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Agility Public Warehousing Company K.S.C. v. Department of Defense

United States District Court, District of Columbia

June 23, 2015

DEPARTMENT OF DEFENSE, et al., Defendants.


JOHN D. BATES, District Judge.

Whistleblowers sent two emails to the Defense Logistics Agency claiming that Kuwait & Gulf Link Transport Company ("KGL"), a government contractor, had illicit ties to Iran that ought to disqualify the company from winning certain contracts. Although the whistleblowers called themselves "Scott Wilson, " the emails were later traced back to Agility Public Warehousing-the plaintiff in this case and a competing government contractor. Aggrieved by these emails, KGL sued Agility in Pennsylvania state court, claiming defamation and tortious interference with contractual and other business relationships. Alas, the sultry details (whistleblowers! Iran! feuding contractors! defamation!) are being explored in state court.

Some more mundane aspects of this dispute have found their way here to the District Court for the District of Columbia. To defend itself in Pennsylvania, Agility sought information from DLA, demanding access to various documents and employee testimony through third-party subpoenas. DLA responded to these subpoenas, granting some requests for information, but denying others. All told, DLA eventually provided Agility with more than 1, 000 documents, and it has made two of its employees available for depositions.[1] Some of those documents have been produced by DLA in response to valid points raised by Agility. But disagreements remain: Agility claims that DLA has improperly withheld (in whole or in part) just over 100 additional documents, and it claims that this withholding rises to the level of arbitrary and capricious behavior under the Administrative Procedure Act. It has therefore filed a motion to compel production of these documents-which really amounts to a motion for partial summary judgment on its APA claim.[2] For the reasons explained below, and after in camera review of the disputed documents, the Court will grant Agility's motion in part and deny it in part.


Any analysis in this case must begin with a nod to United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). In that case, the Supreme Court explained that an agency employee could not be held in contempt for refusing to submit to a subpoena "on the ground that [he] is prohibited from making such submission by his superior." Id. at 467. In the wake of that case, the Department of Defense-like other federal government entities-promulgated regulations (called, appropriately, Touhy regulations) that govern responses to third-party subpoenas for documents or testimony. See, e.g., 32 C.F.R. § 97.6. The regulations make clear the Department's "policy that official information should generally be made reasonably available for use in Federal and State courts and by other governmental bodies unless the information is classified, privileged, or otherwise protected from public disclosure." Id . § 97.4 (emphasis added). Invoking these regulations, DLA claims that several "privileges" justify the withholdings at issue here, including the deliberative-process privilege, the attorney-client privilege, the work-product doctrine, and the criminal provisions of the Trade Secrets Act.

In cases like this, where "the agency refuses to produce the requested documents, the sole remedy for the state-court litigant is to file a collateral action in federal court under the APA." Houston Bus. Journal, Inc. v. Office of Comptroller of Currency, 86 F.3d 1208, 1212 (D.C. Cir. 1996). As an APA case, then, the question is whether "the government has refused production in an arbitrary, capricious, or otherwise unlawful manner." COMSAT Corp. v. Nat'l Sci. Found., 190 F.3d 269, 277 (4th Cir. 1999); see also Watts v. SEC, 482 F.3d 501, 508 n.* (D.C. Cir. 2007) (noting the arbitrary and capricious standard applies in this kind of case). And that determination turns on whether the agency properly applied its claimed privileges. See Puerto Rico v. United States, 490 F.3d 50, 70-71 (1st Cir. 2007) ("These materials fall within the scope of the... privilege.... [Therefore, ] the FBI was neither arbitrary nor capricious in withholding such information."). As the Court reviews the Agency's privilege claims, the usual APA burden of proof controls: the Court will "presume[] agency action to be valid, " and it is Agility's task to overcome this presumption. Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir. 1976); see also Puerto Rico, 490 F.3d at 61 (applying deference to agency withholdings).

Before diving into the merits, a brief roadmap might prove useful. The parties are currently at odds concerning (by the Court's count) 144 documents. For 136 of these documents, DLA has elected to withhold the document under the deliberative-process privilege, the attorney-client privilege, the work-product doctrine, or some combination of the three. This leaves eight documents, which DLA continues to withhold based on its non-disclosure responsibilities under the Trade Secrets Act. The Court will discuss each of these justifications, in turn.


Start with the deliberative-process privilege, which is an "ancient privilege... predicated on the recognition that the quality of administrative decision-making would be seriously undermined if agencies were forced to operate in a fishbowl." Dow Jones & Co. v. Dep't of Justice, 917 F.2d 571, 573 (D.C. Cir. 1990) (internal quotation marks omitted). The privilege covers materials "that are both predecisional and deliberative, " Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 151 (D.C. Cir. 2006); that is to say, documents that are "generated before the adoption of an agency policy" and that "reflect[] the give-and-take of the consultative process, " Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).

