted that

motion on October 16, 2013. By scheduling order entered November 20, 2013, the Court

ordered discovery in this action to be completed no later than May 9, 2014.

E. The Third-Party Subpoenas of Plaintiff and Defendant O’Connor

By third-party subpoena dated October 30, 2013, plaintiff asked USDA to produce 10

categories of documents allegedly relevant to this action. Ex. E, sched. A at 4-5. By request

dated October 30, 2013, plaintiff asked USDA to produce substantially the same documents

under FOIA and the Privacy Act, 5 U.S.C. § 552a. Id . at 1-2.

By third-party subpoena dated November 19, 2013, defendant O’Connor asked USDA to

produce 44 categories of documents allegedly relevant to this action. Ex. F, sched. A at 4-7. By

third-party subpoena dated November 20, 2013, defendant O’Connor asked EOP to produce 29

additional categories of allegedly relevant documents. Ex. G, sched. A, at 4-6.

By email dated February 3, 2014, defendant O’Connor advised the United States of his

intention to issue third-party deposition subpoenas to five current officials of USDA and to one



12/94

7

former official of USDA. Ex. H at 1. By email dated February 10, 2014, plaintiff advised the

United States of her intention to issue third-party deposition subpoenas to two of the five current

officials of USDA to whom defendant O’Connor proposes to issue such subpoenas; to issue a

third-party deposition subpoena to the former official of USDA to whom defendant O’Connor

proposes to issue such a subpoena; and to issue third-party deposition subpoenas to four other

former officials of USDA. Ex. I at 1. Both plaintiff and defendant O’Connor have reserved the

right to issue third-party deposition subpoenas to other current or former federal officials. Id.;

Ex. H at 1.

DISCUSSION

I. THE THIRD-PARTY SUBPOENAS OF PLAINTIFF AND DEFENDANT

O’CONNOR ARE OBJECTIONABLE BECAUSE THEY SEEK DOCUMENTS

AND INFORMATION HAVING NO RELEVANCE TO THIS ACTION.

A litigant is permitted by Fed. R. Civ. P. 26(b)(1) to “obtain discovery regarding any

nonprivileged matter that is relevant to any party’s claim or defense.” “Generally speaking,

‘relevance’ for discovery purposes is broadly construed.” Food Lion, Inc. v. United Food &

Comm’l Workers, 103 F.3d 1007, 1012 (D.C. Cir. 1997). However, “the relevance standard of

Rule 26 is not without bite.” Id. Although

“[t]he boundaries defining information that is relevant to the subject matterinvolved in the action are necessarily vague and it is practically impossible tostate a general rule by which they can be drawn,” it is also true that “[n]o onewould suggest that discovery should be allowed of information that has noconceivable bearing on the case.”

Id. (quoting Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice &

Procedure § 2008 (1994)). For that reason, a litigant who “gives no sufficient reason to believe

that discovery would aid her case” has no right to discovery. Reshard v. Lahood , 358 F. App’x

196, 197 (D.C. Cir. 2009). Nor is a litigant permitted to “‘roam in the shadow zones of



13/94

8

relevance and to explore matter which does not presently appear germane on the theory that it

might conceivably become so.’” Food Lion, 103 F.3d at 1012-13 (quoting In re Fontaine, 402 F.

Supp. 1219, 1221 (E.D.N.Y. 1975)) (internal quotation marks omitted).

Under the law of the District of Columbia, which may govern this action, a plaintiff must

show the following to succeed on a claim of defamation:

“(1) that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant published the statement without privilege to a third party; (3) that the defendant’s fault in publishing the statement amounted to atleast negligence; and (4) either that the statement was actionable as a matter oflaw irrespective of special harm or that its publication caused the plaintiff specialharm.”6

Armstrong v. Thompson, 80 A.3d 177, 183 (D.C. 2013) (quoting Blodgett v. Univ. Club, 930

A.2d 210, 222 (D.C. 2007)). “To succeed on a claim of false light invasion of privacy, a plaintiff

must show ‘(1) publicity (2) about a false statement (3) understood to be of and concerning the

plaintiff, and (4) which places the plaintiff in a false light that would be offensive to a reasonable

person.’” Id. at 188 (quoting Kitt v. Capital Concerts, 742 A.2d 856, 859 (D.C. 1999)). “To

succeed on a claim of intentional infliction of emotional distress, a plaintiff must show ‘(1)

extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly

(3) causes the plaintiff severe emotional distress.’” Id. at 189 (quoting District of Columbia v.

Tulin, 994 A.2d 788, 800 (D.C. 2010)).

In this case, no third-party subpoena that plaintiff or defendant O’Connor has issued or

proposes to issue to the United States seeks any document or information having any relevance

to any claim that plaintiff makes in this action or to any defense that any defendant has asserted.

6 This action was brought in the District of Columbia by a resident of Georgia against defendants residing inCalifornia and Georgia. ECF No. 1 at 2; ECF No. 1-2 ¶¶ 9, 12. A choice-of-law question thus exists in this action.The United States takes no position on that issue.



14/94

9

It thus makes no difference how plaintiff came to be state director of USDA for Georgia, see Ex.

F, sched. A at 4 (Items 3, 5-7, 16-26, 29); Ex. G, sched. A at 4, 6 (Items 3-5, 9-12); what her

personal history has been, see Ex. F, sched. A at 4-5 (Item 8-10, 12-13, 27-28, 30); Ex. G, sched.

A at 5 (Item 16); or what her record was as state director. See Ex. E, sched. A at 4 (Items 6-

8); Ex. F, sched. A at 5 (Item 12). Neither does it make any difference what any federal official

said about plaintiff to anyone at any time, see Ex. F, sched. A at 4-7 (Items 3-4, 16-26, 29, 31-32,

40, 44); Ex. G, sched. A at 4-6 (Items 6-12, 23, 27-29), or what plaintiff and any federal official

ever said to each other. See Ex. F, sched. A at at 7 (Item 41); Ex. G, sched. A at 6 (Item 26).

The sole actions of the United States that have any potential relevance to this action are

the offers of reemployment that Secretary Vilsack made to plaintiff following her resignation

from USDA. Ex. A at 1, 2. Either offer, if accepted, would have prevented plaintiff from losing

any income because of her resignation. Plaintiff has admitted that Secretary Vilsack made those

offers. See id. at 2. For that reason, the United States should not be required to respond to any

of the third-party subpoenas that plaintiff or defendant O’Connor has issued or proposes to issue

to it in this action.

II. THE THIRD-PARTY SUBPOENAS OF PLAINTIFF AND DEFENDANT

O’CONNOR ARE OBJECTIONABLE BECAUSE THEY SEEK TO EMBROIL

THE UNITED STATES IN A CAMPAIGN OF DISCOVERY INAPPROPRIATE

TO ITS ROLE AS A THIRD-PARTY WITNESS.

