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Hall & Associates v. U.S. Environmental Protection Agency

United States District Court, District of Columbia

May 22, 2018




         “The selective refusal of administrative agencies to conduct their internal proceedings consistently with adverse rulings of the courts of appeals-a practice commonly termed agency nonacquiescence-is not new in American law.” Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679, 681 (1989). As far as this Court can tell, agencies often publicly announce their decisions to limit the reach of an adverse circuit court ruling, see, e.g., Nat'l Envtl. Dev. Ass'n Clean Air Project v. EPA, 752 F.3d 999, 1003 (D.C. Cir. 2014), which means that, for the purpose of the Freedom of Information Act (“the FOIA”), records that reflect the agency's internal deliberations prior to its nonacquiescence announcement are fairly deemed both predecisional and deliberative, see 5 U.S.C. § 552(b)(5). Here, the Environmental Protection Agency (“the EPA”) maintains that it has not yet made a nonacquiescence decision with respect to a certain circuit court ruling that was handed down five years ago-a representation that Plaintiff Hall & Associates LLC (“H&A”), an environmental consulting firm, vigorously disputes. Thus, in order to evaluate the propriety of the EPA's invocation of the deliberative-process privilege with respect to H&A's request for records concerning the EPA's purported nonacquiescence, this Court must decide whether the agency has, in fact, made a nonacquiescence decision, and if so, when?

         These and other privilege issues arise in the context of the instant FOIA lawsuit, which H&A filed against the EPA in July of 2015. (See Compl., ECF No. 1.) Notably, at that point, H&A had been on a crusade against the EPA's regulation of a water treatment practice known as “blending” for at least 6 years. See Ctr. for Regulatory Reasonableness v. EPA, 849 F.3d 453, 454 (D.C. Cir. 2017). The details of the EPA's policies with respect to blending are not pertinent to the instant case; it suffices to say that, in 2013, in a case called Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013), the Eighth Circuit vacated an EPA rule pertaining to that practice at H&A's behest, on the grounds that the agency had effectively propagated a legislative rule regarding blending practices without engaging in the required notice and comment procedures, id. at 872-76. H&A believes that the EPA has decided not to apply the Eighth Circuit's decision on a nationwide basis, and the instant action pertains to one of H&A's many attempts to locate internal agency documents that reflect the EPA's decision-making in this regard.

         As relevant here, in the wake of Iowa League of Cities, H&A submitted a records request to the EPA under the FOIA, asking for documents relating to the agency's approach to blending outside of the Eighth Circuit. (See Compl. ¶¶ 2-3.) According to H&A, the EPA withheld responsive documents and information on the grounds that the attorney-client and deliberative-process privileges shield these documents from disclosure pursuant to FOIA Exemption 5. (See Id. ¶ 5.) And now, in the instant lawsuit, H&A accuses the EPA of improperly withholding those records because it contends that the agency has decided not to apply the Eighth Circuit's ruling nationally, and the requested records reflect as much, thereby revealing the “working law” of the agency. (See Id. ¶¶ 38-40; see also Id. ¶ 37 (asserting that “[the] EPA has clearly rendered a final decision regarding the national applicability of the ILOC decision” and that “H&A's Request [merely] sought the decision documents themselves, and the bases of this decision” because “[t]he regulated community has a right to know the Agency's working law”).)

         Before this Court at present are the parties' cross-motions for summary judgment along with several other procedural motions that H&A has filed. (See Mem. in Supp. of Def.'s Mot. for Summ. J. (“Def.'s Mem.”), ECF No. 43; Pl.'s Mem. in Supp. of Its Cross-Mot. for Summ J., Mot. for Leave to Amend Its Compl., Resp. in Opp'n to Def.'s Mot. for Summ. J., Mot. to Conduct Limited Disc. & Strike the Nagle Decl. (“Pl.'s Mem.”), ECF No. 44-1.) In its summary judgment motion, the EPA maintains that, because no nonacquiescence decision has been made to date, the deliberative-process and attorney-client privileges permit the agency to withhold the predecisional deliberations and confidential attorney-client communications contained within the documents H&A requests. (See Def.'s Mem. at 17-23.)[1] H&A responds that the EPA made its decision about how it would respond to Iowa League of Cities back in August of 2013, and thus the agency has wrongfully invoked the deliberative-process and attorney-client privileges to shield records that actually constitute the working law of the agency. (See Pl.'s Mem. at 20-38.)