The Court is satisfied that the still-withheld documents fit this two-part description. First, the documents (and their redacted portions) reflect "pre-decisional" information. To establish a document's pre-decisional character, DLA need only "identify[] the decisionmaking process to which [the documents in question] contributed." Access Reports v. Dep't of Justice, 926 F.2d 1192, 1196 (D.C. Cir. 1991). And it has done so here. Indeed, the declaration of Daniel Poling (another associate general counsel at DLA) highlights "six categories of agency decisions" to which the challenged documents contributed: "responses to congressional inquiries"; "response[s] to inquiries by members of the media"; "response[s] to KGL's requests for documents under the [Freedom of Information Act]"; "response[s] to inquiries made by the Baragona family"; "responsibility determinations for KGL"; and "other miscellaneous agency actions or decisions." Poling Decl. [ECF No. 41-3] ("Decl.") at 11. Courts routinely protect information leading to decisions of this type. See, e.g., Krikorian v. Dep't of State, 984 F.2d 461, 466 (D.C. Cir. 1993) (protecting "draft letters" responding to public inquiries); Whitaker v. CIA, 31 F.Supp. 3d 23, 39-40 (D.D.C. 2014) (protecting "intermediate recommendations" regarding an agency's response to a FOIA request); Judicial Watch, Inc. v. U.S. Dep't of Homeland Sec., 736 F.Supp.2d 202, 208 (D.D.C. 2010) (protecting "email messages involving recommendations and evaluations for how to respond to Congressional and media requests for information").

Second, the redactions are also "deliberative" in nature, as they "reflect[] the give-and-take" of internal agency decision-making. Coastal States, 617 F.2d at 866. As Poling describes (and as the Court's in camera review confirms), the documents in question contain all manner of deliberative material. See Decl. at 11, 12. For example, many disputed documents are draft letters to members of Congress or to the Baragona family-and "[d]raft documents, by their very nature, are typically predecisional and deliberative." Exxon Corp. v. Dep't of Energy, 585 F.Supp. 690, 698 (D.D.C. 1983). Beyond these drafts, the disputed-document pile contains numerous email chains, which (if left unredacted) would reveal discussions between DLA staff regarding how best to respond to requests from the public. Consider, for example, documents 11888, 11892, and 11897, which are emails traded by attorneys discussing a request for information from KGL. Revealing this exchange would bring to light the preliminary thoughts of agency staff about how best to interpret this request. In other words, it would reveal exactly the kind of information that the deliberative-process privilege is meant to protect. See, e.g., Whitaker, 31 F.Supp. 3d at 39. Agility simply has not overcome the presumption that DLA properly withheld this material.

But that conclusion does not quite end things. As Agility points out, the deliberative-process privilege is "a qualified [one] and can be overcome by a sufficient showing of need." In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). "This need determination is to be made flexibly on a case-by-case, ad hoc basis, " and district courts should "tak[e] into account factors such as the relevance of the evidence, the availability of other evidence, the seriousness of the litigation, the role of the government, and the possibility of future timidity by government employees." Id. at 737-38 (internal quotation marks omitted). Weighing these factors, the Court concludes that Agility has not made the necessary showing.

For one thing, several factors favor application of the privilege in this case. As DLA asserts (and as Agility cannot seriously rebut), "[r]evealing these pre-decisional records would have a harmful impact on agency decision-making, as government personnel would be reticent to make honest comments, prepare and share draft documents, and formulate briefings on alternative courses of action." Decl. at 14. The Court's in camera review of the withheld documents confirms that this fear is no bogeyman-draft letters to members of Congress or to grieving family members, for example, are hardly the kind of thing most employees would like to see made public. Moreover, "the [agency] has already given [Agility] access to a tremendous amount of information" in the form of over 1, 000 documents. Hinckley v. United States, 140 F.3d 277, 286 (D.C. Cir. 1998). Indeed, additional information is on the way, as Agility will soon have the chance to depose two DLA employees. Finally, DLA has no formal role in the Pennsylvania litigation-it is not a party to that case, and (as Agility acknowledges) it "d[oes] not have a stake in the outcome' of the Pennsylvania litigation because KGL and DLA are not co-defendants, they are not working to devise and implement a cohesive legal strategy, and the outcome of th[at] action has no bearing upon any right or remedy of DLA.'" Pls.' Reply at 9 n.4 (quoting Ex. I to Pls.' Mot. for Summ. J. [ECF No. 28-10] at 5).

The remaining factors do little to shift the balance. Consider first the relevance of the agency's withheld information. As described, the Pennsylvania case involves defamation and tortious-interference claims, which largely stem from emails sent by "Scott Wilson" alleging that KGL had illicit ties to Iran. But as confirmed by the Court's in camera review, very few of the disputed documents have anything to do with those "whistleblower" emails. In fact, the vast majority of documents reflect discussions about congressional, media, and public inquiries that have nothing to do with "Scott Wilson." Any "relevance" of this information to Agility's Pennsylvania defense is therefore slim. Of course, this means that Agility's hopes rest almost entirely on the "seriousness" of the Pennsylvania litigation. And no doubt that case is an important one-especially for the parties involved. But this single factor cannot outweigh the others ...

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