Federal Rule of Civil Procedure 45(d)(1) provides that “[a] party or attorney responsible

for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden

or expense on a person subject to the subpoena.” The “‘undue burden’ standard” of Rule

45(d)(1) causes “‘concern for the unwanted burden thrust upon non-parties” to be a “‘factor

entitled to special weight’” in determining the enforceability of third-party subpoenas. Watts v.



15/94

10

SEC , 482 F.3d 501, 509 (D.C. Cir. 2007) (quoting Cusamano v. Microsoft Corp., 162 F.3d 708,

717 (1st Cir. 1998)). That concern is at its zenith where, as here, third-party subpoenas are

directed to the United States. In such cases, the court “must properly accommodate ‘the

government’s serious and legitimate concern that its employee resources not be commandeered

into service by private litigants to the detriment of the smooth functioning of government

operations.’” Id. (quoting Exxon Shipping Co. v. Dep’t of the Interior , 34 F.3d 774, 779 (9th Cir.

1994)).

This case is not a complex piece of corporate litigation. It is, instead, a common-law tort

action in which all of the parties are individuals and few material facts, if any, are subject to

dispute. Despite the relative simplicity of this action, plaintiff and defendant O’Connor have

issued extremely broad and burdensome third-party document subpoenas to USDA and EOP that

seek, in the aggregate, 83 categories of documents that are irrelevant to this litigation. Ex. E,

sched. A at 4-5; Ex. F, sched. A at 4-7; Ex. G, sched. A at 4-6. They have also

announced their intention to issue third-party deposition subpoenas to a total of five current

officials of USDA and have reserved the right to issue third-party deposition subpoenas to an

unlimited number of additional federal officials. Ex. H at 1; Ex. I at 1. By doing these things,

plaintiff and defendant O’Connor have triggered “‘the government’s serious and legitimate

concern that its employee resources not be commandeered into service by private litigants to the

detriment of the smooth functioning of government operations.’” See Watts, 482 F.3d at 509

(quoting Exxon Shipping, 34 F.3d at 779. For that reason, the United States should not be

required to respond to any of the third-party subpoenas that plaintiff and defendant O’Connor

have issued or propose to issue to it in this action.



16/94

11

III. THE THIRD-PARTY SUBPOENAS OF PLAINTIFF AND DEFENDANT

O’CONNOR ARE OBJECTIONABLE BECAUSE THEY SEEK DISCOVERY

FROM EOP WITHOUT MEETING THE HIGH BURDEN REQUIRED BY

CONTROLLING LAW.

The Supreme Court has firmly established that sweeping civil discovery demands like the

third-party subpoena that defendant O’Connor has issued to EOP are generally inappropriate and

must be scrutinized more carefully than ordinary civil discovery demands. The Office of the

President occupies a “‘unique position in the constitutional scheme’” and is thus “‘owed’” “‘high

respect.’” Cheney v. U.S. Dist. Ct., 542 U.S. 367, 382, 385 (2004) (quoting Clinton v. Jones, 520

U.S. 681, 698, 707 (1997)) (internal quotation marks omitted). Because “‘a President’s

communications and activities encompass a vastly wider range of sensitive material than would

be true of any ordinary individual,’” the courts must “‘afford Presidential confidentiality the

greatest protection consistent with the fair administration of justice’” and “give recognition to the

paramount necessity of protecting the Executive Branch from vexatious litigation that might

distract it from the energetic performance of its constitutional duties.” Id. at 381, 382 (quoting

United States v. Nixon, 418 U.S. 683, 715 (1974)) (internal quotation marks omitted).

Accordingly, the burdens imposed on EOP by overbroad discovery demands like the third-party

subpoena that defendant O’Connor has issued to EOP are an especially “important factor”

weighing heavily against their enforcement.” Id. at 385. Avoiding those burdens is sufficiently

important that the United States is permitted to challenge discovery demands issued to EOP

without “invoking executive privilege with sufficient specificity” or making other “particularized

objections.” Id. at 388.

In this case, Secretary Vilsack has stated publicly that the decision to ask plaintiff to

resign from her position as state director of USDA RD for Georgia was his and his alone and that



17/94

12

“[t]here was no pressure from the White House.” Ex. C at 1-2. The White House has said the

same thing. Ex. D at 1. Despite that fact, defendant O’Connor has issued a third-party subpoena

to EOP requesting the production of 29 categories of documents, including

All communications and documents sent [to, from, or] among members of theWhite House staff, including but not limited to President Barack Obama, RahmEmanuel, Robert Gibbs, Jim Messina, Michael A. Blake, Christopher Lu, ChrisReid, Tom Gavin, Reid Cherlin, Valerie E. Green and Kevin Washo, relating toShirley Sherrod from July 25, 2008 to present

and

All communications and documents, including but not limited to briefingmaterials, notes and minutes, reflecting information prepared for or

communicated to President Obama relating to Shirley Sherrod

and

All communications with any other individual, government agency, ororganization relating to Shirley Sherrod from July 25, 2008, to present.

Ex. G, sched. A, at 4-6 (Items 6-7, 12, 27). At no time, however, has defendant O’Connor

provided any justification for seeking to thrust EOP into “vexatious litigation that might distract

it from the energetic performance of its constitutional duties” and denying “‘Presidential

confidentiality the greatest protection consistent with the fair administration of justice.’” See

Cheney, 542 U.S. at 382 (quoting Nixon, 418 U.S. at 715). For that reason, the United States

should not be required to respond to the third-party subpoena that defendant O’Connor has

issued to EOP.



18/94

13

IV. DESPITE ITS OBJECTIONS TO THE THIRD-PARTY SUBPOENAS OF

PLAINTIFF AND DEFENDANT O’CONNOR, THE UNITED STATES HAS

SOUGHT TO COOPERATE BY VOLUNTARILY PRODUCING CERTAIN OF

THE DOCUMENTS COVERED BY THOSE SUBPOENAS.

1. Plaintiff has asked USDA to produce

All Documents Relating To how You evaluate and track USDA employeesholding the position of State Director for Rural Development, including but notlimited to performance reviews, personnel files, staff evaluations, and progressreports regarding Mrs. Sherrod during the time period she held her position asthe Georgia State Director for Rural Development from August 17, 2009 untilJuly 19, 2010.

Ex. E, sched. A at 4 (Item 7). Defendant O’Connor has made a similar request to USDA. See

Ex. F, sched. A at 5 (Item 12). As a courtesy, the United States has responded to these requests

by advising plaintiff and defendant O’Connor that plaintiff did not serve as state director of

USDA RD for Georgia for a long enough period to receive a performance appraisal report.

