MEMORANDUM OPINION
KETANJI BROWN JACKSON, UNITED STATES DISTRICT JUDGE
“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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