Anteneh ABTEW, Appellant v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Appellee.
No. 14-5169.
United States Court of Appeals, District of Columbia Circuit.
Decided Dec. 22, 2015.
808 F.3d 895
Argued Sept. 17, 2015.
2. Equal Protection. Flytenow‘s Equal Protection challenge also fails. Flytenow makes no claim that the FAA‘s classification implicates any fundamental right or categorizes on any inherently suspect basis, but contends that the FAA‘s regulations cannot be sustained under rational basis review. See, e.g., Fed. Commc‘ns Comm‘n v. Beach Commc‘ns, Inc., 508 U.S. 307, 313-15, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). To succeed, Flytenow would have to negate “every conceivable basis which might support” the challenged classification. Id. at 315, 113 S.Ct. 2096 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973)) (internal quotation marks omitted).
The FAA‘s distinction between pilots offering expense-sharing services on line to a wide audience and those offering expense-sharing services to a limited group is justified: holding out to the public creates the risk that unsuspecting passengers, under the impression that the service and its pilots lawfully offer common carriage, will contract with pilots who in fact lack the experience and credentials of commercial pilots. Regulators have good reasons to distinguish between pilots who are licensed to offer services to the public and those who are not, as other courts have recognized. See Woolsey, 993 F.2d at 522.
3. Vagueness. Finally, there is no credible claim that the Interpretation is unconstitutionally vague. The FAA announced that pilots offering expense-sharing flights on Flytenow.com are holding themselves out to provide common carriage and are therefore subject to Part 119. The Agency was clear in its application of its regulation to Flytenow: “You suggest there is no holding out.... We disagree.... [Flytenow.com] is designed to attract a broad segment of the public interested in transportation by air.” J.A. 62. Flytenow is in no position to assert a facial vagueness challenge. “[A] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Holder v. Humanitarian Law Project, 561 U.S. 1, 18-19, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010) (quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)).
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For the foregoing reasons, Flytenow‘s petition for review is denied.
So ordered.
Peter R. Maier, Special Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Vincent H. Cohen Jr., Acting U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Fred E. Haynes, Assistant U.S. Attorney, entered an appearance.
Before: ROGERS, BROWN, and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge KAVANAUGH.
KAVANAUGH, Circuit Judge:
Foreign citizens who are unlawfully in the United States may be subject to removal. But those who fear persecution if they return to their home countries may seek asylum in the United States. Under American immigration law, those foreign citizens have two opportunities to press their case for asylum. First, they may petition the Department of Homeland Security to grant asylum. Second, if that fails, they may bring their case before an administrative immigration court.
In 2012, Anteneh Abtew, a citizen of Ethiopia, was in the United States unlawfully. He feared persecution if he returned to Ethiopia, and he therefore ap-
While his case was pending in the immigration court, Abtew filed a FOIA request for the Department‘s “Assessment to Refer” regarding his asylum application. An Assessment to Refer is a short document prepared by a Department official after interviewing an asylum applicant. The Assessment summarizes the asylum interview and assesses the applicant‘s credibility and consistency. It also recommends whether to grant asylum. The Department official who wrote the Assessment to Refer then forwards it to a supervisor, who in turn decides whether to grant asylum.
The Department of Homeland Security concluded that its Assessment to Refer regarding Abtew was exempt from FOIA under the deliberative process privilege encompassed within FOIA Exemption 5. Abtew then sued in the U.S. District Court. As relevant here, the District Court agreed with the Department of Homeland Security and ruled that the Assessment to Refer was exempt from disclosure under Exemption 5. We likewise agree. Our standard of review is de novo, and we affirm the judgment of the District Court.
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FOIA Exemption 5 exempts from public disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”
Here, the Department asserts the deliberative process privilege. This “privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.” Department of the Interior v. Klamath Water Users Protective Association, 532 U.S. 1, 8-9, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001). The privilege serves to preserve the “open and frank discussion” necessary for effective agency decision-making. Id. at 9, 121 S.Ct. 1060. The privilege protects “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (internal quotation marks omitted). As we have stated, officials “should be judged by what they decided, not for matters they considered before making up their minds.” Russell v. Department of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982) (brackets omitted).
To qualify for the deliberative process privilege, an intra-agency memorandum must be both pre-decisional and deliberative. See Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). “A document is ‘pre-decisional’ if it precedes, in temporal sequence, the ‘decision’ to which it relates.” Senate of the Commonwealth of Puerto Rico v. Department of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987); see also Coastal States, 617 F.2d at 866 (pre-decisional doc-
In Abtew‘s case, the Assessment to Refer was both pre-decisional and deliberative. The Assessment was pre-decisional; it was merely a recommendation to a supervisor. The supervisor, not the official writing the Assessment, made the final decision. The Assessment was also deliberative; it was written as part of the process by which the supervisor came to that final decision. The Assessment itself had no “operative effect.” Sears, 421 U.S. at 160, 95 S.Ct. 1504.
Abtew offers four primary objections to that straightforward analysis.
First, Abtew argues that even if the Assessment had been pre-decisional at one time, the Department‘s supervisor adopted it as the “final decision.” That is incorrect. The Department publicly explained its final decision through a Referral Notice. That Referral Notice represented the final decision. The Notice did not mention the Assessment at all.
Abtew responds that the supervisor who made the final decision initialed the Assessment to Refer. But initialing alone does not transform the Assessment into the Department‘s final decision. To be sure, an agency may forfeit Exemption 5‘s protection if it “chooses expressly to adopt or incorporate by reference an intra-agency memorandum previously covered by Exemption 5 in what would other-wise be a final opinion.” Sears, 421 U.S. at 161, 95 S.Ct. 1504; see also Afshar v. Department of State, 702 F.2d 1125, 1143 n. 22 (D.C. Cir. 1983). Initialing a memo may suggest approval of the memo‘s bottom-line recommendation, but it would be wrong and misleading to think that initialing necessarily indicates adoption or approval of all of the memo‘s reasoning. See Afshar, 702 F.2d at 1143 n. 22; see also Coastal States, 617 F.2d at 866 (deliberative process privilege is designed “to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency‘s action“). Neither the Supreme Court nor any court of appeals has held that initialing alone renders an otherwise exempt document non-exempt.1
Second, Abtew contends that the Assessment to Refer is not deliberative. In particular, he claims that there was no give-and-take in the agency‘s process. But the interviewing officer wrote the Assessment as a recommendation to a supervisor. A recommendation to a supervisor on a matter pending before the supervisor is a classic example of a deliberative document. See American Federation of Government Employees, Local 2782 v. Department of Commerce, 907 F.2d 203, 208 (D.C. Cir. 1990); see also Vaughn, 523 F.2d at 1144.
Third, Abtew asserts that the Department of Homeland Security is judicially estopped from invoking Exemption 5. Abtew maintains that the Department is estopped because it has not always invoked the deliberative process privilege for other Assessments. But the rule of judicial estoppel “generally prevents a party from
Fourth, apart from his FOIA claim, Abtew has sought access to his Assessment to Refer under the procedural rules that govern removal proceedings before the immigration court. See
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We affirm the judgment of the District Court.
So ordered.
KAVANAUGH
CIRCUIT JUDGE