2. Defendant O’Connor has asked USDA to produce “All employment or human

resources files, communications and documents from July 25, 2009 to present relating to Shirley

Sherrod.” Ex. F, sched. A at 4 (Item 11). As a courtesy, the United States has advised plaintiff

and defendant O’Connor that it is prepared to produce plaintiff’s official personnel file (OPF),

provided that an appropriate Privacy Act protective order is entered. The United States has

drafted such an order and has provided it to plaintiff and defendant O’Connor for their review.7

3. Plaintiff alleges that her starting annual salary as state director of USDA RD for

Georgia was $111,000. ECF No. 1-2 ¶ 20. Despite so alleging, plaintiff has asked USDA to

produce “All Documents Reflecting the salary Shirley Sherrod was paid during her tenure

as the Georgia State Director for Rural Development for the USDA.” Ex. E, sched. A at 4

7 The United States contemplates withholding from the OPF any material that would be subject to redaction underFed. R. Civ. P. 5.2(a).



19/94

14

(Item 4). As a courtesy, the United States has advised plaintiff and defendant O’Connor that

plaintiff’s OPF contains documents responsive to the request.

4. Plaintiff has asked USDA to produce

All Documents Relating To the performance of Georgia's USDA RuralDevelopment agency, including but not limited to the Georgia USDA RuralDevelopment Annual Report for the 2008-2009 fiscal year, as well as for the2009-2010 fiscal year, and comparisons of the Georgia USDA RuralDevelopment agency to the USDA Rural Development agencies of other states.

Ex. E, sched. A at 4 (Item 8). As a courtesy, documents responsive to this request were

produced to plaintiff and to defendants Breitbart and O’Connor on February 4, 2014.

5. Defendant O’Connor has asked USDA to produce “All reports prepared by the White

House or the USDA relating to the background and qualifications of Shirley Sherrod in

connection with her July 25, 2009 appointment as Georgia Director of Rural Development,

including but not limited to the document commonly referred to as a ‘vetting report.’” Ex. F,

sched. A at 4 (Item 7). Defendant O’Connor has made a similar request to EOP. Ex. G, sched.

A at 4 (Item 5). The vetting report to which defendant O’Connor refers is a document

concerning plaintiff that the White House prepared prior to her appointment to be state director

of RD for Georgia. The United States has objected to producing the report on the grounds that

the report is irrelevant to this action and potentially subject to claim of privilege. The request

that EOP produce the report is also objectionable in light of the heightened standard that Cheney

establishes for obtaining civil discovery from EOP. See 542 U.S. at 381, 382, 385, 388.

6. In responding to a FOIA appeal to USDA unrelated to this action, USDA has

determined to conduct electronic searches for emails pertaining to plaintiff. The searches that

USDA proposes to conduct cover the period June 1-October 31, 2010, and consist of a search of

USDA RD archives, using seven search terms, for emails of three current or former officials of



20/94

15

USDA, including plaintiff; a search of exchange server backups, using eight search terms, for

emails of 37 current or former officials of USDA, including Secretary Vilsack; and a search,

using the search term “Sherrod,” of the correspondence files of the Office of Executive

Correspondence.

The United States has proposed, as a courtesy, to produce the documents located as a

result of these searches to plaintiff and defendant O’Connor. Defendant O’Connor has

responded to that proposal by proposing a set of alternative searches broader in scope than the

United States considers necessary or appropriate. No agreement on the searches thus has been

reached and no such searches have been conducted.

CONCLUSION

The United States looks forward to discussing any and all of the issues raised in this

memorandum at the status conference the Court has scheduled

Respectfully submitted

STUART F. DELERYAssistant Attorney GeneralJOHN R. TYLERAss’t Br. Dir., Dep’t of Justice, Civ. Div.

s/ David M. Glass DAVID M. GLASS, DC Bar 544549Sr. Trial Counsel, Dep’t of Justice, Civ. Div.20 Mass. Ave., N.W., Room 7200Washington, D.C. 20530-0001Tel: (202) 514-4469/Fax: (202) 616-8470E-mail: [email protected]

Dated: February 20, 2014 Attorneys for the United States



21/94

16

CERTIFICATE OF SERVICE

I hereby certify that on February 20, 2014, I served the within memorandum and the

exhibits to it on all counsel of record by filing them with the Court by means of its ECF system.

s/ David M. Glass



22/94

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____

) No. 1:11-cv-00477-RJL

SHIRLEY SHERROD, )

) EXHIBITS TO STATUS CONFERENCEPlaintiff, ) MEMORANDUM OF THE UNITED

) STATES

v. )

)

SUSANNAH BREITBART, et al., )

)

Defendants. )

_____ )

Ex. A USDA Transcript, Rel. No. 0421.10 (Aug. 24, 2010), http://www.

usda.gov/wps/portal/usda/usdamediafb?contentid=2010/08/0421.xml&printable=true&contentidonly=true (accessed Feb. 8, 2014)

Ex. B Statement of Secretary of Agriculture Tom Vilsack (July 20, 2010),http://talkingpointsmemo.com/muckraker/agriculture-secretary-stands-by-asking-for-sherrod-s-resignation (accessed Feb. 7, 2014) (advertisingdeleted)

Ex. C USDA Transcript, Rel. No. 0383.10 (July 21, 2010), http://www.usda.gov/wps/portal/usda/usdamediafb?contentid=2010/07/0383.xml&printable=true&contentidonly=true (accessed Feb. 7, 2014)

Ex. D Press Briefing by Press Secretary Robert Gibbs, http://www.whitehouse.gov/the-press-office/press-briefing-press-secretary-robert-gibbs-7212010(accessed Feb. 8, 2014)

Ex. E Letter Beth A. Williams to Alexis R. Graves (Oct. 30, 2013) (withredactions under Fed. R. Civ. P. 5.2(a))

Ex. F Subpoena Larry O’Connor to United States Department of Agriculture(Nov. 19, 2013)

Ex. G Subpoena Larry O’Connor to Executive Office of the President (Nov. 20,2013)

Ex. H Email Thomas E. Hogan to David Glass (Feb. 3, 2014) & preceding email

Ex. I Email Stephanie S. Thibault to David Glass (Feb. 10, 2014) & precedingemail

Case 1:11-cv-00477-RJL Document 89-1 Filed 02/20/14 Page 1 of 1


23/94

Sherrod v. Breitbart

No. 1:11-cv-00477-RJL

Stat. Conf. Mem. U.S.

Ex. A



24/94

Release No. 0421.10Contact:

Office of Communications 202-720-4623

The Honorable Tom Vilsack,Secretary of the U.S. Department of Agriculture;and Shirley

Sherrod

Tuesday, August 24, 2010

SECRETARY VILSACK: Good morning, everyone. We have just about an hour-and-a-half conversation with myself and Shirley. During the course of our conversation, we had Dr.Joe Leonard, the Assistant Secretary of Civil Rights, and Pearlie Reed, who is the Assistant

Secretary for Administration. We had a far and good conversation.