         On March 31, 2018, this Court issued an Order that GRANTED IN PART and DENIED IN PART both parties' cross-motions for summary judgment, and that also DENIED (as moot or otherwise) H&A's requests to amend its complaint, conduct discovery/strike a declaration that the agency had submitted, and accelerate the Court's consideration of this case. (See Order, ECF No. 68.) This Memorandum Opinion provides the Court's reasons for that Order. In short, after reviewing the parties' briefs, examining the record, and conducting an in camera review of the disputed documents in this case, this Court concludes that the EPA made a nonacquiescence decision with respect to the Eighth Circuit's Iowa League of Cities opinion as of November 19, 2013. Yet, because that decision post-dated the creation of the vast majority of the nine documents that remain in dispute in this case, and also because most of the redactions in these documents shield the authors' subjective opinions, this Court concludes that the EPA's withholdings are largely justified, with a few exceptions. In reaching this conclusion, the Court also rejects the argument that these documents constituted the working law of the agency, or were officially acknowledged by the EPA; again, with one minor exception. The Court has further concluded that the EPA has not acted in bad faith in this litigation or in its handling of H&A's FOIA request, and thus, H&A's motion to strike, motion for discovery, and request for sanctions have been denied.

         I. BACKGROUND

         A. H&A's FOIA Request

         On November 13, 2014, H&A filed a FOIA request with the EPA (see FOIA Request, Ex. A to Renewed Decl. of Deborah Nagle, ECF No. 43-2), seeking an array of documents that had been prepared for, or were created by, two high level agency officials-Nancy Stoner, the EPA's former Acting Assistant Administrator for Water, and Mark Pollins, the Director of the EPA's Water Enforcement Division. The documents that H&A requested pertained to two national Clean Water Act seminars that occurred in November of 2013 and April of 2014. (See Id. at 2-3.) Specifically, H&A sought

(1) [a]ny EPA records which discuss whether or not Ms. Stoner's November 2013 statement was accurately reported in the trade press;
(2) [a]ny talking points and/or other materials prepared for Ms. Stoner and/or Mr. Pollins in advance of their presentations at either of the above-referenced events or used by them at the events;
(3) [a]ny presentation materials EPA distributed as part of the aforementioned presentations;
(4) [a]ny records that either Ms. Stoner or Mr. Pollins created as part of their respective presentations; and
(5) [a]ny records that either Ms. Stoner or Mr. Pollins created in preparation for their respective presentations.

(Id. at 3.)

         After speaking with the EPA about the scope of this request, H&A agreed to narrow its FOIA request to the records in the above categories that pertain to the “EPA's position on the national applicability of the Eighth Circuit decision in Iowa League of Cities[.]” (Scope Emails, Ex. B. to Renewed Decl. of Deborah Nagle, ECF No. 43-3, at 3-4.) Then, on January 22, 2015, the EPA issued its response, identifying ten documents that were responsive to H&A's request. (See EPA Response, Ex. C to Renewed Decl. of Deborah Nagle, ECF No. 43-4, at 2-3.) Based on the EPA's Vaughn Index (see Vaughn Index, Ex. K to Renewed Decl. of Deborah Nagle, ECF No. 43-12, at 2-16), as well as this Court's review of the unredacted versions of these records, those ten documents are generally described as follows.

         Document 1 is an email that was transmitted to a number of EPA officials on November 15, 2013, suggesting a meeting, with the subject line “Iowa League of Cities.” Document 1(a), also dated November 15, 2013, is an early draft of talking points discussing the implications of the Iowa League of Cities decision and possible approaches that the EPA could take in light of that decision. Document 1(b) is a draft memorandum that further discusses how Iowa League of Cities could impact the EPA's regulations and its future decision-making activities. Document 2 is an email sent from Nancy Stoner to EPA staff members and attorneys on November 14, 2013, discussing the Iowa League of Cities decision, and Document 3 is an email from November 15, 2013 in response. Document 4 is an email exchange between assorted employees at EPA Headquarters, dated November 18, 2013, transmitting certain other documents- (Documents 4(a) and 4(b))-to supervisors at EPA Headquarters. Document 4(a) is a subsequent version of Document 1(a), while Document 4(b) consists of a draft document that discusses various regulatory approaches that the EPA can take in regulating water quality. Document 5 is a days-long email chain (spanning November 15 through 18) among various EPA employees and attorneys, regarding how the agency's eventual views on Iowa League of Cities should be communicated to the public. Finally, Document 6 is a series of emails, dated November 26, 2013, among staff members of the EPA's Office of Enforcement and Compliance Assurance within the Office of Water, that discusses comments that Nancy Stoner made at a seminar on November 20, 2013.

