956 F.3d 621
D.C. Cir.2020Background
- Hall & Associates filed a FOIA request seeking EPA records about the Agency’s decision not to follow the Eighth Circuit’s judgment in Iowa League of Cities (the alleged “nonacquiescence” decision).
- The EPA issued a public "Desk Statement" on November 19, 2013, saying Iowa League of Cities was binding only within the Eighth Circuit and that EPA would continue to apply its prior interpretations elsewhere—an acknowledged nonacquiescence position.
- Hall’s FOIA request produced ten responsive documents, mostly created November 14–18, 2013 (plus one Nov. 26, 2013 and one from 2010); EPA withheld most material under FOIA Exemption 5 (deliberative process) and in part under attorney-client privilege.
- The district court concluded the EPA’s nonacquiescence decision was made on November 19, 2013, held most withheld material was predecisional and deliberative, ordered limited disclosures, and denied Hall additional discovery and amendment requests.
- On appeal the D.C. Circuit held that a genuine dispute of material fact exists about when EPA actually adopted the nonacquiescence position (possible dates include Aug.–Nov. 2013 and Nov. 13 or 19), so summary judgment for the EPA was improper and the case was remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether withheld documents are predecisional for deliberative-process privilege | Hall: EPA adopted nonacquiescence before most documents were created, so they are postdecisional and not protected | EPA: No final decision had been made when documents were created, so they are predecisional and privileged | Vacated EPA summary judgment — material factual dispute about timing precludes resolving predecisional question on summary judgment |
| Proper application of Exemption 5 (deliberative/process and attorney-client) | Hall: EPA wrongly invoked privileges because decision already made | EPA: Withholdings justified by deliberative process; some entries also protected by attorney-client privilege | Court remanded to resolve which documents, if any, are postdecisional and therefore not privileged |
| Whether district court should have granted summary judgment for Hall (i.e., deny privilege wholesale) | Hall: District court rejected EPA’s claim and should have found privilege inapplicable as a matter of law | EPA: Timing is disputed; summary judgment for Hall is unwarranted | Denial of summary judgment for Hall affirmed; neither party entitled to summary judgment because of factual dispute |
| Motions to conduct discovery, amend complaint, and strike declaration | Hall: Sought discovery on timing, leave to amend to challenge search adequacy, and to strike Nagle declaration as misleading | EPA: Denied exhaustion for new search claim; Nagle’s statements were earnest legal views, not factual misrepresentations | Court left these discretionary matters to the district court on remand; found denial to amend was not erroneous due to exhaustion; denial to strike was within discretion |
Key Cases Cited
- Bartko v. Department of Justice, 898 F.3d 51 (D.C. Cir. 2018) (FOIA’s transparency purpose and limits)
- Judicial Watch, Inc. v. Department of Defense, 847 F.3d 735 (D.C. Cir. 2017) (deliberative-process privilege requires documents be predecisional and deliberative)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (Exemption 5 covers materials normally privileged in civil discovery)
- Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013) (underlying Eighth Circuit judgment giving rise to EPA’s nonacquiescence)
- Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55 (D.C. Cir. 2003) (agency bears burden to establish claimed FOIA exemption)
- Sussman v. United States Marshals Serv., 494 F.3d 1106 (D.C. Cir. 2007) (de novo review of FOIA summary judgment)
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (Vaughn index requirement to explain withholdings)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard referenced in amendment/futility analysis)