Shirley was interested in the progress that we were trying to make in terms of settlinglawsuits that had been filed against the Department for civil rights violations, commonly

referred to as the "Pigford case," which Shirley unfortunately knows far too much about as a plaintiff in that case early in the process, and I think it's fair to say that we both feel it'sappropriate and necessary for the Senate to take action as quickly as possible to make sure that

the appropriations for those cases are made and that we get those cases settled as quickly as possible, as well as the cases that have been filed against the Department by Native Americansand Hispanic and women farmers.

We also talked about the fact that in the previous eight years prior to this administration,

there had been a number of claims that for whatever reason were not fully looked at andinvestigated. We have reopened those cases, but we need congressional action, the Statute ofLimitations, to make sure that we do justice to those folks who were not treated fairly by the

Department.

Shirley was also very interested in the work that we're doing with an independentconsultant, the Jackson Lewis group, which has been hired by us sometime ago prior to thisincident, in which we asked the Jackson Lewis group to go out into a number of States to take a

real hard look at our current procedures and policies in terms of how we deal with folks whocome into the Farm Service Agency Offices and the Rural Development Office to see if there

are ways in which we can make sure that we don't have these problems of discrimination in thefuture. That work will be completed sometime this year, and that becomes relevant to next

steps for the Department and Shirley.

I did my best, I think it's fair to say. I did my best to try to get her to come to USDA, to

stay at USDA on a full-time basis. We talked about the Office of Advocacy and Outreach and

what her unique skills could bring to that office. We also talked about the opportunity thatwould be made available, if that was not something she was interested in doing, to return toGeorgia in her position as the State Director. For reasons that Shirley will get into, that doesn't

fit what she needs, what she wants, and what she deserves, and so we talked about the possibility of utilizing Shirley's unique characteristics and experiences and her passion, herundying passion to see discrimination rooted from this country, so that when we get the report

from the consultant that tells us the steps that we need to take to improve our processes and procedures at all levels, it's my intent and hope that we can ask for Shirley to assist us in some

sort of consulting way for full implementation and proper implementation of thoserecommendations. And I think there's no one in the country better suited to assist us in that

effort than Shirley.

Page 1 of 6The Honorable Tom Vilsack, Secretary Of the U.S. Department Of Agriculture; and Shirl...

2/8/2014http://www.usda.gov/wps/portal/usda/usdamediafb?contentid=2010/08/0421.xml&printable...



25/94

Having been a victim of discrimination, having had a family who suffered a painful loss asa result of discrimination, having served as the Director of Rural Development and knowing

full well the programs and having worked in Georgia to begin changing things in that State, sothat there was fairness and full opportunity, there's no one that can help us better in that

position than Shirley. So we are looking forward to later in the year reconnecting, once thereport is concluded, and we also talked very briefly about the steps we have taken internally

within USDA following our study of the circumstances and some of the steps that we're takingto improve decisionmaking as USDA.

With that, Shirley?

MS. SHERROD: Good morning. I want to say thank you to the Secretary for the updateson Pigford and the discussion we've had this morning about what happened and the steps thatwill be taken in the future, so that hopefully on one else will have to deal with what I've had to

deal with over the last four or five weeks.

I enjoyed my work at USDA. As most of you know, I didn't work in government prior toabout a year ago now. It only lasted 11 months, but I did enjoy that work and would want tosee that work continue. I just don't think at this point, with all that has happened, I can do that

either in the new position that was offered or as State Director for Rural Development inGeorgia.

It doesn't mean that I'm not interested in that work because I certainly am. I was workingon many of those issues long before coming to the government and would hope to be able to

work on many of those issues in the future.

So I've had lots of support from around the country. I've had many, many, many thousandsof pieces of mail. Many of those, I would like to answer. I need a little time to be able to deal

with that, to sort of take a break from some of all that I've had to deal with over the last fewweeks, and I look forward to some type of relationship with the Department in the future.

We do need to work on the issues of discrimination and racism in this country, and I

certainly would like to play my role in trying to help deal with it, so thank you.

MODERATOR: Questions from members of the media?

QUESTION (Associated Press): Secretary Vilsack, Mary Clare Jalonick from AP. Could

you tell us a little bit about the investigation you all did into what happened? I know that wassupposed to be finished around --

SECRETARY VILSACK: Sure. You know, it starts with the responsibility that I have totake personally for making sure that instructions that are given to staff are clear and complete

and comprehensive. It requires us to take a look at travel schedules to make sure that we havesufficient staff at various offices.

At the time this incident occurred, I was on travel, the Chief of Staff was on travel, so weneed to do a better job of coordinating travel schedules.

We obviously have to take a look at the process that was used for political appointees in

terms of actions and steps. We need a much more collaborative process engaging the UnderSecretaries and senior staff members before decisions are finalized.

We obviously also have to make sure that everyone has contact information that's accurateand complete, and we have to establish protocols for contacting folks who may be in a situation

where there may be the possibility of disciplinary action, to make sure that their rights are fully protected.

Political appointees were treated a little differently than a career appointee, and weobviously need to make sure that there's a more parallel system for political appointees, so that

what Shirley went through doesn't happen again. That's the goal.





26/94

These recommendations will be and are in the process of being incorporated into our procedures now.

QUESTION (CNN): Secretary Vilsack, Brian Todd from CNN.

The afternoon that Ms. Sherrod came out and clarified what had happened, it became clearthat her remarks were taken out of context. You still stood by the removal of her, at least in the

immediate. Why did you do that, and what changed your mind since then? Was there pressure

from somewhere else outside the Department?

SECRETARY VILSACK: No, there wasn't pressure, but because I was not necessarily inthis office, I didn't avail myself of the full range of advice and counsel. I was not aware, for

example, that the Under Secretary of Rural Development was attempting to get a hold of me tosuggest that perhaps we needed to take another period of time to review.

Obviously, when the full transcript of what Shirley's remarks were, were made known tome, it was pretty obvious that this was a circumstance and situation where her comments were

taken totally and completely out of context, and that the main message, which is a message thatwas very supportive of what we're trying to do at USDA was not inconsistent, as I had

originally thought, but very consistent with what we were trying to do. What Shirley was tryingto point out was that there is and has been for sometime issues of discrimination and bias and

prejudice in this country, that USDA because of the enormity of our Department has so manyopportunities to intersect with people, that there needed to be an effort to make sure that USDAwas an example, an exemplary administration, an exemplary Department when it comes to civil

rights. Obviously, with the claims that had been filed against us in the past, we have had workto do.

So all of that transported in a couple-of-day period and led me to believe that I had made a

mistake, which I acknowledged and certainly contacted Shirley and told her I was sorry forwhat we had done and asked for her forgiveness, and she was gracious enough to give it to me.