         In the context of the instant lawsuit, the EPA has asserted that FOIA Exemption 5-and in particular, the attorney-client and deliberative-process privileges-apply to the contents of these ten documents, in whole or in part, and as a result, the agency has released one document in full, [2] withheld two documents in full, and produced seven others with partial redactions. (Renewed Decl. of Deborah Nagle, ECF No. 43-1, ¶ 9.) In response, H&A launched an administrative appeal, where it met with partial success. (See id.; see also Appeal Letter, Ex. E to Renewed Decl. of Deborah Nagle, ECF No. 43-6, at 2-8; Appeal Determination, Ex. F to Renewed Decl. of Deborah Nagle, ECF No. 43-7, at 2-4.) Even so, the EPA continued to withhold two documents in full and portions of seven other documents, relying upon the deliberative-process privilege to justify its withholdings in Documents 1(a), 1(b), 2, 3, 4, 4(a), 4(b), 5, and 6, and also the attorney-client privilege to support its withholdings in Documents 1(b), 2, 3, and 5. (See Renewed Decl. of Deborah Nagle ¶¶ 10-12; see also Appeal Determination at 2- 3.)

         B. Procedural History

         H&A filed the instant lawsuit on July 6, 2015. (See Compl.) The parties have now filed cross-motions for summary judgment with respect to H&A's claim that the EPA has wrongfully withheld agency records in violation of the FOIA, and these motions ripened on October 21, 2016. (See Def.'s Reply in Supp. of Its Mot. for Summ. J. & Opp'n to Pl.'s Cross-Mot. for Summ J. (“Def.'s Reply”), ECF No. 54; Pl.'s Reply in Supp. of Its Cross-Mot. for Summ. J. & Mot. for Leave to Amend Its Compl. (“Pl.'s Reply”), ECF No. 57.)

         In the main, as mentioned above, the parties' summary judgment briefs present granular arguments regarding whether or not the EPA correctly invoked Exemption 5's attorney-client and deliberative-process privileges to withhold information contained in nine documents. Significantly, the EPA insists that its withholdings are proper primarily because it has not yet made a decision as to whether or not it will apply the Eighth Circuit's decision in Iowa League of Cities on a nationwide basis (see Def.'s Mem. at 5; Def.'s Reply at 4, 20), which it says means that most of the withheld information is predecisional and deliberative, for the purposes of the deliberative-process privilege, and the agency further claims that some of the documents also enjoy the protection of the attorney-client privilege, because they contain confidential communications between EPA staff members and agency attorneys (see Def.'s Mem. at 17-23; Def.'s Reply at 7-20). For its part, H&A argues that the EPA has, in fact, made a nonacquiescence decision, and according to H&A, the agency did so in August of 2013, when the agency decided not to seek certiorari in the Iowa League of Cities case. (See Pl.'s Mem. at 27; Pl.'s Reply at 4-7.) Thus, H&A argues that the documents that the EPA has withheld in this case constitute the working law of the agency and cannot be withheld under either the deliberative-process or attorney-client privileges. (See Pl.'s Mem. at 23-29; Pl.'s Reply at 16-18.)

         H&A has also filed a number of ancillary motions, one of which maintains that the EPA conducted an unreasonable search for records in response to H&A's request. (See Mot. to Am./Correct Compl., ECF No. 46.) Because H&A seeks to make this allegation now, for the first time in the history of this FOIA dispute, H&A's motion seeks permission to amend the complaint to add a search-related claim. (See Id. at 1.) This Court denied that motion in its Order of March 31, 2018; here the Court explains that the motion was denied because H&A's search claim was never raised with the agency and thus is manifestly unexhausted. See DiBacco v. U.S. Army, 795 F.3d 178, 184 (D.C. Cir. 2015) (“Exhaustion of th[e] administrative appeal process is a prerequisite to seeking judicial relief, unless the agency has not responded within the statutory time limits.”); DeBrew v. Atwood, 792 F.3d 118, 123 (D.C. Cir. 2015) (“Requiring [the plaintiff] to follow up with the [agency] before filing suit is consistent with, indeed essential to, accomplishing the ‘purposes of exhaustion[.]'”). The Court addresses H&A's other ancillary motions-which, in essence, seek to punish the EPA because H&A believes that the EPA has litigated this case in bad faith (see Pl.'s Mem. at 38-40; Pl.'s Reply at 19-20)-below. (See Part III.D, infra (analyzing H&A's joint motion to strike and motion for discovery (ECF No. 47), and addressing the implicit request for sanctions to be imposed against the EPA's attorneys).)