QUESTION (ABC News): Dean Norland from ABC News.

Ms. Sherrod, is this a satisfactory conclusion to what you have gone through the past five

or six weeks, and wouldn't it be more a sense of completion if you had stayed in this building

and worked on problems of discrimination rather than going off and taking a break and not being directly involved in the process?

SECRETARY VILSACK: Sounds like the hard sell I gave you in the office.

MS. SHERROD: (Laughs.) Yes, it is.

The Secretary did push really, really hard for me to stay and work from the inside in the position. It is a new position.

I, you know, look at what happened now, and I know he's apologized and I accept that. I just -- and there are new processes in place, and I hope that it works. I don't want to be the one

to test it. (Laughs.)

So, you know, I think there is -- I think I can be helpful to him and the Department if I justtake a little break and look at how I can be more helpful in the future.

I guess that's enough to be said.

SECRETARY VILSACK: May I say this? And I think it's important to understand why

Shirley has unique opportunities here.

In her work in Georgia, she was beginning a process of going into counties and areas of herState where there was deep poverty, high unemployment, not much outreach from previousefforts by USDA, and she was making strides to make sure that those counties that had been





27/94

ignored in the process were recognized, appreciated, and helped. That's the kind of work that Isuspect -- but I don't know, but I suspect will come forward with the recommendations from

the review of the two-year review that's taking place of our programs.

At that point, we can, I think, tailor an opportunity, if you will, to meet those uniquecharacteristics, and Shirley can help us implement those recommendations with a focus where

she's not worried about administrative issues having to deal with personnel or budgets or thingsof that nature, the details, the day-to-day details of a senior position. She'll be able to focus on

what she was doing a good job of in Georgia, be able to spend the personal time and also to beable to balance that time.

As she pointed out, she and her husband have been struggling with this for 40 --

MS. SHERROD: Forty-five years.

SECRETARY VILSACK: -- 45 years, and she's got children and, more importantly, Ithink now grandchildren she wants to spend time with, and so it's perfectly understandable, but

I don't want anybody to think that she cannot be of significant help here. I believe she can.That's why I offered her the opportunities that I did, but I think this might be a better fit for her,

and I think she'll be able to devote the time and attention and passion that she wants.

QUESTION: Shirley, this question is for you. How much time are you looking to take off,and any thought or vision of what you want your future collaboration to be?

MS. SHERROD: You know, as far as my role with the Department, that will be strictly up

to the Secretary, and I think he's looking at getting that report in before we can discuss it, so I

have no idea how long that will take. I don't know the time table for that, but it doesn't meanthat I won't be speaking out. I've had many, many requests from around the country for people-- from people who want to hear from me. I'd like to hear from them because I'd like to know,

I'd like to hear about efforts that are being made in communities that are dealing with the issueof racism and discrimination, and I really like to highlight them because I know there are people out there who care, who want to work on the issues, who are working on the issues, and

I think we need more of that. I think we need to hear those stories as we move forward.

That's what this country needs. You know, we're a great country, and there are people who

care. We're hearing too much from those who would want to point out the negative right now,and I really would like to concentrate on the positive.

QUESTION: What was the exact role, the exact position, and the duties there, and were

you tempted to take it?

MS. SHERROD: Yes, I was tempted to take it. I'm not sure of the total role, and the

Secretary can speak more to that than I can at this point. I was tempted. (Laughs.)

SECRETARY VILSACK: The Office of Outreach and Advocacy was created by theCongress to do work that needs to be done in USDA to make sure that people understand andappreciate what programs USDA offers and how to access them.

As I think Shirley's work in Georgia pointed out, there are an awful lot of people that have

no idea how broad the scope of this Department is and are often -- because of the poverty or thedifficulties of managing governments at the local level oftentimes are overwhelmed by theapplication process by the complexity of the Federal bureaucracy that they have to work

through.

So the idea of this office, working with our Civil Rights Office, was to do a better job ofintegrating into those communities and making sure that they understood what was availableand making sure that they had access to the programs because there are probably counties that

have not accessed USDA programs that are precisely the reason why we created these programs.





28/94

What Shirley would have done in that position is that she would have overseen, if you will,that effort to make sure that we are penetrating. In the position that I'm thinking of in terms of

the study that's going to come forward, I think she'll be able to also do that but maybe be ableto focus more of her time and dig deeper than she would if she had administrative

responsibilities, which is what she would have had as a senior executive.

QUESTION: Just to the question earlier, are you saying that you never spoke to anyone atthe White House right before Ms. Sherrod stepped down? And if you did speak to someone at

the White House, can you tell us who it was?

SECRETARY VILSACK: I didn't speak to anyone at the White House.

As I said earlier, this was my responsibility, and I had to take full responsibility for it, and Icontinue to take full responsibility for it. I will take it for as long as I live.

This was -- you know, I pride myself on the work that I do, and I know that I disappointedthe President, I disappointed this administration, I disappointed the country, I disappointed

Shirley. I have to live with that, and I accept that responsibility. That's what happens when youhave this kind of position.

My only hope is and my belief is that despite this difficulty, despite the challenges and the

problems that we've seen and that poor Shirley had to go through, maybe, just maybe this is anopportunity for the country to have the kind of conversation that Shirley thinks we ought tohave, and maybe, just maybe this will put a spotlight not necessarily on this incident, but with

all of this media attention, maybe there will be a spotlight on the efforts that USDA is makingin the area of civil rights, it is trying to solve and settle cases that have been outstanding -- forhow many years, Shirley? Twenty?

MS. SHERROD: Mm-hmm.

SECRETARY VILSACK: Twenty, almost 30 years.

MS. SHERROD: Yes.

SECRETARY VILSACK: It is trying to reopen cases that were, Joe, denied access and

review in previous years, is trying to engage in a cultural transformation, so that our workforceis modernized and as diverse as the country is and is engaged in an effort to try to get the

programs of USDA to the people who are most in need, not necessarily the best connected people but the people who are most in need.

So, to me, if we're going to make anything out of this, apart from Shirley's circumstances,that's what I have to do, and that's what I'm committed to doing. I am very serious about this. I

came into this office committed to trying to close the chapter of civil rights that has been adifficult chapter for USDA and a very sorted chapter. We want to create a new chapter, and this

unfortunate circumstance has at least given us the opportunity to have that conversation withthe nation, which, you know, if it's personal pain I have to endure for that, I'm happy to takethat if we get that message out.

QUESTION: I have a question for Shirley. A few weeks ago, you said you were going to

sue Blogger Andrew Breitbart. What's the status of that lawsuit, and do you still think thatyou're going to sue him?

MS. SHERROD: I really don't want to discuss that right now. I do think a suit will beforthcoming, but I don't want to discuss it at this time.

MODERATOR: I think that wraps it up.

#





29/94

USDA is an equal opportunity provider, employer and lender. To file a complaint ofdiscrimination, write: USDA, Director, Office of Civil Rights, 1400 Independence Avenue, SW,

Washington, DC 20250-9410 or call (800) 795-3272(voice), or (202) 720-6382 (TDD).

#





30/94


No. 1:11-cv-00477-RJL


Ex. B



31/94

NewscomRachel Slajda – July 20, 2010, 7:48 PM EDTThe USDA just released a statement from Agriculture Secretary Tom Vilsack defending his decision to demand the

resignation of Shirley Sherrod, the Georgia director of rural development, over a video posted on Big Government.

The statement:

Yesterday, I asked for and accepted Ms. Sherrod's resignation for two reasons. First, for the past 18

months, we have been working to turn the page on the sordid civil rights record at USDA and thiscontroversy could make it more difficult to move forward on correcting injustices. Second, state ruraldevelopment directors make many decisions and are often called to use their discretion. The controversy

surrounding her comments would create situations where her decisions, rightly or wrongly, would be

called into question making it difficult for her to bring jobs to Georgia.

Our policy is clear. There is zero tolerance for discrimination at USDA and we strongly condemn any actof discrimination against any person. We have a duty to ensure that when we provide services to the

American people we do so in an equitable manner. But equally important is our duty to instill confidencein the American people that we are fair service providers.

• Share

• Tweet 0

• Email• Bookmark ?

by TaboolaSponsored Content

Page 3 of 9Agriculture Secretary Stands By Asking For Sherrod's Resignation

2/7/2014http://talkingpointsmemo.com/muckraker/agriculture-secretary-stands-by-asking-for-sherro...



32/94


No. 1:11-cv-00477-RJL


Ex. C



33/94

Release No. 0383.10Contact:

USDA Office of Communications (202)720-4623

Press Briefing Regarding Shirley Sherrod Remarks by The Honorable TOM VILSACK,

Secretary of the U.S. Department of Agriculture

Wednesday, July 21, 2010

SECRETARY VILSACK : Good afternoon, everyone. Just a few minutes ago, I had the

opportunity and the privilege to speak with Shirley Sherrod over the phone. She was on herway to New York City, and I caught her in the airport.

In the conversation, I started off by extending to her my personal and profound apologies

for the pain and discomfort that has been caused to her and to her family over the course of thelast several days.

I wanted to give her the opportunity to express what I'm sure has been an extraordinary

range of emotions that she must have had and still probably does have, but she wasextraordinarily gracious. I wanted to make sure that she understood that I regretted the

circumstances and that I accepted full responsibility for them.

We talked briefly about the process, and then I asked if she would be interested in figuring

out a way forward that would take advantage of the extraordinary life experiences that she'shad. She has been a claimant in a case against the United States Department of Agriculture and

has experienced some of the prejudice and bias that we still today are dealing with in terms ofclaims against the Department.

She's had a broad range of experiences at USDA and understands many of the programs inUSDA. She has an extraordinary history of helping individuals in trouble, and, of course, she

has gone through a very difficult period in the last couple of days.

As a result of that experience, she has a unique set of skills, which I think would lendthemselves to assisting and helping USDA as we deal with trying to turn the page on our civilrights chapter, which has been difficult. For the last 18 months, we've spent a good deal of time

and effort in an effort to try to resolve thousands of claims that have been filed against theUSDA.

We're continuing that work, and we had an opportunity to discuss a unique opportunityhere at USDA that might be of interest to her. She asked for the opportunity to think about it,

which I certainly respected. I again expressed my deep regret and apology to her and to herfamily and advised her that I would be meeting with the press to publicly apologize to her andto express publicly my regret.

So, with that —

QUESTION: Secretary Vilsack, you say that you accept full responsibility. You clearlyseem to have jumped to conclusions, this agency did early on. Why did you jump to a

conclusion? Was there pressure from the White House to make a quick conclusion here?

SECRETARY VILSACK: No. There was no pressure from the White House. This was —

Page 1 of 5Press Briefing Regarding Shirley Sherrod Remarks by The Honorable TOM VILSACK, S...




34/94

QUESTION: Was there any communication between this agency —

SECRETARY VILSACK: No.

QUESTION: — anyone in this agency and the White House consulting on this?

SECRETARY VILSACK: This was — I want to make sure everyone understands. This

was my decision, and it was a decision that I regret having made in haste.

You ask why. For the last 18 months, we have really focused on trying to address the

longstanding history of civil rights claims against the Department. They're outstanding claims brought by black farmers, Hispanic farmers, women farmers, Native American farmers, and

these are not just a few incidences or a few isolated claims. These are tens of thousands ofclaims that have been brought against the Department.

I made it as a goal when I took this office that we would try to reverse that history, wewould try to close that chapter, that we would be a Department that would not tolerate, in any

way, shape, or form, discrimination. I still hold that belief very firmly, and I know Shirley doesas well.

I've learned a lot of lessons from this experience in the last couple of days, and one of thelessons I learned is that these types of decisions require time. I didn't take the time. I should

have. And, as a result, a good woman has gone through a very difficult period, and I'll have tolive with that for a long, long time.

QUESTION (CBS Evening News): Mr. Secretary, Christina Raffini from the CBSEvening News.

When you made the decision to dismiss Ms. Sherrod, had you seen her full remarks in their

full context, or had you only seen the clip that was posted on the Web?

SECRETARY VILSACK: I saw a transcript, because I was out of the office. I was in

Ohio. I saw a transcript.

QUESTION (CBS Evening News): Was that of the full speech, or was that the clip from

the website?

SECRETARY VILSACK: No, no, it wasn't a full speech. It was just of a portion of it.

QUESTION (CNN): Mr. Secretary?

SECRETARY VILSACK: Mm hmm.

QUESTION (CNN): Mr. Rodd has — this is Rachel Streitfeld from CNN. Mr. Rodd hastold CNN that Cheryl Cook called her and asked her to resign and that she said that the White

House had made this decision to put the pressure on her. Are we going to be able to hear fromMs. Cook? Is that true?

SECRETARY VILSACK: You know, I think that — first of all, I indicated to Shirley my

personal regret and my responsibility for the fact that she received multiple phone calls. That'sagain a problem that I could have corrected if I had done this job properly.

Having said that, there was no pressure from the White House here. This was my decision.I obviously was not party to those conversations. It may very well be that during the course of

the conversation, Ms. Cook indicated that a White House liaison had been contacted, but I don't

know that she necessarily indicated that there was any pressure because that was not the case.

This was something I decided, and I have to accept full responsibility for this.

QUESTION (CNN): So does that mean a White House liaison?