         C. The Record Before The Court

         To substantiate their respective contentions about the EPA's alleged nonacquiescence decision, the parties have produced a plethora of affidavits and exhibits. The documents that have been submitted to the Court-which include unredacted copies of various records responsive to H&A's FOIA requests-demonstrate that, beginning in the summer of 2013, the staff at EPA headquarters actively discussed how the agency should respond to the Iowa League of Cities decision of March 25, 2013, both inside and outside of the Eighth Circuit. The discussion appears to have commenced in earnest in July, when the EPA considered whether or not to seek a writ of certiorari in the Iowa League of Cities case. (See EPA July 31, 2013, Email, Ex. 2 to Pl.'s Mem., ECF No. 44-3, at 12.) The parties here hotly contest when, if at all, the ‘what-shall-we-do' period of discussion ended. As for the nature of the discussion, public documents reflect that EPA employees specifically debated, among other things, whether the agency should “formally or informally non-acquiesce” or should otherwise undertake to adopt “any formal position on the 8th Circuit's substantive conclusions[.]” (EPA's Oct. 29, 2013, “ILOC Next Steps” (“Next Steps Memo”), Ex. 8 to Pl.'s Mem., ECF No. 44-3, at 42; see also EPA's Oct. 29, 2013, “Moving Forward” Action Plan, Ex. 9 to Pl.'s Mem., ECF No. 44-3, at 45.)

         Notably, in mid-November of 2013, EPA officials began to make a series of public statements regarding the agency's post-Iowa League of Cities approach to blending. These statements were issued in a variety of contexts: for example, at an EPA-led conference relating to the regulation of clean water practices that took place on November 13, 2013, a member of the EPA's Office of General Counsel stated that the Iowa League of Cities decision will “only be binding to the Eighth Circuit [s]tates[.]” (7th Annual 4-State Gov. Affairs Meeting Minutes, Ex. 11 to Pl.'s Mem., ECF No. 44-3, at 80.) Yet, EPA Headquarters staff members at that conference also indicated that it still “[did not] have everything figured out yet” with regard to its post-Iowa League of Cities approach. (Id.)

         Next, on November 19, 2013, the EPA released a written “Desk Statement” (i.e., a press release) to Bloomberg News in anticipation of the agency's subsequent National Association of Clean Water Act (“NACWA”) law seminar. That Desk Statement stated that

[t]he Eighth Circuit's interpretation in [Iowa League of Cities] . . . is legally binding within the Eighth Circuit. Outside of the Eighth Circuit, EPA will continue to work with States and communities with the goal of finding solutions that protect public health and the environment while recognizing economic constraints and feasibility concerns, consistent with the Agency's existing interpretation of the regulations.

(EPA Desk Statement, Ex. 16 to Pl.'s Mem., ECF No. 44-4, at 41.) The following day, while at the NACWA seminar, Nancy Stoner explained that the EPA intended to implement the Iowa League of Cities decision inside the Eighth Circuit, but, “[o]utside the Eighth Circuit, ” the EPA would examine situations “on a case-by-case [basis]” in order “to see what makes sense[.]” (Bloomberg BNA Article, Ex. 17 to Pl.'s Mem., ECF No. 44-4, at 43.) Finally, on November 22, 2013, EPA Headquarters sent an email forwarding the Bloomberg News Desk Statement to the EPA's regional offices (EPA Headquarters Nov. 22, 2013, Email, Ex. 20 to Pl.'s Mem., ECF No. 44-4, at 54), along with the remark that the contents of that statement applied “[f]or the interim, until we are able to roll out a clear message” (Minutes from EPA's Nov. 21, 2013 Branch Chief Call with Transmittal Email, Ex. 19 to Pl.'s Mem., ECF No. 44-4, at 51).

         As explained, the parties' summary judgment motions require this Court to decide whether the EPA has, in fact, made a decision to nonacquiesce with respect to the Eighth Circuit's Iowa League of Cities opinion, and if so, when, as is necessary for the Court to evaluate the agency's contention that records concerning the agency's response are predecisional and deliberative, and are therefore subject to withholding pursuant to the deliberative-process privilege, and also the attorney-client privilege under FOIA Exemption 5.

         II. ...

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