35/94

SECRETARY VILSACK: We have a number of people in the White House that wecommunicate with from time to time when there are issues, just to keep them informed, and I

— this was my decision. You know, I appreciate the concerns that folks are expressing, but thiswas my decision, and I made it in haste. And I learned from that.

QUESTION (Talking Points Memo): Evan McMorris Santoro, Talking Points Memo.

SECRETARY VILSACK: Yes, sir.

QUESTION (Talking Points Memo): What do you say to other employees of theAgriculture Department who are worried that something could come up about them on theInternet and they might end up being — facing the same kind of problems that Ms. Sherrod

faced?

SECRETARY VILSACK: Well, this is a — you know, this is a teachable moment for meand I hope a teachable moment for all of us. I think it is important to understand that we —each of us represents this Department, each of us represents the administration and the

President, and that we've got to be very careful about our actions and our words. And we haveto make sure that we think before we act.

I did not think before I acted, and for that reason, this poor woman has gone through a very

difficult time.

QUESTION (Talking Points Memo): Any vetting process to put in place before youmake a decision like this or ensure a better plan of how you might examine information before

you make a decision.

SECRETARY VILSACK: Sure. We went through a process today of reviewing preciselyas best we could what took place, and there will be changes. One thing is there needs to be amore deliberative process, obviously, and I need to do a better job of reaching out to get input

before a decision of this magnitude is made. That is a very serious lesson I learned.

I was very sensitive and remain sensitive to the civil rights issues involving thisDepartment. Again, when you're dealing with tens of thousands of claims — tens of thousandsof claims, it is something that needs to be resolved that hasn't been resolved and must be

resolved. And so we've done two things. We've made a concerted effort to try to resolve thesecases, and we've also begun a process of looking at our entire operation from an outside

consultant to take a look and see whether or not there are any other things that we're doing orshouldn't be doing that would potentially lead to claims in the future because we want to put a

stop to this.

This is a great agency, a lot of hard working people who care deeply. Shirley is one of

them. And they're proud of this agency, and this is part of our history that we need to close thechapter on. And that was foremost in my mind when I made a very hasty decision which I

deeply regret.

QUESTION (The Washington Post): Mr. Secretary, Ed O'Keefe for The Washington

Post.

SECRETARY VILSACK: Ed, go ahead. You've got the microphone.

QUESTION (The Washington Post): Well, yeah. And that was my question. Can you

elaborate a little more? And had you met Ms. Sherrod previous to today's conversation? And ifshe's so qualified, so uniquely qualified, why was she not given a more senior position

previously when you were, you know, hiring new officials with the new administration?

SECRETARY VILSACK: Ed, first of all, I may very well have visited with her or met

her in the context of a larger group meeting of Rural Development directors. I —

QUESTION (The Washington Post): You don't recall a specific, meeting her previously?





36/94

SECRETARY VILSACK: No. No, no. And I don't know for certain whether or not theRural Development job was one that she specifically sought. I know that she was

recommended for that job.

But, given her life experiences, as we begin the process of more aggressively doingadvocacy and outreach, this is a person who because of these experiences, having been

discriminated against and being a claimant, having gone through that process, having gonethrough the process that she described in great detail in her speech, having gone through the

last couple of days, she's uniquely positioned to be able to identify with a number of different people who might intersect with this agency in an effort to try to make sure that we don'tcontinue to make the same mistakes we made in the past.

QUESTION (The Washington Post): Well, would she be a senior advisor or an undersecretary?

SECRETARY VILSACK: I don't really want to go into detail. I'm happy to do this after

she's had an opportunity to think about this. I want to honor my commitment to her in ourconversation today to give her a chance to think about this.

I just simply want everyone to know that I value that experience, and I think there is a wayin which, despite the difficulties that I have put her through, there is an opportunity here for us,

for me personally to learn obviously, but for the Department to be strengthened. And, at theend of the day, I think that's what the people of this country would want. They want to do right by this woman, but they also want to make sure that this doesn't happen again, which is the

learning process, and if there is a way of strengthening the Department, then that's myresponsibility to explore it, and I'm hopeful that she sees it that way.

QUESTION (CNN): Secretary Vilsack, Kay Bolduan with CNN, one more time.

Have you spoken to President Obama about this?

SECRETARY VILSACK: No.

Alan?

QUESTION (Bloomberg News): Secretary Vilsack, on the decision that you will bediscussing about with her — Alan Bjerga from Bloomberg News — is this a position that had

been looked at previous to this incident, or would this be a new position created in part as aresult of the incident?

SECRETARY VILSACK: It's a position that needs to be filled.

QUESTION: Mr. Secretary —

SECRETARY VILSACK: Wait a minute.

Phil, did you want to ask a question?

QUESTION: Just to be clear, when you saw the transcript — I assume the staff provided

you with a transcript of the initial video clip. Were you aware that it was a partial transcript?Did they make you aware of it? Did you ask to see more of it?

SECRETARY VILSACK: I had not been aware of it, and I talked with Shirley about the

fact that she had e mailed the office the Thursday prior to this, to this video becoming an issue.

I did not receive the e mail because it was not addressed properly to me; in other words, thee mail address, there was a problem with the e mail address, so it never came to my attention.

QUESTION: So she re sent it the Thursday before?





37/94

SECRETARY VILSACK: She had received some indication of this clip being available,and she, in an effort to try to respond, sent an e mail to me which I did not get. It was not

addressed properly. It was also sent to the Deputy Secretary's attention. We did not discover ituntil after the fact, after this all came up, and that's one of the issues that we're going to address

in terms of this review.

QUESTION: Secretary, you're taking very deeply, personal responsibility —

SECRETARY VILSACK: Yes.

QUESTION: — for this today.

SECRETARY VILSACK: Yes.

QUESTION: Does that absolve — I mean, Barack Obama, President Obama is your boss.

Are you absolving the White House of any responsibility here in this situation?

SECRETARY VILSACK: You know, it's not my place to absolve anybody fromanything, other than to accept responsibility for what I did, and I am accepting that

responsibility with deep regret.

This is a good woman. She's been put through hell, and I could have done and should have

done a better job. I want to learn from that experience. I want the agency and Department tolearn from that experience, and I want us to be stronger for it. I want to renew the commitment

of this Department to a new era in civil rights. I want to close the chapter on a very difficult period in civil rights. So I accept responsibility, and I don't think — the buck stops with me, asit should.

QUESTION: Secretary, you decided to fire Ms. Sherrod, and then you notified a liaison atthe White House or someone did, and can you describe what their reaction then was to that?

SECRETARY VILSACK: I requested her resignation about the same time the sort of

things crossed, crossed in time.

I'm not certain in what period of time the White House was contacted, but, as these calls

were being made, the White House, through the Liaison's Office, was aware, but the decision todo what was done was done by me. It was my decision, and it was communicated. And one of

the lessons learned here is that this type of decision, first and foremost, should have beencommunicated by me. It should have been done in a much more personal way. It should have been done with far more thought, and it should have been done in far less haste. And all of

those are my responsibility, and I accept that responsibility.

And I asked for Shirley's forgiveness, and she was gracious enough to extend it to me, andfor that, I am thankful.

#

#





38/94


No. 1:11-cv-00477-RJL


Ex. D



39/94

Get Email Updates Contact Us

Home • Brief ing Room • Press Briefings Search WhiteHouse.gov

For Immediate Release July 21, 2010

The White House

Office of the Press Secretary

Press Briefing by Press Secretary Robert Gibbs, 7/21/2010

James S. Brady Press Briefing Room

2:36 P.M. EDT

MR. GIBBS: Mr. Feller.

Q Thanks, Robert. Can you tell us what the White House’s position is right now on Shirley Sherrod? Should

she get her job back?

MR. GIBBS: Well, let me -- Secretary Vilsack is -- has tried and is trying to reach Ms. Sherrod. When the

Secretary reaches her, he will apologize for the events of the last few days and they will talk about their next steps.

I think it is -- I think, clearly, that a lot of people involved in this situation, from the government’s perspective on

through, acted without all the facts. Now, as you saw Secretary Vilsack’s statements from last evening, now that we

have greater knowledge and a broader fact set, he is going to review all of those facts, and that's what he'll talk to

Ms. Sherrod about today.

Q So does the Secretary plan to offer her her job back?

MR. GIBBS: Well, again, I think that's something that -- the Secretary and Ms. Sherrod are going to talk through

those next steps.

Q What was the President’s involvement in this? Can you walk us through that, from when he first found out to

the present?

MR. GIBBS: I believe the President was briefed on this sometime yesterday, most likely in the morning. This

was, as you heard Secretary Vilsack say yesterday, a decision that was made by the U.S. Department of

Agriculture. The President was briefed yesterday and has been briefed obviously today as well.

Q So did he or anyone at the White House direct that she be fired?

MR. GIBBS: Not to my knowledge, no.

Q And to a lot of people trying to follow this story, they see a government employee who ends up losing her job

because of comments posted and a videotape that appears to be taken out of context -- it just looks bungled. Is

that a fair way to put it?

MR. GIBBS: Well, Ben, I think this is one -- I think this is a fair way to put it: Members of this administration,

members of the media, members of different political factions on both sides of this have all made determinations

and judgments without a full set of facts. I think that is wholly and completely accurate. I think without a doubt Ms.

Sherrod is owed an apology. I would do so certainly on behalf of this administration.

I think if we learn -- if we look back and decide what we want to learn out of this, I think it is, as I said, everybody

involved made determinations without knowing all the facts and all the events.

Q Why do you think that happened?

MR. GIBBS: I can't speak for everybody involved, but I think we live in a culture that things whip around, people

want fast responses, we want to give fast responses, and I don't think there’s any doubt that if we a ll look at this, I

think the lesson -- one of the great lessons you take away from this is to ask all the questions first and to come to

that fuller understanding. I say that, again, from the perspective of this administration; I say that from the

perspective of those that cover this administration, and those that are involved in the back and forth in the political

theater of this country.

WA T CH T HE VI DE O

July 21, 2010 5:39 PM

Press Briefing

LATEST BLO G P O STS

February 08, 2014 11:29 AM EST

The President Said 2014 Will Be a Year of Action. Here's What Happened Next:Since declaring in this year's State of the Union

that 2014 will be a "year of action," the President

has taken multiple executive actions to provide

more opportunity for more Americans.

February 08, 2014 6:00 AM EST

Weekly Address: Expanding Opportunityfor the American PeoplePresident Obama says he will do everything he

can to make a difference for the middle class and

those working to get into the middle class, so that

we can expand opportunity for all and build an

economy that works for the American people.

February 07, 2014 7:30 PM EST

Weekly Wrap Up: Students Get ConnectED,the President Makes a Movie, and MoreThis week, President Obama announced that 20

million students are getting next-generation

Internet at school, and made the first-ever

Presidential short film. The White House

announced it's hosting a Maker Faire and the First

Lady talked about her freshman year of college!

Check out what you missed in this week's wrap up.

VIEW ALL RELATED BLOG POSTS

Page 1 of 14Press Briefing by Press Secretary Robert Gibbs, 7/21/2010 | The White House

2/8/2014http://www.whitehouse.gov/the-press-office/press-briefing-press-secretary-robert-gibbs-721...



40/94

Q One last one on this. That apology from the Secretary, does that reflect the President’s view as well?

MR. GIBBS: Again, I did so just a few moments ago on behalf of this entire administration.

Yes, sir.

Q It does sound like you’ve spoken to the President about this.

MR. GIBBS: I have.

Q So what does he think of it? Does he agree that she was a victim of a rush to judgment?

MR. GIBBS: Again, I don’t think I’d be out here, Matt, giving you the answers that I just gave to Ben without

having those reflect the feelings of the President and the feelings of members of this administration.

Q Was he angry about the way this has transpired?

MR. GIBBS: Well, again, look, we -- decisions were made based on an incomplete set of facts. We now have a

more complete set of facts and a review is being done as it should be.

Q And what, if any, concern is there within the administration that the mishandling of this Sherrod affair could

hurt the President and the Democrats as well in an election year?

MR. GIBBS: I think this is -- your question encapsulates a little bit of what I was talking about a minute ago. I

know there is a -- we have this society and this culture now that’s pervasive in this town where everything is viewed

through the lens of who wins, who loses, how fast, by what margin. Look, a disservice was done; an apology is

owed. That’s what we’ve done. This administration has never looked at -- I think if you go well back into the

campaign -- never looked at a scoreboard at the end of each day to figure out where we stood.

Q Just one other subject. Financial regulations -- the President signed the bill today. He said that reform

would, in fact, bring certainty to the business community. But we have major business groups -- the Business

Roundtable, the Chamber of Commerce, the ABA -- saying that it actually brings greater uncertainty, could have

unintended consequences --

MR. GIBBS: How so? How so?

Q Where business -- that the uncertainty about how the new regulations will be implemented, the welter of

regulations that are being introduced --

MR. GIBBS: Well, I think there are people that believe that the regulations that governed our economy and our

financial industry up until the moment the President signed that piece of paper into law, that that was just fine; that if

some people take some risks, make some gambles, and we all owe money because of it, or if 8 million people lose

their job because of it, that's just fine.

The President has a different take on that. The President is glad that we are not approaching the second

anniversary of the financial collapse with the same rules in place that led to a tremendous retraction in economic

growth, more than 8 million jobs lost.

I think in many ways government is about choice and about choices. I will let those